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.
“The headlines from Attorney General Jeff Sessions’s testimony before the Senate Judiciary Committee on Wednesday focused on his refusal to answer questions about his conversations with President Donald Trump and his declaration — dragged out of him with all the elegance of a tooth extraction — that he had not yet been interviewed by special counsel Robert Mueller. Lost in the back-and-forth and amid focus on his testy exchange with Sen. Al Franken about Russian contacts, however, was a truly damning moment about Sessions’s tenure at the Justice Department thus far.
That moment came not in the context of hostile questioning from a committee Democrat but in a perfectly cordial exchange with Republican Sen. Ben Sasse.
With Midwestern gentility, the Nebraska senator told Sessions that he wasn’t going to grill him about Russian interference in the 2016 presidential election. Rather, he said, “I would like to continue talking about the Russians but in the context of the long-term objectives that Vladimir Putin has to undermine American institutions and the public trust.… We face a sophisticated long-term effort by a foreign adversary to undermine our foreign policy and our ability to lead in the world by trying to undermining confidence in American institutions.”
Russia will be back in the 2018 and 2020 election cycles, Sasse argued. “We live at a time where info ops and propaganda and misinformation are a far more cost-effective way for people to try to weaken the United States of America than by thinking they can outspend us at a military level.… So as the nation’s chief law enforcement officer and as a supervisor of multiple components of our intelligence community … do you think we’re doing enough to prepare for future interference by Russia and other foreign adversaries in the information space?”
You’d think this question would be a golden opportunity for Sessions. After all, if you’re a man who has had some — ahem — inconvenient interactions with former Ambassador Sergey Kislyak, you might relish the chance to answer a question about what you are doing to prevent Russian interference in the future, as a chance to go on offense and show how serious you are about tackling a problem that has undermined your reputation.
But Sessions’s answer did not inspire confidence: “Probably not. We’re not. And the matter is so complex that for most of us, we are not able to fully grasp the technical dangers that are out there.”
Sessions acknowledged “disruption and interference, it appears, by Russian officials” and noted that it “requires a real review.” But he said nothing about what the department is doing to ready itself.”
Read the rest of the quite damning article at the above link. If you are not a Foreign Policy subscriber, you can register for five free articles per month and read this article in full!
When your entire agenda is driven by a White Nationalist xenophobic program to “turn back the clock” on the rights of large segments of the American public (whose views you don’t happen to share and whose contributions to America you don’t value), attention to what you are supposed to be doing is an afterthought, at best. At worst, like many of the Trump appointees, Sessions is at DOJ to undermine and potentially destroy the entire U.S. Justice system as we know it.
The Trump Administration, and its “fellow travelers” among GOP politicos and voters, is the biggest threat to our national security and the future of American Democracy.
“Immigrants facing deportation fare far better if they have a competent attorney representing them. For example, studies show that for asylum seekers, representation generally doubles the likelihood of being granted asylum.
For many, the ability to secure competent representation in immigration court is truly a matter of life and death. Yet fewer than 30 percent of detained individuals and only two thirds of non-detained individuals are represented in their removal case.
Meanwhile, the government is represented by an attorney in every single case.
While immigrants have a right to counsel in deportation proceedings if they can afford one, they do not have a right to counsel at the government’s expense.
New data released this week by the Transactional Records Access Clearinghouse (TRAC) confirms that a noncitizen’s ability to obtain a lawyer—and the opportunity to meaningfully defend him or herself against deportation—is determined primarily by nationality and whether or not he or she is detained.
The data analysis reflects what detained immigrants, their family members, and the very small number of attorneys who do detained work already know too well—detained immigrants who attempt to retain an attorney face substantial obstacles.
Because they are detained, they are unable to travel to meet with an attorney in person and must rely on telephones in the facility to call potential attorneys. Phone calls can be prohibitively expensive and phones are often not easily accessible.
Attorney visitation rules vary by facility—many of which are located in rural areas, hours from the attorney’s office. Further, many detained immigrants are simply unable to afford a competent attorney.
. . .
The TRAC data also shows that Mexican immigrants are disproportionately disadvantaged in immigration court. They have the highest detention rate (78 percent), yet the lowest representation rate of all nationalities—only 33 percent according to the report.
More than anything, the recent TRAC numbers emphasize the dire need for increased access to counsel for all immigrants facing deportation, particularly those who are detained.”
Read the complete article at the link.
The policies being followed by Sessions and the DHS — which encourage more detention in out of the way locations — are specifically designed to diminish representation, increase removals, and deny due process to the most vulnerable among us.
In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.
As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.
“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.
The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.
If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.
“It’s a miracle that I am alive to tell this story,” the supervisor said.
Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.
“They ran from the police because they were terrified,” she said. “They panicked.”
A truce ends
President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.
“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.
The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.
On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.
Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.
The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.
The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”
The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.
Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.
The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.
“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.
The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.
“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”
This is only a small part of a lengthy article which is available at the above link.
This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.
“Attorney General Jeff Sessions Delivers Remarks About Carrying Out the President’s Immigration Priorities
Friday, October 20, 2017
Remarks as prepared for delivery
Thank you for that kind introduction Richard. You’ve been a crime fighter here in this office for over three decades. Thank you for your dedicated service.
I would also like to thank and recognize our selfless and dedicated law enforcement here who put their lives on the line every and who run toward danger for the benefit of us all.
On behalf of President Trump, it is an honor to be here with you all – with the selfless and courageous men and women of law enforcement. President Trump and this Department of Justice understand your mission. The President has directed us to support that mission and support you. And we are committed to doing that.
Donald Trump ran for office as a law-and-order candidate and now he is governing as a law-and-order President. Under his strong leadership, we are finally getting serious about crime and the rule of law. And we are finally getting serious about illegal immigration.
We have the most generous immigration laws in the world. And for decades we have always pulled back from effective enforcement.
But earlier this month, the President released his principles for fixing our immigration system. Let me just say: they are a breath of fresh air. For decades, the American people have been begging and pleading with our elected officials for an immigration system that is lawful and that serves our national interest. Now we have a President who leads.
The principles he laid out deal with every aspect of our immigration problems—everything from border security to interior enforcement to closing loopholes in our asylum program. It’s the kind of bold agenda that the American people have been waiting for. It is reasonable and it will work. And this is a critical point: this is not hopeless; it can be done!
First of all, the President is determined to finally build a wall at our Southern border. This will make it harder for illegal aliens to break into this country. For many, they will decide not to come illegally. But more importantly, the wall will send a message to the world that we enforce our laws. It sends a message: finally we mean it.
And to better do that, President Trump has proposed hiring more than 10,000 new ICE officers, 1,000 new ICE attorneys, 300 new prosecutors, and nearly 400 new immigration judges. He has proposed switching to a more merit-based system of immigration like they have in Canada. That means welcoming the best and the brightest but turning away gang members, fraudsters, drunk drivers, and child abusers. This merit-based system would better serve our national interest because it would benefit the American people. That’s what this agenda is all about. We can’t accept everybody—only people who will flourish.
And that’s why the President supports mandating the use of the E-verify system, which is an internet based system that allows employers to verify that those they hire are authorized to work in the United States.
Under the President’s plan, it would be illegal to discriminate against American workers in favor of foreign workers.
We need this agenda. And Texans know that better than just about anybody.
I’m sure everyone in this room remembers Houston police officer Kevin Will. An illegal alien who had been deported twice drove drunk and hit Officer Will at about 90 miles per hour. Officer Will’s last words were telling someone to get out of the way of the car. He died protecting innocent people. And when he died, his wife was pregnant with their first child.
The open-borders lobby talks a lot about kids—those who are here unlawfully. But open-borders policies aren’t even in their interest either. After the previous administration announced the Deferred Action for Childhood Arrivals—or DACA—policy in 2012, the number of unaccompanied children coming here nearly doubled in one year. The next year, it doubled again.
I doubt that was a coincidence. DACA encouraged potentially tens of thousands of vulnerable children to make the dangerous journey North. That had terrible humanitarian consequences—and Texans know that firsthand.
Earlier this month, Border Patrol arrested two young men who had benefitted from DACA, for allegedly attempting to smuggle illegal aliens into Laredo.
Just a few days later, another beneficiary of DACA was charged with the murder of an 18-year old girl. In total, 2,000 DACA recipients have had their status withdrawn.
The President wants to stop the incentives for vulnerable children to come here illegally. He began to do that last month when he ended the DACA policy.
The President has also laid out a plan to close loopholes that are being exploited in our asylum program.
Under the previous Administration, the federal government began releasing illegal aliens who claimed to be too afraid to return home. Unsurprisingly, the number of these claims skyrocketed nearly 20-fold in eight years from 5,000 in 2009 to 94,000 now. And after their release, many of these people simply disappeared.
It’s too easy to defraud our system right now—and President Trump is going to fix that. The President’s plan to close the loopholes will stop the incentive for false asylum claims.
President Trump is also confronting the state and local jurisdictions that have undertaken to undo our immigration laws through so-called “sanctuary policies.”
Such policies undermine the moral authority of law and undermine the safety of the jurisdictions that adopt them. Police are forced to release criminal aliens back into the community—no matter what their crimes. Think about that: Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place. They should—according to law and common sense—be processed and deported.
These policies hinder the work of federal law enforcement; they’re contrary to the rule of law, and they have serious consequences for the law-abiding Texans.
Earlier this month, an illegal alien in Kansas pled guilty to reckless driving that killed a law enforcement officer conducting a traffic stop. He tested for a blood alcohol content twice the legal limit. The officer who was killed—Deputy Brandon Collins—had two young daughters.
The illegal alien who killed Deputy Collins had already been arrested twice for driving-related offenses—including a previous drunk driving conviction. Clearly, he had been in police custody, but no one turned him over to ICE.
The politicians behind “sanctuary” policies say that forcing police officers to release criminal aliens back onto the streets will somehow increase community trust.
But that does not make sense to me. Would releasing someone who had been arrested numerous times into your community give you more confidence in law enforcement?
Would learning that a local district attorney actually charges illegal aliens with less serious crimes than Americans to evade federal deportation make you believe they are trying to make your neighborhood safer? Would forcing federal officers to track down criminal aliens on your street instead of safely in the jails make you believe we value your community?
We all know law enforcement is not the problem. You risk your lives each day in service of the law and the people you protect. Cooperation, mutual respect is critical. Disrespecting our law enforcement officers in their lawful duties in unacceptable.
The problem is the policies that tie your hands.
Yet, rather than reconsider their policies, sanctuary jurisdictions feign outrage when they lose federal funds as a direct result of actions designed to nullify plain federal law. Some have even decided to go to court so that they can keep receiving taxpayer-funded grants while continuing to impede federal immigration enforcement. We intent to fight this resolutely.
We cannot continue giving federal grants to cities that actively undermine the safety of federal law officers and intentionally frustrate efforts to reduce crime in their own cities.
These jurisdictions that knowingly, willfully, and purposefully release criminal aliens back into their communities are sacrificing the lives and safety of American citizens in the pursuit of an extreme open borders policy. It’s extreme and open borders because if a jurisdiction won’t deport someone who enters illegally and then commits another crime then who will they deport.
This isn’t just a bad policy. It’s a direct challenge to the laws of the United States. It places the lives of our fine law enforcement officers at risk and I cannot and will not accept this increased risk because certain politicians want to make a statement.
Our duty is to protect public safety and protect taxpayer dollars and I plan to fulfill those duties.
The vast majority of Americans oppose “sanctuary” policies. According to one poll, 80 percent of Americans believe that cities should turn over criminal aliens to immigration officials.
The American people are not asking too much, and neither is the Department of Justice. Federal law enforcement wants to work with our partners at the state and local level. We want to keep our citizens safe.
Fortunately, in President Trump, we have strong leadership that is making a difference.
Since he took office, border crossings have plummeted by nearly a quarter—even as our economy has been booming. This past fiscal year, Border Patrol conducted half of the number of arrests as the previous one, and one-fifth of the number of arrests they made a decade ago.
Now, someone might say, that decline is because they’re just not catching people. But that’s just not true.
Border Patrol’s tactics and their technology have been refined and are only getting better. The Department of Homeland Security believes that they are catching a greater share of illegal aliens than ever—more than four out of five.
So the data show clearly: President Trump’s leadership is making a difference. Would-be lawbreakers know that we are restoring the rule of law and enforcing our immigration laws again.
And under President Trump’s immigration principles, the Departments of Justice and Homeland Security will stop rewarding sanctuary cities with taxpayer dollars.
If these cities want to receive law enforcement grants, then they should stop impeding federal law enforcement.
In Texas, you have taken a leadership role on this issue.
I want to commend the state legislature for passing Senate Bill Four with strong majorities in both chambers, and thank Governor Abbott for signing it into law.
I am well aware that this law has its critics. And I am more than familiar with their line of criticism. But the facts of the case are clearly on Texas’ side.
Earlier this month, the Department of Justice filed an amicus brief in this case. We believe that the outcome is important not just to the state of Texas, but to the national interest. The integrity of our immigration laws is not a local issue—it is a national issue.
I am confident that Texas will prevail in court. But I would urge every so-called “sanctuary” jurisdiction to reconsider their policies. So-called “sanctuary” policies risk the safety of good law enforcement officers and the safety of the neighborhoods that need their protection the most. There are lives and livelihoods at stake.
If we work together, we can make our country safer for all our residents—native born and lawful immigrant alike. Working together requires ending “sanctuary” policies.
The Department of Justice is determined to reduce crime. We will not concede a single block or street corner in the United States to lawlessness. Nor will we tolerate the loss of innocent life because a handful of jurisdictions believe they are above the law.
And so to all the law enforcement here—federal, state, and local—thank you for all that you do. President Trump is grateful; I am grateful, and the entire Department of Justice is grateful for your service. We have your back and you have our thanks.
Thank you, and God bless you.”
Sessions is proposing to make the U.S. Immigration Court the largest, and certainly most “out of control” Federal Judiciary. And he also wants 10,000 more agents for the Internal Security Police (a/k/a/ DHS) that also runs the American Gulag. Sure sounds like a prescription for turning America into something like “Putinia.” That’s the White Nationalist blueprint and why they are so cozy with repressive, non-democratic rulers like Putin.
I’m exhausted for the week. Going to let someone else come up with all the numbers and studies showing how bogus Sessions’s “Alien Crime Wave” and attempt to falsely link DACA to an increase in kids fleeing gang violence to save their lives.
REALITY CHECK: At some point this grandiose plan for endless personnel and resources devoted largely to keeping needed workers and legitimate refugees out of the U.S. will have to be approved by Congress. And, it promises to be a “Budget Buster.”
U.S. District Court Judge Susan Bolton ruled Thursday that the pardon wasn’t a reason to erase Arpaio’s guilty verdict.
“The power to pardon is an executive prerogative of mercy, not of judicial record-keeping,” she wrote. “The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared defendant from any punishment that might otherwise have been imposed. It did not, however, revise the historical facts of this case.”
Read the rest of the story at the above link.
You can lie to your heart’s content, but you can’t rewrite history, as Joe and the rest of his racist/White Nationalist cronies in the Trump Administration are finding out.
“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum
by JASON DZUBOW on OCTOBER 17, 2017
In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.
Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.
While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”
Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”
First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.
Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.
And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.
None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.
The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.
The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.
Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.
Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.
These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.
I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”
Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.
Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.
Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.
As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.
This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”
If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.
If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.
The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.
The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”
Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”
The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.
It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.
The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.
How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process
When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?
Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.
In U.S. Government parlance, there’s a term for that: fraud, waste, and abuse!
“I never expected to speak the phrase: “As Mississippi goes, so goes the federal government.” But when it comes to demeaning and disempowering LGBT, it is now apropos.
The self-righteous drive to make others suffer for not living Evangelical beliefs appears to be unstoppable with Trump in power and with Sessions as his henchman for civil rights. They are taking their cues from the Deep South and particularly Mississippi.
Mississippi is the national leader on religiously-motivated discrimination against LGBT and generating divisiveness on these issues, as I discussed here.
Mississippi continues to aspire to fomenting the most discrimination against LGBT with HB 1523, which explicitly permits business owners to refuse service to LGBT for religious reasons. The trial court correctly held that it was unconstitutional and issued a preliminary injunction.
In June, the Fifth Circuit let the law go into effect, holding that the challengers lacked standing. On further review, the Fifth Circuit refused to vacate the ruling, which let the law stand. Now perhaps it goes to the Supreme Court.
Its sponsors put it into place so that Evangelicals can legally exclude LGBT from the marketplace. They say it’s about their “religious liberty,” by which they mean not the right to observe their own practices, but rather their supposed right to judge and condemn others before doing business with them.
The whole anti-LGBT project is so unbelievably hypocritical: they aren’t fighting to bar liars, adulterers, rapists, or pedophiles from their businesses, all of whom who violate plain biblical commands.
Attorney General Jeff Sessions at the Department of Justice on February 28, 2017 in Washington, D.C. ZACH GIBSON/GETTY
What they are engineering is lives without having to associate with “those people.” One can only hope that good, old-fashioned profit motives enrich those businesses that provide service to LGBT and put out of business those who prefer the Jim Crow life.
Trump Administration Follows Mississippi’s Lead
Now, Attorney General Jeff Sessions has piled onto this administration’s obsession with humiliating and harming transgender Americans here and here with a new document interpreting federal law to require accommodation of those in the government who believe LGBT are sinful.
That’s right, the drive is to accommodate the ones who cannot tolerate those who aren’t like them. This is all about deconstructing the LGBT civil rights the Obama administration put into place as discussed here and here.
For good measure, the administration is also rolling back protections intended to ensure LGBT are not discriminated against in long-term care facilities. (The administration also went after women’s rights to contraception as fellow columnist Joanna Grossman explains, again an issue where it is in lock step with Evangelical lobbyists.)
Where Did This Intolerance Come From?
The push to inflict exclusion and suffering on LGBT for religious reasons owes its origins to the working out of the Religious Freedom Restoration Act in American culture. Whether you have read Hegel or Calvin, this is what happens when you put into place a “right” that has no natural limit.
The religious lobbyists, including knowing conservatives and some truly naïve liberals, backed this benighted law in 1993. It was declared unconstitutional in 1997 in Boerne v. Flores, because it was so far removed from anything that the First Amendment had ever required .
What was unleashed with this federal statute, which morphed into state laws and later federal law, was a theory that the default position for religious liberty should be that a religious believer has a right to overcome any law that burdens religiously-motivated conduct.
Many laws exist to protect the vulnerable. When religious believers seize a “right” to trump the law, they in effect hurt the vulnerable. That is true here.
This power grab—particularly by religious organizations who believe in imprinting their beliefs on the culture—paved the way for the depraved arguments now being made for “religious liberty” that amount to exclusion and harm to an entire category of citizens defined solely by their sexual orientation. They have falsely claimed the mantle of victimhood while making victims of others.
The powerful choose the labels and the vulnerable suffer. If you have not seen this power maneuver elsewhere in history or in the Trump Administration’s dealings with race, you are not paying attention.
Marci A. Hamilton is the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania; the founder, CEO, and Academic Director of the nonprofit think tank to prevent child abuse and neglect, CHILD USA, and author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com.”
While the Evangelical right wages a bogus war against the non-existent “Sharia law in America,” the real threat to our freedoms, our Constitution, and the rule of law is posed by these very same right wingers. Led by folks like Gonzo who have moved from the “wacko fringe” to positions of power, they are forcing their false interpretation of Christianity down the throats of the rest of us who don’t share their “Gospel of Hate & Intolerance.”
From a theological standpoint (after all, it is Sunday), Jesus’s ministry was not to the rich, powerful, rulers, or Pharisees enforcing the Jewish Law; no, Jesus’s ministry was one of love, compassion, forgiveness, and eternal hope for the outsiders, the outcasts, the poor, and the “rejected” of Jewish and Roman society. If Jesus were among us today, he would much more likely be found “rubbing shoulders” and preaching to the gay community or the undocumented than he would wandering the halls of Jeff Sessions’s Department of (In)Justice.
“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft. Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining credibility. These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes. The following are some thoughts on strategy when appealing credibility findings to the Board.
1. Don’t offer alternative interpretations of the record.
You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record. If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently. Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
2. Does the record support the IJ’s finding?
On occasion, the discrepancy cited by the IJ is not found in the transcript. IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated. For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says. It is worth reviewing the record carefully.
3. Does the REAL ID Act standard apply?
The REAL ID Act applies to applications filed on or after May 11, 2005. With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date. However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard. In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard. For example, did the IJ rely on non-material discrepancies to support the credibility finding? If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.
4. Did the IJ’s decision contain an explicit credibility finding?
Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief). Therefore, review the decision carefully to determine if an explicit credibility finding was made. In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility. In such cases, argue on appeal that the statutory presumption of credibility should apply.
5. Did the credibility finding cover all or only part of the testimony?
As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition. A respondent may be credible as to parts of his or her claim, but incredible as to other aspects. There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus. However, there are variations in the application of the doctrine among the circuits, and there are exceptions. For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility. However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.” The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding). Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony. If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.
6. Did the IJ rely on a permissible inference, or impermissible speculation?
In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation. The court cited earlier case law stating that “an inference is not a suspicion or a guess.” Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.” Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.
7. Did the IJ permissibly rely on an omission under applicable circuit law?
There is a body of circuit court case law treating omissions differently than discrepancies. For example, several circuits have held that as there is no requirement to list every incident in the I-589, the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility. Look to whether the omission involved an event that wasn’t highly significant to the claim. Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country. Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report. See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.
8. Was the respondent provided the opportunity to explain the discrepancies?
At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies. The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent. See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).
9. Did the “totality of the circumstances” support the credibility finding?
Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.” INA sections 208(b)(1)(B)(ii), 240(c)(4)(C). The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding. For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”
Copyright 2017 Jeffrey S. Chase. All rights reserved.”
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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.
Great stuff, Jeffrey! I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!
One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.
But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.
Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!
Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.
On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.
This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.
I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.
He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!
So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.
Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.
Remember,”as you did it to one of the least of these my brothers, you did it to me.” Gonzo’s going to have some ‘splainin top do at some point in the future!
Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!
“In Texas, Florida, Puerto Rico and the Virgin Islands, mammoth hurricanes have left behind a colossal amount of work. The cleanup and reconstruction efforts are going to take years. That means a severe demand for salvage and demolition crews, roofers, carpenters, IMMIGRANT workers at a makeshift camp in Mississippi following Hurricane Katrina in 2005. (Marcio Jose Sanchez Associated Press) drywall installers, painters, plumbers and workers in all manner of other trades and skills. And if recent history tells us anything, much of this demand will be met by immigrants — migrant laborers, many of them highly skilled, and many of them lacking legal status.
. . . .
This wasn’t a problem only for immigrants. As long as labor was exploitable and cheap, American-born workers and local businesses suffered too, as conditions and wages slid toward rock bottom.
If we had a federal government sensitive to these issues, the solution would be a moratorium on immigration enforcement in disaster zones. This would ensure that the rebuilders could keep working, and that those depending on them could return home as soon as possible. Given the Trump administration’s relentless attacks on immigrants, there’s little hope for this sensible fix. In the absence of such a moratorium, governors and mayors should insist that federal labor laws be enforced in these areas while reconstruction is underway. Labor laws guarantee workers payment, safe working conditions and the ability to report mistreatment, among other things.
When workers are vulnerable and afraid, aware that their immigration status can be used against them, they are easy targets for abuse. They know that one complaint could mean a quick call to immigration. Their fear of being deported and losing everything shackles them to bad employers.
. . . .
Diaz and the other workers organized, protesting the discrimination and illegal treatment. In retaliation, the employer evicted them without compensation. When they demanded their pay, the employer called local police and Immigration and Customs Enforcement, which arrested the workers immediately. After spending 78 days in jail, Diaz convinced the district attorney that the workers had been the victim of employer retaliation. The D.A. withdrew the charges, but ICE still detained the workers and sought to deport them.
These abuses, and the exploitation that took place after Katrina, occurred during the George W. Bush administration, which supported comprehensive immigration reform. The climate of fear is far worse today, with agents and officers from ICE and the Border Patrol running roughshod over immigrant communities, goaded by President Trump’s toxic rhetoric.
Nevertheless, immigrants will still risk their lives to come here. Their need is that dire — and our demand is that urgent. The credit rating company Moody’s estimates that the damage from Hurricanes Harvey and Irma could total $150 billion to $200 billion — considerably more than the $108 billion or so in damage left by Katrina. Irma destroyed an estimated 25% of homes in the Florida Keys. In Harris County, Texas, which includes Houston, more than 136,000 homes and other structures were flooded by Harvey. In the aftermath of these disasters, there has been talk of rebuilding homes and cities with greater attention to long-term sustainability and resilience.
Some have even called for a “green New Deal” that marries these goals with stronger social safety nets for storm victims. This worthy vision can and should take into account the people who are doing the rebuilding, making sure they are safe, secure and paid a fair wage. And that means starting with meaningful protections for the immigrant workers who help storm victims return home.
Saket Soni is executive director of the New Orleans Workers’ Center for Racial Justice and the National Guestworker Alliance
Read the entire report at the above link.
Just another example of how White Nationalist inspired “Gonzo Enforcement” is not only wasteful, impractical, and inhumane, but also just plain dumb! The Trump Administration degrades America and our values with each day it is in office. When your “worldview” is driven by prejudice, bias, and political pandering, you’re bound to make lots of bad decisions!
Ashley Parker and Matt Zapotosky report for the Washington Post:
“President Trump announced Wednesday that he intends to nominate Kirstjen Nielsen, a cybersecurity expert and deputy White House chief of staff, to be Homeland Security secretary, a job left vacant when John F. Kelly departed to become White House chief of staff in July.
The White House, in a statement, described Nielsen as having “extensive professional experience in the areas of homeland security policy and strategy, cybersecurity, critical infrastructure, and emergency management.”
Nielsen is a longtime Homeland Security Department official who served as Kelly’s chief of staff when he was DHS secretary and accompanied him to the White House as his deputy. She also worked at the DHS during the George W. Bush administration and founded a consulting firm focused on risk and security management.
Other contenders for the Cabinet post included Tom Bossert, Trump’s homeland security adviser, and Kevin McAleenan, the acting commissioner of U.S. Customs and Border Protection.
[Trump slow to replace John Kelly at DHS as immigration, security challenges continue]
Nielsen had one crucial advantage — the absolute trust and support of Kelly, to whom she grew close after volunteering to be a “sherpa” to him as he went through the confirmation process this year.
At the White House, as Kelly’s enforcer, Nielsen quickly emerged as a controversial presence. Her detractors viewed her no-nonsense style as brusque and complained that she could be unresponsive as she worked with Kelly to streamline operations and instill discipline in a White House often lacking structure. But her allies and supporters said she was simply helping to professionalize the West Wing — the sort of necessary but thankless task that often leaves some staff members griping.
Nielsen will inherit a massive and important portfolio. The Department of Homeland Security is considered a critical agency on matters of counterterrorism and national security. It is the agency, for example, that informed states they had been targeted by Russian hackers during the 2016 election campaign, and it would be responsible for monitoring and preventing such incidents in the future.
But it also bears primary responsibility for immigration enforcement and border protection — top priorities in the Trump administration. The Federal Emergency Management Agency, which has been coordinating the government’s response to several recent hurricanes, the Secret Service, which protects the president and his family, and the Transportation Security Administration, which handles airport and other transportation-related security, are also a part of the DHS.
Nielsen is likely to have to navigate no shortage of controversies. Homeland Security officials will play a key role in implementing Trump’s new entry ban, which is scheduled to fully take effect Oct. 18, and agency officials are also at the center of the president’s decision to wind down DACA — the Deferred Action for Childhood Arrivals program — which allowed undocumented immigrants who were brought to the United States as children to avoid deportation.
The DHS, along with the Justice Department, has been energetic in implementing Trump’s promised crackdown on illegal immigration — employing aggressive, controversial tactics such as arresting people suspected of being in the country illegally while they were in court seeking redress on matters including domestic violence complaints. Immigration agents have made 43 percent more arrests since Trump took office than in the same time period last year, but fewer deportations have taken place than in the comparable period last year.
Nielsen is not expected to face a difficult confirmation process in the Senate. She is widely viewed as a competent, experienced and nonpartisan security professional.
Given that polarizing and ideological figures such as former Milwaukee County sheriff David A. Clarke Jr. and Kansas Secretary of State Kris Kobach were previously rumored to be in the running for the DHS job, mostly for their hard-line views on immigration, the Nielsen choice would be more evidence of Kelly’s ability to consolidate control and move the administration in a more conventional, mainstream direction.
Some of the president’s senior advisers, including Stephen Miller, were said to favor an immigration hard-liner who would excite Trump’s base.
But the Nielsen pick would preserve the DHS’s reputation as an agency whose core mission is counterterrorism and national security.
Democrats and critics of the president said they were looking for a nominee with counterterrorism experience and a familiarity with DHS operations, and Nielsen would qualify on both counts.
What’s most important from where the world meets Washington
“Nielsen’s nomination is a strong signal of competence and experience being valued by the White House over ideologues and outsiders,” said Stewart Verdery, a Republican lobbyist who worked in the department during the George W. Bush administration. “The homeland mission requires an unusual, diverse set of skills, and she has expertise in almost all of them.”
Former Pennsylvania Gov. Tom Ridge (R), the first secretary of homeland security, said in a statement that Nielsen was a “homeland security veteran” who was “extremely well versed in the all-hazard threats” challenging the nation’s security and resilience.
“Kirstjen can hit the ground running and there won’t be a learning curve,” Ridge said. “Most importantly, in this hyper-political environment, Kirstjen is not a self-promoter. She is a patriot and takes a mission-focused approach to her work.”
Seems like a logical, qualified choice. Pretty scary, since Trump almost never acts logically nor are the majority of his most visible picks qualified for their positions.
That being said, it probably doesn’t make much difference for immigration. The de facto DHS Secretary for Immigration is Sessions. And the “Gonzo” Enforcement policies are driven by Sessions’s White Nationalist xenophobia, parrotted by ICE’s Tom Homan, and the largely arbitrary whims of line agents. That’s not likely to change under Nielsen.
“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.
On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Securityto quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.
At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.
Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”
But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place.
The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!
Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights.Raising the standards would virtually guarantee rejection of all such asylum seekerswithout any hearing at all.The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.
Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings.Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court
Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.
Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like: more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.
Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased againstsuch claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim” of the type that are much more routinely granted across the board.
Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.
“Washington (CNN)Even as the Trump administration is asking Congress to approve a tough overhaul of the nation’s immigration laws, the Department of Homeland Security is also quietly exploring ways it could transform the US immigration system on its own.
The department has been examining a range of subtle modifications to immigration policies that could have major consequences, including limiting protections for unaccompanied minors who come to the US illegally, expanding the use of speedy deportation proceedings, and tightening visa programs in ways that could limit legal immigration to the US, according to multiple sources familiar with the plans.
None of the policies being explored are finalized, according to the sources, and are in various stages of development. Any of them could change or fall by the wayside. Some of them are also included at least in part in the wish list of immigration priorities that President Donald Trump sent to Congress this week, and it’s unclear whether the administration will wait to see the results of negotiations over the future of the Deferred Action for Childhood Arrivals (DACA) program that President Donald Trump has chosen to end.
Still, the proposals under consideration illustrate the extent to which the administration could attempt to dramatically change immigration in the US through unilateral executive action.
“Do you think Obama did a lot? That’s my answer,” said one former DHS official when asked how transformative the change could be. “They could do quite a bit.”
DACA itself was an example of how former President Barack Obama, frustrated with congressional inaction, sought to use executive authority to take action on immigration, putting in place the program to protect young undocumented immigrations brought to the US as children from deportation in 2012.
But the administration is now exploring rolling back more Obama-era policies, and changing even older systems.
DHS did not respond to a request for comment about the policies being explored or its process.
Targeting protections for unaccompanied minors
One effort underway is exploring what can be done about unaccompanied children (UACs), a category of undocumented immigrants who are caught illegally crossing the border into the US, are under age 18, and are not accompanied or met by a parent or guardian in the US. Those UACs, by law and legal settlement, are handed over to the Department of Health and Human Services for settling in the US, given protections from expedited removal proceedings and given special opportunities to pursue asylum cases in the US.
DHS and the Department of Justice have been exploring options to tighten the protections for UACs, including no longer considering them UACs if they’re reunited with parents or guardians in the US by HHS or once they turn 18.
In a previously unreported memo, obtained by CNN, the general counsel of the Executive Office of Immigration Review, which manages the nation’s immigration courts, wrote in a legal opinion that the administration would be able to decide a UAC was no longer eligible for protections — a sea change in the way the 2008 law granting those protections has been interpreted. The Trump administration has portrayed the UAC protections as a loophole in the law that can be exploited by gangs, though experts have testified before Congress that the minors under the program are more likely to be victimized by gangs in the US due to a lack of a support network than to be gang members. The administration also has sought to crack down on parents who pay smugglers to bring their children into the US illegally, even to escape dangerous situations in Central America.
The White House also asked Congress to amend the 2008 law to restrict UAC protections.
In previously unreported comments made last month at a security conference in Washington, acting Immigration and Customs Enforcement Director Tom Homan said that ICE is actively looking at the adults HHS places UACs with, and if they are in the US illegally, they will be processed for deportation — and if a smuggler was paid, they could be prosecuted for human trafficking.
DOJ touts effects of surge of immigration judges sent to border
DOJ touts effects of surge of immigration judges sent to border
“You cannot hide in the shadows, you can’t be an illegal alien in the United States, have your undocumented child smuggled at the hands of a criminal organization, and stay in the shadows,” Homan said. “We’re going to put the parents in proceedings, immigration proceedings, at a minimum. … Is that cruel? I don’t think so. Because if that child is really escaping fear and persecution, he’s going to stand in front of an immigration judge to plead his case, his parents should be standing shoulder to shoulder with him. I call that parenting.”
DHS is also continuing to weigh its options to expand the use of expedited removal more generally — a speedier process of deportation that bypasses a lengthy court process in particular cases — as authorized by Trump’s January executive order on immigration.
Legal immigration tightening
Other efforts in the works include ways to tighten legal avenues to come to the US.
Two policies being looked at are the subject of litigation in the DC Circuit court — work authorizations for spouses of high-skilled visa holders and an expansion of a program that allows STEM students to stay in the US an extra two years for training.
Both policies were challenged in the courts, and now the administration is considering whether to roll them back.
On the spousal authorizations, DHS told the court as much in a filing last month, asking for extra time for the DHS review to finish.
That filing points to a DHS review of “all” of the agency’s immigration policies, citing the President’s Executive Order to “buy American and hire American.”
“Executive Order 13,788 is an intervening event necessitating careful, considered review of all of DHS’s immigration policies to ensure that the interests of US workers are being protected,” the attorneys wrote, citing the order’s instructions to create new rules, if necessary, “to protect the interests of United States workers in the administration of our immigration system.”
Trump admin quietly made asylum more difficult in the US
Trump admin quietly made asylum more difficult in the US
DHS has also moved to tighten asylum claim credibility thresholds, and is exploring asking Congress for more authority to do so. Another target is reportedly cultural exchange visas, which according to The Wall Street Journal are also under scrutiny after the “hire American” order.
Further unilateral moves wouldn’t even require policy changes, immigration attorneys fear. Attorneys who represent immigration clients fear that simply by slowing down the visa process, DHS could substantially decrease the number of immigrants admitted to the United States. US Citizenship and Immigration Services announced this summer it would begin requiring interviews for all green card applicants on employment and refugee grounds, and that it would roll out required interviews for other categories over time, adding a substantial and potentially lengthy hurdle to achieving legal permanent residency.
“If the wait time for naturalizations increases by three months, USCIS can naturalize 25% fewer people per year, which would mean millions of people over a four-year period,” said Leon Fresco, an immigration attorney and former Obama administration DOJ official. “Even without a policy change, the administration (can accomplish) dramatic reductions to legal immigration through increases in processing times and taking a hawkish approach to finding reasons for denials of immigration applications.”
DHS pointed CNN to statistics showing no increase in the rate of denials of immigration applications, though the backlog of pending applications has grown steadily over the past two years.
One-quarter of DACA renewals not in on deadline day
One-quarter of DACA renewals not in on deadline day
Sources familiar with the inner workings of DHS describe an environment where political appointees and policy staff with strongly held opinions circulate ideas that sometimes reach the press before front office and secretarial staff are even aware of the discussions.
While political appointees and career officials are not described as butting heads, some of policy ideas do end up moderated by career employees on practical grounds. One source also described some employees of USCIS, which administers DACA, as getting emotional when the plan was made to end the program.
“Once it gets to a senior level, there are pretty robust discussions,” another source familiar said. “And once it gets to that level there are folks with ideas, and then folks who have been around for a while who say, ‘That won’t work.'”
Those competing ideas are then ultimately decided on by the secretary and high-level decision makers, though sources say political appointees are sometimes in a position to have influence over what information flows to the front office and top officials.
“The secretary and the decision makers end up with that (dynamic),” the source said.”
Immigration “Courts” run and controlled by Political Enforcement Officials and actively engaged in looking for ways to diminish the rights of individuals coming before them are not “real courts” and are not capable for delivering fair, unbiased, and impartial justice in accordance with the Due Process Clause of the U.S. Constitution. This kangaroo court system, operating under false premises, is unconstitutional (in addition to be incompetently administered)!
Will the Article III Courts ever do their duty, put this corrupt and unlawful system out of its misery, and restore at least some semblance of due process and justice for immigrants? Or, will they “go along to get along” and thus make themselves part of one of the most shameful charades of justice In American Legal History?
“Washington (CNN)The Trump administration dropped a potential bomb into negotiations on the future of the Deferred Action for Childhood Arrivals policy on Sunday night — but key players on the Hill still aren’t sure yet whether the fuse is actually lit.
Reaction to the administration’s priorities list of tough border security and immigration enforcement measures ranged from dismissal as “noise,” to skepticism about the President’s commitment level, to declarations of it being a “nonstarter” by Democrats.
Ultimately, most agree, President Donald Trump himself will have to say what his red lines are.
The White House late Sunday released a wish list of items for any potential deal to preserve DACA — the Obama administration policy that protects young undocumented immigrants brought to the US as children from deportation. Those measures include provisions to make it harder for unaccompanied minors to enter the country illegally, money for the President’s border wall and cuts to legal immigration.
But the administration is already sending mixed messages about how intensely it is getting behind the list of priorities, which were developed in part by Stephen Miller, a White House policy adviser and longtime immigration hardliner.
An administration source told CNN that it was too early to tell whether the priorities are a firm line in the sand, saying there remains a “White House divided” on the issue — but emphasizing Trump “still wants to cut a deal.”
On a call with reporters on Sunday night, a senior administration official declined to say whether the list should be read as a veto threat.
“We’re not discussing what’s a veto threat right now, or we’re not looking to negotiate with ourselves,” the official said, adding the priorities are “all important.”
On Capitol Hill, most players are taking a wait-and-see approach.
White House lays out DACA deal asks
White House lays out DACA deal asks
House Speaker Paul Ryan’s office was noncommittal. “The House immigration working group will review these principles and continue to consult with our conference and the administration to find a solution,” spokesman Doug Andres said.
Other sources pointed to the timing of the release — the Sunday night before a federal holiday — as a possible indication the White House is not as serious about the list.
“Like they’re trying to bury it,” one congressional aide said. Administration sources, for their part, said the list had been in the works for some time and was simply ready to be released.
A Republican consultant familiar with the discussions on the Hill about DACA downplayed the release altogether as “noise” — saying not much matters until the date draws nearer to December 8, when government funding runs out and any potential shutdown talk could get serious if progress hasn’t been made.
“I just don’t take this as that serious a proposal,” the consultant said. “One given what’s in there, that it’s everything under the sun. And two, when they released it.”
At the same time, one senior Democratic aide called it “most disheartening” that in the letter Trump sent to congressional Democratic leadership, he said the list “must” be passed.
Miller’s involvement has been a source of frustration for some negotiators on both sides of the aisle who have perceived him as trying to scuttle talks.
Top WH aide's DACA demands threaten to scuttle legislative fix
Top WH aide’s DACA demands threaten to scuttle legislative fix
“This isn’t an opening bid that anyone’s going to respond to,” said Jeremy Robbins, executive director of New American Economy, a nonpartisan group, business-linked group backed by former Mayor Mike Bloomberg that advocates for moderate immigration policies. “There’s just this laundry list of deal breakers, each one of which is a poison pill in its own right. … But that doesn’t change the fact that the President, if he wants to protect Dreamers and get some border security, he can do that today.”
Hill work continues
Sources familiar with negotiations in Congress say they have been progressing slowly.
According to multiple sources familiar, the working group organized by Ryan, which includes key Republicans on different sides of the ideological spectrum, has met at least four times. The bare bones of a deal have yet to take shape, the sources said.
Further details remain on close hold. Members and their staffs have agreed to maintain silence on the substance of the discussions to avoid negotiations leaking to the press.
On the Senate side, sources familiar say conversations are happening, mostly among staff, but the process is less formal than on the House side.
One-quarter of DACA renewals not in on deadline day
Democrats maintain substantial leverage in the negotiations. Not only would any immigration deal require Democratic votes to pass — both to clear the 60-vote filibuster threshold in the Senate and to make up for Republican holdouts who would never support a DACA fix — but Democrats are already signaling they could withhold support for must-pass bills like government funding if progress isn’t made.
“That is definitely on the table, and we are working to make sure that it’s not just a Hispanic Caucus effort, but it’s the entire Democratic caucus,” said Congressional Hispanic Caucus Chairwoman Michelle Lujan Grisham in a CHC call with reporters on Monday. “If we can’t get movement on a productive strategy that gives us a vote — and we’re open to considering reasonable, effective border security issues — then yes, … we’re going to use every leverage point at our disposal.”
A deal is still attainable, added Vice Chairman Joaquin Castro, but only if the White House is “reasonable.”
“This was a long laundry list of hardline immigration policies including things that we’ve specifically said our members cannot support, including a wall,” Castro said. “So we’re looking for a serious proposal from the President. This is not serious. … I would suggest the President look at this list more himself, get more personally involved, rather than assign it to a 30-year-old hardline zealot,” he added, referring to Miller.”
Any idea promoted by Miller has to be bad for America!