"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Dan Carter and Paul Stekler write in the LA Times:
In late September 1968, presidential election polls showed that third-party candidate George Wallace’s campaign was surging. With the support of a quarter of white voters, Wallace was within single digits of the Democratic nominee, Vice President Hubert Humphrey. Wallace’s dominance in Southern states threatened to prevent any candidate from securing an electoral college majority, throwing the November election into the House of Representatives.
His was an extraordinary rise. In his inaugural speech as Alabama governor just five years earlier, Wallace had promised “segregation today, segregation tomorrow, segregation forever.” He then gained national attention by personally standing in a schoolhouse door at the University of Alabama to block the admission of two black students.
By 1968, he seldom used explicitly racist language, but instead demanded “law and order” and railed against “crime,” “drugs,” “welfare mothers,” “forced busing” and “big city thugs.” He created the racially encoded language that still haunt our politics.
So when President Trump whips up rallies with his thinly veiled racist attacks on brown-skinned immigrants, Muslims and unpatriotic blacks, it is not a new development. The racial divide has been a political tool for those willing to use it for 50 years. As former President Obama pointed out in his Sept. 7 speech, “It did not start with Donald Trump. He is a symptom, not the cause. He’s just capitalizing on resentments that politicians have been fanning for years.”
In 1968, the white backlash to the Civil Rights movement and the ’60s urban riots drew voters to Wallace. But others took note — particularly Richard Nixon’s campaign advisor Kevin Phillips, who, in his book “The Emerging Republican Majority,” saw the potential of a major partisan realignment. Over the next six years, President Nixon adapted a more subtle version of the Wallace message, appealing to what he called “the silent majority.” In the years that followed, white voters in the once solidly Democratic South became the bedrock of the Republican Party.
The Republican Party’s Southern Strategy initially focused on shifting voters with a segregationist bent to the party, but it proved adaptable to other whites uneasy with the increasing role of minorities in American life and politics. These appeals resurfaced many times over the years, most memorably in the infamous Willie Horton ad during George H.W. Bush’s 1988 campaign, but also in the symbolism of Ronald Reagan’s decision to make his first 1980 campaign appearance at the Neshoba County Fair in Philadelphia, Miss. — where three civil rights workers were murdered in 1964. With the election of Obama and a growing awareness that whites will eventually be a minority in America, the ground for such appeals has stayed quite fertile.
When Trump descended from Trump Tower in 2015, he immediately set himself apart from the gaggle of GOP presidential contenders by replacing the coy racial language of his predecessors with an unfiltered bullhorn. He has railed against prominent black leaders and athletes, talked about brown-skinned immigrants as murderers and rapists, and insisted dark-skinned Muslims constitute such a threat that we need to ban travel from entire countries.
Wallace’s bid for the presidency faltered in its final weeks, but a very small shift of voters in four states would have deadlocked the race. Wallace poured gasoline on the fire of racial division first, but Trump managed to carry that flame all the way into the White House. Who would have predicted that 50 years after the 1968 election, polls would show that more than half of Americans think their president is a racist?
Many factors have contributed to today’s tribalistic politics, but race remains the bedrock of that division. Transcending racism is essential if our government is to break out of its current paralysis. If we do not succeed and Wallace’s legacy of dividing us by race continues to shape American political life, then perhaps he won after all.
Historian Dan Carter, author of the George Wallace biography “The Politics of Rage,” and University of Texas filmmaker Paul Stekler collaborated on the PBS documentary “George Wallace: Settin’ the Woods on Fire.”
Folks like Trump, Sessions. Miller, Bannon, and the GOP enablers, are not “Making American Great Again.” No, they’re bringing back one of the darkest chapters in our post-WW II history: “Making America Racist Again.”
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Our panelists are on the front lines of today’s immigration issues, providing both legal and support services. Our program will include a discussion of the current challenges and how they are being met. Additionally, organizations will provide a pathway for the WBA and its members to get involved.
Following the panel discussion, we have planned a “Day of Service” (Date: TBD), for which WBA members will be able to volunteer for discrete activities that meet the needs of each organization.
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Thank-you to our host Morgan, Lewis & Bockius LLP!
If you have heard or appeared before my distinguished former Arlington Immigration Court colleague Judge Larry Burman, you know what he “brings to the table.” And, if you haven’t, you have a real treat in store. Trust me, he’s not only super knowledgeable and down to earth, but also very funny! He’s also a big supporter of “Bench & Bar” functions and Continuing Legal Education.
Judge Burman, of course, appears solely in his capacity as an Officer of the National Association of Immigration Judges (“NAIJ”).
Many thanks to my good friend Attorney Pauline Schwartz of the Women’s Bar Association of DC for forwarding this important item.
Sherrilyn Ifill, 54, is a lawyer living in Maryland and New York. She became the president of the NAACP Legal Defense Fund just after President Obama was sworn in for his second term. Below, she discusses our current political situation, what gives her hope and more.
On the Justice Department under the Trump administration: “During the Obama administration I was trying to push [Obama] further than whatever the administration was already doing in the civil rights space, because that’s kind of my job. But there’s no question that the Obama administration really worked in many instances as a partner. That is not the case now. Attorney General [Jeff] Sessions has made clear that he has no intention of investigating police departments for patterns and practices of discrimination. The Justice Department has essentially all but abandoned civil rights as a priority, and so they are no longer working as a partner with us.
That means that our work has increased. We have had to function as a kind of private DOJ, trying to take up the slack. The DOJ and the attorney general should be the chief enforcer of the nation’s civil rights law. But what we see with Attorney General Sessions is no attempt to prioritize civil rights. In fact, to the contrary, working against us, working against civil rights implementation, working against the progress of civil rights that we’ve achieved.”
On what she would say to President Trump if he invited her to the White House: “I cannot imagine what the circumstance of that invitation would be, so it’s an impossible question to answer. I don’t do ceremonial visits. I’m interested in substance. So there would be a lot I would have to know in advance about what was going to happen. The president has been so explicitly hostile to civil rights and racial justice that I would have to have a very clear understanding of what reversals he was prepared to make to his policies. And in the absence of those, I can’t imagine a circumstance in which I would attend such a meeting.”
On Trump’s comments that black Americans are doing better economically than ever before: ”He does state that, and I think the figures that he uses are convenient in terms of job numbers. But look more closely at wage stagnation and, in fact, wage decreases. Look at the ways in which the failure to invest in infrastructure has left African American communities stranded in terms of transportation. Look at the voter suppression that disempowers African Americans from being able to even control their own destiny in the places where they live. Look at the assault on education and the ways in which the Department of Education is prepared to leave students who are victims of for-profit colleges stranded. Look at the ways which they are seeking to fight and undercut affirmative action. All of these are also part of economic opportunity. And the president conveniently leaves that out of the narrative. Those are things that are necessary to give African Americans a chance.”
On her book about the legacy of lynchings in America, and what the country needs to heal: “What America does not need, in my view, is one national conversation. The book really makes the case for the importance of local communities engaging in truth and reconciliatory processes. The recognition that racial discrimination, and particularly acts of racial pogroms, which essentially is what happened in the period in which lynching was so prevalent in this country, that those local communities need to deal with that, grapple themselves with that history and themselves take on the responsibility for how you stitch back together a community that has been broken for decades, how you confront a painful truth.”
On what gives her hope: “I’m excited to see the continuous mass mobilization that people have engaged in, beginning with the Women’s March and continuing since then, in which people understand the need to come out of their homes to see one another and to say what they believe in. I’ve also really been encouraged by the ways in which the rule of law, for the most part, has held despite President Trump’s excesses. The crisis of this administration’s governance has compelled people to reimagine what it means to be a real citizen in this country. And that gives me optimism, because I think the other way was not sustainable. The benign citizenship performance that most Americans were engaged in was simply not sustainable. Now people understand that they are needed. Their voice is needed, every vote is needed, their engagement is needed.”
Undoubtedly, our Civil Rights Laws were passed to protect African-Americans and similarly situated individuals so that they could enjoy the same advantages and benefits once accorded only to Whites. But, Jeff Sessions believes that civil rights are just about protecting White Power & Privilege against African-Americans, Hispanics, immigrants, LGBTQ individuals and other “uppity” minorities.
Similarly, the Bill of Rights was adopted to protect individual rights against Government overreach. But, Jeff Sessions believes that the right of police to enforce the law using brutality and unnecessary and indiscriminate force is superior to the individual Constitutional rights of people of color.
The solution to restoring reason and the true rule of law (not the perverted “rule of Sessions”): regime change!
The Family Research Council (FRC) uses discredited research and junk science to attack and vilify LGBT people. It claims they’re incestuous and “violent,” for example, a danger to children and society.
Joining them is none other than Secretary of State Mike Pompeo.
The news that such a high-ranking member of the Trump administration — one charged with representing the United States to the rest of the world — is choosing to attend an FRC event certainly “raises eyebrows,” as Nahal Toosi wrote for Politico.
As a former George W. Bush administration official told Toosi, “It’s unusual for a secretary of state to be at an event with ‘voter’ in the title.”
It’s much worse than that, in fact.
Pompeo, though, might feel right at home appearing with such far-right extremists. He’s spoken at numerous conferences hosted by ACT for America and Center for Security Policy, both anti-Muslim hate groups. And he’s not the only one from the Trump administration.
The Trump administration has opened its doors to the radical right. Not only are high-ranking officials speaking at events hosted by hate groups, they’re inviting extremists to consult on the administration’s policies, set its agenda and shape its rhetoric.
Both have ties to extremists who would like to see exactly such a policy out of the White House. Bannon, of course, is Trump’s former chief strategist, a man who has boasted of transforming Breitbart News into “the platform for the alt-right.” Kobach, now the secretary of state in Kansas, is a longtime lawyer for the anti-immigrant hate group Federation for American Immigration Reform. He is also one of the nation’s leading proponents of state laws that suppress the votes of the poor and people of color.
We’ve been tracking instances of extremism in the White House. In less than a year, we’ve found 160 incidents, with at least 15 different hate groups involved in some way.
That’s unacceptable. And it’s why last weekend, we went to Washington to talk to residents who — like us — won’t stand for the bigotry on display at today’s so-called Values Voter Summit.
It’s overwhelmingly clear that the “values” Pompeo will be supporting – tacitly, at the very least –will not be those of LGBT people.
They won’t be the values of the DC residents who are standing with us to say #Y’allMeansAll.
They won’t even be the values of the majority of Americans, whose government should represent their interests rather than the interests of a hate group.
Heather Nauert, a spokeswoman for the State Department, told Politico that Pompeo’s message today is “not political. It’s not a Republican or Democrat message.”
That makes no difference. He has already sent a clear message by agreeing to even appear at the summit. And we’ve all heard it.
The Editors
P.S. Here are some other pieces that we think are valuable this week:
Leaving school one autumn day in 2006, I stood at the top of the concrete stairs at the back exit, with the senior parking lot spread out before me, cars gleaming in the still afternoon sun. Several of them bore a message scrawled in chalk-paint: FAITH. They looked to me like gravestones, brief and cryptic in neat rows.
The next day, people whispered about the word in the halls. It was an acronym, I learned, meaning “f— Amber in the head,” or “f— Amber in three holes,” which I awkwardly explained to my parents when they asked me one evening why so many cars around town were thus marked. The idea struck me as brutally, unspeakably ugly, and it was the ugliness that came to mind each time I saw some rear windshield dripping the word in streaky chalk at the local Jack in the Box or Sonic Drive-In. Eventually I heard the girl had recanted her allegations and then had gone away; the writing on the cars, too, went away, and the question of what had happened that night.
. . . .
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Please note that the guys spouting the “why didn’t she report it” nonsense are 1) a known liar, misogynist, bully, philanderer, and coward who happens to be our unqualified President, and 2) a bunch of old, white, tired, amoral GOP legislators who, although nominally adults, are too cowardly and morally corrupt to stand up to the aforesaid unqualified President who is destroying America, and who prefer instead to pick on the vulnerable and courageous.
Ballot boxes exist to, over time, remove all of these intentionally tone-deaf folks from our national Government. Use it, or we’ll all lose it!
Julia Edwards Ainsley and Dan DeLuce report for NBC News:
WASHINGTON — Days before the Trump administration announced plans to slash the number of refugees allowed into the U.S. to its lowest level in 40 years, Trump senior adviser and immigration hard-liner Stephen Miller made his case for fewer refugees to a room of senior officials at the White House.
His sales job was made easier by the absence of top officials who disagree with his stance. They weren’t there because they weren’t invited, according to two people briefed on the discussions. Missing from the room last Friday were U.N. Ambassador Nikki Haley and the head of the U.S. Agency for International Development, Mark Green, both of whom have promoted a more generous policy toward refugees fleeing poverty, famine and persecution, the two sources said.
The planned cut in the refugee cap, now just 30,000 for the coming fiscal year, is the latest win for Miller, who has outmaneuvered opponents in and outside the administration to push through a crackdown on all forms of immigration.
Miller’s victories on the Muslim travel ban, limiting legal immigrationand separating migrant families at the border show his skill in pulling bureaucratic levers, blocking opponents from key meetings, restricting the flow of information and inserting his allies in key positions, said current and former officials.
In the administration’s internal discussions, Defense Secretary James Mattis — who was also absent from the Friday meeting — and Secretary of State Mike Pompeo had consistently opposed reducing the ceiling for how many refugees could be allowed into the country next fiscal year, former officials, humanitarian experts and congressional staffers from both parties told NBC News.
But after the meeting of top officials at the White House, Pompeo unveiled plans Monday to scale back the cap for refugees in 2019 to its lowest level since 1980. The secretary gave no explanation as to why he had changed his position, or how that number was arrived at during the closed door “principals” meeting.
Lawmakers from both parties, and some Christian charities, had urged Pompeo to stand firm against yet another reduction in refugee admissions, arguing it would undermine relations with allies, fuel instability in volatile regions and damage America’s image.
In a joint statement Wednesday, Republican Rep. Randy Hultgren of Illinois and Democratic Rep. Jim McGovern of Massachusetts expressed “extreme disappointment at the administration’s proposal,” and added, “We cannot turn our back on the international community in a time of historic need.”
Sen. Bob Menendez of New Jersey, the ranking Democrat on the Senate Foreign Relations Committee, said Monday he was “very concerned to see Secretary Pompeo was either not willing or unable to be a voice of reason in the room when the president was told he should continue grinding the U.S refugee program to a halt.”
Former officials said it appeared the top diplomat bowed to Miller and others pressing for scaling back refugee resettlement.
“Pompeo got rolled,” said one former official familiar with the deliberations who served under Republican and Democratic administrations. The secretary “got manhandled by a kid who knows nothing about foreign policy,” said the source, referring to the 33-year-old Miller.
The State Department did not respond directly to questions about why Pompeo apparently altered his stance. But a spokesperson said the recommendation, which still must be approved by the president, takes into account additional security vetting procedures for refugee applications as well as the need to manage nearly 300,000 asylum cases.
Over the past several months, former officials and humanitarian organizations say, Miller restricted who would take part in the deliberations, while ensuring like-minded associates were in key positions at the State Department.
Unlike last year’s deliberations on refugees, Haley and her office were excluded from the inter-agency discussions on the issue and did not attend last Friday’s meeting where the cap was set, even though her staff argued she should be included, current and former officials said.
Although Haley’s office was not invited into the discussions, the ambassador “provided our views during the process,” a spokesperson for the U.S. mission at the UN told NBC News.
Haley had previously opposed drastic reductions in refugee resettlement numbers.
Paving the way for Miller, an official at the National Security Council, Jennifer Arangio, a political appointee who worked on President Donald Trump’s campaign, was fired and escorted from her office in July after clashing with Miller over refugee-related issues. And two refugee skeptics aligned with Miller are now in senior positions at the State Department: Andrew Veprek at the Bureau for Population, Refugees and Migration and John Zadrozny at the policy planning office.
The White House did not respond to requests for comment.
The State Department declined to disclose which agencies or officials attended the final interagency discussions, but a spokesperson said the plan was arrived at “in consultation with all appropriate government agencies.”
It was not clear if the Office of Refugee Resettlement, which is part of the Department of Health and Human Services and provides cash payments and medical assistance to newly arrived refugees, was invited to the inter-agency process. A spokesperson said ORR took part in “the discussion” on the issue but did not say specifically if the office had a seat at the table in the inter-agency deliberations.
The White House meeting last Friday was classified and limited to only a small number of senior officials and cabinet members. Those restrictions are usually reserved for more sensitive issues involving military action or intelligence, former officials said. The limits played in Miller’s favor, as cabinet members and their deputies could not divulge details of the discussion.
Mattis did not attend the meeting in person and provided his opinion in writing, Pentagon spokeswoman Dana White said. She added that “as the information and discussion were classified, I cannot provide further comment.”
Based on the administration’s public statements on the issue, Miller also appeared to succeed in framing the refugee issue on his terms.
When Pompeo announced the plan to reporters at the State Department this week, he echoed arguments that Miller and his supporters have often employed to defend drastic restrictions on refugees. Pompeo said that the government lacked the manpower to handle more refugees, that the U.S. was focused on providing aid abroad where refugees are located and that refugee numbers needed to be limited to safeguard the country’s national security.
“He was using Miller’s talking points,” another former official who served in both Republican and Democratic administrations said.
With the world facing the worst refugee crisis since World War II, the recommendation to slash refugee numbers was widely condemned by humanitarian organizations and rights groups. Pompeo’s announcement is “appalling, and it continues this administration’s rapid flight from the proud U.S. tradition of providing refuge to those fleeing persecution around the world,” said Eric Schwartz, president of Refugees International, who oversaw refugee policy at the State Department.
Those who share Miller’s views on immigration say he is portrayed unfairly by his critics. They maintain he is merely a successful advocate for Trump, who promised as a candidate to clamp down on immigration and temporarily halt Muslims from entering the country.
“As I understand it, Miller is zealously promoting his boss’s agenda within the administration, and running up against people who are less committed to that agenda,” said Mark Krikorian of the Center for Immigration Studies, which has backed the administration’s stance on immigration.
“He seems to be pretty effective at navigating bureaucratic politics, which is an essential skill if you want to get anything done.”
In a tumultuous White House, Miller is one of a handful of original Trump loyalists who has survived and thrived, exerting an outsize influence over immigration decisions and rhetoric.
One administration official, who was not authorized to speak on the record, said it should not be surprising that so many of Miller’s ideas have come to fruition.
“Miller has survived and people who think like Miller have survived because the president agrees with these policies. He is not running a rogue operation,” the official told NBC News.
Miller was once part of a small group of outsiders working as staffers on Capitol Hill who backed an aggressive line on immigration but often found themselves out of favor with the Republican Party establishment.
Many of those former colleagues are now deployed throughout the administration and have helped design and carry out some of Miller’s most sweeping and contentious policies, including a ban on travel from certain countries, a higher bar for proving asylum, a reduction in refugee admissions and the separation of migrant parents from their children at the border.
Miller and his allies have even promoted the creation of a denaturalization task force, which is supposed to ferret out people who lied on their applications and to strip them of their citizenship.
Critics say Miller is overseeing a systematic attack on all forms of immigration, illegal and legal, by promoting an underlying idea that foreign-born citizens or immigrants represent a dangerous threat to the country.
“I think he’s going to go down in history having a lot of blood on his hands. He is driving the most nativist agenda we have seen in 100 years,” said Frank Sharry, executive director of America’s Voice, an immigration reform advocacy group in Washington. “But he has had mixed results.”
Some of those mixed results include the legal blowback on the travel ban, which went through three versions before finally holding up in federal court. Miller also pushed for the end of DACA, the program designed to help children brought to the country illegally by their parents to remain in the U.S. But courts have stopped the administration from taking away those rights.
The most hard-line measures have also proved politically unpopular, according to opinion polls, with large majorities of American voters voicing opposition to ending DACA or detaining children separately from relatives entering the country illegally.
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Meanwhile, over at Jezebel.com, Esther Wang gives us the skinny on the guy who implements an anti-immigrant agenda with a smile and has taken the word “Services” out of “United States Citizenship and Immigration Services.”
It’s often the architects of our nation’s monstrous immigration policies (cough Stephen Miller cough) who are the subject of dramatic news headlines and the target of our much-deserved vitriol. But, as a new Politicoprofile of Lee Francis Cissna, the director of U.S. Citizenship and Immigration Services, reminds us, the bureaucrats who willingly and happily follow the dictates that come from above are equally as appalling (if not more so in their unthinking devotion to carrying out orders).
Politico describes how Cissna, the son of an immigrant from Peru and husband to the daughter of a Palestinian refugee who has steadily worked his way up the ranks of different federal agencies, has been dramatically—and quietly—reshaping immigration policy:
Much less visible than Miller or Department of Homeland Security Secretary Kirstjen Nielsen, Cissna has quietly carried out Trump’s policies with a workmanlike dedication. From his perch atop USCIS, he’s issued a steady stream of policy changes and regulations that have transformed his agency into more of an enforcement body and less of a service provider. These changes have generated blowback from immigrant advocates, businesses and even some of his own employees. Leon Rodriguez, who served as USCIS director under President Barack Obama, said the agency is sending a message “that this is a less welcoming environment than it may have been before.”
While the travel ban and family separations grabbed headlines, Cissna has waged a quieter war,tightening and reworking regulations and guidance that make it harder to come to the U.S. as an immigrant or temporary worker.
In February, Cissna rewrote the mission statement of the agency which he heads, eliminating a passage that proclaims the U.S. is “a nation of immigrants,” a symbolic move that nonetheless signaled a worrisome shift.
A few months later, Cissna announced the creation of a new denaturalization task force, which would investigate naturalized Americans whom the agency suspected of lying on their citizenship applications. As Masha Gessen wrote in The New Yorker, “It’s the apparent underlying premise that makes this new effort so troublesome: the idea that America is under attack by malevolent immigrants who cause dangerous harm by finding ways to live here.” Gessen continued: “Indeed, the creation of the task force itself is undoing the naturalization of the more than twenty million naturalized citizens in the American population by taking away their assumption of permanence. All of them—all of us—are second-class citizens now.” One of the people Cissna wished to strip citizenship from? A 63-year-old Peruvian-American grandmother, over her minor role in a fraud scheme perpetrated by her boss.
He has also spearheaded other changes, many of which have largely flown under the radar and failed to generate widespread outrage outside of those whose lives will be impacted by them—from new rules that empower USCIS officials to initiate deportation proceedings for a wider number of immigrants to policies that allow USCIS officers to deny visa and green card applications over small errors, without giving applicants an opportunity, as the Obama administration did, to fix them.
And as Politico and others have reported, Cissna plans on pushing through a new regulation—described as “the most controversial regulation to come out of his agency under Trump”—that would prevent people from immigrating to the United States if they’re expected to use public benefits. As Politico writes, “The proposed regulation, which is expected before the midterm elections, would effectively gentrify the legal immigration system, blocking poorer immigrants from obtaining green cards or even from entering the country in the first place.”
People who have known Cissna for years expressed surprise at the turn that he has taken as head of USCIS.
“We’re pretty stunned that a guy who is compassionate, funny, proud of his immigrant mother from Latin America, that he would now be one of the key architects of the seemingly heartless policy of separating families,” Dan Manatt, who attended Georgetown Law School with Cissna, told Politico.
Cissna himself disputes that he bears any animosity towards immigrants.
“I just feel a strong commitment to the law, and to the rule of law,” Cissna told Politico. “None of the things that we’re doing, as I’ve said on numerous public occasions, are guided by any kind of malevolent intent.”
Good to know—he doesn’t hate immigrants, he just loves laws that make their lives as difficult as possible. What a relief.
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No, the law doesn’t require that we bend the rules to harass and make it difficult for individuals who qualify for legal immigration and refugee status to actually get into the country. In addition to being complete jerks, Miller and Cissna are liars.
Get out the vote! Inspire your friends who oppose White Nationalism to get out and vote. These Dudes are pure evil, and America’s future is on the line! If decent people don’t stand up for humane values, evil can prevail! Time to restore the real “rule of law” which requires us to admit legal immigrants, refugees, and asylees without throwing up bogus White Nationalist roadblocks.
It now appears the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions solely because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained through FOIA and involve the interplay of two federal agencies tasked with separate responsibilities in the process of deciding whether to deport a person charged with being removable.
Much Ado About Scheduling Hearings
The basic issue raised by Pereirais that the immigration statute requires an immigration court charging document to list the date and time of the hearing. The Supreme Court said in Pereirathat a Notice to Appear (commonly known by its acronym: “NTA”) that doesn’t contain the date and time “is not a notice to appear” at all, which means arguably the proceedings were invalid and unlawful from the beginning.
Imagine having to go to traffic court even though the police officer wrote your ticket on a napkin, didn’t sign it, and it didn’t tell you when and where your court would be (or what you were being charged with). You or your attorney would march into court arguing this isn’t really a ticket, so why on earth am I even here? You would easily get the proceedings thrown out, because they were started improperly.
The difference here is that unlike traffic court, immigration court can result in lifetime expulsion from the United States, for individuals who may have a good reason to fear being harmed or killed if deported. And not showing up to court means an automatic order of removal.
Solving this problem would be simple. As the Supreme Court observed in Pereira:
As the Government concedes, ‘a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.’ Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear.
If the system already exists, why weren’t they already using it?
The problem results from the decision by Congress in 2003 to separate of INS into two separate agencies: (1) the immigration courts (under the umbrella of the Department of Justice; and (2) the Department of Homeland Security, which is the prosecutor in immigration court cases.
The system for scheduling hearings (called “Interactive Scheduling System” or “ISS”) is owned by the Department of Justice, so it has sole decision-making power on whether the DHS, a separate agency, can access it and schedule hearings on its own. The DOJ ended that access at some point and has never restored it. Without access to that system, DHS has decided to fudge the date and time – issue NTAs with a line for the date and time but simply write “to be determined” on the line. And they have done that on most charging documents filed for the last 20 or so years.
This disconnect has resulted in a number of problems, the most serious of which is that immigrants don’t know when their hearing date is, so they miss the date and get ordered removed in in absentia (as happened to the immigrant in Pereira).
The Pereira decision left the DOJ with a pretty clear command from the Supreme Court: turn your system back on so DHS can schedule hearings. Most who practice in this area thought the Department of Justice would comply. Unfortunately, they haven’t.
Despite Pereira, EOIR Vacillates on Whether to Turn on ISS
The Pereira decision was issued on June 21, 2018. Early on June 22, 2018 Rene Cervantes, the court administrator for the San Diego Immigration Court, e-mailed Rico Bartolomei Jr, the Assistant Chief Immigration Judge for that area, asking if the court should keep accepting the filing of NTAs by DHS without the date and time, despite what the Supreme court had just quite plainly said.
Bartolome responded that there had been no guidance from the DOJ, so for now they would keep accepting deficient NTAs for filing. By mid-afternoon on the 22nd, the discussion turned to whether the Department of Justice would “turn on ISS ASAP,” meaning enabling the DHS to access its scheduling system so it could file compliant notices to appear.
By June 25, 2018 it looked like the DOJ had decided to turn the ISS system back on. In an e-mail Christopher Santoro, Principal Deputy Chief Immigration Judge, wrote that the only problem was timing, writing:
“[W]e were also told that, consistent with the benchmarks that went out with the new court performance measures, we need to get detained NTAs their first MC within 10 days of filing and non-detained NTAs their first MC within 90 days of filing. We also cannot be “full” – in other words, if DHS wants to file an NTA, there must be a slot for them to schedule it in within 10/90 days.”
In response, the Attorney General has ordered draconian benchmarks which will require, among other things, that every judge in the country enter at least 700 orders per year. These measures are designed turn immigration courts into deportation machines – multipleAttorney Generalopinions have stripped judges of decision-making power while the agency orders more and more decisions to be made.
Relevant here, the new IJ quotas require detained hearings to be scheduled within 10 days of the prosecutor, DHS, filing the NTA with the court.
A June 25, 2018 e-mail from Mark Pasierb, chief clerk to the Immigration Court, explained that the ISS schedule system only has a certain number of slots for hearings with each judge each day. Thus, if the next ten days are “full,” allowing the DHS to access the ISS system will require it to pick a day that is beyond the DOJ’s self-imposed deportation quotas.
On June 27, 2018, Chief Immigration Judge Mary-Beth Keller sent out a timetable for when ISS would be turned on. She wrote that “effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected.” She added that by July 2, 2018, the DOJ would turn the ISS system back on for non-detained cases and by July 16, 2018 for detained cases. However, that advice did not last long.
By July 11, 2018, the EOIR had decided officially to continue accepting non-compliant NTAs. Santoro e-mailed all court staff writing:
The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.
The DOJ Chooses Self-Imposed Deportation Quotas Over Complying With the Supreme Court.
What the June 25 Christopher Santoro e-mail reveals is that while the DOJ definitely has the power to turn on its scheduling system to comply with the Pereira decision, it does not want to, because it does not want that process (essentially ordered by the Supreme Court) to affect its new mega-deportation benchmarks that start on October 1, 2018.
The results are already being felt in Immigration Courts around the country. Without being able to access ISS, the prosecutors whose job it is to file these charging documents are just writing made-up dates or “dummy dates” on the charging documents. It’s hard to envision how the agency can get away with that; attorneys who file documents they know to be false (including having a pretend hearing date) are subject to discipline by their state bar.
More urgently, the people who receive these documents are showing up in court, sometimes within days, scheduling to travel across the country at times to attend a court hearing that was never even scheduled and is not going to take place.
Until the EOIR chooses to comply with the Supreme Court’s decision in Pereira (likely after parties are forced to litigate these issues in federal court) it is not clear there is any solution to this problem on the horizon.
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Four obvious “take-aways:”
Solving this problem isn’t “rocket science,” but it does exceed the collective abilities of the perpetuators of “Clown Court” (as the great Yogi Berra said, “Can’t anybody here play this game?”);
Sessions’s scofflaw, “haste makes waste,” attitude is now the “order of the day” at EOIR, which once purported to be a court system, not an ICE deportation office;
The DOJ & EOIR lack the competence to fairly and effectively administer a court system;
EOIR needs to go and be replaced with an independent court system outside the Executive’s control.
I will be fascinated to see how the DOJ attorneys defend this one before the Article IIIs with a “straight face” (or not).
Another day, another abuse of our justice system by Jeff Sessions and the “go alongs to get alongs” who are unwilling to stand up to him.
Many thanks to Matthew for shedding some much-needed light on the shady practices within EOIR & DOJ.
It would all be funny if people’s lives weren’t at stake.
A former senior government official who oversaw refugee resettlement under Barack Obama warned that the Trump administration’s decision to slash the refugee admissions cap to a record low could have fatal consequences.
Bob Carey, the director of the Office of Refugee Resettlement (ORR) under the Obama administration from 2015 to 2017, told the Guardian the new limit of 30,000 refugees per year and the Trump administration’s justification for the cap was “a new low in our history”.
“People will be harmed,” Carey said. “People will die.”
Mike Pompeo, the secretary of state, announced on Monday that in the fiscal year that begins 1 October, the US will only allow up to 30,000 refugees – a sliver of 1% of the more than 68 million people forcibly displaced across the globe.
Carey and other refugee advocates said the new limit is part of a systematic effort by the US government to dismantle humanitarian protections for people fleeing violence, religious persecution and armed conflict. And they are concerned other countries will follow the US in dismantling refugee programs.
Pompeo’s announcement followed a six-month period where the US forcibly separated more than 2,600 migrant children from their parents, ended its commitment to funding the United Nations’ program for Palestinian refugees and was scrutinized by its own military officials for denying entry to Iraqis who assisted US troops.
Carey left his posting at ORR, an office in the health department, when Trump took office in January 2017. He said the refugee program – which is overseen by the health department, department of homeland security and state department – is being “managed to fail”.
“It’s really disturbing and tragic,” said Carey, who is now a fellow at the Open Society Foundations. “I think it will ultimately make the world less secure.”
Resettlement is what happens after people flee to one county and are then given a chance to start new lives in a third country. Resettlement is not what happens to most refugees: there were 19.9 million people who had fled their home country at the end of 2017, but less than 1% were resettled that year, according to the UN refugee agency.
An additional 40 million people are internally displaced and 3.1 million are seeking asylum, according to UNHCR.
With two weeks to go in the 2018 fiscal year, the US has admitted 20,918 refugees for resettlement – 46% of the current 45,000 refugee cap.
To justify the lower cap, Pompeo cited a backlog of outstanding asylum cases for draining resources. In doing so, he linked two groups that are processed differently – refugees and asylum seekers – and overstated how many asylum cases are in the backlog.
“Some will characterize the refugee ceiling as the sole barometer of America’s commitment to vulnerable people around the world,” Pompeo said. “This would be wrong.”
But humanitarian groups allege that targeting a population that is vetted more than any other immigrant group is a key indicator of the US’s humanitarian priorities under Trump.
“There is no question that from the very beginning this administration had a goal to shut down or extremely limit the refugee program,” said Michelle Brané, director of the migrant rights and justice program at the Women’s Refugee Commission.
Brané said low refugee admissions, coupled with the Trump administration’s slate of policies and directives that limit legal and illegal immigration, has created a “pressure cooker” in the most unstable regions in the world.
“You lock people in, you don’t let them out,” Brané said. “You don’t provide them an avenue to safety. What does that mean in the end? It feels like we’re leading to a bigger crisis.”
People in the refugee resettlement community are worried that the rapid, dramatic dismantling of the program means it will be difficult to rebuild if the cap is raised in the future.
This is because with fewer refugees coming in, there is less need for refugee resettlement agencies who work as nonprofits contracted by the US government to manage the resettlement process by finding refugees housing, jobs and schools. This year, at least 20 were set to close and 40 others have cut operations, according to Reuters.
Paedia Mixon is CEO of New American Pathways, an Atlanta resettlement agency that provides assistance to all types of immigrants. “Our fears are in a short period of time you can destroy something that’s worked really well,” Mixon said.
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Yes, it took generations to build up the current NGO resettlement system. But, it has taken the Trump Administration less than two years to largely dismantle, and totally demoralize, it. Once destroyed, that system will not easily be rebuilt, if at all.
American is hurtling down a dark corridor. We must use our democratic processes to remove Trump, his White Nationalists, and their GOP enablers and supporters before it’s too late for America and the world, and most of all for the human beings whose lives depend on the international refugee protection system.
As Jake Sullivan, former senior national security adviser to Hillary Clinton told the Washington Post’s Jennifer Rubin: “It’s been a long time in this country since there was such a big moral gap between a big-hearted American people and their small-minded leaders.”
Once, those who picked on widows, orphans, women, and children were rightly considered to be immoral bullies and cowards, the butt of jokes. Now, we have somehow let them govern our country. That’s the very definition of a kakistocracy — government by the worst among us. Time for a change!
Lee Brand, Partner at Simpson Thacher & Bartlett LLP in Palo Alto, CA and his amazing group of brief write gave us the good news this afternoon and sent along these orders granting the rehearing en banc and setting OA:
This is one of many important Federal Court and BIA cases in which “Our Gang” under the leadership of Judge Jeffrey Chase and Judge Lory Rosenberg have filed amicus briefs informing the courts of the realities of Immigration Court practice and the current sad state of Due Process in the courts. We’re working on some additional “assignments.” We’ll keep fighting for fairness, Due Process, and judicial independence as long as we’re “alive and kicking.”
Here’s a brief report form Jeffrey:
I am sending this to our now much larger full group. One of the early amicus briefs in which 11 members of our gang participated was filed in support of a motion for rehearing en banc before the 9th Cir. in CJLG v. Sessions. In that case, an IJ went forward with the asylum hearing of a 15 year old respondent who was unable to retain counsel, telling his mother that she would represent him. Not surprisingly, asylum was denied based on the respondent’s inability to state a cognizable social group and to establish the government was unable/unwilling to control. The ACLU filed a petition for review in the 9th Cir. arguing that minors should be assigned counsel in removal proceedings, which was dismissed by a 3 judge panel.
Today, the 9th Cir. granted the motion for rehearing en banc; oral arguments are set for Dec. 10.
So far, of the cases in which our gang submitted amicus briefs, there have been successful outcomes in Negusie (before the BIA), and in Matumona v. Sessions in the 10th Cir., in which OIL stipulated to remand for the BIA to consider the arguments raised on appeal (which concerned the impact of remote detention centers on the respondent’s ability to retain counsel).
It’s an honor to be a member of “Our Gang” and to have the opportunity to work with the many outstanding pro bono counsel and firms throughout the country who are part of the “New Due Process Army.” The efforts of these wonderful lawyers represent the real commitment to the “rule of law” in immigration and stand in sharp contrast with the jaundiced views and insults to the legal profession publicly proclaimed by Jeff Sessions.
If you are a retired Immigration Judge or BIA Appellate Immigration Judge and would like to join our collegial group effort, please contact Jeffrey, Lory, or me. It’s a rewarding experience and a great opportunity to use your expertise to “make a difference.” It’s also a great chance to keep in touch with your judicial colleagues. It’s not all work (that’s where our wonderful pro bono lawyers come in) — we also have some fun, good times, and fond recollections in the process. (Judge Gus “Hang 10” Villageliu has promised free (non-web) surfing lessons to all new members once hurricane season is past!)
Reuters: President Donald Trump’s administration has agreed to reconsider the asylum claims of some 1,000 immigrant parents and children who were separated at the U.S. border as part of a deal to settle lawsuits over his “zero-tolerance” immigration policy.
VOA: A group of former national security officials is pushing back against a controversial Trump administration report on the link between terrorism and immigration, saying the report gives the false impression that immigrants are responsible for the majority of terrorist attacks in the United States.
AC: Department of Homeland Security documents show that a total of $200 million—including $10 million from the Federal Emergency Management Agency—was transferred to U.S. Immigration and Customs Enforcement during the summer of 2018.
CNN: A record number of immigrant children are in US custody, and it’s likely because the Trump administration’s policies are keeping them there.
As of this week, there are 12,800 immigrant children being cared for by the Health and Human Services Department. That’s the most ever, an HHS spokeswoman confirmed.
NatGeo: The number of foreign-born residents in the United States is now the highest it has been since 1910, according to recent data from the U.S. Census Bureau. Compared to past decades, the country’s newest immigrants are most likely to come from Asia. See also Key findings about U.S. immigrants.
In response to a speech by Attorney General Sessions, ABA President Bob Carlson issued a statement in support of immigration lawyers and judges, stating that the ABA strongly supports the independence of immigration judges and immigration courts and applauds the work of immigration lawyers. AILA Doc. No. 18091200
A 9/13/18 letter from Senator Cortez Masto and others expressing concerns about ICE plans to recalendar potentially hundreds of thousands of administratively closed cases following the Attorney General’s decision in Matter of Castro-Tum, and requesting information on the initiative.AILA Doc. No. 18091404
NYT: In a recent notice sent to Congress, the administration said it intended to take $20 million in foreign assistance funds and use it to help Mexico pay plane and bus fare to deport as many as 17,000 people who are in that country illegally.
Guardian: Some take the position that immigration reform and a trade bill with Mexico are two separate issues. For most small businesses – and particularly the ones who rely on low-skilled workers – the two issues are very much intertwined.
DOJ issued a memo, stating the guidelines will “arm Department litigators handling these cases to present strong and consistent arguments in court against the issuance of nationwide injunctions and to reaffirm the existing constitutional and practical limitations on the authority of judges.”AILA Doc. No. 18091439
BIA: (1) An “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012), encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012), clarified. (2) A conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice under section 101(a)(43)(S) of the Act.
USCIS announced that on 9/10/18, it changed the filing location for Form I-751, Petition to Remove Conditions on Residence. This form was previously filed at the CSC and VSC. Now, petitioners must send Form I-751 to a USCIS Lockbox facility. The service centers will be the adjudicating offices. AILA Doc. No. 18091002
U.S. Department of Justice Office of the Attorney General
The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to hold bond hearings for certain aliens screened for expedited removal proceedings, ordering that the case be stayed during the pendency of his review.
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:
Whether Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that immigration judges may hold bond hearings for certain aliens screened from expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240, 8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
The parties’ briefs shall not exceed 15,000 words and shall be filed on or before October 9, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before October 16, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before October 16, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.
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More reductions in the authority of U.S. Immigraton Judges on tap. They are rapidly being reduced to the status of “Robed Deportation Officers.” If Sessions were around long enough, I’m sure he eventually would have them disrobed and dressed in DHS Uniforms to represent their true function.
This is sure to “tee up” some big-time Fifth Amendment Constitutional litigation in the Article IIIs regarding the Government’s authority to detain indefinitely without bond. And, those who have passed credible fear and their children probably present the “best conceivable” plaintiffs for those challenging the indefinite detention authority. Moreover, since bond cases initially are reviewed in U.S. District Courts, rather than in Courts of Appeals, Sessions will be setting up the possibility of lots of different U.S. District Judges getting into the act, as well as the possibility for other nationwide injunctions.
The Administration will also face a strong Fifth Amendment challenge to its proposed “kiddie detention” regulations. Moreover, Jennings v. Rodriguez is actually on remand for the Ninth Circuit to consider the plaintiffs Constitutional challenge to indefinite detention without bond hearings.
So, in addition to artificially “jacking up the Immigration Court backlogs” Sessions has found a way to keep the Federal Courts occupied with avoidable Constitutional litigation on many fronts. At some point, that should impair the Federal Courts ability to hear anything except immigration disputes and start “jacking up” their backlogs of other types of cases.
Given the total fiasco of his “zero tolerance policy,” more mindless detention of asylum seekers and their families doesn’t seem to be a national priority to anybody except the Trump/Sessions White Nationalist Cabal.
As I’ve observed before, knowing that his time in office is likely to end after the November midterms, Sessions is working furiously to inflict as much permanent damage on the U.S. justice system and to harm as many migrants, particularly refugees and asylum seekers, as possible before Trump throws him out.
Whether intentionally or not, Sessions is focusing attention on three things that a future more responsible Congress must address:
Getting the Immigration Courts out of the Executive Branch so that never again can they be co-opted by a White Nationalist extremist like Sessions;
Severely curtailing both the authority and the funding for civil immigration detention by the Executive;
Amending the asylum law to serve its original generous protection purposes by codifying the “benefit of the doubt” standard and specifically stating that “gender” shall be considered a “particular social group” under the refugee and asylum laws.
Until then, expect lots of unnecessary pain and suffering to be gratuitously inflicted on the most vulnerable among us.
Obama and the Democrats had the chance to make these changes, as well as to protect Dreamers, back in 2009. They blew it! Now refugees and immigrants are paying the price.
(1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority to terminate or dismiss removal proceedings.
(2) Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. § 1240.12(c).
(3) An immigration judge’s general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does not provide any additional authority to terminate or dismiss removal proceedings beyond those authorities expressly set out in the relevant regulations.
(4) To avoid confusion, immigration judges and the Board should recognize and maintain the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under 8 C.F.R. § 1239.2(f).
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Sessions seems remarkably intent on limiting the independent discretion of U.S. immigration Judges. Obviously, he doesn’t trust them to deport enough folks.
The first case, S-O-G-, appears pretty “plain vanilla.” The BIA and the Immigration Judges lack authority to review an exercise of prosecutorial discretion by the DHS. It’s a long-standing rule. Not quite sure why it merited an AG precedent, since the BIA got it right and there are other similar precedents out there.
In F-D-B-, Sessions obsesses because an Immigration Judge had the audacity to let someone who had qualified for permanent legal immigration await a visa interview in the United States, instead of being forced to “voluntarily deport’ under threat of deportation and spend part of the waiting time in Brazil. It isn’t clear why Sessions thinks it’s important to force IJs to docket and redocket this type of case in a system with a mushrooming backlog of approximately 750,000 cases. But, he did.
Bottom line: Before “terminating” or “dismissing” any case for anything other than the DHS’s failure to prove removability, the Immigration Judge must check with the DHS and get their permission. The DHS, not the Immigration Judge, controls the Immigration Courts’ docket.
ICE official stands by comparing detention centers to ‘summer camp,’ won’t say if he’d send his kids to one
By Tal Kopan, CNN
A senior Trump administration official on Tuesday stood by his controversial comments comparing the detention centers for immigrant families to “summer camp,” but declined to answer whether he’d send his own children there.
The remarks came at a congressional hearing where immigration and border security officials struggled to answer foundational questions from senators about the administration’s push to expand the detention of immigrant families and children.
Democratic Sen. Kamala Harris of California asked Immigration and Customs Enforcement’s chief of arrests and deportations, Matthew Albence, if he stood by his comments earlier this summer that family detention centers are like “summer camp.”
“Absolutely I do,” he said.
But he demurred when asked whether he’d send his own children, or those of people he is close to, to the centers.
“Would you send your children to one of these detention centers?” she asked.
“That question’s not applicable,” he said.
Albence did say the standards for family centers are “very safe” and “humane,” and that at one he had visited, families had access to TVs, food and video games and other activities.
“The point is, the parent made the illegal entry,” Albence said when pressed further. “The parent put themselves in this position.”
The Senate Homeland Security and Governmental Affairs Committee hearing topic was ostensibly a court settlement that governs how immigrant children can be treated by the US, including limiting the length of time a family can be involuntarily detained to 20 days. The administration is seeking to nullify that settlement and allow itself to detain far more immigrant families for far longer.
Harris’ line of questioning was one of a series from Democrats, who pressed the officials on why they’d want to expand family detention and child detention despite widely held beliefs among medical professionals that even short periods of detention can inflict permanent and devastating trauma on children. Though the hearing did not include the Department of Health and Human Services, which runs the government’s program for immigrant children who are in the US on their own, senators also asked about the ongoing fallout over family separations and unaccompanied child detention.
Members of both parties pressed as to why the agencies were not pursuing other measures with bipartisan support that could streamline the immigration court system over an expensive effort to vastly expand family detention.
In June, Josue, a 21-year-old Honduran, reached a safe house in the Mexican border city of Reynosa, Tamaulipas. He was there with 11 other Central American migrants. His family had spent the previous year scraping together the $3,800 necessary for this last part of his journey to the United States.
But the “safe” house was not so safe. Only miles from the border, his migration was interrupted as armed men burst into the house, kidnapping the migrants and demanding an additional $1,800 for their release. If their families couldn’t raise the money, the armed men warned, the migrants would be killed.
Every day, dramas and tragedies like this play out for the Honduran, Salvadoran and Guatemalan migrants traveling through Mexico. The Trump administration’s rhetoric has repeatedly linked migrants to gangs, violence and crime, and cast undocumented immigrants as a threat to public safety. But in fact, a majority of the Central Americans arriving at the United States-Mexico border are not perpetrators but rather victims of violence, both in their home countries and during their fraught transit through Mexico.
Over the past three decades, the risks and dangers on the journey from Central America to the United States border have increased — ramped-up United States and Mexican migratory enforcement has pushed migrants onto more invisible, risky paths, and impunity in Mexico for criminal perpetrators has kept them on the streets.
Yet however daunting the risks and challenging the policies, they have not significantly put a dent in the number of Central Americans traveling north. What has changed is that hundreds of thousands of migrants make the journey to the United States along more clandestine and treacherous routes.
For Central American migrants, there is no single transportation method or route to travel through Mexico to reach the United States. Travel experiences are influenced by a migrant’s nationality, gender, age and income. If a Central American migrant hires a smuggler for transiting through Mexico — and 60 percent report hiring these guides in surveys conducted by the Colegio de la Frontera Norte — then the routes will also be determined by the smugglers’ contacts and methods. But they all have at least one thing in common: Not one is safe, and each comes with a series of risks.
As soon as migrants near Mexico’s southern border with Guatemala, the dangers begin. To reach Mexico’s southernmost cities, migrants with a bit of money can take local buses or hire taxis. Those with empty wallets must walk. This may include hiking for days on the sides of highways, often at night to avoid detection and the strong tropical sun. Mexican officials have focused their enforcement attention less at the physical border and more at highway checkpoints set up around 30 or 100 miles into Mexican territory, where migration authorities attempt to identify individuals transiting through the country without the appropriate documents.
Migrants fleeing violence in Central America may travel distances equivalent to that between Chicago and Miami (about 1,400 miles) or Chicago and the West Coast (more than 2,000 miles). Many are subject to crime along the way. The map shows some of the most-traveled routes.
In these desolate areas in the south of Mexico, migrants may be set upon by criminals like corrupt authorities, opportunistic local groups and members of the gangs MS-13 or Barrio 18 — the very groups that migrants may be fleeing and who have a presence in this part of Mexico.
That was the case for Josue, who was robbed by local criminals as he hiked the 40-mile stretch of remote highway between a Guatemala border city, El Ceibo, and Tenosique, a southern Mexican city. The thieves slipped out of the nearby ranch land and stripped him of his possessions, even taking his sneakers and leaving him with one of the robbers’ decrepit, fungus-covered pair. According to prosecutors in the southernmost states of Chiapas and Tabasco, these robberies and assaults are fairly common. Women are also singled out for other forms of violence, with Doctors Without Borders reporting that one-third of female migrants suffer sexual abuse while in Mexico.
To advance north, the poorest Central Americans climb aboard Mexico’s train cars (nicknamed “La Bestia,” or the Beast) and ride exposed through rain, heat and frigid wind, and with the constant fear of slipping off the sides. They also travel on high alert for the gang members or train security guards who sometimes board the trains to extort or rob the riders. Given these extreme risks — along with Mexican officials’ 2014 crackdown on migrants riding the train through the Southern Border Plan (Programa Frontera Sur) — only 12 percent of Central American migrants in 2017 reported to Colegio de la Frontera Norte researchers that they had taken the trains at any point in their journey.
Migrants with a little more money use private cars, buses or trailers and move along Mexico’s major north-south highways; they pass through the Mexican migration checkpoints by passing as locals or paying off corrupt officials. Some avoid the checkpoints altogether and hike around them. Traveling in vehicles is generally safer for migrants, but there may still be hardships from the varying quality of food, abysmal sleeping arrangements or mistreatment from their guides or fellow migrants.
At the United States border, patrol agents and a range of radars, sensors and other technology seek to block the migrants’ irregular crossing into the United States. In response, some Central Americans may attempt to cross in the remote areas in the vast California or Arizona deserts or near the border city of Ciudad Juárez. Others ask for asylum at ports of entry. But most travel up Mexico’s Gulf Coast to reach Reynosa, Tamaulipas. This city shares a border with McAllen, Tex., within the southern Rio Grande Valley. In fiscal 2017, the United States Border Patrol reported that it apprehended two-thirds of all irregular Central American migrants (104,305 in total) in this 320-mile section of the border.
On the Mexico side of the border near Reynosa, drug trafficking organizations, particularly the Gulf Cartel and the splinter groups of the Zetas, control the territory and the smuggling routes and act as unofficial tax agents. These groups offer the Central American migrants’ final security challenge and engage in their signature crime, kidnapping. Their presence gives this area the nefarious distinction of having the highest number of migrant kidnappings. Since 2011, data from Mexico’s National Migration Institute has documented 1,034 kidnapping victims in Tamaulipas — 75 percent of all migrant kidnapping victims in the country. Women and minors each account for more than a quarter of the victims.
But official numbers barely scratch the surface of the crimes committed against migrants in Mexico. Central Americans rarely report the crimes to Mexican authorities because of a lack of trust, fear of repercussions or limited knowledge of the country’s justice system. Josue is a good example. He was able to escape his captors after the Federal Police intercepted a car that was taking him to a second safe house, but he decided not to report the kidnapping given concerns over his safety.
When migrants do report these crimes, few are ever investigated or prosecuted. In July 2017, the Washington Office on Latin America reportedthat only 1 percent of crimes against migrants in Mexico ever reach a conviction.
What could push people to knowingly face these conditions or, worse, to bring their children along? For Central Americans, there is a deep chasm between migrants’ desires for safety, work and family reunification and their ability to fulfill these dreams within their own countries or legally in the United States.
In Reynosa, Josue was gearing up to try to make the hike from the border to Houston. Along with hundreds of thousands of other Central American migrants taking these same routes and escaping violence at home or in transit, he was confident that the journey would be worth it. The hope of a better and safer life in the United States was stronger than the fear of any dangers along the way.
Stephanie Leutert is the director of the Mexico Security Initiative at the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin.
As I always say, “we can diminish ourselves as a nation, but that won’t stop human migration.”
And, that’s doubly true when you have a disingenuous Administration that intentionally misrepresents the causes of human migration. Of course, “doubling down” on “doomed to fail” policies is going to fail and produce more chaos without materially diminishing “extralegal migration.” And, slashing refugee programs and other avenues of legal immigration are sure to compound the problem.
But, then the Trumpsters try to shift the blame for their predictable failures to the victims — if walls, cruelty, detention, family separation, denials of Due Process, and hate speech won’t stop them, let’s have more walls, crueller and more inhumane detention, more family separation, less Due Process, and spew forth more hateful xenophobic rhetoric. It’s destroying our country and our reputation; but it isn’t having any real long-term effect on migration. Almost anybody outside the Administration and their White Nationalist cheerleaders could have told them that.
Some undocumented immigrants living in the United States have received fake documents, ordering them to arrive at the courthouse at midnight, on weekends, or on dates that don’t exist, such as September 31, according to a report by The Dallas Morning News.
According to the outlet, roughly two dozen immigrants arrived at a Texas courthouse last week for their hearings only to be turned away by court staffers who told them their names were not on the docket and that they had been given “fake dates.”
The immigrants had been taken into custody during a raid conducted by Immigration and Customs Enforcement (ICE) last month. Some 159 undocumented immigrants, many of them without a criminal record, were detained at the Load Trail trailer factory in Sumner, Texas “about 100 miles northeast of Dallas.”
According to the Morning News, the raid was described by ICE officials as “one of the largest such operations at a single workplace in a decade.”
55 undocumented immigrants remain in ICE custody after one of the largest raids in a decade
The immigrants were later given their “fake” court dates by ICE officials, who apparently never coordinated with immigration courts to clear the dates, resulting in what advocates have described as “chaos.”
“The immigration court system is confusing enough on a normal day,” Ashley Huebner, associate director of legal services at the National Immigrant Justice Center, told the Morning News. “But to have an individual who probably does not speak English…and receives a document in which DHS has purposely listed a fake date and time is a real different level of confusion and absurdity.”
“Fake dates,” sometimes called “dummy dates,” are not a phenomenon unique to Texas. According to the Morning News, reports of fake court dates have sprung up in Los Angeles, San Diego, Chicago, Atlanta, and Miami.
Neither the Department of Homeland Security (DHS), which oversees ICE, nor the Justice Department have offered a clear explanation for why undocumented immigrants are being handed fake court dates.
ICE spokesman Tim Oberle shifted the blame to a court agency known as the Executive Office for Immigration Review saying it “is responsible for setting and resetting appearance dates upon receipt of a notice to appear filed by” ICE.
The court debacle comes as the national immigration backlog continues to grow at an astonishing rate. Reports suggest that, even without any new arrests, it could take up to four years to eliminate the backlog in its entirety.
Additionally, ICE has requested $1 billion dollars from the federal government to keep with the Trump administration’s demands of detaining an average of 43,000 undocumented immigrants a day. Health and Human Services officials have also requested hundreds of additional beds at a juvenile detention camp in Tornillo, Texas, to partly accommodate the surge in detained minors over the past year.
As ThinkProgress previously reported, the current number of children detained in immigration facilities stands at nearly 13,000.
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Come on, Man! Figuring out how to serve Notices to Appear with correct court dates is hardly “rocket science,” as pointed out by the Supremes in Pereira. To be fair, the “original Periera problem” began during previous Administrations. But, under Jeff Sessions, the DHS and DOJ have shown an uncanny ability to mindlessly and incompetently “double down” on every illegal and/or unwise immigration policy or program that has failed in the past.
Since Jeff Sessions, Donald Trump, and Kirstjen Nielsen don’t believe in tempering justice with mercy, perhaps it’s just as well that their cruelty and stupidity is often tempered with incompetence.