PROFESSOR CASS SUNSTEIN WITH THE UGLY TRUTH: IF YOU WANT TO UNDERSTAND TRUMPISM, YOU MUST UNDERSTAND ITS ANTECEDENT, NAZISM – Many Ordinary Germans Were Enthusiastic About Life Under Hitler Prior To The War – Fat, Happy, Satisfied, & Willfully Indifferent To The Torture & Suffering Of Their Fellow Human Beings – They Chose To Bury All Morality & Believe Reich Propaganda and Lies That Any Reasonable Person Would Have Known Were Untrue!

http://www.nybooks.com/articles/2018/06/28/hitlers-rise-it-can-happen-here/?mbid=nl_hps_5b368db0384c1d5c5734bfbc&CNDID=48297443

Professor Cass Sunstein in the NY Review of Books:

It Can Happen Here

‘National Socialist,’ circa 1935; photograph by August Sander from his People of the Twentieth Century. A new collection of his portraits, August Sander: Persecuted/Persecutors, will be published by Steidl this fall.

Liberal democracy has enjoyed much better days. Vladimir Putin has entrenched authoritarian rule and is firmly in charge of a resurgent Russia. In global influence, China may have surpassed the United States, and Chinese president Xi Jinping is now empowered to remain in office indefinitely. In light of recent turns toward authoritarianism in Turkey, Poland, Hungary, and the Philippines, there is widespread talk of a “democratic recession.” In the United States, President Donald Trump may not be sufficiently committed to constitutional principles of democratic government.

In such a time, we might be tempted to try to learn something from earlier turns toward authoritarianism, particularly the triumphant rise of the Nazis in Germany in the 1930s. The problem is that Nazism was so horrifying and so barbaric that for many people in nations where authoritarianism is now achieving a foothold, it is hard to see parallels between Hitler’s regime and their own governments. Many accounts of the Nazi period depict a barely imaginable series of events, a nation gone mad. That makes it easy to take comfort in the thought that it can’t happen again.

But some depictions of Hitler’s rise are more intimate and personal. They focus less on well-known leaders, significant events, state propaganda, murders, and war, and more on the details of individual lives. They help explain how people can not only participate in dreadful things but also stand by quietly and live fairly ordinary days in the midst of them. They offer lessons for people who now live with genuine horrors, and also for those to whom horrors may never come but who live in nations where democratic practices and norms are under severe pressure.

Milton Mayer’s 1955 classic They Thought They Were Free, recently republished with an afterword by the Cambridge historian Richard J. Evans, was one of the first accounts of ordinary life under Nazism. Dotted with humor and written with an improbably light touch, it provides a jarring contrast with Sebastian Haffner’s devastating, unfinished 1939 memoir, Defying Hitler, which gives a moment-by-moment, you-are-there feeling to Hitler’s rise. (The manuscript was discovered by Haffner’s son after the author’s death and published in 2000 in Germany, where it became an immediate sensation.)* A much broader perspective comes from Konrad Jarausch’s Broken Lives, an effort to reconstruct the experience of Germans across the entire twentieth century. What distinguishes the three books is their sense of intimacy. They do not focus on historic figures making transformative decisions. They explore how ordinary people attempted to navigate their lives under terrible conditions.

Haffner’s real name was Raimund Pretzel. (He used a pseudonym so as not to endanger his family while in exile in England.) He was a journalist, not a historian or political theorist, but he interrupts his riveting narrative to tackle a broad question: “What is history, and where does it take place?” He objects that most works of history give “the impression that no more than a few dozen people are involved, who happen to be ‘at the helm of the ship of state’ and whose deeds and decisions form what is called history.” In his view, that’s wrong. What matters are “we anonymous others” who are not just “pawns in the chess game,” because the “most powerful dictators, ministers, and generals are powerless against the simultaneous mass decisions taken individually and almost unconsciously by the population at large.” Haffner insists on the importance of investigating “some very peculiar, very revealing, mental processes and experiences,” involving “the private lives, emotions and thoughts of individual Germans.”

Mayer had the same aim. An American journalist of German descent, he tried to meet with Hitler in 1935. He failed, but he did travel widely in Nazi Germany. Stunned to discover a mass movement rather than a tyranny of a diabolical few, he concluded that his real interest was not in Hitler but in people like himself, to whom “something had happened that had not (or at least not yet) happened to me and my fellow-countrymen.” In 1951, he returned to Germany to find out what had made Nazism possible.

In They Thought They Were Free, Mayer decided to focus on ten people, different in many respects but with one characteristic in common: they had all been members of the Nazi Party. Eventually they agreed to talk, accepting his explanation that he hoped to enable the people of his nation to have a better understanding of Germany. Mayer was truthful about that and about nearly everything else. But he did not tell them that he was a Jew.

In the late 1930s—the period that most interested Mayer—his subjects were working as a janitor, a soldier, a cabinetmaker, an office manager, a baker, a bill collector, an inspector, a high school teacher, and a police officer. One had been a high school student. All were male. None of them occupied positions of leadership or influence. All of them referred to themselves as “wir kleine Leute, we little people.” They lived in Marburg, a university town on the river Lahn, not far from Frankfurt.

Mayer talked with them over the course of a year, under informal conditions—coffee, meals, and long, relaxed evenings. He became friends with each (and throughout he refers to them as such). As he put it, with evident surprise, “I liked them. I couldn’t help it.” They could be ironic, funny, and self-deprecating. Most of them enjoyed a joke that originated in Nazi Germany: “What is an Aryan? An Aryan is a man who is tall like Hitler, blond like Goebbels, and lithe like Göring.” They also could be wise. Speaking of the views of ordinary people under Hitler, one of them asked:

Opposition? How would anybody know? How would anybody know what somebody else opposes or doesn’t oppose? That a man says he opposes or doesn’t oppose depends upon the circumstances, where, and when, and to whom, and just how he says it. And then you must still guess why he says what he says.

When Mayer returned home, he was afraid for his own country. He felt “that it was not German Man that I had met, but Man,” and that under the right conditions, he could well have turned out as his German friends did. He learned that Nazism took over Germany not “by subversion from within, but with a whoop and a holler.” Many Germans “wanted it; they got it; and they liked it.”

Mayer’s most stunning conclusion is that with one partial exception (the teacher), none of his subjects “saw Nazism as we—you and I—saw it in any respect.” Where most of us understand Nazism as a form of tyranny, Mayer’s subjects “did not know before 1933 that Nazism was evil. They did not know between 1933 and 1945 that it was evil. And they do not know it now.” Seven years after the war, they looked back on the period from 1933 to 1939 as the best time of their lives.

Mayer suggests that even when tyrannical governments do horrific things, outsiders tend to exaggerate their effects on the actual experiences of most citizens, who focus on their own lives and “the sights which meet them in their daily rounds.” Nazism made things better for the people Mayer interviewed, not (as many think) because it restored some lost national pride but because it improved daily life. Germans had jobs and better housing. They were able to vacation in Norway or Spain through the “Strength Through Joy” program. Fewer people were hungry or cold, and the sick were more likely to receive treatment. The blessings of the New Order, as it was called, seemed to be enjoyed by “everybody.”

. . . .

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Read the complete article at the link.

As a historical footnote, I crossed paths with Cass Sunstein at the DOJ during the Carter Administration in 1980-81, when he was an attorney in the Office of Legal Counsel and I was the Acting General Counsel/Deputy General Counsel of the “Legacy INS.” About all I remember is that: 1) he was brilliant, 2) he wrote really well; 3) everyone had him pegged as among “the most likely to succeed;” and 4) we both had lots, lots more hair then.

I agree with pretty much everything Sunstein says. Except for one major point. I don’t think “it can happen here.” It is happening here!

Cass says “Thus far, President Trump has been more bark than bite.” Really! With all due respect, that seems like a view directly from the “Ivory Tower.” 

Ask U.S. citizens children whose parents have been deported for no rational reason without any consideration of what will happen to those left behind; ask those children intentionally abused and probably damaged for life by the likes of Jeff Sessions; ask communities that have been terrorized by the Homan-led “ICE Gestapo” that strikes terror, performs few if any “real” law enforcement functions these days, while insuring that whole segments of the population are “easy marks” for crime and abuse; ask women and children refugees from Central American who are essentially being railroaded back to the “death camps” from which they fled by the noxious White Nationalist racists Trump, Miller, & Sessions, with the assistance of morally vapid sycophants like Nielsen and Kelly, without even the semblance of due process; ask Dreamers who are slurred by the  always disingenuous Sessions while being held as hostages by Trump, and hung out to dry by the GOP Congress; ask the kids and families being held in the “New American Gulag” established by Sessions — combined with his intentional distortion of asylum law, they are basically being held in concentration camps waiting to be shipped off to death camps in the Northern Triangle! And we haven’t even gotten to Sessions’s absolutely outrageous, lawless, unconstitutional, and totally immoral plan to rewrite asylum law so that nobody who needs protection actually gets it! Or how about not taking any Syrian refugees, even though they are dying in refugee camps awaiting resettlement every day. Just because the actual deaths, rapes, torture, US-caused human trafficking, and other unspeakable abuses take place outside our national boundaries doesn’t mean that we aren’t just as responsible for them as the fat & happy Burghers of the Third Reich!

I wrote about Sunstein’s timely, yet totally disturbing, article in  my response to a comment from my good friend, colleague, and fellow member of the “Gang of Retired Immigration Judges,”  Judge Gus Villageliu in response to one of his “right on”  comments today.  Here’s what I said:

There is a great article by Professor Cass Sunstein about the parallels between Nazism and Trumpism. The key: Germans who supported Hitler were fat, happy, and satisfied with their lives under Nazism and were willfully indifferent to the torture and suffering of their fellow human beings. They happily accepted the Nazi propaganda that Jews were either traitors or had voluntarily left the country after being fairly compensated for their property. Even after the war, some ordinary Germans looked back on the 1933-39 era of Nazi rule as the best time of their lives.

Another key observation by Sunstein: resistance is never futile and every individual act of resistance, no matter how small or insignificant it might seem at the time, is important. The little acts and persistence add up over time.

In my view, they also establish an important record for historians and future generations. I want my grandchildren, great-grandchildren, and great-great-grandchildren to know where I stood in the era of Trump, Sessions, Miller & the rest of the White Nationalist neo-Nazis and their utterly disgusting perversion of Western Judeo-Christian values!

Due Process, tolerance, courage, standing up for the less fortunate, and recognizing the human rights and dignity of every person are eternal values that are always worth fighting for!

Join the New Due Process Army. Resist the White Nationalist Regime every step of the way. Force “go along to get along” courts (like the Supremes) to face up to the horrible immorality of their appeasement of the cruel, inhuman, and illegal actions of the Trump Administration. Write the historical record that even the Trumpsters and their followers won’t be able to escape so that we might never, ever again have a Neo-Nazi revival like the Trump Administration!

PWS

07-01-18

 

“JIM CROW REVIVAL” — ADMINISTRATION TELLS COURT IT PLANS “FAMILY GULAG” AS AMERICA’S COLLECTIVE MORALITY SINKS TO LOWS NOT SEEN SINCE FIRST JIM CROW ERA – Then It Was Blacks, Now It’s Browns — America’s White Nationalist Rulers Continue To Abuse Children, Persecute People Of Color, Debase Our Country, Violate Human Rights & Human Decency!

https://www.washingtonpost.com/world/national-security/trump-administration-plans-to-detain-migrant-families-for-months/2018/06/29/f9ffecb6-7bf7-11e8-93cc-6d3beccdd7a3_story.html?utm_term=.5fe0b6c4ad14

Devlin Barrett reports for the WashPost:

The Trump administration plans to detain migrant families together in custody rather than release them, according to a new court filing that suggests such detentions could last longer than the 20 days envisioned by a court settlement.

“The government will not separate families but detain families together during the pendency of immigration proceedings when they are apprehended at or between ports of entry,” Justice Department lawyers wrote in a legal notice to a federal judge in California who has been overseeing long-running litigation about the detention of undocumented immigrants.

The filing comes as the Justice Departments seeks to navigate two different court edicts — an injunction issued this week by a federal judge in San Diego that required the government to begin reuniting the roughly 2,000 migrant children still separated from their families, and an older court settlement in federal court in Los Angeles that requires the immigration agencies to release minors in their custody if they are held for more than 20 days.

In the weeks since Attorney General Jeff Sessions announced a zero-tolerance policy toward immigrants illegally crossing the U.S. border, roughly 2,500 migrant children were separated from their parents. About 500 of those children have since been reunited with their parents.

On Tuesday, U.S. District Court Judge Dana M. Sabraw in San Diego issued a preliminary injunction ordering the government to quickly reunite migrant children with their parents, saying that children separated from their families must be returned within 30 days, and allowing just 14 days for the return of children under age 5.

Under the framework of a previous court settlement in the Los Angeles case, the Department of Homeland Security has followed a general practice of not keeping migrant children in the custody of immigration agents for more than 20 days.

3:04
‘Far away from me crying’: A family torn apart at the border

Buena Ventura Martin came from Guatemala with her infant son to claim asylum in the U.S. Her husband and daughter followed, but were separated at the border.

The new filing does not explicitly say the Trump administration plans to hold families in custody beyond the 20-day limit, but by saying officials plan to detain them “during the pendency” of immigration proceedings, which in many cases can last months, it implies that families will spend that time in detention.

The Justice Department argued that while the previous settlement had compelled it to release minors “without unnecessary delay,” the new court order, “which requires that the minor be kept with the parent, makes delay necessary in these circumstances.”

President Trump has demanded an end to what critics call “catch and release” — the practice of releasing migrants from immigration detention, many of whom do not show up later for their court hearings. The administration has said 40,579 deportation orders were issued because foreigners did not appear for their hearing in the last budget year.

Civil rights groups and immigrant advocates are likely to seek additional legal action if migrant families are detained for months. What’s less clear is how the judge in the Los Angeles case, Dolly M. Gee, will view the new approach by the government, and whether she will order it changed.

The filing could spur the judge to approve long-term family detentions. Alternately, the judge may order the administration to release families with monitoring bracelets — though that could provide a political opening for President Trump and other administration officials to blame the judiciary for forcing them to let illegal immigrants into the country.

Leon Fresco, who served as deputy assistant attorney general for the Office of Immigration Litigation in the Obama administration, said officials had always had the ability to hold kids with families past 20 days — if the parents consented to it. But under President Barack Obama, Fresco said, officials felt it would be too cruel to present mothers with a Sophie’s choice between turning their child over to refugee resettlement authorities, or keeping them detained.

The latest filing, he said, indicated that the Trump administration would be at least willing to do that.

“What they want to do is put the choice to the mom, separate or not separate, but make the choice so onerous that there really is no option other than to stay in family detention,” Fresco said.

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

It would be great if Judge Gee freed the families and sent Sessions, Nielsen, and the DOJ lawyers to jail for contempt! Not going to happen. Hopefully, however she will stay with the 20 day release period for kids, require the Government to use licensed facilities, and prohibit the DHS from detaining family members unless there is a demonstrated reason to deny them an affordable bond or “alternatives to detention.”

Why wouldn’t U.S. Immigration Judges release all of these folks on low bonds pending hearings? They are neither flight risks nor dangers to society under a non-biased application of the legal standards. Looks like Sessions believes he has the “Kangaroo Division” of the U.S. Immigration Courts in his pocket and has intimidated the judges into violating their oaths to uphold the Constitution. I believe that there is already a ruling in the 9th Circuit that U.S. Immigration Judges must consider “ability to pay” in setting bonds, something that obviously isn’t being done in places outside the 9th Circuit, like Texas in the 5th Circuit, where preposterous bonds, as high as $25,000, are being set by some judges in routine asylum cases!

In the meantime, as I always say, we are diminishing ourselves as a nation but it won’t stop human migration. The Trump Administration is, however, “sending a message” that the U.S. legal system is just as much a fraud as those in their home countries. So, if folks need refuge, they should pay a smuggler to get them into the interior where ICE probably will never find them. Smugglers will get rich, folks will die, refugees will have to live underground subject to exploitation, and Putin will be delighted.

The corrupt Trump and his minority White Nationalist regime are overthrowing the American Republic and burying the Constitution. And, Putin hasn’t had to fire a shot. The Republican Party and their supporters are handing our country over to him quite willingly.

PWS

06-30-18

INSIDE AMERICA’S HORRIBLE WHITE NATIONALIST REGIME WITH TAL @ CNN: 1) Trump Never Planned To Reunite Children With Families; 2) Tom Homan Retires – Trump Sycophant Made ICE America’s Most Despised Agency; 3) Sessions Planning To Follow Child Abuse With Barrage Of Racist Lies, Massive Violations Of Constitution, Abuses Of Human Rights, & Vicious Attacks On Rights Of Vulnerable Brown-Skinned Refugees!

1) Government never had specific plan to reunify families, court testimony shows

By: Tal Kopan, CNN

In recent weeks, the government has stumbled trying to explain its plan for reunifying families in the wake of its much-criticized family separations policy at the border.

But newly reviewed court filings show that the byzantine system that has resulted in thousands of children separated for weeks and months from parents elsewhere in government custody was not an accident. It was always the design.

In fact, one of the women in an ongoing lawsuit over family separations can now was apparently one of the first separations that took place during a quiet pilot of the policy last year. The pilot program has been previously reported, but took on new attention on the heels of an NBC report about it Friday.

A government attorney admitted in court just days before the border-wide initiative was unveiled in early May that there was never a plan for parents like her to be proactively reunited with their kids.

And an analysis of the purported success of the pilot shows that the Department of Homeland Security’s justification that the program worked as a deterrent was likely based on dubious data.

A DHS official confirmed Friday that the agency first tested the policy of prosecuting parents caught illegally crossing the border in the El Paso sector in Texas from July to October of last year. The pilot had been previously reported, but was not widely known. NBC reported the effort anew Friday.

Ms. C, as she is known in court filings, was apprehended crossing the border illegally in late August 2017 and prosecuted in El Paso, according to court documents. She asked for asylum and in the midst of the legal process, the government took her 14-year-old son from her, sending him to a Health and Human Services facility in Chicago. They were separated for months.

More: http://www.cnn.com/2018/06/29/politics/family-separations-reunification-never-plan-court/index.html

 

2) Controversial ICE chief retiring, replacement expected to be named soon

By: Tal Kopan, CNN

Immigration and Customs Enforcement chief Tom Homan is serving his last day Friday, as the controversial face of the Trump administration’s crackdown on illegal immigration retires.

Homan’s final day was confirmed by spokeswoman Liz Johnson.

The polarizing face of the administration’s immigration enforcement, and a favorite of President Donald Trump himself, Homan had announced in April he would be taking his long-delayed retirement this month.

Homan has told the story of receiving the request to stay on as chief of ICE under Trump while celebrating at his going away party — a retirement that was deferred for a year and a half.

According to a source familiar, acting CBP Deputy Commissioner Ronald Vitiello is expected to be named acting director of ICE in Homan’s stead as soon as Friday.

Vitiello has been a familiar face for the media as well, often speaking with reporters about the President’s border wall project.

The White House has not responded to a request for comment.

More: http://www.cnn.com/2018/06/29/politics/tom-homan-retirement-replacement/index.html

 

3) Trump administration may further restrict asylum rights

By: Laura Jarrett and Tal Kopan, CNN

The Justice Department is considering a regulation that would prevent people from claiming asylum if they’re convicted of illegally entering the US, according to two sources familiar with the plans.

Such a rule would be a dramatic change in the landscape of US immigration law and could conflict with domestic law and long-standing international obligations.

The draft regulation was described to CNN as being in its very early stages and has not yet been submitted to the White House for review. Should it be implemented, it would likely result in immediate legal challenges from asylum-seekers and advocates.

A Justice Department spokesperson declined to comment.

The proposal was first reported by Vox.

Current law allows migrants to raise an asylum claim at any lawful port of entry to the US, as well as between valid ports of entry where crossing to the US is illegal.

The Immigration and Nationality Act states that anyone who arrives in the US “whether or not at a designated port of arrival” may apply for asylum if he or she has a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Yet another part of the law gives Attorney General Jeff Sessions the leeway to regulate which offenses “will be considered to be a crime,” in which case asylum is not available.

How exactly the rule will be tailored and whether it will include any exceptions remains unclear.

More: http://www.cnn.com/2018/06/29/politics/trump-administration-asylum-draft-limit/index.html

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

Ah, America as a rogue state!

Join the New Due Process Army — Fight White Nationalism, Lies, Cowardice, and Bullying by Trump and his evil gang of immoral, scofflaw, racist “swamp monsters.”

PWS

06-30-18

NEW DUE PROCESS ARMY CONTINUES TO SPEAK OUT AGAINST ADMINISTRATION’S STUPID AND ILLEGAL ACTIONS & POLICIES! — Jesica Yanez On NPR — I Speak With Sally Kidd @ Hearst News TV!

Jessica Yanez leads Yanez Immigration Law in Greensboro, NC.

Here’s her bio:

About Attorney Yañez

Attorney Yañez earned a Bachelor’s of Arts Degree in Spanish from UNC Greensboro and her Juris Doctor Degree from Elon University School of Law.

Since founding her practice in 2012, she and her team of legal assistants have assisted individuals from approximately 40 different countries in a broad range of immigration matters including family-based petitions, waivers, consular processing, removal defense, U visas, VAWA, naturalization and asylum cases.

In 2016, Attorney Yañez became a NC Board Certified Specialist in Immigration Law. For more information about the benefits of hiring a Board-Certified Specialist, click here: http://www.nclawspecialists.gov/for-the-public/the-benefit-of-hiring-a-specialist/#standards.

Attorney Yañez also serves an Adjunct Professor of immigration law at Elon University School of Law.

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Here is Sally Kidd, National Correspondent for Hearst News:

And, here’s the clip containing my interview:

http://www.wmur.com/article/president-trump-blasts-judicial-system/22003693

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Thanks To Jessica and many other members of the NDPA for leading the charge against the Administration’ s cruel, immoral, and illegal policies!

Due Process Forever!

PWS

06-30-18

WHITE NATIONALIST ALERT AT JUSTICE: NEO-NAZI SESSIONS REPORTEDLY PROPOSING MASSIVE VIOLATION OF CONSTITUTION, REFUGEE ACT OF 1980, INTERNATIONAL LAW, AND HUMAN RIGHTS STANDARDS WITH RACIALLY TARGETED ABOLITION OF ASYLUM BY REGULATION! – Is Our Republic Teetering On The Brink?

https://www.vox.com/policy-and-politics/2018/6/29/17514590/asylum-illegal-central-american-immigration-trump

LIND REPORTS FOR VOX NEWS:

The Department of Justice, under Attorney General Jeff Sessions, is drafting a plan that would totally overhaul asylum policy in the United States.

Under the plan, people would be barred from getting asylum if they came into the US between ports of entry and were prosecuted for illegal entry. It would also add presumptions that would make it extremely difficult for Central Americans to qualify for asylum, and codify — in an even more restrictive form — an opinion written by Sessions in June that attempted to restrict asylum for victims of domestic and gang violence.

Vox has confirmed that the regulation is in the process of being evaluated, and has seen a copy of a draft of the regulation.

When the regulation is ready, it will be published in the Federal Register as a notice of proposed rulemaking, with 90 days for the public to comment before it’s enacted as a final regulation.

The version Vox saw may change before it’s finalized, or even before the proposal is published in the Federal Register. (The Department of Justice declined to comment.)

But as it exists now, the proposal is a sweeping and thorough revamp of asylum — tightening the screws throughout the asylum process.

One source familiar with the asylum process but not authorized to speak on the record described the proposed changes as “the most severe restrictions on asylum since at least 1965” — when the law that created the current legal immigration system was passed — and “possibly even further back.”

The Immigration and Nationality Act gives the attorney general, along with the Department of Homeland Security, discretion over asylum standards — saying that the government “may grant asylum” to an applicant who they determine meets the definition of a refugee. But the proposed regulation would make it nearly impossible for Central Americans, including families, to earn the government’s approval.

It would eliminate the path that thousands of Central Americans, including families, take every month to seek asylum in the US: entering between ports of entry and presenting themselves to Border Patrol agents. It would make it all but impossible for victims of domestic or gang violence to qualify for asylum — going even further than a June decision from Sessions that sought to limit asylum access for those groups. It would create a presumption against Central Americans who travel through Mexico on their way to the US.

Anyone convicted of entering the US illegally would become ineligible for asylum

What happens under current policy: Under the Trump administration’s “zero tolerance” initiative, all migrants who cross between ports of entry and are apprehended by Border Patrol are supposed to be criminally prosecuted for illegal entry.

That arrest can delay a person’s claim of asylum, but it doesn’t derail it. An asylum-seeker may not get their initial screening interview, which determines whether they’ll be allowed to file an asylum application and get a hearing, until after they’ve been prosecuted and convicted. And they definitely won’t get approved for asylum before their criminal conviction.

But the conviction for illegal entry doesn’t affect the asylum claim; as Customs and Border Protection puts it, the two are on “parallel tracks.”

What would happen under the new plan: The proposed regulation would bar anyone from getting asylum if they’d been convicted of illegal entry or illegal reentry. That means people who asked for asylum when they were apprehended at the border, but were prosecuted first, would get denied asylum.

In effect, under this new regulation, combined with the zero-tolerance prosecution initiative, no one would be able to come to the US and get asylum unless they presented themselves at a port of entry. Many asylum-seekers simply don’t have that option. Smugglers often prevent asylum-seekers from using official ports of entry, and many of those who do come to ports of entry are being forced to wait days or weeks, after being told there’s no room to process them right now. And asylum-seekers who come to ports of entry are often required to stay in immigration detention without bond until their case is complete.

The administration would almost certainly get sued over this provision if it ended up included in the finalized regulation. The Department of Justice (DOJ) has the power to bar people from getting asylum (or other forms of relief from deportation) if they’ve committed “particularly serious crimes.” While there’s no definition of seriousness in the law, lawyers and immigration advocates would likely challenge the idea that illegal entry, a misdemeanor, is “particularly serious.”

But even if that provision is struck down or eliminated by the courts, another proposal in the draft regulation could have much the same effect. It would instruct immigration judges to consider how the asylum-seeker got into the US, and treat it as a significant factor in whether or not to grant asylum (since asylum-seekers have to show they deserve “favorable discretion” from the judge). So even if people who crossed between ports of entry weren’t officially banned from getting asylum, they would have a very hard time winning their cases in practice.

If adopted, the regulation, combined with the zero tolerance initiative, would allow the administration to set up assembly-line justice for asylum seekers, including families, entering the US. People who entered between official ports would be held by the Department of Homeland Security, prosecuted for illegal entry, convicted, then have their asylum applications denied and get deported.

While the Trump administration is currently trying to win the power to detain families for more than 20 days, if this regulation were enacted, they might not even need to. They could deny most asylum claims and deport the claimants within that time.

Victims of domestic or gang violence would be all but banned from asylum

What happens under current policy: US law limits asylum to people who are persecuted because of their race, religion, political opinions, nationality, or membership in a particular social group.

The government has been wrestling for decades with that last classification what exactly counts as a “particular social group”? — and with whether someone is “persecuted” if they’re victimized by someone other than the government. These questions are key to the fate of many of the Central Americans (including children and families) who have come to the US to seek asylum in recent years, many of whom are claiming asylum based on domestic violence or gang victimization in their home countries.

In June, with a sweeping ruling overturning a case from the Board of Immigration Appeals, Sessions attempted to narrow the circumstances in which someone fleeing domestic or gang violence could qualify for asylum in the US — saying that, generally, victims of domestic or gang violence wouldn’t be eligible for asylum based on their victimization.

As I reported last week, though, US Citizenship and Immigration Services (USCIS) has been cautious in implementing Sessions’s opinion. Most notably, while Sessions decreed that his ruling overturned any precedent that contradicted it, USCIS only told asylum officers to stop using the one precedent decision Sessions explicitly named as moot.

It looks like the DOJ may be trying to use regulation to accomplish the same goal — with even narrower definitions of “persecuted” and “particular social group.”

What would happen under the plan: The proposed regulation would add several restrictions to what could constitute a particular social group: a family, for example, wouldn’t be a social group unless the family had a visible national presence. Interpersonal violence or crime victimization, similarly, wouldn’t be the basis for social group membership unless they were happening on a national scale. Having been recruited by a gang would be explicitly prohibited as grounds for an asylum claim.

To qualify for asylum, an applicant would have to show that the people who persecuted her were also persecuting others on the same basis. Human-rights lawyers worry this could disqualify many legitimate asylum claims. One lawyer raises the example of a gay man in Russia who suffers a violent homophobic attack: Under the proposal, “this would not be persecution on account of sexual orientation unless you could prove that these attackers had previously persecuted other gay men.”

An asylum-seeker would be required to provide an exact definition of her “particular social group” when she was applying for asylum. And she wouldn’t be allowed to appeal a denial, or reopen a claim, on the basis of any group she hadn’t originally named.

It’s extremely difficult for anyone other than a trained immigration lawyer to know exactly what does and doesn’t count as a particular social group eligible for asylum. Under the proposed regulation, however, an asylum-seeker who didn’t know the precise nature of the basis for her persecution would be assumed to not really be a victim of persecution at all.

This standard wouldn’t just apply to final approvals or denials of asylum. The initial step for an asylee is what’s called a “credible fear” screening, during which an asylum officer decides whether the person has a credible fear of going back to their home country. The proposed rule would tighten standards for those, too.

Immigration lawyers and border advocates were already extremely concerned that Sessions’s May ruling would cause asylum officers to radically hike the standards for passing the screening interview (though the USCIS memo posted by Vox suggests that might not be the case just yet). If this regulation were finalized, however, it seems very possible that many people who are currently given the opportunity to apply for asylum would be turned away before they got the chance.

Central Americans would be penalized for not seeking asylum in Mexico

What happens under current policy: Many asylum seekers are Central Americans who come through Mexico to seek asylum in the US. The US is not allowed to simply turn them back and force them to seek asylum in Mexico instead. (The Trump administration is trying to get Mexico to sign a “safe third country” agreement that would allow them to do this, but Mexico appears unenthusiastic.) But the proposed regulation would make it a lot easier to deny their asylum claims based on not having sought asylum in Mexico first.

What would happen under the plan: Under the proposed rule, the government would generally withhold “favorable discretion” (and, therefore, deny the asylum claim) for anyone who had spent more than two weeks in another country en route to the US without seeking asylum there, or who had traveled through more than one country on the way to the US.

Many Central Americans, especially if they take the train through Mexico or travel on foot, take more than two weeks to travel through Mexico. And asylum-seekers from Honduras and El Salvador cross through Guatemala and Mexico to get to the US — meaning that they would almost certainly not earn the “favorable discretion” required to get their asylum claim approved.

Tightening the screws on the entire asylum process

The proposed regulation is extremely broad, with a lot more provisions — all of which would make it much harder for people to seek and get asylum. Some of the remaining ideas in the proposed draft include:

Limiting appeals for asylum-seekers who fail their screening interviews. Under current law, if an asylum-seeker fails her initial “credible fear” interview with an asylum officer, she can appeal for a judge to review her claim with fresh eyes — ignoring the fact that the asylum officer hadn’t found it a credible claim. Under the proposed regulation, judges would only be able to approve a credible-fear claim on appeal if there was clear evidence that the asylum officer had screwed up.

Rejecting incomplete applications first and letting them get completed later. Instead of returning incomplete asylum applications to the applicant and asking her to complete it, the government would reject the application. The applicant would still have 60 days to complete and resubmit the application before it was officially denied, but it’s not clear how applicants would be told about that — or whether they’d read beyond the word “rejected.”

Allowing judges to put evidence into the record on their own. The proposal would allow immigration judges considering asylum cases to unilaterally insert any information from credible sources into the record (as long as both the prosecutor and defense were informed). This provision would make it much easier for judges to insert information claiming that an asylum-seeker’s home country isn’t as dangerous for him as he claims — since asylum cases often hinge on whether there’s anywhere safe in the home country the asylum-seeker could live instead of the US.

Immigrants could be barred from asylum based on traffic offenses… In addition to the new prohibitions on asylum for immigration-specific crimes, the regulation would ban any applicant who’d been convicted of two or three misdemeanors (depending on what they were) from getting asylum.

This would have the biggest impact on unauthorized immigrants living in the US who get arrested and put in deportation proceedings, but ask for asylum to avert their deportation. (Under asylum law, someone can ask for asylum at any point within their first year of living in the US.)

In immigration policy, traffic offenses like driving without a license often don’t count as misdemeanors because in many states unauthorized immigrants aren’t allowed to get licenses. But the draft regulation makes clear that if driving without a license is a misdemeanor in the jurisdiction in question, it counts toward ineligibility.

…and blue states can’t fix eligibility by expunging immigrants’ records. Some Democratic state officials (most notably Gov. Jerry Brown in California) have started to use the pardon power to clear the criminal records of immigrants facing deportation. This regulation would do an end-run around that strategy.

Convictions that had been expunged or otherwise modified after the fact would still count as convictions if there was any evidence that the criminal record had been altered for immigration purposes. In other words, if Brown tried to expunge a record to make someone eligible for asylum, the fact that that’s why he did it would prevent it from stopping their deportation.

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

WOW!

WHO WOULD HAVE THOUGHT THAT ADOLF HITLER WOULD LOSE WORLD WAR II, YET HAVE HIS DIRECT IDEOLOGICAL DESCENDANTS IN CONTROL OF THE UNITED STATES OF AMERICA 73 YEARS LATER?

Seems to me that we’re witnessing the end of the U.S. as a democratic republic and the beginning of a Nazi-style, White Nationalist, racist authoritarian regime that, with the help of a complacent Supreme Court led by a spineless Chief Justice and his group of GOP appointed sycophants, is basically tearing up our Constitution, spitting on it, and dismantling our democratic institutions before our eyes.

I do have to admit, however, that becoming a neo-Nazi, White Nationalist totalitarian state is likely to diminish our attractiveness as a destination for immigrants and anyone else: The “Stalin theory” of immigration control. And, I suppose that once the kids have been disposed of by returning them to death in the Northern Triangle, Trump & Sessions will use the cages to keep the rest of us in.

The New Due Process Army might be the last defender of our Constitution and human values!

PWS

06-30-18

 

GOOD NEWS FROM THE U.S. IMMIGRATION COURT IN ARLINGTON, VA BY TAL @ CNN: U.S. IMMIGRATION JUDGE JOHN MILO BRYANT SHOWS CONGRESS, PUBLIC, PRESS HOW IMMIGRATION COURT COULD & SHOULD WORK IF JEFF SESSIONS & THE DOJ WERE REMOVED FROM THE PICTURE & THE JUDGES WERE INDEPENDENT RATHER THAN BEING UNETHICALLY TOLD BY SESSIONS THAT THEY ARE “PARTNERS WITH DHS!”

The Wonderful Tal Kopan of CNN

Judge Roger Harris, Me, Judge Thomas Snow, & Judge John Milo Bryant (“The Non-Conformist”) head out to lunch on my last day at the Arlington Immigration Court, June 30, 2016

http://www.cnn.com/2018/06/28/politics/immigration-court-hearings/index.html

‘Just be a kid, OK?’: Inside children’s immigration hearings

By: Tal Kopan, CNN

As each immigrant child took their seat in his courtroom for their hearing, Judge John M. Bryant started the same way.

“How are you doing today?” he’d ask.

“Muy bien,” most would answer.

In a span of about 45 minutes, Bryant — an immigration judge in Arlington, Virginia — checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.

The day was known as a “master calendar hearing” — a swift introduction in court and the beginning of court proceedings for immigrants facing deportation.

The children had largely been in the country for some time, each fighting in court for the right to stay.

But though the immigration courts have long dealt with immigrant children, even those barely school age or younger, their turn through the unique, stand-alone immigration courts is getting new attention as the government’s “zero tolerance” border policy has sent thousands more children into the system without their parents.

The hearings were observed by six Democratic members of Congress: Whip Steny Hoyer of Maryland; Rep. Don Beyer, whose Virginia district includes the court; Congressional Hispanic Caucus Chairwoman Rep. Michelle Lujan Grisham of New Mexico; and Reps. Pete Aguilar, Nanette Diaz Barragán and Norma Torres, all of California.

At a news conference afterward, Beyer called the session “One of the best-case scenarios of a master calendar hearing, a sympathetic judge with kids with lawyers.”

The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.

“We know that in vast numbers of cases, there is not proper representation,” Hoyer said, adding that some kids are “not old enough to spell their own names, let alone represent themselves in court.”

In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in. One, a boy named José who had just finished ninth grade, was there for his second check-in and for his full asylum hearing received a court date of May 11, 2021 — likely to be just as he is finishing high school in the US.

The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and father, though Rodolfo’s case was being heard by itself. As he did with most of the children, Bryant asked Rodolfo if he was in school, translated by an interpreter via headphones provided to every immigrant facing the court.

“Hoy?” Rodolfo asked, confused — “Today?”

Bryant cheerfully prompted Rodolfo about what grade he had finished — kindergarten — and his teacher’s name — Ms. Dani. Bryant said he still remembered his own kindergarten teacher, Ms. Sweeney, from many years prior. “Hasta luego,” Bryant told Rodolfo, giving him a next court date of May 30, 2019.

While all the children in Bryant’s courtroom on this afternoon had attorneys, the Arlington Immigration Court is not typical of the country, where closer to 1-in-3 children are represented in court. Bryant was also generous with the continuances requested by attorneys as they waited to hear from the government on applications for other visas for the children, despite uniform opposition by the government attorney in court.

“Mr. Wagner, your turn,” Bryant joked at one point to the government attorney present, who dutifully recited the government’s opposition to granting continuances solely on the basis of waiting to hear back on a visa application. Bryant than immediately picked a day on his calendar for the immigrant and attorney to return.

One attorney for a 12-year-old girl, Rosemary, who was there with her mother, said they had applied for a Special Immigrant Juvenile visa, which is for minors who have been abused, abandoned or neglected by a parent. Bryant asked the attorney if the application was before a “sweet or sour judge.”

“I think it’s going to be a problem. It may have to be appealed,” the attorney replied.

The judge granted them a court date on February 28 of next year.

“Have a nice summer,” he said to the girl. “Just be a kid, OK?”

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

“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!

No trace of the Jeff Sessions’s paranoia, xenophobia, bias, child abuse, and de-humanization of migrants here. It’s like one would expect a “real” U.S. Court to be run! Sadly, that’s not what’s happening in the rest of the country. Just ask folks in Charlotte, Atlanta, Stewart, Ga., or Houston how they are treated by Immigration Judges. It’s ugly, abusive, well documented, highly inappropriate, and needs to end!

Even more outrageously, rather than building on and replicating successful judicial models like Arlington, Sessions has actually adopted some of the worst imaginable “judicial” practices, encouraged bias, and has actually endorsed and empowered the actions of some of the most clearly biased and anti-immigrant, anti-asylum Immigraton Judges in the system. It’s a simply unacceptable waste of taxpayer money and abuse of our legal system by someone incapable of fulfilling his oath of office.

Imagine, with judges actually in control, lawyers for the respondents, time to prepare and file applications, empathy, courtesy, knowledge, kindness, concern for fairness, efficiency, and giving ICE’s obstructionist “rote objections” and other dilatory tactics encouraged and enabled by this Administration exactly the short shrift they so richly deserve, the U.S. Immigration Courts could potentially fulfill their original vision of “becoming the world’s best tribunals, guaranteeing fairness and due process for all.”

And, ICE could be once again required to function in the same highly-professional, courteous, collegial, respectful, and helpful manner that they did in Arlington during the last Administration. It’s disgraceful that rudeness and unfairness have become the norm under Trump. Things like that used to get even Government lawyers fired, disbarred, or disciplined. Now they appear to win kudos.

And, having dockets run by experienced judicial professionals like Judge Bryant with the help of professional staff responsible to him and his colleagues would promote fairness, quality, and efficiency over the “Amateur Night at the Bijou” atmosphere created by a biased, politicized, and totally incompetent Department of Justice and carried out by agency bureaucrats who aren’t judges themselves and are not qualified to administer a major court system.

Why not design a system “built for success” rather one that is built for failure and constant crisis? A well-functioning court system where “Due Process and Quality Are Job One” and which serves as a “level playing field” would actually help DHS Enforcement as well as the immigrants whose lives depend upon it. Fairness and Due Process are good for everyone. It’s also what our Constitution requires! Play the game fairly and professionally and let the chips fall where they may, rather than trying to “game the system” to tilt everything toward enforcement. 

But, it’s not going to happen until either 1) Congress creates an independent U.S. Immigration Court, or 2) the Article III Courts finally step up to the plate, put an end to this travesty, remove the DOJ from its totally improper and unethical supervisory role, and place the Immigration Courts under a court-appointed “Special Master” to manage them with the goal of Due Process and judicial efficiency until Congress reorganizes them outside of the Executive Branch! Otherwise, the Article IIIs will have to do the job that Sessions won’t let the Immigration Courts perform!

Compare Judge Bryant’s professional performance with the “judicial meat processing plant/Due Process Denial Factory” being operated by U.S. Magistrate Judge Peter Ormsby on the Southern Border as described by Karen Tumulty of the Washington Post in my post from yesterday:

http://immigrationcourtside.com/2018/06/28/karen-tumulty-washpost-assembly-line-justice-is-already-the-norm-in-u-s-district-courts-at-the-border-as-go-along-to-get-along-u-s-magistrate-convicts-bewilder/

Who is the “real” judge here? It doesn’t take a “rocket scientist” to answer that one! Just some judges with the backbone, courage, and integrity not to “go along to get along” with Sessions’s assault on the integrity and independence of our justice system.

PWS

06-30-18

 

REVOLT @ ICE! – REAL LAW ENFORCEMENT PROFESSIONALS AT ICE RECOGNIZE THAT GONZO RACIST ENFORCEMENT POLICIES OF TRUMP, SESSIONS, & NIELSEN HARM LEGITIMATE LAW ENFORCEMENT, WASTE TAXPAYER MONEY, & DESTROY AGENCY’S REPUTATION AND EFFECTIVENESS – PETITION NIELSEN FOR SEPARATE AGENCY!

https://www.washingtonpost.com/world/national-security/seeking-split-from-ice-agents-say-trumps-immigration-crackdown-hurts-investigations-morale/2018/06/28/7bb6995e-7ada-11e8-8df3-007495a78738_story.html

Nick Miroff reports for the Washington Post:

The political backlash against U.S. Immigration and Customs Enforcement has turned so intense that leaders of the agency’s criminal investigative division sent a letter last week to Homeland Security Secretary Kirstjen Nielsen urging an organizational split.

The letter, signed by the majority of special agents in charge of ICE’s Homeland Security Investigative Division (HSI), offered a window into growing internal tension at the agency as an “Abolish ICE” protest movement has targeted its offices and won support from left-wing Democrats.

Though ICE is primarily known for immigration enforcement, the agency has two distinct divisions: Enforcement and Removal Operations (ERO), a branch that carries out immigration arrests and deportations, and HSI, the transnational investigative branch with a broad focus on counterterrorism, narcotics enforcement, human trafficking and other crimes.

The letter signed by 19 special agents in charge urges Nielsen to split HSI from ICE, because anger at ERO immigration practices is harming the entire agency’s reputation and undermining other law enforcement agencies’ willingness to cooperate, the agents told Nielsen.

Since President Trump’s inauguration, the state of California and several of the country’s largest cities have barred their law enforcement agents from cooperating with ICE by declaring themselves “sanctuary” jurisdictions. That has made it increasingly difficult for HSI agents to fight drug cartels and conduct major criminal investigations in the country’s largest urban areas, the letter said.

“The perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement,” the agents wrote.

Trump took office promising to quickly deport “2 or 3 million” foreigners, and following his inauguration, ICE interior arrests jumped nearly 40 percent. In recent months, the agency resumed carrying out large-scale workplace raids, winning glowing praise from the president, who said Wednesday at a rally in North Dakota that ICE agents are “mean but have heart,” and that they are “liberating” U.S. communities from the MS-13 gang.

Trump officials say they fear the transnational gang, whose members the president calls “animals,” could take advantage of lax enforcement at the border.

In their letter to Nielsen, the agency’s top investigators painted a starkly different picture — telling her their crime-fighting capability is being stifled by politics.

“Many jurisdictions continue to refuse to work with HSI because of a perceived linkage to the politics of civil immigration,” the investigators wrote. “Other jurisdictions agree to partner with HSI as long as the ‘ICE’ name is excluded from any public facing information.”

In one indication of eroding morale, the special agents told Nielsen that making HSI its own independent agency “will allow employees to develop a strong agency pride.”

The letter, marked “Law Enforcement Sensitive,” was first reported by the Texas Observer, which posted a copy.

ICE’s acting director, Thomas D. Homan, has been a vocal Trump supporter and an enthusiast of the president’s immigration agenda. But he has announced his retirement and is stepping down this month. A nominee to replace him has yet to be named.

Nielsen has not publicly responded to the letter.

A senior ICE official in Washington said the HSI agents’ letter was “not well received” at the agency’s headquarters, calling it “ill conceived and poorly timed” at a moment when so many staffers feel besieged by the backlash.

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

Not surprisingly, a regime built on lies, racism, and White Nationalism isn’t going to be good at much except lies, racism, and White Nationalism. And, that’s the perfect description of the Trump Administration.

Good for these courageous ICE agents! Maybe that’s where a future Administration should look when it comes time to rebuild, rename, and rebrand ICE to shed it’s well-deserved “American Gestapo” reputation earned under Trump, Sessions, and Homan.

And, contrary to the truly idiotic statement by an “obviously chicken” DHS “senior official,” this “rebellion” is a timely and reassuring sign that folks on the inside understand just how toxic the Trump/Sessions dishonest and racist immigration enforcement policy is to real law enforcement, which requires widespread tactical use of “prosecutorial discretion,” intelligent deployment of resources, respect for the courts and judges’ time, a willingness to “just say no” to broken and counterproductive laws that unfairly target racial groups, and, most of all, strategies to gain and keep community trust.

Trump & Sessions are completely inimical to real law enforcement and national security. That’s why they, and not undocumented individuals who are hard-working members of our communities, are an existential threat to the security, welfare, and very continued existence of our republic.

No country can survive a kakistocracy over a long period of time! That’s one thing that Trump, Sessions, and their White Nationalist cronies prove every single day!

The majority of Americans did not vote for this evil “clown show” (and their tone-deaf, unprincipled supporters) to govern us. Somehow, we let an unprincipled minority without concern for the common good, honesty, morality, or human decency seize control. If we don’t take our country back soon through the ballot box, it might be too late!

Get out the vote! Remove all of the clowns and their  enablers! Like my “new buddy” George Will said last week: nobody should vote for a Republican this November! (Although to be fair, Georgie detests Democrats — he just doesn’t fear them as much).

PWS

06-29-17

PBS: INJUSTICE IN AMERICA: UNDER GONZO, POLITICIZED “IMMIGRATION COURTS” (That Function As Session’s Patsies) “Jack Up” Immigration Bonds For Poor Asylum Applicants For No Particular Reason — Cover-Up Of Systemic Bias Promoted By Gonzo Appears To Be Underway!

https://www.pbs.org/newshour/politics/under-trump-higher-immigration-bonds-mean-longer-family-separations

Daniel Bush reports for PBS:

Under Trump, higher immigration bonds mean longer family separations

SAN ANTONIO, Texas — Federal judges are setting unusually large bonds for detained immigrants, immigration attorneys say, including for parents who were separated from their children at the border, a shift that has delayed the parents’ release even as the Trump administration insists it is making every effort to bring families back together.

Judges in past administrations routinely set large bonds for detained immigrants, often as high as $7,500, and well in excess of the $1,500 minimum required by law. But the practice appears to have grown under President Donald Trump, as judges respond to new Department of Justice guidelines aimed at reducing legal and illegal immigration.

The change is significant because the bond process is a key, if often overlooked, part of the immigration court system. For most detained immigrants, securing a bond is their only chance to live outside of detention in the United States while the federal government determines whether to deport them or allow them to remain in the country, a procedure that can take months, or in many cases, years, to complete. As of last month, the average wait time for a pending asylum case was more than 700 days, according to a database maintained by Syracuse University.

A ‘massive departure’

The Obama administration directed immigration judges to use their discretion to release eligible immigrants on low-cost bonds or without any bond at all, a form of parole known as “release on recognizance.” That is no longer the case under President Donald Trump, more than a dozen immigration lawyers and legal aid groups who represent detained immigrants said in interviews for this story.

Instead, immigration court judges — as well as officials from U.S. Immigration and Customs Enforcement, who also have authority to grant bonds — are increasingly denying bond requests altogether, or setting them at amounts in excess of $10,000, making them unaffordable for many immigrant families entering the country. One immigration attorney, who asked not to be named to discuss her clients’ cases, said it was “not rare” to see bonds of $25,000 for asylum seekers.

The entrance to an immigration court in San Antonio where judges hold bond hearings and other cases for detained immigrants. Photo by Phil Kline for PBS NewsHour

It’s a massive departure, in the sense of removing common sense discretion,” said Alfredo Lozano, an immigration attorney, referring to administration policymakers and immigration judges.

Erica Schommer, a law professor at St. Mary’s University in San Antonio, said there was no reliable data showing exactly how many immigrants were affected by these changes. But she and other attorneys estimated that “thousands of families have gotten higher bonds since Trump took office.”

It’s unclear how many detained parents separated from their children at the border remain in custody due to their inability to pay bond.

Numerous immigration attorneys also said the rise in unusually high bonds continued even after families were separated as a result of the “zero-tolerance” policy that took effect in May, despite public assurances from senior administration officials that the government was trying its best to reunite parents and children.

“The bond setting process with these high bonds is leading to lengthier time in detention, and lengthier periods of separation,” said Denise Gilman, the director of the Immigration Clinic at the University of Texas at Austin.

A spokesperson for the Department of Homeland Security wrote in an email that there was no “significant deviation” in the bond amounts that ICE officers set today compared to those under previous presidents.

The official denied that ICE officers were setting higher bonds at the request of the Departments of Homeland Security and Justice, as part of the Trump administration’s crackdown on illegal immigration. “There has been no change to bond policy,” the official said.

The average immigration bond set by ICE in fiscal year 2016 was $9,000, the official said. But he did not provide any documentation to corroborate the figure, and the agency did not respond to a request for data on the number or average cost of bonds granted to detained immigrants who were recently separated from their children.

The Homeland Security official also referred questions to the Executive Office for Immigration Review, the office within the Department of Justice that oversees federal immigration court.

An asylum seeker, who asked that his face not be shown to protect his identity, at immigration court after being released from detention. Photo by Phil Kline for the PBS NewsHour

On Wednesday, a spokesperson for the Department of Justice said in an email that the Executive Office for Immigration Review, does not keep data on the average bond amount for immigrants in detention, or the percentage of bond requests that are approved.

Another Justice Department spokesperson followed up Thursday to say that the office did keep some statistics on median bond amounts set by the immigration court, but that the office was not required to record the amounts in its database.

The official also pointed to an annual report on immigration cases prepared by the Executive Office for Immigration Review. The latest report showed the immigration court system completed 61,976 bond cases in fiscal year 2016, down from 78,221 in fiscal year 2012, the first year in the report.

Inside the complex bond process

The bond process follows a complex set of guidelines. In general, however, immigrants’ chances of obtaining a bond are based on a few key factors: how they entered the country, whether they have strong ties to family already living in the U.S., and the strength of their asylum claim.

The Immigration and Nationality Act requires the federal government to detain immigrants who enter the country legally by presenting themselves at a border checkpoint and claiming asylum, as well any immigrants who are caught illegally crossing the border. Once in custody, immigrants are interviewed by government officials to determine if they have a legitimate claim to asylum. If it’s determined that they do, they become eligible for release on bond.

ICE officers can release immigrants at any point in the process. Under Obama, the agency frequently released adult immigrants into the country without bond, as long as they did not have a serious criminal record or pose a national security threat. But immigration attorneys said that practice, often referred to by administration officials as “catch and release,” has largely ended under Trump, a change that has forced immigrants to fight their cases from detention — unless they can get out on bond.

Now, as more judges set higher bonds, immigrants are increasingly spending more time in detention, immigration lawyers said.

“We’ve consistently seen the bonds creep up and up and up over the last year and a half,” said Jodi Goodwin, an immigration attorney who runs a law practice in Harlingen, a small city on the U.S.-Mexico border in southern Texas. “From what we’ve normally seen in the past, which was an average of $3,500 to $5,000, to now $10,000.”

The Trump administration has consistently said that stricter enforcement measures are needed to curb illegal immigration.

Gilman, who represents immigrants in court, said in an interview that one of her clients, a woman named Jessica, recently received a $12,500 bond after being separated from her two sons at the border in March. The woman, whose last name Gilman asked not be revealed to protect her identity, said she had fled El Salvador to escape gang violence.

After they were detained, the woman’s children, who are four and 10 years old, were transferred to the Office of Refugee Resettlement, the agency within the Department of Health and Human Services that oversees the custody of immigrant children, and later released to relatives. But the mother is still in detention, while advocacy groups attempt to raise the bond money to get her out, Gilman said.

Unlike in the criminal justice system, where defendants can be released on bail, detained immigrants in immigration court proceedings, which are civil, must have their bonds paid in full to leave detention. Bail is not allowed, a factor that makes it even harder for immigrants like Jessica to be released from detention.

Another crucial difference of immigration court — compared to criminal cases — is that the government is not required to provide a lawyer for immigrants who cannot afford to hire an attorney or find free legal representation. As a result, just 14 percent of detained immigrants in the U.S. were represented by lawyers during their deportation proceedings from 1951 to 2013, according to a report by the American Immigration Council, published in September 2016.

An immigration court in downtown San Antonio where judges hold bond hearings and other cases for detained immigrants. Photo by Photo by Phil Kline for PBS NewsHour

A separate study by the Vera Institute of Justice found that in New York State, an immigrant’s odds of remaining legally in the country increased from 4 percent to 48 percent when they had an attorney. The findings mirrored national statistics on the benefits of legal representation in immigration court.

The dearth of legal representation could impact the next phase of the family separation crisis, which has been closely intertwined with the immigration bond process.

A federal judge Tuesday ordered the Trump administration to reunify detained parents and their children within 14 to 30 days, depending on the age of the child, and stop separating families at the border. But it’s unclear how the administration will quickly reunify adults like Jessica, who are detained by the Department of Homeland Security, with their children, who are in the custody of a separate federal agency.

Moreover, the injunction did not stop the Trump administration from prosecuting immigrants who cross into the country illegally, or block judges from setting high bonds that most immigrants can’t afford to pay. As long as judges keep setting higher bond amounts, detained immigrant adults will likely continue to spend long periods of time apart from their families.

“The Department of Homeland Security and the Justice Department have been making claims about how hard they’re working to reunite families, when actually they’re working hard to keep families detained through the bond process,” Gilman said.

Immigration attorneys and legal aid groups said the administration’s claim that nothing has changed contradicts what they’re seeing on the ground in immigration courtrooms across the country.

The practice of consistently setting large bonds represents “a dramatic change from the Obama administration’s policies,” said John Sandweg, who served as the acting director of U.S. Immigration and Customs Enforcement.

“I’m not surprised if the Department of Justice is directing courts to step up and be tougher on bonds. The administration is trying to keep as many people in detention as possible” to hasten their deportation, Sandweg said.

Shifting grounds for asylum

In one case that is becoming increasingly common, a judge recently set a $9,000 bond for an immigrant mother after she was detained and separated from her two-year-old child at the Texas border. Schommer, the St. Mary’s law professor who is representing the woman in court, shared some aspects of her client’s story on the condition that the woman remain anonymous.

The woman based her asylum claim on being a victim of domestic abuse in her home country, Schommer said. At her bond hearing, according to Schommer, the immigration judge said he was setting a high bond because he did not think the woman’s asylum request would be granted under a ruling issued this month by Attorney General Jeff Sessions. The ruling held that gang violence and domestic abuse are no longer grounds for seeking asylum.

Schommer’s client’s case offers a concrete example of an immigration judge making decisions based on the immigration policies set by top administration officials in Washington.

“Obviously, her family does not have the $9,000” to pay for the bond, Schommer said. She said she had turned for help to RAICES, an immigration advocacy group that is raising money to pay for bonds for immigrant parents separated from their children. “We’re in the process of trying to get the money,” Schommer said. “Hopefully we’ll able to get her bond posted this week.”

That might not be necessary if the Trump administration moves quickly to comply with the order to reunify separated families. Even so, the woman will likely remain separated from her young son for at least the next several days, if not longer.

The PBS NewsHour could not independently confirm the story and other similar stories that immigration attorneys related in interviews. Immigrants who are currently in detention or who have family members in the system are often reluctant to reveal details of their cases to the media, out of fear that the information, once it is made public, could hurt their chances of avoiding deportation.

But in repeated visits to three different immigration courts in Texas this week, including one inside the detention center in the city of Pearsall, this reporter witnessed judges consistently deny bonds or set bonds at amounts well above the $1,500 minimum. In several instances, judges set bonds above $10,000, including one for $12,000 and another for $15,000.

Those bond hearings were for immigrants who were detained before the “zero-tolerance” policy took effect. Still, they provided clear anecdotal evidence of the preference on the part of judges for issuing large bonds, and the difficulties immigrants face in navigating the U.S. legal system — especially if they don’t have an attorney. The vast majority of immigrants in the bond hearings witnessed during these visits to the courts did not have legal representation.

“You can see the tide has changed. Not just with enforcement. The tide has changed with the judges’ discretion on bonds ever since Trump came to office,” said Lozano, an immigration attorney. “If they can make it difficult, they will make it more difficult.”

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

  • Obviously, something fishy is going on here.
  • Average bonds in Arlington Immigration Court 2003-2016 in my experience, $2500 – $5000.
  • In 13 years, I only set one $25,000 bond. That was pursuant to a stipulation by the parties.
  • Approximately 95% of those I bonded “made” their bonds.
  • I seldom had a problem with bonded respondents failing to appear.
  • There is no current crisis or other reason for higher bonds.
  • The only real change is that Sessions is pressuring Immigration Judges to implement his White Nationalist agenda.
  • By rewriting established asylum law to deny most gender based claims, Sessions is actively encouraging Immigration Judges to prejudge asylum cases and keep those who should be bonded in detention for improper deterrence or punishment purposes.
  • There will be no justice or Due Process in a fake “court system” run and controlled by a racist, White Nationalist, Jim Crow like Sessions.
  • Congrats to reporters like Daniel and courageous advocates who are exposing  the systemic corruption, illegality, and immorality that Sessions has brought to an already overwhelmed  and dysfunctional system.
  • Even ICE officers are starting to resist the racist, counterproductive, and in many cases just plain stupid enforcement policies of the Trump immigration enforcement regime.
  • I know that Federal jobs are important. But where are the Immigration Judges willing to stand up and “just say no” to unconstitutional and racist policies?
  • Is a job, even a very good one, more important than personal integrity and the lives of migrants being unfairly targeted and harmed by a White Nationalist regime?
  • Keep digging Daniel. You’ll eventually hit ”paydirt.” And nothing is more important to our country than to hold those public officials like Sessions who misuse our laws to inflict their personal bias on others accountable in some way, shape, or form.

PWS

06-29-18

BETTER LATE THAN NEVER? – After 9 Years, The BIA Finally Completes The Supreme’s Remand – Creates A “Limited Duress Defense” To Persecutor Bar, With Judge Malphrus Dissenting – Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Here’s the link:

3930

BIA HEADNOTE:

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS

OPINION BY: Judge Edward R. Grant

CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus

KEY QUOTE FROM MAJORITY:

In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in

1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.

page1image1919785008

347

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2

We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.

KEY QUOTE FROM DISSENT:

The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

ORDER: The applicant’s appeal is dismissed.

368

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.

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  • Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
  • 9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
  • Odds on whether or how long it will take “Gonzo” to intervene?

PWS

06-29-18

 

DAHLIA LITHWICK @ SLATE: THE UGLY TRUTH ABOUT THE “LAST MODERATE” JUSTICE KENNEDY – HE ALWAYS HAD A DARK SIDE & HIS TOADYING TO TRUMP THIS TERM WILL ENSURE A TARNISHED LEGACY!

https://slate.com/news-and-politics/2018/06/anthony-kennedy-retirement-why-he-joined-team-trump.html

In his last year on the bench, the lifelong devotee of dignity and the rule of law joined Team Trump. What happened?

Anthony Kennedy speaking into a microphone
Justice Anthony Kennedy delivers speaks at the White House on April 10, 2017, in Washington.
Chip Somodevilla/Getty Images

It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative. Recall that in the famous study done in 2008 by Richard Posner and William Landes, “Four of the five most conservative justices to serve on the Supreme Court since the time of Franklin Roosevelt, including [John] Roberts and [Samuel] Alito, are currently sitting on the bench today.” And Kennedy? He was ranked in that study as the 10th most conservative justice in the past century.

To the extent we wrote paeans to Kennedy, it was for his occasional defections in areas that materially affect the lives of millions of people—women, minorities, LGBTQ couples, voters, Guantanamo detainees. And to be sure, each of those votes was well worth it. But we knew that for each such vote, there was a Bush v. Gore, a Citizens United, a Shelby County. And this term ended, perhaps fittingly, with Kennedy voting with the conservatives to hobble public-sector unions, to support mandatory arbitration clauses and voter purges, and to increase the unchecked power of an already imperial presidency. As Richard Hasen noted on Tuesday, Kennedy’s work here was clearly done. His concurrence in the Muslim ban case essentially signaled that Kennedy had all but given up on the notion of the judiciary as a meaningful check on the other two branches. As Hasen correctly called it, that concurrence landed as “a general statement of judicial powerlessness to solve social problems and an abdication of responsibility on the part of the courts to enforce key parts of the Constitution, in favor of a plea for self-restraint on the part of elected officials.” From a man who devoted a career to the proposition that the courts alone could fix things, it sounded in the key of “I’m out.”

There will be myriad theories and hypotheses about why Kennedy all but gave up on his project of centrism, civility, norm preservation, and institutional self-preservation this year. I’ve never heard him speak so eloquently as when he was defending those values and celebrating the extraordinary role American courts and judges have played to foster such values in democracies around the world. One senses in his cri de coeur in NIFLA, Tuesday’s abortion-speech case, that he is viscerally bothered by progressive states like California attempting to be “forward thinking” (read: authoritarian) when it comes to truth in advertising around reproductive options. One senses in his vision of uncivil discourse in the Masterpiece Cakeshop case a growing frustration with what he sees as impolite discussions about religious liberty issues he wanted us to discuss civilly. One senses in his concurrence in the travel ban case a sort of stutter-step apology to “an anxious world” that watches the norms and institutions of constitutional democracy crumble.

As Mark Stern and I noted on Tuesday, it was hard to see Kennedy’s concurrence in that case as anything more than a concession that the last adult in the room was now leaving the building. Maybe it’s a fitting end to his career to say that the man who wanted everyone to speak to one another civilly and respectfully did what everyone else has done this year and threw in the towel. It’s hardly a stretch to say that Kennedy’s lasting caution from Obergefell—the marriage equality decision—was his request that the nation resolve the oncoming conflict between gay rights and religious dissenters by “engag[ing] those who disagree with their view in an open and searching debate.”

Yeah, that didn’t happen.

And so the formerly “centrist” Anthony Kennedy ended his Supreme Court career by taking sides, not simply in the spate of bombshell 5–4 decisions that came out in recent weeks. He took sides in a rhetorical war about the suffering of Christian bakers and pregnancy centers, and the language of “no you’re the radical” he now directs at liberals with whom he could once find common cause. It wasn’t so much that Kennedy ever represented the “center” of the court. He was no more the center than John Roberts will be the center of a vastly more conservative post-Kennedy Supreme Court. But Kennedy did become, for a time, a symbol of certain values around judging and justice—of acute concern that both sides be heard, of respect for the rule of law, and of solicitude for at least some communities that were invisible to his colleagues on the right. And to the extent that this was the center, it is perhaps apt that it falls away at the end of this term. Those institutional and rhetorical values feel like the relic of another time. Neither Sonia Sotomayor nor Samuel Alito has any patience for that kind of signaling anymore.

Democrats should rightly be terrified that Kennedy’s legacy around gay rights, reproductive rights, affirmative action, some kinds of racial justice, and student prayer are in immediate peril. And Democrats can now be fully assured that the Supreme Court will not step in to stop Donald Trump’s excesses. And to be sure, the reason the court will not stand up to future acts of Trumpism is that Kennedy, who tried to be the bridge at the court for so many decades, gave up and joined Team Trump.

Many of us predicted that Kennedy would not allow Trump to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a lifelong devotee of dignity, civility, and the rule of law would not want his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong. That two of Anthony Kennedy’s last judicial acts included a letter that opened “My dear Mr. President” and a vote to grant that same president a virtual blank check on the national security front certainly suggests that nothing about a president who lies, bullies, and destabilizes the rule of law was any kind of real impediment to Kennedy’s departure.

We will debate in the coming months whether Kennedy tacked back to the right this year or if he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench. But one thing is beyond doubt: If there was anything like a “moderate center” inside the only branch of government not broken by polarization, it’s gone. Even the idea of such a thing is gone. For any of us who clung to such symbols, it’s a bracing reminder that there is no longer a center, or even a center built of make-believe.

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

Trump diminishes and corrupts every sycophant and toady, robed or not, who associates with, supports, or helps enable him and his White Nationalist Empire. Kennedy is no exception. Law is in the here and now. Actions speak louder than words. A judge is part of the problem or part of the solution. Kennedy has cemented his position among the former by failing to take action to be part of the latter.

PWS

06-29-18

KAREN TUMULTY @ WASHPOST: “ASSEMBLY LINE JUSTICE” IS ALREADY THE NORM IN U.S. DISTRICT COURTS AT THE BORDER AS “GO ALONG TO GET ALONG” U.S. MAGISTRATE CONVICTS BEWILDERED AND DAZED NON-CRIMINALS WHILE MUTTERING MISLEADING PLATITUDES!

  https://www.washingtonpost.com/opinions/this-is-what-trumps-assembly-line-justice-looks-like/2018/06/27/16a67354-7a12-11e8-aeee-4d04c8ac6158_story.html?utm_term=.92044d40e736

When Magistrate Judge Peter E. Ormsby stepped into the federal courtroom here Tuesday morning, 75 defendants rose to their feet.

Their ankles were shackled, and they wore headsets through which the proceedings would be translated into Spanish. In the hallway, just beyond the door, was a pile of handcuffs that had been removed before they entered the courtroom.

Most of the defendants appeared dressed in the same filthy, sweat-saturated clothes they had been wearing two days before, when they were apprehended crossing the Rio Grande aboard rafts.

In all but 11 of their cases, this criminal misdemeanor was the first time they had ever been found to have violated U.S. law.

Ormsby informed them his was not an immigration court. Many had already signed away their rights to further proceedings and had orders for what is known as “expedited removal.” They had done that before the 17 lawyers of the public defender’s office had met with any of them for the first time, just hours before.

The next two hours would see each one of them plead guilty and be sentenced, most to time already served.

With few exceptions, each case would be dealt with in under 75 seconds.

This was just the morning docket. It is what President Trump’s “zero tolerance” policy looks like here, where busloads of recently detained migrants roll up to the federal courthouse several times a day. Ormsby invited me and a handful of other observers there to sit in the jury box, because there was no room anywhere else.

The president contends that even this assembly-line version of justice is more than what those caught entering the country illegally should get.

“We cannot allow all of these people to invade our Country,” Trump tweeted Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

On that latter point, the president is correct — but it is for the reverse of the reasoning he offers. His zero-tolerance policy is putting even more stress on a legal system that already gives migrants far less than their day in court.

The outcome for many might be different if they had fuller access to the legal system, to which they are entitled in theory if not practice, and given an opportunity to make their case to stay in this country.

Trump has mocked proposals for adding to the number of immigration judges, who handle separate proceedings for those who want to remain.

“We have thousands of judges already,” he has claimed. That is incorrect. The number actually stands at fewer than 350 across the country. They are facing a backlog of more than 700,000 cases.

Just as critical as the scarcity of judges is the fact that so few migrants ever have a chance to consult an attorney.

Only about 14 percent of those who are detained have access to counsel, says American Bar Association President Hilarie Bass, who was here from Miami. She added that migrant adults with lawyers win slightly more than half their cases and get to stay in this country, while 9 out of 10 of those without representation lose and are deported.

For unaccompanied children, the disparity in outcomes is even greater. As Bass noted: “How can you ask a 12-year-old to walk into court and make a case for themselves?”

Under Trump’s zero-tolerance policy, more migrants are being prosecuted and deported on the border, rather than being sent to other parts of the country where they can await trial while staying with relatives or others who can take them in. That has compounded the challenge, because it adds to the backlog in this region and makes it more difficult for migrants to find lawyers.

In the current crisis, platoons of lawyers are arriving weekly to volunteer their services, but there are not nearly enough, says Kimi Jackson, director of the South Texas Pro Bono Asylum Representation Project. “What we need most here are Spanish-speaking immigration attorneys, particularly ones who can stay a little longer.” The need will remain for the foreseeable future, long after the journalists and cameras have moved on to the next story.

And even if help comes, it will be too late for most of those who appeared before Ormsby. As he worked his way through their cases, he expressed sympathy for the circumstances of poverty and violence that brought them from dangerous places in Honduras and El Salvador and Mexico to his courtroom. He wished them and their families well and urged them to go through the process of coming to the United States legally.

“Seeing the type of people you appear to be,” the magistrate added, “I hope that you will be successful with that.”

But everyone there knew that was a wish, and one unlikely to come true.

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  • Mostly first offenders who didn’t belong in criminal court anyway.
  • Why would nonviolent first offenders be shackled in court?
  • Anybody understand what they are pleading guilty to?
  • Everybody understand that they have a right to a full trial at which the Government would have to prove guilt?
  • Anybody understand what a port of entry is?
  • Anybody just looking for an officer to apply for asylum?
  • Anybody realize there are strong legal arguments that criminal sanctions can’t be invoked against good faith asylum seekers under international treaties to which the U.S. is party?
  • Anybody know the name of their court-appointed lawyer?
  • Anybody have a chance to speak with their lawyer in private in Spanish?
  • Anybody have a “know your rights” presentation about the immigration system?
  • Anybody know what a “credible fear” interview is, how to request one from the DHS, and how to get review of a denial?
  • Anybody know that asylum applicants who pass credible fear can request bond?
  • Anybody understand the consequences of a conviction?
  • Anybody pressured to plead guilty to get their kids back or get out of detention?
  • Anybody know how the asylum process works and how to apply?
  • Anybody know how important lawyers are for asylum seekers and how to get in touch with local pro bono lawyers?
  • Anybody separated from kids?
  • Anybody know that the Government has been ordered by a more conscientious Federal Judge to reunite families?

We’ll probably never know the answers, because that might have exceeded Judge Ormsby’s 75 second attention span and cut into his productivity stats.

I’ve commented before on the Judge Ormsby’s judicial performance (or lack thereof).

https://wp.me/p8eeJm-2E9

Judge Ormsby should be in line for a Jeff Sessions “Volume Is Everything — Due Process Is Nothing” award! He appears to be just the type of subservient judicial toady Trump & McConnell would love to have on the Supremes. And, I wouldn’t let the U.S. District Judges who are in charge of this judicial farce off the hook either.

Someday, the true history of the abuses of human values, human rights, and our Constitution now going on at our border under a White Nationalist regime will be written. And the “go along to get along” crowd will be held accountable for their conduct; by the judgment of history, if not by the law.

PWS

06-29-18

JOIN THE EXPERTS FROM GEORGETOWN LAW! GET SOME MUCH-NEEDED TRUTH, FACTS, AND HONESTY ABOUT ASYLUM, REFUGEES, IMMIGRATION, DUE PROCESS, AND THE BORDER! – Join Professor Andy Schoenholtz and Michelle Brane (’94) Of The Women’s Refugee Commission @ 10 AM This Morning On Facebook!

Looking for clarity on the law and latest policies affecting children and families separated at the border? Professor Andrew Schoenholtz and Michelle Brané (L’94) of the Women’s Refugee Commission will discuss the status of reunifying families, what’s driving migration and where the administration’s zero-tolerance policy goes from here. Watch the conversation live on Georgetown Law’s Facebook page 10:00 AM today!

https://www.facebook.com/georgetownlaw/videos/10156315406050149/]

 

AND, FOR THOSE WHO MISSED THE ‘LIVE’ PRESENTATION, HERE’S THE VIDEO: 

https://www.google.com/url?q=https://www.facebook.com/georgetownlaw/videos/10156315406050149/&sa=D&source=hangouts&ust=1530298234029000&usg=AFQjCNECqMvBVDNt89rzbWqzWwXrD3Oe-A

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

Andy & Michelle are long-time friends and two of the “best ever.” Andy (co-author of Refugee Roulette) is my colleague at Georgetown Law these days, and Michelle worked at the BIA as an Honors Program Attorneys during my tenure as BIA Chair.

Start your day with a breath of fresh air and some much-needed truth about refugees, migrants, the law, and how we are treating the most vulnerable among us.

 

PWS

06-28-18

GONZO’S WORLD: WHY THERE CAN NEVER BE JUSTICE AT JUSTICE – Biased, Disingenuous, Child Abuser Sessions Can’t Possibly Run A “Fair & Impartial Judicial System” – Stench Won’t Wear Off Of Article IIIs Who “Go Along To Get Along” With This Outrageous Mockery Of Due Process For Vulnerable Migrants!

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JUSTICE NEWS

Attorney General Sessions Delivers Remarks to the Criminal Justice Legal Foundation
Los Angeles, CA

~

Tuesday, June 26, 2018

Remarks as prepared for delivery

Thank you, Richmond for that kind introduction and thank you for your leadership at the Foundation, the Federalist Society, and Kirkland Ellis.  I’m told that your daughter is an AUSA—congratulations on that, as well.

I want to thank Governor Wilson, U.S. Attorneys Nick Hanna and Adam Braverman, District Attorneys Greg Totten, Summer Stephen, our former District Attorneys Steve Cooley and Ed Jagels.  And congratulations to our new District Attorneys-Elect Cynthia Zimmer and Jeannine Pacioni.  And thank you to John Cox for being here as well.

I especially want to thank President Rushford for his remarks and Legal Director Kent Scheidegger for this organization’s strong support for crime victims, for law enforcement, and for the Department of Justice in both the courtroom and in the public arena.

You stand up for the idea that we can bring down our crime rates through smart policies and more sophisticated policing.  That is exactly right. You know as well as I do that crime rates aren’t like the tides—we can make a difference.

On behalf of President Donald Trump, I especially want to thank you all for your strong voice in speaking out for the enforcement of our immigration laws.

This is a decisive issue.  As the President often says, “a country without borders is not a country.”  I don’t know why that is so hard for some people to understand.

In the United States, we have the most generous immigration laws in the world.  We take 1.1 million people on a path to citizenship every year.  Another 700,000 come here to take jobs.  Another half a million come here to take spots in our colleges and universities.

These are generous laws.

And yet, when we enforce them, we get attacked in the media by the so-called elites and their special interests.

I am convinced that the people of this country support these efforts.  In the 2016 election, voters said loud and clear that they wanted a lawful system of immigration that serves the national interest.  They said we’ve waited long enough.

I believe that this is one of the main reasons that President Trump won. He promised to tackle this crisis that had been ignored or made worse by so many before him. And now he’s doing exactly what the American people asked him to do.

Yet it seems like these same people who have been passing the buck on this crisis for decades haven’t learned anything.  They’re still pushing the same old agenda.

They are fighting desperately to stop the good and decent wishes of the American people from being carried out.

They don’t like it when we deport people—even criminal aliens.  They don’t like it when we stop people at the border—even those smuggling children.  They don’t like interior enforcement and they don’t like work place enforcement.  No matter what we do, they complain.

From coast to coast—perhaps especially on this coast—there are politicians who think that having any border at all is mean-spirited, unkind, or even bigoted.

The vice-chairman of the Democratic National Committee recently wore a t-shirt that says “I don’t believe in borders.” I wonder what his neighbors think about that.

The name of the group that organized the Caravan to stampede our borders is “People Without Borders.”

The Attorney General of this state, Xavier Becerra says that “there’s really no difference between my parents and [illegal] immigrants except a piece of paper.” Paperwork, meaning compliance with our law, is important.  And it’s a shame that I must say this to the top law enforcement official in California.

Last week a candidate for governor of New York said that we should “abolish ICE,” which she calls “a terrorist organization.”  And she’s got 25 percent support in the latest primary polls.

A few months ago, I paid a visit to Sacramento.  You may have heard about it.  While I was there, the Mayor of Oakland called illegal aliens “law-abiding Oaklanders.”  By definition, of course, that is not true.

In 2013, Hillary Clinton reportedly said in one secret speech, “My dream is a hemispheric common market, with open trade and open borders.”  This is the presidential nominee of a major political party.

And these are just the explicit, overt examples.  There are plenty of other examples of politicians who want to sound like moderates but whose votes and actions evidence a radical open borders agenda – not lawfulness.  Apparently, even the libertarian CATO institute is in this camp.

The rhetoric we hear from the other side on this issue—as on so many others—has become radicalized.  We hear views on television today that are on the lunatic fringe. And what is perhaps more galling is the hypocrisy.  These same people live in gated communities and are featured at events where you have to have an ID even to hear them speak.

And if you try to scale their fence, believe me, they’ll be only too happy to have you arrested and separated from your family.

They want borders in their lives but not yours and not the American people’s.  This is why the American people are sick of the lip service and the hypocrisy. They are sick of the politicians who abandon their promises as soon as the mainstream media criticizes them. They’ve seen it for decades. And now they are supporting a President who is on their side.

President Trump has been quite sensible.  He made a generous offer to those who oppose this in Congress.  He offered to give DACA recipients legal status if we can build a wall, close the maddening loopholes in our legal system, and switch from chain migration and the visa lottery to a merit-based system.

Their refusal of this offer should be baffling to any objective observer.

He simply asked that they agree to a serious solution to the problem.  Why wouldn’t you want to end the illegality?

On Wednesday, President Trump ordered this administration to ensure that when we apprehend illegal aliens at the border and hold them for criminal prosecution and to adjudicate their immigration claims, we do what we can to keep families together.

How did the open borders crowd respond?

No.  Now they don’t want them held or deported at all.

Does that surprise you?

When they win, they make demands.  And when they lose, they make demands.  I think there’s a lesson in that.

We know which side of the debate is radical.

The so-called elites will always find an excuse to attack President Trump.  They will not be satisfied as long as we are enforcing our borders.

As long as there is any immigration enforcement, they will oppose any effective limits.

But in spite of the critics, we are following the President’s executive order—and the President is listening to the American people.

On Thursday, the Department of Justice filed a request—right here in the Central District of California to modify the terms of the Flores consent decree, which is what keeps us from detaining alien children with their parents for more than 20 days while their asylum cases are pending.  We are asking the court to let ICE detain illegal alien children together with their parent or legal guardian in family residential facilities.

This consent decree—and case law right here in California that has expanded it—has had disastrous consequences for illegal alien children.

In 2015, the Department of Justice under President Obama also tried to modify the consent decree for this exact reason.  But it was blocked. And so the word got out that if you crossed our border illegally you would not be detained as long as you brought a child with you.

The results won’t surprise you.  The number of people illegally crossing our border with children went up dramatically.  In 2013, there were 15,000.  This year we’re on pace for 88,000—a five-fold increase in five years.

And we know how well ‘catch and release’ worked. Last year there were 40,000 removal orders issued for people that didn’t show up for their hearings.

And it’s no wonder: our broken immigration laws are telling people that they can come here illegally. So why wait in line?

If we don’t fix our laws, then the flow of illegal immigration is not going to stop—and with it, the gangs, the drug cartels, and the human trafficking, including of children.

That’s why the President made clear that we are going to do everything in our power to avoid separating families—but we are still going to work to prosecute all of those who come here illegally.

By definition, we ought to have zero illegal immigration in this country. But we have more than 1 million illegal aliens just in the Los Angeles area. It is widely estimated that there are more illegal aliens in California than there are people in New Mexico.

There is no other area of American law with this level of illegality.

This is a big group of people.  Too many of them have committed crimes here. By definition, every one of those crimes is preventable.

Thousands of illegal aliens are sitting in California jails that you pay for. 39,000 are in federal prisons.  Another 16,000 are in custody of the U.S. Marshals.

Those are people who had to be tracked down and arrested by our law enforcement—every time, putting them in potentially dangerous situations.

In this city, Americans have been victimized countless times by people who shouldn’t even be here.

Here are just a few of the people arrested by ICE just this month for crimes that would have been prevented with effective border enforcement:
a gang member who had been convicted of rape,
a man convicted of assault with intent to commit rape, and
a man convicted of assaulting an officer, beating his wife, and assault with a deadly weapon.

I could go on and on.  These are the kind of people that sanctuary politicians want to keep in California.  This is who they want to give sanctuary to.

The open borders politicians say they’re being compassionate.  But where is their compassion for that rape victim? How do they explain to her that her attack happened because of their so-called compassion for her rapist.

Consider the rise of sanctuary policies.

It may sound nice, but these are de facto open borders policies.  At their root, they are essentially a rejection of all immigration law.

Think about it.  Under sanctuary policies, someone who illegally crosses the border on a Monday and arrives in Sacramento or San Francisco on Wednesday is home free—never to be removed.

Police are often forced to release criminal aliens back into the community—no matter the crime.  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.

That has real consequences.

ICE tells us that they are able to locate only about 6 percent of the criminals they ask sanctuary jurisdictions to turn over.    The other 94 percent are walking free and often on their way to their next victim.

If they won’t allow us to deport someone who enters illegally and then commits another crime—who will they agree to deport? Sadly, we know the answer to this.  Nobody.

And that sends a message around the world.  People in developing nations don’t know the laws on our books.  But they see what we do.  And so do the gangs and drug cartels.  They see whether we deport criminals or not.  They see whether we have a border wall or not.  They see whether we reward illegal aliens with benefits or not.

That’s why, under President Trump’s leadership, the Department of Justice is working to end sanctuary policies.  In March, we sued the state of California over their sanctuary laws.  And you’ve stood by us all the way.  Thank you for your strong amicus brief and thank you for your strong support.

I am confident that together we are going to win that case.  It has been settled since 1819 that a state cannot actively attempt to undermine the execution of federal law or discriminate against the federal government.

The American people are with us on this issue.  One poll last year showed that 80 percent of the American people oppose sanctuary policies.  Most cities are not sanctuary cities.

We have also supported the state of Texas in its efforts to ban sanctuary cities.  And since I became Attorney General, we have filed briefs to defend state or local law enforcement in about thirty cases.  A number of courts have ruled in these cases that state or local cooperation with federal immigration enforcement efforts does not violate federal law.

We have stopped rewarding sanctuary cities with taxpayer dollars.  If sanctuary cities want to receive federal law enforcement grants, then they should stop impeding federal law enforcement.  That is not too much to ask.

This is the Trump era.  We are enforcing our laws again.  We know whose side we’re on: we’re on the side of police, and we’re on the side of the American people.

The radical open border crowd should declare whose side they are on.

But we are resolute. We are going to keep fighting.  With President Trump and with your strong support for police and for the rule of law, I am confident that we will turn the tide and keep the American people safe.

 

Topic(s):
Immigration

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That a Government official supposedly charged with protecting justice for everyone in America  — NOT just citizens or GOP voters — and who took an oath to uphold the Constitution would make such an outrageously biased statement in public and not be booed off the stage shows just how empowered  “White Nationalist Nation” has become under Trump, Sessions, and Miller.

Don’t expect any help from Chief Justice Roberts and his gang over at the Supremes.

And no, “Gonzo Apocalyoto,” most of us fighting to uphold the Constitution, the rule of law, international law, human values, and to defend human dignity against you and your “Fat Cat” cronies like Trump and GOP “bankrollers,” do not live in gated communities and usually you can hear us speak for free. You choose not to listen to the true “voices of virtue.”

Just a brief fact check: The majority of American voters didn’t want Donald Trump to be their President — the Electoral College elected him, even though millions more American voters would have preferred his opponent.

Also, why is Gonzo allowed to go around spreading the clear untruth that immigrants, both legal and undocumented, are a major source of crime? It’s been proven untrue over and over. And, when you discard “bogus crimes” such as misdemeanor illegal entry and traffic violations, migrants of all types are significantly more law-abiding than native-born Americans.

Indeed, the vulnerable women and children refugees from the Northern Triangle that Gonzo is harming and persecuting are actually fleeing from severe violence — a “low-grade war zone” as described by NBC correspondent Richard Engel — that Gonzo and his group of scofflaws encourage and feed by falsely characterizing them as “mere economic migrants,” telling them to get in a “nonexistent line” to migrate legally, intentionally skewing and misconstruing asylum law against them, and basically telling them to “join the gangs, cooperate with them, or die — we really don’t value your lives at all.” How sick is that? About as sick as abusing little children and asylum seekers.

PWS

06-27-18

 

MY CLIP TODAY FROM CNN’S “AT THIS HOUR WITH KATE BOLDUAN” — Ah, The Fleeting Nature Of Fame . . . If they Had Only Gotten My Name Right — That’s When You Know You’re Not In Milwaukee Any More!

https://www.cnn.com/shows/at-this-hour

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Obviously, I need an agent!

PWs

06-27-18

 

NEWS FROM THE KAKISTOCRACY: HOW TOTALLY INCOMPETENT IS THE TRUMP ADMINISTRATION IN SOLVING THEIR SELF-CREATED “CHLD ABUSE CRISIS?” — Need You Ask?

6 children in 6 days, thousands left: Inside the family reunifications

By: Tal Kopan, CNN

The Trump administration has more than 2,000 children it separated from their parents in its custody. In a six-day span, that number only went down by six children.

It’s still unknown, though, whether those children were reunited with parents, other family or otherwise transferred out of Health and Human Services custody, and the government has not answered questions about the circumstances of their release.

The stories are heart wrenching.

A Guatemalan woman sued the government after her 7-year-old son was separated from her, and in the middle of those proceedings was able to reunite with her son.

As Beata Mariana de Jesus Mejia-Mejia embraced her son, Darwin, at the Baltimore Washington International Airport for the first time in more than a month, she cried.

“I love you,” she said in Spanish, between sobs.

But thousands more parents remain in limbo.

The Annunciation House, which hosts undocumented immigrants in El Paso, Texas, received 32 separated parents on Sunday upon their release from detention. According to the parents, the average child’s age is 10, and just three of the parents had spoken with their child personally since they were separated.

In an emotional news conference, some of the parents told their stories of trying to find their children in government custody.

One woman, Miriam, from Guatemala, said she didn’t have a chance to say a word to her 4-year-old son before he was taken from her at dawn while he was fast asleep — he was still asleep when they put him on a truck and drove away, she said.

When she was finally able to reach him Monday by phone in New York, she said he refused to speak to her. CNN was unable to confirm how much time had passed since their separation. But as Miriam tells it, it was long enough to make an impression on him.

“He’s mad at me,” she said, tears in her eyes. “He thinks that I abandoned him.”

Data hard to come by

The administration has been reticent to release much data about the results of its prosecution policy that ended up separating more than 2,000 families at the border in about six weeks. But the new figures show how slow the pace has been to put those families back together — even as a federal judge has now ordered the government to do so in 30 days.

On Tuesday, the secretary of Health and Human Services said there were 2,047 migrant children in its care as a result of being separated from their parents at the border so the parents could be prosecuted on criminal charges. Six days prior, the government had said there were 2,053 such children.

That day, June 20, was when President Donald Trump signed an executive order reversing course on his administration’s decision to separate families — ordering they be held together even during prosecution. In implementing the order, Border Patrol within hours stopped referring parents for criminal charges, thus effectively ending the “zero-tolerance” policy for the time being.

Late Tuesday night, a federal judge in California issued a nationwide order that required the administration to stop detaining immigrant families separately, aside from special circumstances; to reunify parents with children under the age of 5 within two weeks; and to reunite parents with any children aged 5 and over within 30 days.

More: http://www.cnn.com/2018/06/27/politics/six-children-families-separated-reunifications/index.html

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Sounds like “business as usual” at DHS in the Age of Trump & Sessions. Sometimes, their incompetence at governing tempers their cruelty and inhumanity.

But, in this case, it actually multiplies the damage.

How long until some Federal Judge holds Sessions & Nielsen in contempt? Sanctions DOJ lawyers for misrepresentations in court? What about Bivens damage suits against Sessions, Nielsen & company since they are violating well-established Constitutional rights to Due Process?

PWS

06-27-18