"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The “Roberts Five” might have swallowed their whistles along with our Constitution. But, some Federal Judges still take their oaths of office seriously, even in the age of Trump. BTW, Judge Sabraw was appointed by George W. Bush.
MAJORITY: ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined.
CONCURRING OPINIONS: KENNEDY, J., and THOMAS, J., filed concurring opinions.
DISSENTING OPINIONS: BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
COURT SYLLABUS:
In September 2017, the President issued Proclamation No. 9645, seek- ing to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the infor- mation needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a re- view undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Securi- ty (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative re- lationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline stand- ards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the Pres- ident adopted the recommendations and issued the Proclamation.
2
TRUMP v. HAWAII Syllabus
Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he de- termined that certain restrictions were necessary to “prevent the en- try of those foreign nationals about whom the United States Gov- ernment lacks sufficient information” and “elicit improved identity- management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry re- strictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and pro- vides case-by-case waivers under certain circumstances. It also di- rects DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the Pres- ident determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii, three individuals with foreign rela- tives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforce- ment of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court did not reach the Establishment Clause claim.
Held:
1. This Court assumes without deciding that plaintiffs’ statutory
claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Cen- ters Council, Inc., 509 U. S. 155. Pp. 8–9.
2. The President has lawfully exercised the broad discretion grant- ed to him under §1182(f) to suspend the entry of aliens into the Unit- ed States. Pp. 9–24.
(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well with- in this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered al-
Cite as: 585 U. S. ____ (2018) 3
Syllabus
iens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching in- quiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.
The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary de- ferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Procla- mation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequa- cies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. Pp. 10–15.
(b) Plaintiffs have not identified any conflict between the Proc- lamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable infor- mation. Further, neither the legislative history of §1182(f) nor his- torical practice justifies departing from the clear text of the statute. Pp. 15–20.
(c) Plaintiffs’ argument that the President’s entry suspension vio- lates §1152(a)(1)(A) ignores the basic distinction between admissibil- ity determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on national- ity and other traits. Had Congress intended in §1152(a)(1)(A) to con- strain the President’s power to determine who may enter the country,
4
TRUMP v. HAWAII Syllabus
it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have re- peatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24.
3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establish- ment Clause. Pp. 24–38.
(a) The individual plaintiffs have Article III standing to chal- lenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is suffi- ciently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26.
(b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discrim- inating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the cam- paign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the signifi- cance of those statements in reviewing a Presidential directive, neu- tral on its face, addressing a matter within the core of executive re- sponsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29.
(c) The admission and exclusion of foreign nationals is a “funda- mental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a cir- cumscribed judicial inquiry when the denial of a visa allegedly bur- dens the constitutional rights of a U. S. citizen. That review is lim- ited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow in- quiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of apply- ing rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably
Cite as: 585 U. S. ____ (2018) 5
Syllabus
be understood to result from a justification independent of unconsti- tutional grounds. Pp. 30–32.
(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclama- tion does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previous- ly designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Pro- ject, 561 U. S. 1, 33–34.
Three additional features of the entry policy support the Govern- ment’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been re- moved from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for vari- ous categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38.
878 F. 3d 662, reversed and remanded.
KEY QUOTE FROM JUSTICE BRYER’S DISSENT:
And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is ex- cluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion.
Unfortunately there is evidence that supports the sec-
4 TRUMP v. HAWAII BREYER, J., dissenting
ond possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simply restates the Proclamation in plain language for visa appli- cants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. of State, FAQs on the Presidential Proclamation, https:// travel.state.gov/content/travel/en/us-visas/visa-information- resources/presidential-proclamation-archive/2017-12-04- Presidential-Proclamation.html (all Internet materials as last visited June 25, 2018).
An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, to Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the Government claims that number increased from 2 to 430 during the first four months of implementation. Reply Brief 17. That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.
Amici have suggested that there are numerous appli- cants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “sig-
Cite as: 585 U. S. ____ (2018) 5
BREYER, J., dissenting
nificant business or professional obligations” in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., asAmicus Curiae 14–15 (identifying technology and business leaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member (e.g., a spouse, child, or parent)” in the United States, §3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organiza- tions as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Cen- ter identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28.
Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclama- tion took effect. While more than 15,000 Syrian refugees arrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population, Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid.
The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents, dual nationals of noncovered countries, and representa- tives of governments or international organizations. §§3(b)(i)–(v). It places no restrictions on the vast majority
6 TRUMP v. HAWAII BREYER, J., dissenting
of student and exchange visitors, covering only those from Syria, which provided 8 percent of student and exchange visitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additional scrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 per- cent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII.
In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018. See Dept. of State, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016.Ibid.; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence.
Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiv- ing her medication, she could no longer move or speak, and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirming that “‘a waiver will not be granted in your case.’” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018). But after the child’s case was highlighted in an amicusbrief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all along determined that the waiver criteria were met. But, the
Cite as: 585 U. S. ____ (2018) 7
BREYER, J., dissenting
officer explained, she could not relay that information at the time because the waiver required review from a super- visor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “‘revised refusal letter indicating the approval of the waiver.’” Ibid. The new form did not actually approve the waiver (in fact, the form contains no box saying “granted”). But a different box was now checked, reading: “‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer can make an individualized determination of [the relevant] factors, your visa application will remain refused under Section 212(f) [of the Proclamation].’” Ibid. One is left to wonder why this second box, indicating continuing review, had not been checked at the outset if in fact the child’s case had remained under consideration all along. Though this is but one incident and the child was admitted after considerable international attention in this case, it pro- vides yet more reason to believe that waivers are not being processed in an ordinary way.
Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit assert- ing that he and other officials do not, in fact, have discre- tion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’” See Decl. of Christopher Richardson, Alharbi v. Miller, No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty
8 TRUMP v. HAWAII BREYER, J., dissenting
that…would likely lead to the child’s developmental harm or death.’” Center for Constitutional Rights and the Rule of Law Clinic, Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo 18 (2018).
Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assur- ance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that an- swers to the “exemption and waiver” questions may pro- vide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand.
If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two execu- tive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.
KEY QUOTE FROM JUSTICE SOTOMAYOR’S DISSENT:
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus lims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presi dential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
. . .
In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g.,Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq.(setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citingKorematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.
Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.
************************************
Quick Takes:
Yes, I think it’s as bad as it looks and sounds at first glance!
Anybody who thought that the Supremes would stand up for the Constitution against bias-based Executive overreaching should be disabused of that wishful thinking by this decision.
The majority showed little or no interest in holding Trump within Constitutional norms in the area of immigration.
Seems like the Supremes are inviting a bogus “Asylum Ban” as Trump’s next move, and signaling that they won’t do anything no matter how bad his abuses of the law, the Constitution, or international law might be.
Things are likely to get ugly really fast. And, the Supremes are saying that the last and only hope for getting our country and our Constitution back from the restrictionist regime is at the ballot box.
To make that result unlikely, however, they also turned their backs this week on clear racial and political gerrymandering, thus seeking to guarantee White minority control of all branches of Government for the foreseeable future.
Trump fumes over immigration courts Sessions has focused on
By: Tal Kopan, CNN
President Donald Trump in recent days has fumed about the immigration courts that handle cases of people seeking entry into the US.
But Trump’s fixation on the courts and the judges who staff them flies in the face of what his attorney general has been trying to do to reshape the courts to align with the President’s vision, including hiring more immigration judges and restricting asylum laws.
The President tweeted that those stopped at the border should be simply told they can’t enter, rather than going through the system.
“When somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came,” Trump tweeted on Saturday.
Press secretary Sarah Sanders told reporters Monday that “virtually all Americans” agree that drawn-out court proceedings don’t make sense for migrants who enter the country illegally. Trump, she said, “would certainly like to see more expedited removal.”
“Just because you don’t see a judge doesn’t mean you aren’t receiving due process,” she said.
The immigration courts decide whether immigrants have a legal right to stay in the US or should be deported — and those cases include people arriving at the border as well people from the interior of the US, who may or may not have had legal status at some point.
But Trump’s suggestion has several problems, including the fact that there are fewer than 350 immigration judges nationwide and the Justice Department has budgeted for only 100 more.
In addition, the suggestion that the immigration courts could be done away with altogether would likely fly in the face of the Constitution and a host of domestic and international laws that bestow rights on everyone in the US and crossing the border, regardless of whether they are citizens.
There is no Due Process without an impartial decision maker (lots of doubt as to whether any Immigration Judge working for Jeff Sessions can be considered “impartial”).
Jeff Sessions has nothing to do with virtue. His disingenuous, racist, White Nationalist policies are the polar opposite of “virtue.”
As the Supreme Court has said, Due Process takes time — sometimes a lot, sometimes less.
Trump’s outrageous proposals violate our Constitution, our statutory law, and two international conventions to which we are party.
There is no crisis for the United States, except the unnecessary one that Trump and Sessions have created with their lawless behavior.
But, there is a crisis in the Northern Triangle for which we are at least partially responsible.
The stakes for the refugees are literally life or death — Trump and Sessions’s dehumanizing rhetoric is beyond disgusting.
Even those who fail to qualify for protection after full hearings likely face rape, torture, extortion, severe beatings, mutilation, or death upon return. We actually should be protecting more, not fewer, of them.
SCOTUSblog: Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. [Note: The case also raised some interesting issues related to the scope of Chevron deference. In addition, practitioners are now debating best practices on motions to terminate where the NTA does not state a time and place, but TAs are trying to orally amend NTAs in court.]
CNN: President Donald Trump on Sunday called for the US to deport people without judicial proceedings, referred to an invasion by “these people” and railed against standing immigration laws.
In an executive order titled “Affording Congress an Opportunity to Address Family Separation,” President Trump orders DHS to take measures to detain family units without separating children from parents and orders DOJ to file a request to modify the Flores settlement, among other things.
ImmProf: As expected, the Department of Justice has filed a request to modify the Flores settlement to permit family detention. This document from the Women’s Refugee Commission explains the settlement and the family separation crisis in more detail.
Vox: Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case. But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.
CNN: House Republicans will push ahead this week with a vote on their own compromise immigration bill that still faces long odds in the chamber despite last-minute delays and a rush to make changes. Over the weekend, aides and members worked to see if they might be able to include a provision to expand E-verify, a program the US government uses to check the immigration status of workers, as well as a guest worker visa program. But, there was little evidence that the changes would be enough to get the bill passed.
Boston Globe: Immigration officials in Massachusetts may once again arrest undocumented immigrants who show up for appointments at government offices, marking the reversal of a February directive that had halted the practice, according to a filing Friday in US District Court in Boston.
WP&E: Recent immigration policies have fostered a climate of fear among immigrants and their loved ones. A hardline stance against the undocumented, resulting in threats of detention, deportation and separation have impacts at the individual, community and institutional level with public health effects. How do these policies impact women and girls? Is immigration a women’s issue? In this episode, we brought together experts in law, immigration, and psychosocial care to discuss these issues and the impact.
The court found that the jurisdiction-stripping provides of the INA operates as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal. (Osorio-Martinez v. Attorney General, 6/18/18) AILA Doc. No. 18062135
The Department of Justice filed a lawsuit challenging three California laws relating to immigration enforcement as violating the Supremacy Clause of the Constitution. (United States v. California, 3/6/18) AILA Doc. No. 18030700
DOJ announced that it reached a settlement with Setpoint Systems, Inc., of Ogden, Utah, related to the company’s unlawful policy of hiring only U.S. citizens for professional positions and refusing to consider otherwise qualified noncitizen applicants. AILA Doc. No. 18061904
The Supreme Court held that a putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule. (Pereira v. Sessions, 6/20/18) AILA Doc. No. 18062132
CBP published a statement regarding a post on Facebook about a Border Patrol transportation check near the Nevada-California state line. The agency claims the events in the post are false and “strongly rebuts” an ACLU blog post about it. AILA Doc. No. 18061901
Various Statements Over The Past Week, Many Now Outdated
CARA Family Detention Project: CLINIC, AILA, RAICES, and the American Immigration Council have joined forces to create the CARA Family Detention Pro Bono Project. Together with our volunteers, we will continue the fight to help the hundreds of women and children being held in family detention. Currently recruiting volunteers.
ICE Out of Courts Database and Call for Data and Affidavits: The team working to advocate with the OCA have compiled a list of questions that you and your organizations can reference when pulling together data and affidavits (also attached). The goal of affidavits and data is to demonstrate the broad systemic impact of ICE’s presence in courts. Our internal deadline is Friday, July 6th.
BALTIMORE, Md. ― Aracely Martinez Yanez, 33, knows she’s one of the lucky ones. A deep scar that carves a line through her scalp, from crown to cheek, is proof of that fortune.
She got lucky when her abusive partner shot her point-blank in the head, and she survived.
She got lucky when she escaped her tiny village in Honduras. Local villagers blamed her for her partner’s death; he killed himself and their two young sons after he shot her.
She got lucky when she wasn’t harmed as she made the treacherous 2,000-mile journey to America.
And she got luckiest of all when she was granted asylum after she got here.
If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.
Domestic abuse of the kind experienced by Martinez Yanez is endemic in Central America. In Honduras, few services for victims exist, and perpetrators are almost never held criminally responsible. One woman is killed every 16 hours there, according to Honduras’ Center for Women’s Rights.
For many victims, the United States is their best shot at staying alive.
While the exact numbers are not available, immigration lawyers have estimated that the Trump administration’s decision could invalidate tens of thousands of pending asylum claims from women fleeing domestic violence. Advocates warn it will be used to turn women away at the border, even if they have credible asylum claims.
“This administration is trying to close the door to refugees,” said Archi Pyati, chief of policy at Tahirih Justice Center, a nonprofit organization that works with immigrant women and girls who have survived gender-based violence. They represented Martinez Yanez in her asylum case. Travel bans, increased detention and family separation are all being used as tools to deter individuals from coming here, Pyati said.
Still, that will not stop women from coming. Because there are thousands of women just like Martinez Yanez, and their stories are just as harrowing.
CHERYL DIAZ MEYER FOR HUFFPOST
Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photograph of her murdered sons: Daniel, 4, and Juancito, 6.
A Violent Start
Martinez Yanez grew up in a tiny village in Honduras with her parents and seven siblings. Her family made a living by selling homemade horchata, a sweet drink made from milky rice, and jugo de marañon, cashew juice. They also sold fresh tortillas out of their house. Her childhood was simple and happy.
But after she turned 15, a man in her village named Sorto became obsessed with her. At her cousin’s wedding, he tried to dance with her. She pushed him off: He was 15 years her senior, and gave her the creeps. A few days later, Martinez Yanez said, he waited outside her house with a gun and kidnapped her. He took her to a mountain and raped her repeatedly.
“I wanted to die,” she told HuffPost through an interpreter at her home in Baltimore on Tuesday. “I felt dirty. He said that I was his woman, and that I would not belong to anyone else.” As she told her story, she rubbed her legs up and down, physically uncomfortable as she recalled the terrible things that had happened to her.
Over the next six years, she said, Sorto went on to rape and beat her whenever he pleased. In the eyes of the village, she was his woman, just like he said. She got pregnant immediately, giving birth to her first son, Juancito, at 16, and her second son, Daniel, at 18. Sorto would come and go from the village, as he had a wife and children in El Salvador. But when he wasn’t there, she said she was watched by his family.
As for help, there were no police in her village, she said. She had seen what happened to other women who traveled to the closest city to report abuse: It made things worse. The police did nothing, and the abuser would inevitably find out.
“I felt like I was worthless, like I had no value,” she said.
A few years after her sons were born, she became friends with a local barber who cut her children’s hair. He was sweet and respectful, nothing like Sorto, she said. They began a secret relationship. Sorto had been gone from the village for a few years, and Martinez Yanez hoped she was free of him. Then she got pregnant. Scared that Sorto would find out, she fled to San Pedro Sula, a city in the north of the country. She didn’t tell anyone where she had gone.
But Sorto found her anyway. He called her on the phone and told her if she did not come back to the village within the next 24 hours, he would kill her family, she said. Martinez Yanez got on the next bus back.
A few days after she returned, she said, Sorto told her that he was taking her and their two boys to the river. He brought a hunting rifle with him. The family walked through the mountainside. Martinez Yanez recalled handing her children some sticks to play with, and crouching on the ground with them. Then she felt the rifle pressing into her head. The rest is a blank.
Sorto shot her in the back of the head, and killed her two sons, before shooting himself. Juancito was 6, Daniel was 4. Somehow, Martinez Yanez, five months pregnant, survived. She was hospitalized for months and had to relearn to walk and talk. She is still deaf in one ear, and has numbness down one side of her body.
When she returned home to the village, she said, people threw rocks at her and called her names. Someone fired a gun into her house. Someone else tried to run her over with a bicycle. The community blamed her for the killings because she had tried to leave Sorto, she explained. His family wanted to avenge his death.
“The whole village was against me,” she said. “Children, adults. I couldn’t go anywhere by myself.”
A few months later she gave birth to a girl, Emely, but she was overwhelmed with stress. On top of grieving the death of her two sons, learning to live with a traumatic brain injury, and caring for her newborn, she was constantly worried about being killed by people in her village.
It was too much. She eventually fled to Tegucigalpa, the capital of Honduras, but Sorto’s family found her there too, she said. In a last-ditch effort to save Martinez Yanez’s life, her family paid over $7,000, an enormous sum for the family, to a coyote, a person who helps smuggle people across the border to the U.S. Emely, who was now 2, had to stay behind. They couldn’t afford to send her, too.
Martinez Yanez made the heartbreaking decision to go alone.
The Journey To Freedom
She left in the middle of the night, traveling with a group of four or five people. They were transported in a van for part of the trip, and then in taxis.
There was very little to eat or drink, she said, and she barely slept. Her stomach was upset and she suffered from debilitating headaches. In Mexico, she almost turned back.
“I missed my parents and my daughter so much,” she said. “But the threats and the conditions that I knew were waiting for me in my village gave me the motivation to continue to the U.S. to be safe.”
It took them two weeks to get to the U.S. border. Then they waited two days before attempting to cross, she said. She was terrified that she would be caught by immigration officials and sent back. She crossed the border illegally in February 2009, and went to her uncle’s house in Houston, Texas, before traveling on to Annapolis, Maryland, where her brother lived.
Women like Aracely are saving their own lives.Kristen Strain, a lawyer who worked on Martinez Yanez’s asylum case.
Martinez Yanez didn’t know that she could apply for asylum as a domestic violence victim until a few years later, when she sought medical care for her head injury in Maryland. There, she was referred to Tahirih Justice Center.
Kristen Strain, an attorney who worked on her case, wrote the legal brief arguing that Martinez Yanez should be granted asylum.
Generally, applicants must show that the persecution they have suffered is on account of one of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. Strain successfully argued that being a female victim of severe gender-based violence in Honduras counted as a particular social group for purposes of obtaining asylum.
“There simply aren’t laws in place that protect women like Aracely,” she said. “They have no recourse. It is accepted in their communities that women can be treated like men’s property.”
She said it took over a year to gather all the evidence for Martinez Yanez’s claim, which included a neurological evaluation, medical documents, news stories from Honduran papers about the shooting, dozens of interviews, and statements from friends and family in Honduras to corroborate her story.
“It is not as if it’s easy,” Strain said. “In addition to having to physically get here, which is harrowing and dangerous, women have to navigate a complex legal system that is difficult to understand, especially when they don’t speak the language. It’s hard for them to even know what their rights are, let alone find an attorney who can advocate for them.”
“Women like Aracely are saving their own lives,” she went on.
Martinez Yanez was granted asylum in 2013. Her daughter, Emely, was allowed to join her in 2014. While they talked on the phone regularly, the mother and daughter had not seen each other for five years.
CHERYL DIAZ MEYER FOR HUFFPOST
Martinez Yanez watches her daughters play outside the family’s Baltimore apartment.
A New Life
In her Baltimore home, more than 3,000 miles from the tiny village in Honduras where she was raised, Martinez Yanez likes to be surrounded by photos. They remind her of those she had to leave behind.
There’s one of her sister graduating college. Another of her parents beaming happily.
And then, hanging in the entrance to the kitchen, is a photograph of her with her two deceased sons. It is the only picture she owns of them. She brought it with her when she fled Honduras. When she spoke to HuffPost about her sons, she cried. She still doesn’t understand why they were killed.
Since she’s been in the U.S., Martinez Yanez has expanded her family. Emely, who is 11, now has two sisters: Gabriela, 7, and Alyson, 4.
“I’m very fortunate to be able to have my daughters with me,” she said. “I can’t ask for anything better to happen. I am so happy with my life.”
Martinez Yanez still struggles with the repercussions of being shot in the head. She is forgetful and can get confused easily. She said she has to put every appointment she has in her phone with an alarm, otherwise she’ll miss it.
She said she was grateful that she was granted asylum, and heartbroken for other women who may not have the same opportunity she did.
“I just feel so sad that other women in my situation, or even in worse situations than mine will not be allowed in the country anymore,” she said. “Here, I don’t have to hide or run away from anyone.”
********************************************
In my years at the Arlington Immigration Court, I had many well-documented, deserving cases like this. In those days, the ICE Office of Chief Counsel in Arlington followed the so-called “Martin Brief” in which DHS urged the BIA to recognize domestic violence as a proper basis for asylum under certain circumstances long before the BIA actually got around to deciding A-R-C-G-. Because the applicants were almost never held in detention, they were able to get top–flight pro bono representation from NGOs, Law School Clinics, Human Rights First, and “Big Law” Firms serving pro bono.
The cases were so well documented that they often could be “pre-tried” between counsel before the individual hearing date. The parties then often jointly asked me to set an earlier “short block hearing” (one hour or less) where the evidence could be introduced, discussed, and abbreviated testimony taken. At the end of those hearings, the parties jointly moved me for a grant of asylum.
So, without the interference of the DOJ politicos, here was an actual working system that helped get deserving cases granted and off the docket, conserved judicial resources, saved time, saved lives, and complied completely with Due Process. In other words, a smashing Immigration Court and U.S. system of justice “success story” by any rational measure!
That has all been disgracefully dismantled by Sessions. Now, following his perversion of the law in Matter of A-B-, He’s encouraging DHS and Immigration Judges to deny such cases without even hearing the testimony (even though every one of these individuals easily should qualify for the lesser relief of protection under the Convention Against Torture). That’s almost certain to result in appeals, prolonged litigation in the Courts of Appeals, and ultimately return of most cases to the Immigration Courts for full hearings and fair consideration.
At some point, not only is A-R-C-G- likely to be reinstated, but it is likely to be expanded to what is really the fundamental basis for these claims — gender as a qualifying “Particular Social Group.” It’s undeniably immutable/fundamental, particularized, socially distinct and clearly the basis for much of the persecution in today’s world!
In the meantime, however, those who don’t have the luxury of great pro bono representation, lack an attentive Circuit Court of Appeals, or who can’t get through the “credible fear interview” as it has now been “rigged for denial” by Sessions will likely be unlawfully returned to their home countries to suffer abuse, torture, and a lifetime of torment or death, along with those cute little kids in the pictures we’re seeing.
The White Nationalist, neo-Nazi regime of Trump, Sessions, and their enablers will be one of the most horrible and disgusting periods in our history. History will neither forget nor treat kindly those who failed to stand up to the racists and child abusers running and ruining our Government, and destroying many innocent lives in the process.
An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony. The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.
I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation. Rather, all are pieces in a puzzle. Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons. What jumped out at me was the fact that the decision, Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief. It was pretty clear that Sessions wanted this requirement eliminated.
Let’s look at the timeline of recent developments. On January 4 of this year, Sessions certified to himself the case of Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool. On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal. The decision was written by Board Member Garry Malphrus, a hard-line Republican who was a participant in the “Brooks Brother Riot” that disrupted the Florida ballot recount following the 2000 Presidential election.
On March 5, Sessions vacated Matter of E-F-H-L-. Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.
On March 22, Sessions certified to himself Matter of L-A-B-R-et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings. Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.
On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded. On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.
On May 31, Castro-Tum’s case was on the Master Calendar of Immigration Judge Steven Morley. Instead of ordering Castro-Tum deported in absentia that day, the judge continued the proceedings to allow an interested attorney to brief him on the issue of whether Castro-Tum received proper notice of the hearing. Soon thereafter, the case was removed from Judge Morley’s docket and reassigned to a management-level immigration judge who is far less likely to exercise such judicial independence.
On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group. In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.” The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.
So in summary, within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases. They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.
So where does all this leave the individual judges? There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges. I feel that the above developments have created something of a Rorschach test for determining an immigration judge’s ideology.
The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench. They can find a “fatal flaw” in the claim – either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing. It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.
On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors. They will conference these cases, and hear detailed testimony from the respondent, country experts, and other witnesses on the particular points raised by Sessions in Matter of A-B-. They may consider alternative theories of these cases based on political opinion or religion. They are likely to take the time to craft thoughtful, detailed decisions. And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing. They may also have their decisions remanded by the conservative BIA, whose leadership is particularly fearful of angering its superiors in light of the 2003 purge of liberal BIA members by then-Attorney General John Ashcroft. The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.
There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture. Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-. So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection? It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Four Easy, Low Budget, Steps To A Better, Fairer, & More Efficient U.S. Immigration Court System:
Remove Jeff Sessions and all other politicos from control.
Restore Immigration Judges’ authority to “administratively close” cases when necessary to get them off the docket so that relief can be pursued outside the Immigration Court system.
Give Immigration Judges authority to set and control their own dockets, working with Court Administrators and attorneys from both sides (rather than having DHS enforcement policies essentially “drive the docket” as is now the case) to:
Schedule cases in a manner that insures fair and reasonable access to pro bono counsel for everyone prior to the first Master Calendar;
Schedule cases so that pleadings can be taken and applications filed at the first Master Calendar (or the first Master Calendar after representation is obtained);
Schedule Individual Hearings in a manner that will maximize the chances of “completion at the first Individual Hearing” while minimizing “resets” of Individual Hearing cases.
Establish a Merit Selection hiring system for Immigration Judges overseen by the U.S. Circuit Court in the jurisdiction where that Immigration Judge would sit, or in the case of the BIA Appellate Immigration Judges, by the U.S. Supreme Court.
No, it wouldn’t overnight eliminate the backlog (which has grown up over many years of horrible mismanagement by the DOJ under Administrations of both parties). But, it certainly would give the Immigration Courts a much better chance of reducing the backlog in a fair manner over time.Just that, as opposed to the Trump Administration’s “maximize unfairness, minimize Due Process, maximize backlogs, shift blame, waste money and resources”policies would be a huge improvement at no additional costs over what it now takes to run a system “designed, built, and operated to fail.”
The Trump administration’s first year of immigration policy has relied on claims that immigrants bring crime into America. President Trump’s latest target is sanctuary cities.
“Every day, sanctuary cities release illegal immigrants, drug dealers, traffickers, gang members back into our communities,” he said last week. “They’re safe havens for just some terrible people.”
As of 2017, according to Gallup polls, almost half of Americans agreed that immigrants make crime worse. But is it true that immigration drives crime? Many studies have shown that it does not.
Immigrant populations in the United States have been growing fast for decades now. Crime in the same period, however, has moved in the opposite direction, with the national rate of violent crime today well below what it was in 1980.
In a large-scale collaboration by four universities, led by Robert Adelman, a sociologist at the State University of New York at Buffalo, researchers compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. The selected areas included huge urban hubs like New York and smaller manufacturing centers less than a hundredth that size, like Muncie, Ind., and were dispersed geographically across the country.
+5,000+10,000+15,000+20,000 immigrantsper 100,000 peopleCHANGE SINCE 1980per 100,000 people+500 violent crimes–500–1000–1500MiamiNew York↑ More crime↓ Less crime← FewerMore immigrants →
According to data from the study, a large majority of the areas have many more immigrants today than they did in 1980 and fewer violent crimes. The Marshall Project extended the study’s data up to 2016, showing that crime fell more often than it rose even as immigrant populations grew almost across the board.
In 136 metro areas, almost 70 percent of those studied, the immigrant population increased between 1980 and 2016 while crime stayed stable or fell. The number of areas where crime and immigration both increased was much lower — 54 areas, slightly more than a quarter of the total. The 10 places with the largest increases in immigrants all had lower levels of crime in 2016 than in 1980.
And yet the argument that immigrants bring crime into America has driven many of the policies enacted or proposed by the administration so far: restrictions to entry, travel and visas; heightened border enforcement; plans for a wall along the border with Mexico. This month, the Justice Department filed a lawsuit against California in response to the state’s restrictions on local police to assist Immigration and Customs Enforcement officers in detaining and deporting undocumented immigrants charged with crimes. On Tuesday, California’s Orange County signed on in support of that suit. But while the immigrant population in the county has more than doubled since 1980, overall violent crime has decreased by more than 50 percent.
There’s a similar pattern in two other places where Mr. Trump has recently feuded with local leaders: Oakland, Calif., and Lawrence, Mass. He described both cities as breeding grounds for drugs and crime brought by immigrants. But Oakland, like Orange County, has had increasing immigration and falling crime. In Lawrence, though murder and robbery rates grew, overall violent crime rates still fell by 10 percent.
In general, the study’s data suggests either that immigration has the effect of reducing average crime, or that there is simply no relationship between the two, and that the 54 areas in the study where both grew were instances of coincidence, not cause and effect. This was a consistent pattern in each decade from 1980 to 2016, with immigrant populations and crime failing to grow together.
Immigrant population +109% since 1980
in typical metro area
19802016
Violent crime rate -23% since 1980
19802016
In a majority of areas, the number of immigrants increased at least 57 percent and as much as 183 percent, with the greatest increases occurring in the 1990s and early 2000s. Violent crime rates in most areas ranged between a 43 percent decline and a 6 percent rise, often trending downward by the 2000s. Places with a sharp rise in the immigrant population experienced increases in crime rates no more frequently than those with modest or no growth in immigration. On average, the immigrant population grew by 137 percent between 1980 and 2016, with average crime falling 12 percent over the same period.
Because the F.B.I. changed how rape was defined in its crime figures, that category could not be included in this analysis. Focusing on the other components of the violent crime rate — assaults, robberies and murders — still fails to reveal a relationship with immigration rates.
Immigrant population
+109%
19802016
Assaults
-13%
19802016
Robberies
-42%
19802016
Murders
-40%
19802016
Most areas experienced decreases in all types of violent crime. The change in assault rates ranged from a 34 percent decline to a 29 percent rise, while robbery rates declined in the range of 12 percent to 57 percent, and murder rates declined in the range of 15 percent to 54 percent.
This analysis is one of the most comprehensive longitudinal studies of the local immigrant-crime relationship. It spans decades of metropolitan area data, incorporating places with widely differing social, cultural and economic backgrounds, and a broad range of types of violent crime.
Areas were chosen to reflect a range of immigrant composition, from Wheeling, W.Va., where one in 100 people was born outside the United States, to Miami, where every second person was. Some areas were home to newly formed immigrant communities; other immigrant pockets went back generations. Controlling for population characteristics, unemployment rates and other socioeconomic conditions, the researchers still found that, on average, as immigration increases in American metropolises, crime decreases.
The foreign-born data, which is collected through the census, most likely undercounts the numbers of undocumented immigrants, many of whom might wish to avoid the risk of identifying themselves. They are, however, at least partly represented in the overall foreign-born population counts.
This is not the only study showing that immigration does not increase crime. A broad survey released in January examined years of research on the immigrant-crime connection, concluding that an overwhelming majority of studies found either no relationship between the two or a beneficial one, in which immigrant communities bring economic and cultural revitalization to the neighborhoods they join.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for its newsletter, or follow The Marshall Project on Facebook or Twitter. Anna Flagg is an interactive reporter for The Marshall Project.
In the recent study, Mr. Adelman and his team collected crime and foreign-born population data for 200 metropolitan statistical areas for the years 1970, 1980, 1990, 2000 and 2010. The Marshall Project extended the data set to include 2016, obtaining foreign-born numbers from the American Community Survey one-year estimates and crime figures from the F.B.I. Uniform Crime Reporting Program metropolitan area data sets. When either foreign-born or crime information was unavailable for 2016, the corresponding 2015 data was substituted.
Some metropolitan areas changed over time, growing to include additional regions, or splitting into separate ones. The Marshall Project consulted with the study researchers to determine when a larger area was still an appropriate match to the original described in the study. When an area split into components, raw data from each was added to calculate rates approximating the original region. When no reasonable approximation to the original area could be found, it was marked as missing for 2016.
When an area was missing information for a certain year, that year’s data was interpolated using figures from the closest year available. For example, crime numbers were unavailable for Chicago for 2000 and 2010. Data for those years was linearly interpolated using the 1990 and 2016 figures. Charlotte, N.C., was not included in either the 2016 or 2015 U.C.R. metropolitan area data sets, so data from 2010, the most recent year with available data for this area, was used as an estimate.
*************************************
Hit the above link to get all of the charts and graphics.
It’s a pretty disgusting situation when our Government lies and misrepresents in an attempt to “gin up racial bias” against vulnerable groups that have contributed, and continue to contribute, so many good things to our society. Indeed, but for immigrants, of all kinds, we would have no country and no society at all.
President Trump on Sunday explicitly advocated for depriving undocumented immigrants of their due-process rights, arguing that people who cross the border into the United States illegally are invaders and must immediately be deported without trial or an appearance before a judge.
Trump’s attack on the judicial system sowed more confusion as lawmakers struggle to reach consensus on immigration legislation and as federal agencies scramble to reunite thousands of migrant children and their parents who were separated at the border under an administration policy that the president abruptly reversed last week.
The House is preparing to vote this week on a broad Republican immigration bill. Although the White House supports the proposed legislation, its prospects for passage appeared dim Sunday, both because Democrats oppose the measure and because Republicans have long been divided over how restrictive immigration laws should be.
Meanwhile, some GOP lawmakers were preparing a more narrow bill that would solely address one of the flaws in Trump’s executive order, which mandates that migrant children and parents not be separated during their detention. The 1997 “Flores settlement” requires that children be released after 20 days, but the GOP proposal would allow for children and their parents to stay together in detention facilities past 20 days.
At the center of the negotiations is a president who has kept up his hard-line rhetoric even as he gives contradictory directives to Republican allies. In a pair of tweets sent late Sunday morning during his drive from the White House to his Virginia golf course, Trump described immigrants as invaders, called U.S. immigration laws “a mockery” and wrote that they must be changed to take away legal rights from undocumented migrants.
“We cannot allow all of these people to invade our Country,” Trump wrote. “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. Most children come without parents.”
In a series of June 24 tweets, President Trump argued that people who cross the border into the U.S. illegally must immediately be deported without trial.(Melissa Macaya /The Washington Post)
The president continued in a second tweet: “Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! Immigration must be based on merit — we need people who will help to Make America Great Again!”
Trump also exhorted congressional Democrats to “fix the laws,” arguing that “we need strength and security at the Border! Cannot accept all of the people trying to break into our Country.”
After House Republicans failed to pass a hard-line immigration billlast week, they were preparing to vote on another broad bill this week that would provide $25 billion for Trump’s long-sought border wall, limit legal immigration and give young undocumented immigrants a path to citizenship.
“I did talk to the White House yesterday. They say the president is still 100 percent behind us,” Rep. Michael McCaul (R-Tex.), a co-sponsor of the bill, said on “Fox News Sunday.”
But because that bill may not garner enough votes to pass the House, momentum was building over the weekend for a more narrow measure that would effectively end the Flores settlement. Should the broader bill fail, the White House is preparing to throw its support behind the measure, which is expected to garner wider support among lawmakers, according to a White House official.
Legislative negotiations are continuing behind the scenes despite Trump’s vacillations over the past week. The president began the week defending his administration’s family separation policy. On Tuesday night, he expressed support for two rival GOP bills in a muddled and meandering address to House Republicans in which he insulted Rep. Mark Sanford (R-S.C.) without prompting, drawing a smattering of boos. Then on Friday, he urged lawmakers to throw in the towel, tweeting, “Republicans should stop wasting their time on Immigration until after we elect more Senators and Congressmen/women in November.”
That tweet demoralized Republicans as they headed home for the weekend, but it did not end talks about what the House might pass. Brendan Buck, counselor to House Speaker Paul D. Ryan (R-Wis.), said Sunday that a solution specifically dealing with family separation had been “a topic of discussion all week,” although he noted that there was not one policy or bill that Republicans had coalesced behind.
Marc Short, the White House director of legislative affairs, said Sunday that it was premature to announce which measures Trump would sign but urged Congress to act quickly to address the immigration issue broadly.
“The White House has consistently raised our concern about the Flores settlement with Congress,” Short said. “It’s, in fact, an issue that previous administrations grappled with also, and we anticipate Congress acting on that sooner rather than later.”
Meanwhile, Trump’s attack on the due-process rights of immigrants follows a week in which he has been fixated on the immigration court system, which he has called “ridiculous.” The president has balked at proposals from Sen. Ted Cruz (R-Tex.) and other lawmakers to add court personnel to help process more immigration cases.
Democrats and immigrant rights advocates sought to shame Trump for saying he wants to deny illegal immigrants their due-process rights.
“America rules by law,” tweeted Rep. Gerald E. Connolly (D-Va.), “not by presidential diktat.”
Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said in a statement: “What President Trump has suggested here is both illegal and unconstitutional. Any official who has sworn an oath to uphold the Constitution and laws should disavow it unequivocally.”
And at least one GOP lawmaker spoke out against Trump’s threat. Rep. Justin Amash (Mich.), a libertarian-leaning Republican who has often criticized the president, responded to the controversy by quoting the Fifth Amendment.
“No person shall be . . . deprived of life, liberty, or property, without due process of law,” Amash tweeted.
Trump has been beating this drum for several days now. In a speech Tuesday, Trump said: “I don’t want judges. I want border security. I don’t want to try people. I don’t want people coming in.”
“Do you know, if a person comes in and puts one foot on our ground, it’s essentially, ‘Welcome to America, welcome to our country’?” Trump continued. “You never get them out, because they take their name, they bring the name down, they file it, then they let the person go. They say, ‘Show back up to court in one year from now.’ ”
Trump suggested in those remarks, delivered before the National Federation of Independent Businesses, that many immigrants were “cheating” because they were following instructions from their attorneys.
“They have professional lawyers,” he said. “Some are for good, others are do-gooders, and others are bad people. And they tell these people exactly what to say.”
Many immigration hard-liners see it differently. Asylum applications and deportation proceedings go before immigration courts, staffed by judges who can make rulings without consulting juries.
Cruz’s initial legislation on the border crisis proposed doubling the number of immigration judges, to 750 from roughly 375. And Attorney General Jeff Sessions has taken steps to strengthen the immigration courts, allowing them to process many cases without trials and limiting their ability to delay other cases.
“I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to the border,” Sessions told an audience in San Diego earlier this year. “That will be about a 50 percent increase in the number of immigration judges who will be handling the asylum claims.”
While wrestling with their own response, Republicans have shifted blame to Democrats, who have been critical of both Sessions’s moves and drafts of immigration legislation. In a Sunday afternoon tweet, Senate Minority Leader Charles E. Schumer (D-N.Y.) argued for “a czar to break through the bureaucracy and get these kids out of limbo and back in their parents’ arms.”
On the Sunday political talk shows, Republicans echoed Trump in accusing Democrats of rejecting any serious solution in favor of inflicting political hurt — and charging that they want “open borders.”
“Chuck Schumer says, ‘No, no, no, we’re not going to bring it up,’ ” Rep. Jim Jordan (R-Ohio), a leader of the House Freedom Caucus, said on CBS’s “Face the Nation.” “What they want is the political issue. They don’t want to solve the problems. They don’t want to keep families together and adjudicate this and have a go through the hearing process and do it in a way that’s consistent with the rule of law.”
Meanwhile, Defense Secretary Jim Mattis on Sunday said the Defense Department is working on details of a plan to house migrants at two military bases in the United States. Speaking to reporters en route to a visit to Alaska, Mattis said the Pentagon had received a request from the Department of Homeland Security to receive migrants and is finalizing how many people would need to be housed and what they would require.
Mattis said the Pentagon’s role is limited, and compared it to the department’s housing of migrants from Vietnam and people displaced by natural disasters.
“We’re in a logistics support response mode to the Department of Homeland Security,” he said.
Missy Ryan contributed to this report
***********************************
What can you say about a horrible President who mocks the law, our Constitution, divides us intentionally, and dehumanizes the most vulnerable and human among us.
The individuals Trump tries to degrade and dehumanize are mostly legitimate refugees fleeing what respected war correspondent Richard Engel of NBC describes as a low-grade war zone where the (already corrupt and ineffective) governments have lost control of much of the country to gangs and cartels. In plain terms, gangs have become the “de facto government” in much of the Northern Triangle. Individuals who oppose the gangs are viewed as political opponents and punished accordingly.
It’s bad enough that our government has intentionally twisted asylum law against legitimate refugees from the Northern Triangle even before Trump & Sessions. Sessions has now intentionally misconstrued the law to eliminate protection of women who have suffered domestic violence and who won’t be protected in their home countries.
Individuals seeking refugee are entitled to a chance to present their applications, to a fair consideration and adjudication, and to humane and respectful treatment.
Trump’s statements and ignorance of the law are a national disgrace. A decent nation would ignore him and welcome those who can establish their status as refugees.
We are diminishing ourselves as a nation with every day Trump remains in office; but that won’t stop human migration.
Elise Foley & Jennifer Bendery report for HuffPost:
The way the Trump administration talks about it, you’d think there are only two ways to respond to families crossing into the U.S. illegally: either separate kids from their parents while the adults are tried as criminals or put entire families into indefinite detention.
But there’s an alternative approach that’s cheaper, more humane and incredibly effective. The Trump administration just doesn’t want to use it.
The Family Case Management Program, which President Donald Trump ended several months after taking office, was meant to keep track of immigrant parents and kids in removal proceedings without having to keep them locked up. It was relatively small ― about 950 families in five locations. But it was hugely successful: More than 99 percent of families in the program showed up for their court dates, and 97 percent participated in required check-ins with their case managers, according to a report from Geo Care, the private prison company that operated the program. And it reportedly cost the government just $36 per family each day, versus $319 per bed per day in a family detention center.
Now, as the Trump administration and Republicans in Congress seek to expand the government’s ability to lock up immigrant families long term, Democrats and immigrant rights advocates are asking why they don’t bring back the alternative program in an expanded version.
“In both bills the plan is to incarcerate families,” Rep. Zoe Lofgren (D-Calif.) told HuffPost. “To put mothers in cages with toddlers, as if that’s the only alternative, which clearly it is not. Unless your intention is to be punitive and harsh and punish people before seeking asylum.”
The FCMP was meant for people deemed too vulnerable for detention, such as pregnant or nursing women or families with special needs children. It required families to be briefed on their responsibilities in the immigration court process, which can be complicated, and to check in regularly with Immigration and Customs Enforcement and their case manager. Case managers referred families to services — such as lawyers and children’s school enrollment — and, if they received a deportation order in court, helped them prepare to return to their native country.
It was a success story for alternatives to detention, according to experts who served on an advisory committee for the program.
“The message is if you do this kind of frequent and fairly intensive case management, you can get almost 100 percent compliance,” said Randy Capps, the director of research for U.S. programs at the nonpartisan Migration Policy Institute. “You don’t have to detain people.”
ICE abruptly shut down the program last June with little explanation for advisory committee members, some of them said. They were simply told at a meeting that it would be their last.
Agency spokeswoman Sarah Rodriguez said in a statement that ICE discontinued the program after determining that other alternatives to detention “proved to be a much better use of limited resources” with similar rates of compliance. She added that “removals of individuals on [alternatives to detention] occur at a much higher rate” than the FCMP.
“There are no plans to reinstate the FCMP at this time,” she said.
That method for assessing the program doesn’t make sense, said another former member of the FCMP advisory committee, Michelle Brané, the director of the migrant rights and justice program at the Women’s Refugee Commission. The FCMP wasn’t in effect long enough for many of the participants to complete their removal proceedings, she said. She added that the program’s purpose was to ensure immigrants went to their removal hearings and that whether those hearings resulted in relief or deportation was irrelevant.
“The program’s efficacy shouldn’t be assessed by removals because if people are getting legal help and qualify [for relief], then that’s not a removal, but it is full compliance,” she said. “That means their system works.”
Another ICE spokesman, Matthew Bourke, said in an email that removals were “a relevant way to determine the program’s effectiveness” because a key reason ICE created the program “was to promote participant compliance with immigration obligations which included final orders of removal.”
He said that immigrants monitored under other alternatives to detention comply with court hearings more than 99 percent of the time and with check-ins almost 98 percent of the time.
But it’s unclear whether expanding alternatives to detention is part of Trump’s plan to address the issue of families arriving at the U.S.-Mexico border. It’s certainly not one he has boosted. His executive order this week, which he said would stop routine family separations for unauthorized immigrant families, presented only detention as an option.
Immigrant rights advocates are pushing for policymakers to remember that detention isn’t the only option.
“ICE has a whole range of alternatives to detention,” said Ashley Feasley, a former advisory committee member and the director of policy at the U.S. Conference of Catholic Bishops’ migration and refugee services. “These are existing programs that could be implemented now in lieu of building large-scale family-child detention facilities.”
********************
Elise & Jennifer’s article ties in nicely with my essay yesterday “SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change.”
As long as we treat refugees as a law enforcement issue and a political football that can be solved by “bogus deterrence,” rather than as a humanitarian crisis that requires empathy and a thoughtful effort to address the causes by working with the international community, our policies will continue to fail miserably, do more harm than good, and diminish us as a nation and as human beings.
We need better political and moral leadership from our nation’s leaders. That’s unlikely to happen with the current morally twisted, functionally incompetent, and tone-deaf White Nationalist Kakistocracy.
There is now a broad, bipartisan consensus that ripping infants from their mothers — and then putting both in (separate) cages — is not a morally acceptable way of treating families who cross our southern border. After weeks of deliberation, our nation has concluded that Central American migrants do not deserve to have their children psychologically tortured by agents of the state.
But what they do deserve remains in dispute.
The White House contends that migrants have a right to be caged with their family members (except for those who have already been separated from their children, who aren’t necessarily entitled to ever see their kids again). But the judiciary says that child migrants have a right not to be caged, at all. And progressives seem to believe that these huddled masses are entitled to something more — though few have specified precisely what or why.
In defending its “zero tolerance” policy — which is to say, a policy of jailing asylum-seekers for the misdemeanor offense of crossing the U.S. border between official points of entry — the White House has implored its critics to consider the bigger picture: Such “illegal aliens” have already undermined the rule of law in our country, and brought drugs, violent crime, and MS-13 to our streets. Locking up their families might look cruel when viewed in isolation; but when understood in the broader context of a migrant crisis that threatens the safety and sovereignty of the American people, the policy is more than justified.
In reality, however, this narrative inverts the truth: Context does not excuse the cruelty of our government’s “zero tolerance” policy, it indicts that policy even further. The United States is not suffering a crisis that justifies radical measures; the Central American families gathered at our border are. And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.
After all, it was the CIA that overthrew the democratically elected government of Guatemala in 1954, and thereby subjected its people to decades of dictatorship and civil war. It was the streets and prisons of California that gave birth to MS-13, and American immigration authorities that deported that gang back to El Salvador. And it is America’s taste for narcotics that sustains the drug trade in Honduras — and our war on drugs that ensures such trade is conducted by immensely profitable and violent cartels.
There is no easy answer to the Central American migrant crisis. But any remotely moral policy response will need to proceed from the recognition that we are not the victims of this crisis — and asylum-seekers are not its creators.
Central American families are not a threat to the United States.
It is very hard to make a reasoned case for why our nation’s current levels of undocumented immigration — or, of low-skilled immigration more broadly — represent major threats to the safety and material well-being of the American people.
We have long known that native-born Americans commit violent crimes at far higher rates than either legal or undocumented immigrants. And newer research into immigration and criminality has proven even more devastating to the nativists’ case: States with higher concentrations of undocumented immigrants tend to have lower rates of violent crime — and this correlation persists even when controlling for a given state’s median age, level of urbanization, and rate of unemployment or incarceration.
Meanwhile, the American economy is in great need of young, unskilled workers. On the Labor Department’s list of the 15 occupations that will experience the fastest growth over the next six years, eight require no advanced education. Further, with the baby-boomers retiring — and birth rates plummeting — the future of American economic growth, and the survival of Social Security, depends on an infusion of foreign workers. It is true that there is some basis for believing that mass, low-skill immigration depresses the wages of native-born high-school dropouts (although that claim is contentious). But there is no basis for believing that restricting immigration will do more to boost such workers’ take-home pay than encouraging unionization through labor-law reform, or expanding the Earned Income Tax Credit (EITC). Thus, given the positive material benefits of mass low-skill immigration, it is hard to see how more of it would constitute an economic crisis, even if we stipulate that it puts downward pressure on the wages of some native-born workers.
By contrast, the crisis facing the migrants themselves is wrenching and undeniable.
Asylum-seekers are fleeing violence and disorder, not exporting it.
To seek asylum in the United States, Central American families must travel many hundreds of miles through the desert, along a route teeming with rapists, thieves, and homicidal gangs. The hazards inherent to this journey aren’t unknown to most who take it — such migrants simply find the hazards of remaining in place more intolerable.
And that calculation isn’t hard to understand. El Salvador, Guatemala, and Honduras endure some of the highest rates of violent crime — and levels of official corruption — of any nations in the world. As recently as 2015, El Salvador was the single-most violent country (that wasn’t at war) on planet Earth, with a homicide rate of 103 per 100,000. And the vast majority of those homicides went unpunished — according to a 2017 report from the Georgetown Security Studies Review, roughly 90 percent of murders throughout the Northern Triangle go unprosecuted. This lawlessness is both a cause and effect of widespread public distrust in state police forces, which are largely non-professionalized, frequently penetrated by criminal gangs, and historically associated with atrocities carried out in times of political unrest and civil war.
Public trust in the region’s other governing institutions is similarly, justifiably, low. Due to corruption and bureaucratic inefficacy, nations in the Northern Triangle collect less in tax revenues than most other Latin American countries (relative to the size of each nation’s gross domestic product). This fact, combined with high levels of spending on (grossly underperforming) security forces leaves the region’s governments with little funding for social services and public investment. And corruption eats into what meager funding is allocated to such purposes — in Honduras, the ruling National Party has been accused of embezzling social security funds; Guatemala’s former president and nine of his ex-ministers were arrested in February for graft connected to a public transit project.
While the region’s governments have struggled to collect taxes, its drug cartels have proven quite effective at collecting tribute. In 2015, the Honduran newspaper La Prensa revealed that citizens of El Salvador, Honduras, and Guatemala were collectively making more than $651 million in extortion payments to criminal organizations annually. Those who fail to pay up are routinely murdered; many of the migrants seeking asylum in the U.S. claim (quite credibly) to be fleeing such homicidal extortion rackets.
So, these migrants are fleeing a genuine crisis. But that does not necessarily mean that our country has any special obligation to address their plight. The U.S. government is not forcing the Northern Triangle’s political and economic elites to engage in graft, or avoid taxes. It does not pay the region’s police to let murders go unsolved, or (directly) sell weapons to the region’s cartels. In fact, Congress has spent more than $3 billion on security aid for Central America over the past decade.
And yet, the United States still bears profound responsibility for the region’s troubles; because the Northern Triangle’s failures of governance — and wrenching security challenges — are inextricably-linked to our nation’s policy choices and consumption habits.
On the former point: The CIA subjected Guatemala to decades of authoritarian rule and civil war, for the sake of aiding a fruit company that its director was invested in.
In 1945, a revolutionary movement built a representative democracy in Guatemala. Nine years later, the United States tore it down. Officially, the Eisenhower administration orchestrated the overthrow of Jacobo Árbenz’s government to save the Guatemalan people from Communist tyranny. In reality, it did so to deny them popular sovereignty.
Árbenz had been democratically elected, and enjoyed widespread public support. He had legalized the Communist Party, but was no card-carrying member. His crime was not the suppression of dissent or the suspension of constitutional rule — but rather, an attempt to address his nation’s wrenching inequality by redistributing the United Fruit Company’s (UFC) unused land to impoverished peasants.
This was not an act of pure expropriation — the UFC had robbed the Guatemalan government of tax revenue, by vastly understating the value of its holdings. By seizing the company’s unused lands, Árbenz secured a measure of compensation for his state; and, more importantly, provided 100,000 Guatemalan families with land, and access to credit. Agricultural production increased, poverty fell. Árbenz’s constituents were pleased.
But the United Fruit Company was not. And both Secretary of State John Dulles and his brother, CIA director Allen Dulles had close ties to the UFC. So, our government took out Árbenz, and replaced him with a reactionary, former military officer — who promptly assumed dictatorial powers. Nearly four decades of civil war between authoritarian governments and left-wing guerrillas ensued — throughout which the United States provided support to the former. By the time the fighting ended in 1996, 200,000 people were dead.
It is impossible to know what life in Guatemala would be like today absent the CIA’s intervention. One can imagine Árbenz’s democracy thriving through the second half of the 20th century, and serving as a model for its neighbors in the Northern Triangle. One can also imagine less rosy counterfactuals. What we know for certain is that the United States deliberately undermined the national sovereignty of Guatemala and inadvertently triggered decades of civil war. And we know that said civil war left in its wake large groups of demobilized men with experience in killing, and access to (often, U.S.-made) military-grade weapons — and that many of those men ended up forming violent, criminal organizations that plague the Northern Triangle today.
And American drug users and policymakers sustain those criminal organizations.
Demand for narcotics is overwhelmingly concentrated in prosperous, developed countries; which means, in the Western Hemisphere, it is overwhelmingly concentrated in the United States. And the U.S. government’s Draconian (and profoundly ineffective) approach to reducing that demand has only inflated the profits that Central American criminal organizations can reap by satisfying our illicit appetites. As German Lopez reported for Vox in 2014:
These drugs cost pennies by the dose to produce, but their value is increased through the supply chain to reflect the risk of losing a harvest to drug-busting government officials or rival criminal organizations.
The inflated cost creates a huge financial incentive for criminal organizations to get into the business of drugs, no matter the risks. They might lose some of their product along the way, but any product that makes it through is immensely profitable.
Criminal groups would likely take up other activities — human trafficking, kidnapping, gun smuggling, extortion — if the drug market didn’t exist. But experts argue drugs are uniquely profitable and empower criminal organizations in a way no other market can.
One could argue that the downside risks of legalizing hard drugs justify the harms inherent to their prohibition. The fact that the United States refuses to remove marijuana from the black market — and thus, deny cartels a major profit source — is harder to justify. But either way, it remains the case that the costs of our nation’s consumption — and prohibition — of drugs fall heaviest on our neighbors to the south. In fact, some have even argued that America’s drug habit is responsible for nearly all of the violence in the Northern Triangle — among them, White House chief of staff John Kelly.
“There are some in officialdom who argue that not 100 percent of the violence [in Central America] today is due to the drug flow to the U.S.,” Kelly wrote in 2014, when he was serving as Southcom commander. “I agree, but I would say that perhaps 80 percent of it is.”
MS-13 was born in the U.S.A.
Donald Trump has accused Central American governments of “sending” their most violent and criminal residents to the United States — including the homicidal gangsters of MS-13. In truth, of course, the vast majority of migrants from Central America are self-selected and nonviolent.
But Trump’s mistake is almost understandable: After all, the U.S. government actually has sent some of its most violent and criminal residents to Central America: MS-13 was formed on the streets of Los Angeles, hardened in American prisons, and then deported back to the Northern Triangle.
True, the gang’s original members were (mostly unauthorized) Salvadoran immigrants who’d fled their nation’s civil war. But those immigrants arrived in California as troubled teenagers, not sadistic killers. Dara Lind offers a concise sketch of the competing theories for how some of them became the latter:
[The Salvadoran teens] faced hostility from other ethnic groups for being new, and from other young people for being long-haired mosher types, so they banded together and called themselves the Stoners — later Mara Salvatrucha, and eventually, once the gang had metastasized under the network of Southern California Latino gangs known as Sureños, MS-13.
When and why the “Stoners” became a hardened violent gang is up for debate. Avalos attributes it to repeated confrontations with other LA gangs, while journalist Ioan Grillo thinks it has more to do with the arrival of newer Salvadoran immigrants who were “hardened by the horrors” of civil war. Salvadoran journalists Carlos Martinez and Jose Luis Sanz, meanwhile, say that the gang’s story paralleled that of a lot of young men during the “tough on crime” era: They were minor delinquents stuffed into jails and prisons, where they had the time, opportunity, and incentive to become hardened criminals.
Whichever version of this story one accepts, our nation’s institutions remain implicated in the formation of MS-13. Salvadoran immigrants did not introduce the culture of street gangs to Los Angeles; L.A. introduced it to them. And, given the rates of recidivism in our criminal justice system, it is reasonable to assume that the failure of American prisons to rehabilitate these teenage immigrants (once they turned to violent crime) was not solely due to their inadequacies.
Regardless, the U.S. government bears unambiguous responsibility for MS-13’s evolution into an international menace. Despite the fact that El Salvador was ill-equipped to handle a massive influx of gang members, the U.S. deported roughly 20,000 convicts (including many MS-13 members) to that country between 2000 and 2004 — without telling the Salvadoran government which of the deportees being returned to them had criminal histories, and which did not.
Our debt to Central American migrants cannot be paid simply by reuniting them with their traumatized children.
Donald Trump does not deny that the migrants at our southern border hail from nations wracked by violence and instability (the brutality of Central American gangs is one of our president’s favorite topics of conversation). But Trump sees the Northern Triangle’s troubles as cause for turning away its refugees, not taking them in: In his understanding (or at least, in the one he projects to the public), Honduras is not violent and poor for complicated reasons of history, politics, and economics; it is violent and poor because Honduran people live there. Therefore, these migrants are not looking to escape their nations’ pathologies, but to export them; they’re not huddled masses yearning to breathe free, but virus-bearing insects yearning to “infest.”
These sentiments reek of racism. But like so many other prejudices that the powerful harbor against the powerless, they also betray a will to evade responsibility.
If the pathologies of impoverished black communities can be attributed to the cultural (and/or biological) flaws of black people, then the American government owes them little. If we acknowledge that their troubles are inextricable from centuries of discriminatory policy, by contrast, our collective obligation to improve their well-being becomes immense. And the same is true of migrant families. If we can call these people “animals,” then we need not ask what caused the barbarities they’re fleeing. But rejecting Trump’s racism requires us to ask that question — and answering it honestly requires grappling with our collective responsibility for the traumas that migrant children suffered before they ever crossed our border.
What we owe them can be debated (accepting a much greater number of them into our country, and increasing aid to their region would seem like two possibilities). But there is no doubt that we owe them much more than this.
***************************************
ESSAY:
SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change!
By Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.
The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.
That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.
And the reasonable solutions are readily available under today’s U.S. legal system:
Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.
Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).
Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.
Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.
Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.
Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.
If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.
Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).
My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.
ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).
As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”
That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.
Petitioners, four children of Salvadoran and Honduran origin and their mothers, appear before us for a second time to challenge their expedited orders of removal. In Castro v. United States Department of Homeland Security, 835 F.3d 422
3
(3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), we held that we lacked jurisdiction to review their claims under the Immigration and Nationality Act (INA) and that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the United States to challenge that lack of jurisdiction, the petitioners’ ties were inadequate because their relationship to the United States amounted only to presence in the country for a few hours before their apprehension by immigration officers. Thus, weaffirmed the District Court’s dismissal of their petition.
Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements. The protections afforded to children with SIJ status include an array of statutory and regulatory rights and safeguards, such as eligibility for application of adjustment of status to that of lawful permanent residents (LPR), exemption from various grounds of inadmissibility, and robust procedural protections to ensure their status is not revoked without good cause.
Because we conclude that the INA prohibits our review just as it did in Castro, we are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does. As we explained in Castro, only aliens who have developed sufficient
4
connections to this country may invoke our Constitution’sprotections. By virtue of satisfying the eligibility criteria for SIJ status and being accorded by Congress the statutory and due process rights that derive from it, Petitioners here, unlike the petitioners in Castro, meet that standard and therefore may enforce their rights under the Suspension Clause. Accordingly, we will reverse the District Court’s denial of Petitioners’request for injunctive relief.1
********************************************
My quick and pointed analysis:
In Castro v. United States Department of Homeland Security, 835 F.3d 422 (3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), this court basically extinguished the Due Process rights of vulnerable asylum seekers in the United States caught up in the clearly, pathetically, and intentionally unfair Expedited Removal System. The court did so by disingenuously running over the statute, international law, and the Fifth Amendment to the U.S. Constitution, not to mention ordinary human morality.
Think of Castro as a “Modern Day Dred Scott case” and the clueless ivory tower wonks who decided it as mini-versions of the infamous Chief Justice Roger B. Taney.
To reward the Third Circuit for toadying up to Congress and the DHS, the DHS doubled down on their outrageous behavior by stomping on the rights of defenseless children. Even though they themselves had determined these kids should be allowed to remain in the U.S. by approving them for Special Immigrant Juvenile Status, they tried to remove them to a country where “it would not be in the child’s best interest to return.” Cruel and stupid. But, hey, we’re dealing with DHS in the age of Trump and Sessions.
Realizing that they were about to look like fools and also to have the blood of children as well as defenseless women on their hands, this panel of judges wrote 55 pages of fairly impenetrable legal gobbledygook hoping to cover up their mistake in Castro.
What they were really trying to say was pretty simple: The U.S. Government is engaging in outrageously arbitrary and capricious treatment of these children in clear violation of the 5th Amendment to the U.S. Constitution, and they should knock it off.
But, that doesn’t mean that the court has the courage or backbone to go back and correct Castro. They are just vainly hoping that by firing a limited “warning shot” across the Government’s bow on abuse of SIJS children, they can rein in DHS misconduct. Otherwise, the court might have to accept some responsibility for its own feeble legal reasoning and moral cowardice in Castro.
At least it’s something! And it shows that unlike Trump, Sessions, Nielsen, and the rest of the Administration scofflaws, Article III Judges do at some point have a sense of shame. Just not enough of one to do the right thing all the time.
Many thanks to Roxanne Lea Fantl of Richmond, VA for sending this my way.
The number of asylum cases before U.S. immigration judges rose nearly 39 percent in the first year of the Trump administration – and is on course to increase again in 2018, according to new federal data.
In 2017, 62 percent of asylum applications were denied. So far in 2018, 65 percent have been denied – an increase of 14 percentage points compared to five years ago, the data shows.
Nationwide, immigration judges ruled on 25,741 asylum cases as of May 29, 2018, the most recent period for which data is available. That averages out to more than 3,200 cases per month. Even for a partial year (the fiscal year runs October 1 – September 30), it’s a 44 percent increase compared to 2014, when just under 17,925 cases were heard and 51 percent were denied.
And 2018 could be a record year: U.S. immigration judges ruled in nearly as many asylum applications in the first eight months of FY2018 as they did in all of 2017, when they issued 28,408 decisions, according to a Daily Mail analysis of data from the Executive Office for Immigration Review.
At the same time, the likelihood of whether an immigrant’s asylum application will be successful varies dramatically depending on the state in which their case is heard. New York was the most likely to welcome asylum seekers, with only 34 percent denied in 2018, while immigration judges in North Carolina and Georgia had a 96 percent denial rate.
+4
The likelihood of whether an immigrant’s application will be successful varies dramatically depending on the state in which their case is heard. New York was the most likely to welcome asylum seekers, with only 34 percent denied in 2018, while immigration judges in North Carolina and Georgia had a 96 percent denial rate
Nevada was the next most-likely to deny asylum seekers, with a 95 percent denial rate, followed by Nebraska (93 percent) and New Mexico (91 percent). Among the states with the lowest denial rates were Hawaii (35 percent), Maryland (40 percent) and Massachusetts (45 percent).
‘It’s a problem,’ said Paul Wickham Schmidt, a former immigration judge and board member at the Executive Office of Immigration Review who retired after 13 years on the bench. ‘These are life or death cases. It suggests to me that when you’re walking in to some courts, no matter what you present you’re going to be denied because it’s been prejudged. That isn’t fair.’
The numbers are relevant now more than ever, as thousands of migrant parents are held in detention centers around the country, awaiting having their cases heard – and word on whether they will be reunited with their children. More than 2,000 kids have been separated from their parents since Trump’s zero-tolerance immigration policy took effect in April.
Reports of children being locked in cages and images of them weeping for their parents created political pressure that ultimately forced the Trump administration to reverse course on the separation issue, but officials have not provided an explanation on if or when those parents will be reunited with their children – and in what conditions the families will be held.
Asylum cases can take months or years, and it’s unclear whether the new numbers represent a rise in asylum applications, or if they reflect an increased, more rapid caseload for judges, though there are several theories.
+4
Nationwide, nearly two-thirds (65 percent) of the almost 26,000 people whose asylum cases were heard through May 29 of fiscal year 2018 were denied
Jeremy McKinney, a member of the executive committee of the American Immigration Lawyers Association, attributes the overall increase in caseload to a combination of factors, including the ongoing humanitarian crisis in the Northern Triangle countries of Central America, which are El Salvador, Guatemala and Honduras.
‘Their most vulnerable — women and children, are fleeing widespread violence stemming from gangs, corrupt government actors, and domestic violence,’ he said. ‘This uptick in applications started during the last administration and continues today because nothing is being done to address the domestic problems plaguing El Salvador, Honduras and Guatemala.’
In addition, U.S. Immigration and Customs Enforcement has increased arrests of people who had no criminal history other than the misdemeanor of entering the country illegally. For many of those people the only chance at avoiding deportation is an asylum claim, and those cases will increase the docket, McKinney said.
It’s also likely that immigration judges are also hearing cases more quickly because they are under pressure by the Department of Justice to get through the significant case backlog, Schmidt said.
The asylum caseload is not evenly distributed among states, though there are more judges in regions with a higher volume of cases. New York had the highest caseload of asylum seekers, accounting for nearly 19 percent of the country’s applications heard so far in 2018, according to federal data.
California came in second, with 16 percent of the total caseload and a 60 percent denial rate, followed by Texas, which handles more than 14 percent of the caseload and has an 87 percent denial rate.
**************************************
Read the rest of Valerie’s article at the link.
Rather than making a good faith attempt to fix the severe Due Process problems plaguing the Immigration Courts, or addressing the humanitarian refugee situation in the Northern Triangle, the Trump Administration is purposely making the system worse and more unfair for asylum seekers and actually aggravating the horrible human rights problems in the Northern Triangle.
I’ll be on for a 5 minute or so segment with Scott Simon that airs locally on WAMU starting at 8:00 AM Saturday. I believe “my segment” will begin around 8:20 AM. It will be posted to the internet by noon on Saturday.
MATTER OF FACT WITH SOLEDAD O’BRIEN
I have about a 10 minute segment with Soledad that will air in the DC area on WTTG, Ch. 5, at 1:00 AM on Monday (CORRECTED). It will also be posted online later.
Immigration judge applicant says Trump administration blocked her over politics
By Tal Kopan, CNN
When the Obama administration offered Thea Lay a chance to serve as one of the nation’s top immigration judges pending a successful background check, she eagerly accepted.
But the Trump administration withdrew her offer this year with little explanation after months of silence — and she suspects it’s because of her political ideology.
Lay’s case is one of several being questioned by House Democrats, who have accused the Justice Department of political bias in hiring judges to serve on the nation’s immigration courts — which would be against the law. And the suspicion of politically based hiring, even if unfounded, belies the greater criticism of Attorney General Jeff Sessions’ broader efforts to speed up the immigration courts and use his authority as attorney general to single-handedly interpret immigration law.
Lay has spent much of her 25-year career working on the exact type of asylum law Sessions recently reinterpreted by rolling back protections for domestic violence victims, and she worries that she was perceived as having an ideology that would not be welcome on the Board of Immigration Appeals.
The Justice Department forcefully denies that political ideology has been a factor in any of its hiring of immigration judges, including the decision on Lay, citing federal laws which say it cannot be. They say Lay declined a temporary appointment to the position and cite that and a subsequent reevaluation of the salary for the position as the reason for her rejection.
But the questions about whether there was a quiet move away from candidates who were perceived as too pro-immigrant is an illustration of the unique position the attorney general holds, as the political appointee who hires, manages and can single-handedly overrule each of the nation’s immigration judges.
Sessions is fortunate that the “Do-Nothing” GOP has control of both Judiciary Committees. But, some day the truth will out. And, given Sessions’s already well-established record of lies, distortions, and misrepresentations, it could be pretty ugly.
