"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.
Migrants arriving at the U.S. border to seek asylum are routinely subjected to tactics that immigration rights advocates say are designed to drive them away in violation of their rights under federal law.
The tactics include forcing them to wait at the border indefinitely or sending them back into Mexico to join a backlogged list maintained by Mexican immigration officials.
The Trump administration says such measures are necessary because it is not equipped to deal with a large increase in the number of asylum seekers, many of them from Central America. Last year, U.S. immigration courts handled 120,000 asylum requests, a fourfold increase since 2013.
But immigrant advocates contend the government is violating the U.S. Immigration and Nationality Act, which says any foreigner who reaches the U.S. has the right to apply for asylum.
U.S. Customs and Border Protection “is violating the law and turning away asylum seekers on Texas bridges,” said Shaw Drake, an El Paso-based attorney with the Texas ACLU’s Border Rights Center.
He said forcing immigrants to join a long waiting list is tantamount to turning them away.
“To turn them away with some amorphous instructions is illegal,” he said.
The issue is likely to come to a head when a caravan of several thousand Central Americans now heading north through Mexico arrives at the U.S. border. Many are expected to claim asylum, which they can do based on fear of persecution due to their race, religion, nationality, social group or political opinion.
Trump, who has vowed to close the border, said in an interview Monday with conservative TV and radio host Laura Ingraham that the U.S. would allow migrants to file asylum claims but that they would be forced to live in “tent cities” while they await court rulings, a process that can take years.
“We’re not going to build structures and spend all of this, you know, hundreds of millions of dollars,” Trump said. “We’re going to have tents. They’re going to be very nice and they’re going to wait and if they don’t get asylum, they get out… They don’t usually get asylum.”
Edgar Hernandez Gonzalez, right, his daughter Sherly and girlfriend Sofia Alvarez Favela wait to request asylum on the Santa Fe International Bridge in Ciudad Juarez. Gonzalez said he and his family were being threatened and were fleeing crime in Juarez. (Genaro Molina / Los Angeles Times)
Last week, after 20 immigrants from Cuba, Honduras, Mexico and Russia arrived at the border bridge in El Paso, U.S. officers stationed in the middle of the bridge — the “limit line” — told them to wait. And so they did, some for days in the cold and rain. Others stayed at a nearby shelter.
“We’ll wait and see, night and day, because I don’t have anywhere to go,” said Alexander Narzilloev, 35, who was with his wife and sons, ages 3 and 6.
Narzilloev ran a construction supply business in Moscow but fled after he was extorted by local mafia and received death threats, including one from a man who called and said he knew where Narzilloev’s son attended kindergarten, he Narzilloev said.
The family had originally gone to the crossing in Calexico, Calif., where officers told them they didn’t have space. After waiting a week and spending what remained of their $8,000 savings on a hotel, Narzilloev and his family caught a bus to Ciudad Juarez, Mexico, in hopes of entering El Paso.
“I heard in the news Trump said close all the borders. Has it happened yet?” he said. “That’s supposed to be for illegals. We are legal.”
Last week, several House Democrats sent a letter to Homeland Security Secretary Kirstjen Nielsen requesting a briefing on why and how asylum seekers were being turned away. Sen. Tom Udall, a New Mexico Democrat, issued a statement calling for “fair and orderly processing of asylum seekers.”
“Any attempts to deny these families and individuals their right to seek asylum are wrong,” he said.
The Trump administration has tried a variety of approaches to deter people from trying to reach the United States — most controversially a “zero tolerance” policy of criminally charging every adult migrant who crosses the border illegally, separating parents from their children.
The policy resulted in 2,654 children being separated and widespread outrage before Trump canceled it in June.
The administration still wants to detain families indefinitely and has been battling immigrant advocates in hopes of overturning a federal judge’s 1997 order that requires children be held for no longer than 20 days. Federal prosecutors have also fought to narrow the definition of political asylum.
But the government has been flummoxed by what Kevin McAleenan, commissioner of Customs and Border Protection, calls the “asylum gap”: the inability to stop people from making false claims for asylum and living legally in the U.S. for years while their cases proceed.
Immigrant advocates say the new tactics at the border are aimed at discouraging asylum claims. The ACLU of Texas noted Tuesday that Customs and Border Protection, the largest federal law enforcement agency, with a staff and budget doubled in the last 20 years, processed 1.1 million fewer people at the southern border last year than it did in 2000.
Instead of expanding capacity to process asylum seekers at border crossings, officials have forced them to wait. The method varies from crossing to crossing.
Cuban migrant Yunier Reyes, 35, waits with other migrants from Honduras and Mexico. (Genaro Molina / Los Angeles Times)
In El Paso, customs officers have told immigrants to return in a few hours, or simply “later.” The San Ysidro crossing in San Diego has been using a process called “metering,” in which asylum seekers have had to make appointments through Mexican immigration officials.
In a federal class-action lawsuit filed last year that’s still pending, Los Angeles- and Tijuana-based Al Otro Lado and other advocacy groups argued on behalf of more than a dozen immigrants that the policy violates international law and the right to due process.
During a visit to San Ysidro last week, McAleenan praised metering and said it’s likely to expand to other crossings if there’s a “significant increase in arrivals” in coming weeks.
He said the process didn’t amount to turning away immigrants because “they can stay in line if they want.”
“If somebody arrives and they have a claim, we are providing access,” he said, adding that some officers have been investigated, disciplined and retrained after turning away asylum seekers.
Other allegations were unsubstantiated, he said.
Edith Tapia, a policy research analyst with the Hope Border Institute, center, talks with a Mexican couple and their children who hope to request asylum in the U.S. at the foot of an international Bridge in Ciudad Juarez, Mexico. (Genaro Molina / Los Angeles Times)
Workers from the nonprofit Hope Border Institute visit El Paso bridges to document cases of asylum seekers being turned away. On Oct. 24, they found Pedro Morales, 21, and girlfriend Janet Macola, 19.
The two said they fled Cuba after authorities halted their attempt to open a beauty salon and threatened to throw Morales in jail. Now they were seeking asylum.
So was a family of four from the southern Mexican state of Guerrero. They said that their area had become a ghost town, controlled by a mayor in league with organized crime, and that they were too scared to be quoted by name.
The Cuban couple and the Mexican family approached U.S. officers at the center of the bridge and were told the same thing: “It’s full right now.”
It’s all a ridiculous political stunt that Secretary Mattis has shamefully gone along with. Talk about someone forgetting his oath — allowing the US Military to be used as a “political prop” for “White Nationalist Nation.” Presumably historians and biographers will remember “Mad Dog’s” dereliction of duty at a critical point in our country’s existence.
The real point is that for much less money than Trump is wasting on his “military stunt” he could place enough USCIS Asylum Officers at or near ports of entry on the Mexican border to promptly, professionally, and humanely process applicants in accordance with our laws. That would also encourage and reward individuals for appearing for orderly processing and security screening at the proper places, rather than entering the country surreptitiously. It would also reduce the strain on the Border Patrol by reducing incentives for illegal crossings of asylum seekers between ports of entry.
But, this isn’t about sensible or lawful border and asylum policy. It’s about a White Nationalist demagogue putting on a “show” for his “base.”
Lost in last month’s heroic drama rescuing the Thai youth soccer team is that three of the boys and their coach are stateless individuals; that is, they have no citizenship papers from any country. While they were trapped in the cave, it was the least of their problems. As their lives begin to return to a new normal, the obstacles of their statelessness are compounding their challenges.
According to the United Nations High Commissioner for Refugees (UNHCR), a stateless child is born every 10 minutes somewhere in the world. UNHCR estimates that at least 10 million people in the world are stateless and subject to severe consequences. Stateless people typically are denied the protections of the laws of the nation, limited in their access to labor markets, and restricted from the social safety net. Jacqueline Bhabha, professor of the Practice of Health and Human Rights at the Harvard T.H. Chan School of Public Health, concludes that being stateless as a child can stunt opportunity, erode ambition and destroy the sense of self-worth.
In this context of an emerging crisis of stateless children, why would anyone propose legal and policy changes that would exacerbate statelessness?Those who argue that the United States should end birthright citizenship are doing just that. Recently, Michael Anton, who had been a national security adviser to President Trump, published an editorial arguing against birthright citizenship. Grounded in the Constitution, birthright citizenship is automatically granted to any individual born within and subject to the jurisdiction of the United States. As a candidate, Donald Trump suggested ending birthright citizenship, labeling it the “biggest magnet for illegal immigration.” An excellent series of editorials debating the matter has ensued, largely centered on legal issues.
Beyond the legal debate lies the policy crisis that would unfold if the United States abandoned birthright citizenship: Ending birthright citizenship would place an undue burden on U.S. citizens as they scramble to obtain appropriate government documents to establish that they are U.S. citizens. Children of citizens as well as children of foreign nationals would run the risk of becoming stateless.
As respected immigration attorney Margaret Stock has noted, most U.S. citizens rely on the birthright citizenship rule to establish their citizenship. A birth certificate from a jurisdiction in the United States is all one needs currently. Each U.S. state has its own unique registry of births, and most vital statistic records are kept at the county level. These local birth registries do not verify the citizenship of the child’s parents.
Equally critical, a birth certificate is the linchpin of all other state and federal government identity documents. It is required for state-issued driver’s licenses and state ID cards, as well as federally-issued Social Security cards and passports. If a birth certificate issued by a local jurisdiction in the United States no longer establishes that the person is a U.S. citizen, what would be the qualifying document?
At this time, a passport is the only document the U.S. government issues that confirms both the individual’s identity and citizenship. Fewer than half (46 percent) of U.S. citizens have passports. A 2006 surveysponsored by the Brennan Center at New York University estimated that more than 13 million U.S. adults lacked readily available documentation of citizenship, and a birth certificate was one of the documents included as proof.
Imagine the steps new parents would have to go through to establish their child’s citizenship if birthright citizenship were abandoned. Expectant mothers would need to pack their passport or a bundle of identification documents in the overnight bag readied for the baby’s delivery.
These bureaucratic hurdles would be particularly onerous for low-income citizens or citizens living in rural or geographically underserved areas. The Brennan Center survey also found that citizens earning less than $25,000 per year are more than twice as likely to lack ready documentation of their citizenship as those earning more than $25,000. If a birth certificate no longer would be proof of citizenship, this disparity would rise substantially. Such citizens might find themselves stateless because they would not be able to acquire the documents needed to establish U.S. citizenship.
UNHCR cites three major causes of statelessness: discrimination, gaps in nationality laws, and lack of birth registrations. Would the political leaders who oppose birthright citizenship support the establishment and funding of a federal system of birth registration that provided citizenship documents to all U.S. citizen children?
Opponents of birthright citizenship may have their eyes set on the children of unauthorized migrants, but the impact would be equally acute on the children of U.S. citizens who do not have the wherewithal to maneuver the bureaucracy to acquire citizenship documents.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. She is writing a book about the legislative drive to end race- and nationality-based immigration.
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Although this article originally was published in The Hill in July 2018, Ruth recently reminded me of its continuing relevance and timeliness.
The beauty of the 14th Amendment is that although Congress has been dilatory in resolving the status of millions of undocumented Americans who are significant contributors to our society and economy, because of the 14th Amendment, the issue is slowly but surely “self-resolving.”
As the “older generation” of undocumented Americans passes on, the overwhelming number of their offspring are full US citizens and are able to fully integrate into our society and have the advantages of belonging and full political rights that were denied to their parents. Rather than building generations of disenfranchised, underutilized, and likely disgruntled residents in our midst, the American citizenry automatically renews itself.
And, I’m sure that this new generation of Americans will give some careful thought to the hateful, wrong, and outright racist rhetoric being promoted by Trump, Sen. Lindsay Graham, and other GOP White Nationalists. That’s why real national leadership would be wise to unite, rather than divide America and to promote a humane and inclusive solution to the issue of undocumented immigration.
The totally bogus and disingenuous argument being pushed by Trump and the racist right is that children of undocumented individuals aren’t “subject to the jurisdiction” of the US. That is of course, total BS — doesn’t even pass the “straight face” test!”If it were true, no undocumented individual could be removed from the US because they would not be “subject to the jurisdiction” of our courts and legal system. Nor could they be punished for crimes or required to comply with our traffic laws, etc., because they would not be “subject to our jurisdiction.” What would happen to Ol’ Gonzo’s “zero tolerance” policy then. Indeed, our whole system for regulating, admitting, excluding, and removing foreign nationals is based on the reality that regardless of their status, they are subject to our laws and legal system.
In other words, we have “jurisdiction” over them, unlike foreign diplomats and heads of state who, to a large extent, are “diplomatically immune” from many of our laws and regulations. That’s actually the very limited category to whom Congress intended the term “subject to the jurisdiction” to apply.
Mexico already is encouraging the migrants in the caravan to apply for asylum in Mexico instead of in the United States. It has offered them temporary identification papers and jobs if they register for asylum in Mexico.
If Trump establishes third country agreements with a substantial number of countries, it could greatly reduce the number of asylum applications the United States has to consider.
Trump also is considering an executive order to keep asylum seekers from Central America out of the United States. Presumably, it would be based on section 212(f) of the INA, which reads as follows:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.
The Supreme Court upheld Trump’s travel ban order on the basis of this provision, but an order suspending the entry of asylum seekers from Central America would be challenged in the same lower courts that flouted precedent to reject his travel ban.
According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order.
And this time, the courts would have an objective basis available to them.
The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Trump also can arrange for persecution claims to be screened outside of the United States.
Moreover, the United Nations Refugee Agency, UNHCR, might be willing to process some of the Central American asylum seekers outside of the United States.
The only certainty is that Trump is preparing to take drastic action.
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Read Nolan’s complete article over at The Hill at the above link.
It‘s debatable whether Mexico qualifies as a “safe third country” for asylum purposes. Most notably , the Mexican Government has not entered into a qualifying agreement with the US, and currently shows little inclination to do so.
However, Nolan directs our attention to a very significant point. While Mexico might not be a “safe third country,” it probably is a “safer third country” than any of those in the Northern Triangle. Nolan correctly notes that some migrants already are choosing to apply for asylum in Mexico rather than continuing the hazardous and uncertain journey to the US border.
Given the clearly xenophobic, anti-asylum attitudes of the Trump Administration, the uncertainties of the current US process, the lengthy waiting times, and that only about one in three applicants who reach a final merits hearing in Immigration Court get asylum (and that rate will probably be lower for Northern Triangle applicants under the Sessions regime), more refugees from the Northern Triangle might want to seriously consider applying in Mexico instead.
Rather than making threats and wasting taxpayer money on ridiculous and unnecessary militarization of our border, the Trump Administration would be wiser to provide financial and professional support to Mexico in establishing a fairer, more professional, and more legitimate asylum adjudication system in Mexico.
As the TPS programs and NACARA have shown, refugees and other forced migrants from the Northern Triangle are generally law abiding, hard working, talented folks who could help Mexico both stabilize its society and further bolster its economy. With the Trump Administration’s disdain for internationalism and trade, there will be room for countries like China, Mexico, and India to advance their positions. Forced migrants from the Northern Triangle could help Mexico advance. And, in the long more economic equality between the US and Mexico could prove to be in everyone’s best interest.
The role of President Donald Trump’s ominous warnings about the caravan of migrants headed toward the U.S. border from Central America in inspiring the virulent anti-Semite who killed 11 people at a Pittsburgh synagogue on Saturday highlights the destructive consequences of Fox News’ grip on the president.
While Robert D. Bowers, the man accused of carrying out the mass shooting, had criticized Trump for being insufficiently anti-Semitic, critics pointed out that president had “stoked the fears of the Bowerses among us,” deploying incendiary and false rhetoric about the migrant caravan in hopes of bolstering the Republican Party’s standing. “The shooter might have found a different reason to act on a different day,” Adam Serwer wrote for The Atlantic. “But he chose to act on Saturday, and he apparently chose to act in response to a political fiction that the president himself chose to spread and that his followers chose to amplify.”
Trump, in turn, came into contact with that fiction via Fox’s fearmongering. The president’s first public statements about the caravan came in response to a segment he watched on the Fox News morning show ”Fox & Friends,” and in the weeks that followed, his rhetoric and that of the conservative network escalated at pace.
For more than a year, I’ve been studying the Trump-Fox feedback loop, my term for the way Fox News at times is able to set the national media agenda because the president watches the network’s programming, tweets about it in real time and adopts its particular fixations. As the rest of the press scrambles to cover Trump’s comments, Fox’s right-wing obsessions consume the news cycle, whether or not they were originally newsworthy. In this case, Fox News urged him to whip his followers into a frenzy over the caravan, and he did it. There’s no indication that either Fox News or Donald Trump will cut off this campaign of fear.
The caravan formed in Honduras on Friday, Oct. 12. By Oct. 15, it was already receiving substantial coverage on Fox News. The next morning, in response to a report on ”Fox & Friends,” Trump issued his first public statement on the migrants, warning the Honduran government that he would cut its aid if the caravan was not stopped. Trump’s comment generated more coverage both on Fox News and at other media outlets. On Wednesday night, Oct. 17, former House Speaker Newt Gingrich appeared on Fox News and urged Republicans to make the caravan a key voting issue, claiming that “the left is eager” for the caravan to enter the United States.
The next morning, “Fox & Friends” repeatedly aired Gingrich’s comments and suggested that Republicans should take his advice. In response, Trump issued a series of tweets using the caravan’s advance to attack Democrats, saying they had “led (because they want Open Borders and existing weak laws)” an “assault on our country.”
The network and its most powerful viewer spent the next week raising the temperature, stoking fears about whether the migrants were criminals or terrorists, calling the caravan an “invasion” and describing its approach as a national emergency. Escalation bred response bred further escalation, with no sign of a line beyond which the president and his propagandists wouldn’t go.
Trump’s Fox-fueled commentary turned the caravan story into a major national news story as reporters sought to explain and contextualize what he was talking about. But the situation does not, on its face, justify the coverage the caravan has received. The migrants are currently in southern Mexico, their numbers are dwindling and, depending on whichroute the caravan chooses, they face a journey of 1,000 to 2,000 miles to the U.S. border that will take weeks or months. Those who make it to the border have the right to seek asylum, and those whose claims are rejected will be turned away. That’s what happened when a similar caravan ― which also drew vitriol from Fox News and then from Trump ― reached the U.S. border in May. The caravans have been going on for roughly a decade without issue. There is no crisis except for the one that Fox News and Trump have sought to create in order to get GOP voters to the polls.
I’ve written before of the perils of having a president who relies on conservative cable news hosts to help him understand current events. When federal policy and personnelshifts can be driven by a Fox-inspired presidential whim, the network’s influence is staggering. The greatest risk is that Trump could use his unilateral control of the U.S. nuclear arsenal in response to a Fox segment; Trump was reportedly unnerved by b-roll the network aired in March 2017 of a North Korean missile launch, convinced that it was happening live. But on a day-to-day basis, the major concern is that the president is a demagogue who constantly lashes out at his perceived enemies in order to secure his base’s support, and Fox News’ programming is providing him with targets for his ire, whether that’s protesting NFL players or recalcitrant Justice Department officials. That pattern has played out again and again since Trump ascended to the presidency.
“Ordinarily,” Serwer wrote, “a politician cannot be held responsible for the actions of a deranged follower.” So, too, it usually doesn’t make sense to attribute a president’s actions to a news network. But Trump is suggestible, he watches Fox News constantly, and the network’s commentators are aware of that. In lighter moments, the “Fox & Friends” hosts joke about the president’s tendency to watch the programs. In heavier ones, the program’s commentators openly offer him advice, telling him not to sit down with special counsel Robert Mueller or pull troops out of Syria.
But on the Monday after the synagogue murders, nothing had changed. The migrants were again drawing coverage on “Fox & Friends” (“Border Battle Rages as Caravan Heads to U.S.,” read one chyron). And hours later, Trump tweeted that the migrants were conducting “an invasion of our Country.”
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Thanks to Trump, the GOP, and their myriad of lies, distortions, false narratives, and hate rhetoric, our democracy is on the ropes. If we don’t start voting these misguided folks out of office, on all levels, we wont have any country left.
President Trump is planning to sign an executive order that would seek to end the right to U.S. citizenship for children of noncitizens born on U.S. soil, he said in a television interview taped on Monday.
The move, which many legal experts say runs afoul of the Constitution, would be the boldest yet by a president elected to office pledging to take a hard line on immigration, an issue he has revived in advance of next week’s midterm elections.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump said during an interview with Axios scheduled to air as part of a new HBO series starting this weekend. “It’s ridiculous. It’s ridiculous. And it has to end.”
Trump, who has long decried “anchor babies,” said he has discussed the move with his legal counsel and believes it can be accomplished with executive action, a view at odds with the opinions of many legal scholars.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump told Axios.
When told that view is disputed, Trump asserted: “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.”
“It’s in the process. It’ll happen . . . with an executive order,” he said, without offering a time frame.
The move would be certain to spark a constitutional debate about the meaning of the 14th Amendment. It reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
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Constitution? What Constitution? Perhaps an “Executive Order” restoring slavery will be next!
The helpless “Caravan” members aren’t a threat to our national security. But, Trump and those who support his lawless and divisive antics are a “clear and present danger.”
If we don’t start the process to remove Trump and his GOP from office at all levels next week, it might be too late for out for our country!
Immigration courts under the Trump administration have approved asylum cases at the lowest rate in nearly two decades, according to an analysis of Department of Justice data.
The new figures come after a year in which Attorney General Jeff Sessions has taken a series of steps to curtail when individuals can gain asylum. In June, Sessions issued a major decision that eliminated claims of domestic violence or gang violence by nongovernmental actors as reasons for granting asylum. He also limited when judges can suspend or continue cases.
The new statistics illustrate the difficulty that many of those traveling with a new caravan across Mexico will face if they present themselves as asylum candidates at the US border.
Experts pointed to Sessions’ rulings and restrictions on judges as partly responsible for the drop in the number of asylum cases granted.
“Through a targeted and well-coordinated effort the Trump administration has significantly decreased the number of people who qualify for asylum,” said Sarah Pierce, an analyst at the Migration Policy Institute. “While it is true that our asylum system is in need of major reforms, the administration’s response has been to reverse years of case law dictating who are legitimate asylum seekers.”
The Department of Justice released the asylum data Friday. According to Pierce’s analysis, the asylum approval rate is just over 33% for the 2018 fiscal year, which ended in September. Under the Obama administration, the rate hovered between 44% and 55%. The last time the rate dipped below 33% was in 1999, during the Bill Clinton administration, when it was 31%, according to Pierce’s analysis.
The Department of Justice declined to comment on the analysis.
The administration is processing the largest number of asylum cases in years and has granted asylum to more individuals — more than 14,000 — than in any year since at least 1996. Yet, the number of denials also dwarfs those of the past two decades — more than 28,000. The previous high for denials was more than 25,000 in 1996.
The rates do not include cases processed by US Citizenship and Immigration Services when individuals voluntarily apply for asylum before being placed in deportation proceedings. Individuals who are denied after applying through USCIS are then processed through the immigration courts in deportation proceedings, according to Pierce.
Sessions has long been critical of the way asylum cases are handled. In an October 2017 speech to immigration judges, he tipped off his future attempts to restrict asylum grants, arguing that the laws were never intended to provide asylum to those who had a fear of generalized violence or crime and that those claims had swamped the system. He hit out against “dirty immigration lawyers” who allegedly were persuading clients to make false claims of asylum.
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases.
Jeffrey Chase, a former immigration judge, said that the numbers can also be attributed to the fact that many asylum cases in recent years don’t fall within the classic asylum formula that was developed as a response to World War II. In his decisions, Sessions cut the kinds of arguments individuals could make to potentially gain asylum.
“Sessions,” Chase said, “skewed the numbers in the most recent fiscal year through his issuance of precedent decisions that reflect his personal, politically motivated views on immigration, as opposed to proper legal reasoning.”
This evidence strongly suggests that with reasonable access to lawyers and a truly fair, impartial, and unbiased judicial system, a majority of those seeking refuge in the U.S. probably could qualify for asylum or some other type of protection.
Will the Article III Courts continue to “go along to get along” with this mockery of justice involving life or death claims. Or, whether “conservative” or “liberal” will the “real” Article III independent judiciary step in and force immigration hearings to be conducted fairly and impartially and without the overriding influence of biased officials like Sessions who treat the courts as appendages of the DHS enforcement system? Only time will tell. But, history will record who stood tall and who went small!
“The government of the United States . . . gives to bigotry no sanction, to persecution no assistance,” he wrote. “May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants — while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”
Though that assurance has been tested, the United States has endured as a safe haven for Jews.
Now President Trump has violated Washington’s compact. He has given sanction to bigotry and assistance to persecution. After the shooting in Pittsburgh, which the Anti-Defamation League believes is the deadliest anti-Semitic attack in U.S. history, there is no longer safety under the vine and fig tree.
I had been dreading and expecting this day, and more like it, for two years. This was more than predictable; it was predicted.
After Trump’s presidential campaign began with genteel anti-Semitism, progressed to dog whistles and ended with a full-throated targeting of Jewish “globalists,” I wrote on Election Day that the results would be coming in on the 78th anniversary of Kristallnacht, the infamous night of Nazi violence and vandalism against German Jews: “I pray that on this solemn anniversary, Americans tell Donald Trump and the world that we are never going back there.”
People arrive for a vigil at the Tree of Life synagogue in Pittsburgh on Sunday. (Brendan Smialowski/AFP/Getty Images)
After Charlottesville, when Trump said there “were very fine people” marching among the neo-Nazis chanting “Jews will not replace us,” I wroteabout my daughter’s fear of returning to Hebrew school because of violence; armed white supremacists had chanted “Sieg Heil” and forced worshipers to flee a Charlottesville synagogue.
Consider some of the many times Trump gave sanction to bigotry before 11 worshipers were shot dead at the Tree of Life:
Tweeting an image from an anti-Semitic message board with a Star of David atop a pile of cash.
Saying “I don’t have a message” for supporters who threatened anti-Semitic violence against a Jewish journalist, and Melania Trump saying the writer “provoked” the threats.
After the shooting at Tree of Life synagogue in Pittsburgh, many politicians condemned the violence and blamed divisive political rhetoric around the country.(Jenny Starrs /The Washington Post)
Branding his campaign with the “America First” slogan of the anti-Semitic pre-war movement.
Alleging that “blood suckers” and “a global power structure” including “international banks” are secretly plotting against ordinary Americans.
And, when urged by the Anti-Defamation League to stop using traditionally anti-Semitic tropes, repeating the tropes in an ad with images of prominent Jews, including George Soros.
Once in office, in addition to making common cause with the Nazis of Charlottesville, Trump stocked his administration with Stephen K. Bannon and other figures of the nationalist “alt-right;” hesitated to condemn the rise of anti-Semitic threats and vandalism; issued a Holocaust remembrance statement without mention of Jews; lamented the attempts to silence Alex Jones, who peddles anti-Semitic conspiracy theories; and, declaring himself a “nationalist,” increased verbal attacks on “globalists,” particularly Soros.
Supposedly, American Jews are protected by Trump’s daughter Ivanka marrying into the faith, or by Trump’s fondness for Israel’s nationalist policies.
But it doesn’t work that way. The ADL reports a 57 percent rise in anti-Semitic incidents in 2017. Other groups Trump targets — African Americans, Latinos, Muslims — have long experienced this and worse; a man in Kentucky last week allegedly tried to enter a black church before killing two black people at a supermarket. It is the new normal, though, for Jewish journalists and public figures to endure routine threats, for unabashed anti-Semitism to flourish in social media — and now for Jews to fear for their safety in quiet places like Pittsburgh, where I lived and worshiped for three years.
Whatever Trump’s motives, his words and deeds inspire the hateful and the violent. The man accused of sending pipe bombs to a dozen favorite Trump targets (including Soros) eschewed politics, his family’s lawyer says, until he “found a father in Trump.” The accused Pittsburgh gunman, though apparently rejecting Trump for being insufficiently nationalist, embraced on social media the themes Trump has popularized: the “globalist” danger, immigrant “invaders that kill our people” and an “infestation” of undesirables.
After the shooting, Trump read from the teleprompter the proper denunciation of anti-Semitism. But proceeding with a rally mere hours after the massacre, he galvanized the crowd with the same complaint the alleged Pittsburgh killer cited in social media before the carnage: the migrant caravan. Trump told the crowd, “No caravans, right? We don’t want caravans. We’re not having caravans.”
“Build the wall!” the crowd chanted.
Trump closed with his usual vow to fight “others” who are trying to “destroy our proud American heritage.” White supremacists get the message.
On Shabbat, Jewish custom says, God gives each of us a “neshamah yeteirah,” an extra soul for rejuvenation on the day of rest. But this Shabbat, we lost 11 souls. And our Jewish and American souls will continue to be so drained — unless our president changes his ways, or we change our president.
George Washington had his own set of problems when it came to race and slavery. But, any way you look at it we’ve fallen a long way to get to Donald Trump and his supporters and their vile message of intolerance and White Nationalism in the 21st Century.
The meeting was way overdue, and it wasn’t going well.
It was May 21. The Department of Homeland Security, where I worked as a senior adviser in the Office for Civil Rights and Civil Liberties, had been making a show of prosecuting undocumented immigrant parents for weeks, cleaving them from their children without paying much attention to where the family members went or setting up any procedure for tracking and reuniting them later.
My office had played a central role, for years, in Homeland Security’s treatment of families and children. But when a cadre of Trump administration political appointees put the family separation plan into motion, neither they nor the career staff in the immigration enforcement agencies under DHS consulted with the civil servants in my office. When media reports throughout April and May led us to understand what was going on, we had urgent questions: What exactly was the policy? What had DHS’s front-line agents in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) been told to do? How had the department assessed the risk that litigation would interfere with the policy? How was this justified in light of our treaty obligations toward refugees? And why was the department pushing out transparently misleading — or simply false — statistics to justify these steps? We were obliged, under the law that created our office, to register our objections that the administration was knowingly violating people’s rights.
But the top political appointee at the May meeting — John Mitnick, the experienced, Senate-confirmed general counsel — and his deputy seemed confused that the civil rights office would see any cause for concern. The administration was claiming in public that a policy of prosecuting all border crossers didn’t target families as such, so it could not present any legal issues. And if there were any issues, they hadn’t been raised ahead of time.
That was false. The next day, I called around to colleagues who confirmed that there had been multiple interagency phone calls and documents, involving the State and Justice departments as well as DHS, making clear that lawyers throughout the government worried that deliberately separating families could violate migrants’ rights under humanitarian treaties or U.S. law. But the political appointees simply didn’t listen. And a few weeks later, I came across an April 24 memo — signed by the very officials I had met with a month later — acknowledging, but dismissing, the legal risks. Even worse, it encouraged indicting immigrants specifically because doing so would justify separating families, arguing that the government’s “legal position” on “separating adults and children through the immigration process . . . is likely strongest [when] separation occurs in connection with a referral of an adult family member for criminal prosecution.”
Mitnick, through a DHS spokeswoman contacted by The Washington Post, declined to comment for this story. That spokeswoman, Katie Waldman, said: “The Department of Homeland Security does not disclose or comment on privileged legal advice provided by our attorneys to the Secretary or other officials, and therefore, unfortunately, we are not in a position to refute false narratives put forward by a former employee. We note, however, that in order to address the crisis at the border, the Trump Administration made a decision to enforce long-standing U.S. law and refer for prosecution under 8 U.S.C. § 1325(a) adults who crossed into the United States illegally. As we have repeatedly stated, the policy was to enforce the law, not to separate families.”
She also sent a statement from Cameron Quinn, the Trump appointee who runs the office I worked in: “I participated in the meeting in question. It was a brief, general discussion, and Mr. Mitnick made it clear that he desired to work collegially with our office.”
By law, our job in that office was to ensure that “the civil rights and civil liberties of persons are not diminished” by DHS’s programs. When it became clear that the department would be tearing families apart and — thanks to incompetence, dishonesty and sheer disinterest — had no reasonable plan to put them back together, I realized I could not do that. A few weeks after that meeting, I quit my job and left public service, carrying a profound sense of failure.
Children and parents from Central America, part of a caravan trying to reach the United States, wait to apply for asylum in Mexico at a checkpoint in Ciudad Hidalgo on Oct. 20. (Ueslei Marcelino/Reuters)
The government formally announced the family separation policy in April. The point was clear, as several officials later admitted: By threatening to separate their children, the administration hoped to deter Central American asylum seekers from coming here in search of humanitarian protection. Then-Homeland Security Secretary John Kelly had suggested the practice during a CNN interview in March 2017, and it had been gaining support in the White House since then.
Many senior civil servants at DHS believed that the policy violated the civil and human rights of migrants. (Many of them, like me, were trained and licensed attorneys, though our role was to give policy advice, not legal advice.) Crossing the border to surrender immediately to authorities and claim asylum is protected by the United Nations refugee protocol signed by the United States. Even for families outside that protection, the substantive due process principle in the Constitution suggests that it is illegitimate to threaten to harm or abscond with someone’s children to deter the commission of a misdemeanor. (First-time unlawful entry is the lowest level of federal crime.)
During past surges in border crossings, such as in 2005, 2006 and 2007 under George W. Bush and 2014 under Barack Obama, the civil rights office was central to planning humane and effective protections for migrants as they were arrested, detained, screened and, if they passed initial “credible fear” screenings, placed into immigration court proceedings. But Trump appointees such as White House adviser Stephen Miller, Attorney General Jeff Sessions, DHS Secretary Kirstjen Nielsen, CBP Commissioner Kevin McAleenan and U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna — along with many deputies, assistants and enablers inside ICE and CBP who dreamed up the “zero tolerance” policy — didn’t consult career experts like me: not when it was being considered last year, not when it was unveiled and not for the critical weeks afterward, even as we begged to share our legal and policy analyses.
My job was to ensure that the government did not violate clearly established individual rights, and the Trump administration was pushing a policy whose principal aim was to do just that. My colleagues and I identified a number of constitutional provisions and related case law holding that parents had rights to due process that could limit the ability of the government to separate them from their children for civil immigration violations. That meant that once parents served their typically short criminal sentences for crossing the border illegally, they should have been reunited with their children. Our research also suggested that threatening to detain children separately, and threatening civil detention generally to deter future conduct, was probably unconstitutional.
In our capacity as a gateway for public complaints about DHS, my office was analyzing hundreds of incidents of family separation, including dozens sent over by career staff at the Department of Health and Human Services, which was taking custody of children who had been separated from their parents. We noticed early that CBP and ICE weren’t providing HHS with proper records to allow families to be reunited or pursue their immigration cases jointly. We recommended that officials tell parents promptly and clearly where their children were going, how they could be reached and how family members could get them out of government custody while the parents were detained. Perhaps most urgently, we tried to ensure that children with serious disabilities were not thrown into a system unprepared to care for them. As allegations emerged of chaotic separations and deliberate lies — parents being told that their children were headed to a shower when they were instead placed in another agency’s custody — we started drafting guidelines and training for the Border Patrol agents on the ground. Above all, we tried to ring the alarm that the legal, strategic and human dimensions of the policy hadn’t been thought through, needed fast improvement and posed a massive liability for the government.
My colleagues and I learned while reviewing internal DHS documents through April and May that CBP had, the previous fall, undertaken a pilot project of prosecuting parents with small children who crossed the border illegally near El Paso, leading to a wave of separated families. But when we asked the acting second-ranking CBP official about it, he denied having any information.
That was also false. The formal memo to Nielsen from CBP, ICE and USCIS recommending the family separation policy had justified it on the basis of this same El Paso project, including misleading statistics that had already been debunked by Vox when DHS tried to pass them off to reporters.
Every attempt to raise civil rights concerns led nowhere: a lengthy staff memo to my boss, the top civil rights official; efforts to explain in meetings the toll on our staff from investigating complaints of children and parents who had been separated, without any communication to get back together; multiple efforts to schedule, and reschedule, a briefing that James McCament, the head of the DHS Office of Policy, had promised near the start of the crisis but never convened. Civil servants advanced recommendations for mitigating the worst of the harm; we suggested improving record-keeping, giving separated parents and children better information, and permitting more regular phone calls among families.
After hundreds of complaints filed by migrant children, parents and advocates on their behalf, my office finally managed to arrange a meeting in June with CBP managers to understand how they were separating families and to present ideas about how to do it in a more humane way, if they insisted on doing it. My notes from the meeting record my boiling frustration with the absurd answers we received. Border Patrol agents dismissed our offer to train them on how to speak to children after ripping them from their families. “No,” we were told, “many of our agents are parents themselves. They are very empathetic to the child’s needs and will know what to do.” Had officials in Washington directed agents to record family members’ names and information, so they could later be reunited? “I think we sent an email.” Can we see the email so we know what agents were directed to do? “Um, I’d have to find it.” (The official never did.) Is there a written policy on how to determine whether children have suffered trauma or have some other condition that would mean separating them from their parents would do too much harm? “No, we have no need for written policy. It’s simply ingrained in law enforcement culture.”
The culture ingrained at CBP, though, is one where the Border Patrol’s union opened its podcast (“The Green Line”) with the oath of the Night’s Watch from “Game of Thrones” — the pledge of a band of warrior monks to protect a magical kingdom from an army of ice zombies. If federal law enforcement agents see Central American children as the moral equivalent of the frozen undead, we can’t expect them to understand intuitively how to detain and process them humanely without training, guidance and leadership. That’s why my colleagues and I were pushing for record-keeping, communication and other policies that Trump appointees ignored. (Representatives of the Border Patrol union did not immediately return requests for comment from The Post.)
A U.S. Border Patrol agent acknowledges a family that had illegally crossed the Rio Grande from Mexico in Fronton, Tex., on Oct. 18. (Adrees Latif/Reuters)
It would be easy to see all this as part of the federal sausage-making, the usual intentional delays and risk-managing memos that bureaucrats deploy. But this level of dishonesty and subterfuge was unusual. This month, the DHS inspector general released a report making clear that the incompetence in managing family separation was pervasive, from a lack of planning, to “information provided to alien parents [that] resulted in some parents not understanding that their children would be separated from them,” to false public claims of having a “central database” of parents and children.
The Department of Homeland Security is filled with excellent, dedicated public servants. But it also has enormous authority and the power to enforce thousands of laws well or badly. Its leaders have a responsibility to give their people orders that they can competently and ethically execute, and the tools and guidance to do so. The family separation crisis represented a new frontier in weaponizing DHS’s authority, and its borderline competence, to disastrous effect. Front-line officers weren’t given enough guidance, and their managers in the field didn’t do enough to help them figure it out. Only the administration’s naivete in failing to predict the bipartisan public outrage kept it from being worse.
But most culpable were the high-level appointees, unwilling to take ownership of what they’d decided to do; lying to their staffs in the expectation that nobody really cared what happened to poor Central American kids; cynical about the notion that most of us who swear an oath to uphold the Constitution actually mean it. I cast about for more to do, but within a month of that June meeting, I realized there was no way to keep my oath and my job.
Scott Shuchart was a senior adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties from 2010 to 2018. He is a non-resident senior fellow at the Center for American Progress. Follow @scottshuchart
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Seems like these are precisely the type of knowingly lawless, extra-legal actions that personal liability under the “Bivens doctrine” is supposed to discourage and prevent. It remains to be seen whether the Federal Courts, particularly the Supremes, will have the backbone to hold scofflaw Government officials like Sessions, Nielsen, Miller, & co. personally accountable for their intentional perversions of the rule of law. Recently, the Supremes have indicated that a majority would like to narrowly limit or even abolish Bivens liability. Just when the country needs it most to rein in an out of control Administration!
TAPACHULA, MEXICO-Rosa Gonzalez arrived in the shelter here after leaving her native El Salvador suddenly in late summer, fleeing her small town with her older brother and a few possessions, hoping to avoid becoming yet another murder statistic at the hand…
Disclaimer: Please note that POLITICO is not responsible for the content within this email. POLITICO cannot verify the sender of this email.
KEY EXCERPT:
To hear these men and women talk, it’s clear that, in a way, Trump’s policies are being received just as he expects them to be: Migrants seem to be more apprehensive about the journey than ever. But that doesn’t mean they’re staying home. Some, like Rosa, are choosing to leave their kids home and migrating without them. Some are moving through more dangerous routes if they do want to continue on to the United States—discarding the long-standing practice of turning themselves in to Border Patrol and applying for asylum. And in some cases, they are avoiding the United States: They’re deciding to settle in other countries, like Mexico or even Canada.
The picture that emerged, as I spoke to migrants and prospective migrants, is of a set of nations—from El Salvador and Honduras up through the United States and Canada—becoming even more entwined than they already are, with families further stretched and spread across borders. This might not be what Washington intended, but history shows that immigration is complex and hard to manage, and Trump’s policies are almost certain to have effects we haven’t begun to grasp.
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Clearly, the “enforcement/deterrence only” policy will continue to fail. While it might shift migration patterns somewhat and even change the destination and methods of some migrants, it doesn’t begin to directly address the fundamental causes driving migration. And, to the extent that unilateral U.S. policies encourage migrants to resettle elsewhere, that will affect the relationship between the U.S. and other receiving states, like Mexico and Canada.
The United States has the dubious honor of maintaining the world’s largest immigration detention system. Other countries may house more refugees and temporarily displaced persons, but we lock up the most people whose right to stay in the country is in dispute. Tens of thousands of people a day are held until they’re deported or granted permission to stay by an immigration judge (or at least released on bond or into a sponsor’s custody pending a further hearing).
It is a shameful aspect of U.S. immigration enforcement that the government denies liberty to so many people who have neither been accused nor convicted of a crime. To be sure, every nation has a right to control its borders and determine who gets to come in, for what reasons, and through what legal mechanism. We don’t believe that the U.S. should maintain open borders, but the government’s historic reliance on detention as a tool for dealing with people accused of arriving or staying here illegally is needlessly expensive, grossly inhumane and unjust to people exercising their legal right to seek asylum
While the current administration has embraced and expanded the practice, this is not a creation of President Trump. Such detentions date to the Immigration Act of 1882, and current detention policies are rooted in the 1952 Immigration and Naturalization Act. More recently, Cuban and Haitian migrants arriving by boat in the 1970s and ’80s were placed in detention centers, in part to deter their countrymen from similarly setting off to sea on rickety boats. Congress eventually mandated detention for migrants convicted of certain crimes that made them ineligible for admission.
ICE spends nearly $3 billion a year on immigration detention.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 greatly expanded the immigration detention system through contracts with local jails and state and privately run prisons. In fact, most of the 39,000 people incarcerated on any given day in the U.S. for immigration reasons — more than 350,000 pass through the system each year — are held in prison-like conditions in more than 200 locations around the country.
Some local governments have expanded their jails so they can house, for a daily fee, migrants that Immigration and Customs Enforcement wants detained. Meanwhile, the U.S. Department of Agriculture has granted $360 million in low-interest loans since 1996 to help rural communities build jails often larger than they need, so local officials can use detainees and the federal fee payments they bring to cover operating expenses, according to a recent report by the nonprofit Vera Institute of Justice.
ICE spends nearly $3 billion a year on immigration detention, according to the Government Accountability Office. About two-thirds of that goes to private prison corporations to operate detention centers and to local jails to reimburse them for housing detainees. Through those efforts the government has expanded an incarceration industry costing an exorbitant amount of tax dollars to deny freedom of movement of people who, in the vast majority of cases, pose no threat to us.
And notably, at least 77% of migrants facing deportation proceedings show up for their hearings, according to reports. Rates are highest among those who find legal help or receive support from community groups, which suggests there are better methods for handling thisthan detention.
There may, of course, be valid reasons for detaining some migrants, such as newly arrived asylum-seekers whose identities have yet to be verified, people facing imminent court-ordered deportation who the government has reason to fear might disappear, or violent felons who pose a realistic threat to public safety.
One of the largest contributors to no-shows is the government’s failure to keep current contact information for migrants during proceedings that can stretch out for years. One approach would be to match migrants to community service groups or sponsors to better keep track of the individuals and ensure they appear for court hearings; sadly, Trump killedan experimental Obama program that did just that.
This administration has chosen instead to double down on detention, and now it reportedly is considering reviving a version of the vile family separations. If family separation and detention worked as a deterrent, the president wouldn’t be tweeting so furiously these days about the current caravan of Central American migrants moving northward through Mexico. Detention-as-deterrence is not only an inhumane approach, it’s a failed one.
The government can neither detain nor deport its way out of this problem. It must find a better way. The fact that it has failed to do so for so long, regardless of which party controlled Congress or the White House, is an embarrassment.
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Doubling down on the worst, most ineffective, wasteful, and expensive policies. That’s the mantra of the Trump Administration on immigration. What if our Government spent the same amount of time, money, personnel, and effort on solving problems, rather than intentionally and cynically aggravating them?
It’s a textbook show of Trumpian drama, a fiery response intended to bolster the Republican case for stronger border protections ahead of next month’s election and following days of conspiracy-mongering and wall-to-wall Fox News coverage.
But within the thunderous saber-rattling over would-be asylum seekers is the overtone of President Donald Trump’s apparent long-term policy to deal with the anticipated social and political upheaval of rapidly worsening climate change.
Now ― with the White House poised to gut the federal government’s only two major rules to reduce planet-warming emissions, and Trump threatening to cut aid to drought- and violence-afflicted Honduras, Guatemala and El Salvador ― critics say the administration’s strategy to deal with climate change is taking shape, frustrating national security experts who say hunkering down and militarizing borders will do little to mitigate global warming’s threats.
“A quasi-fascist policy of fear-mongering about immigration and corresponding militarization of the border is clearly the major thrust of Trump’s response to the mounting impacts of climate chaos,” said Ashley Dawson, author of Extreme Cities: The Peril and Promise of Urban Life in the Age of Climate Change.
Despite the repeated dismissals of climate science by the president and many of his top advisers, the Trump administration officially forecasts that the planet is expected to warm by 7 degrees Fahrenheit by the end of the century ― a projection buried in a 500-page environmental impact statement in August.
That’s roughly double the temperature scientists say will cause cataclysmic drought, storms and sea level rise, and roughly four times the warming the planet has already experienced since the pre-industrial era. Under those conditions, more than 1 billion people globally could be forced to flee their homes by 2050, and 2 billion by 2100. Tropical regions ― where many of the roughly 20,000 to 40,000 migrants who crossed the U.S. southern border each month in the past year came from ― are expected to be hit the hardest.
Neither the White House nor the Pentagon responded to requests for comment Friday.
Migration from the trio of Central American nations surged 25 percent between 2007 and 2015 following the worst drought in 30 years, which left more than 3 million people hungry.
“The main driver is, yes, desperation,” María Mendez Libby, the country director of Oxfam Guatemala, told Earther this week. “They have seen it’s not a seasonal desperation. It’s an ongoing continuous desperation for their entire life.”
It’s difficult to draw a direct line between climate change and a migrant’s decision to leave home, and neither the United Nations nor nearly any other major countries currently offer legal avenues for asylum seekers fleeing the effects of global warming. New Zealand became the first country late last year to create a special status for climate refugees with 100 annual visas as low-lying island nations in its corner of the Pacific face existential threat of sea-level rise. On the opposite side of the ocean, a hotter climate is expected to parch once fertile lands. In an email, Jennifer Francis, a Rutgers University climate researcher, said “it’s likely that increasing drought in Central America is making it more difficult for farmers there to make a living.”
Lina Pohl, El Salvador’s environment and natural resources minister, made a similar declaration at a press conference in Panama this week: “The next migrants are going to be climate migrants.”
To some, the decision to send troops to the border demonstrates the president’s affinity for a “general approach of throwing the military at the problem.”
“The President had willing partners in Congress and could have worked on immigration, border security, DREAMers and all that,” Joseph Majkut, director of climate policy at the Niskanen Center, a libertarian think tank, said in an email. “But he didn’t take advantage of that opportunity. Having missed the chance to seek actual reforms, we now get a militaristic and hasty response to a predictable stress.”
Such a response will do little to quell the long-term national security concerns posed by climate change, said Francesco Femia, president of the Center for Climate and Security.
“Climate change [is] contributing to make nations unstable, both nations in our neighborhood and others abroad,” said Femia, whose Washington-based policy institute includes former top national security advisers. “The best way, from a security perspective, is to bolster the resilience of those countries so you reduce the likelihood of instability, reduce the likelihood of conflict and reduce the likelihood of displacement that might force outward migration.”
That doesn’t seem likely in the near term. The president attempted to cut funding for United States Agency for International Development by 33 percent this year, though bipartisan support for the federal government’s dedicated aid agency staved off the proposal.
By deporting hundreds of thousands of Central Americans from the United States, the administration, like the Obama administration before it, is bolstering gang recruitment in countries like El Salvador, according to a December report from the International Crisis Group. That worsens the violence that many cite as a main reason for fleeing northward.
Even if the White House backtracks on “substantially” cutting the combined $500 million in aid the United States gave to Honduras, Guatemala and El Salvador last year, Trump has halted payment of the $3 billion the nation pledged under the 2015 Paris Agreement to help poorer countries adapt to climate change.
In December, the Trump administration broke with two decades of military planning and removed reference to climate change from the White House’s 56-page National Security Strategy report. But if militarizing the border becomes long-term climate policy, Gwynne Dyer, a Canadian military historian, has said enforcement will require bloodshed.
“Remember the Iron Curtain?” Dyer said in a lengthy 2010 lecture. “You can only shut the border if you’re willing to kill people.”
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Yup. My observation after decades of study and involvement is the only ways to close a border are: 1) put up machine gun turrets and shoot anyone who approaches; or 2) make your country so completely miserable and unattractive that nobody wants to go there.
For everyone else, the best you can do is control. And control requires a realistic approach to legal immigration.
The Trump Administration’s studied disdain for history, science, and facts of all types can’t help but be bad news for us and the world, particularly future generations. Policies based largely on White Nationalism, racism, xenophobia and other irrational biases seldom succeed in the long run.
The hysteria over the caravan of Central American asylum-seekers traveling north towards the United States is spiraling out of proportion. A calm review of the facts and the historical context of migration from this hemisphere make clear that the United States has the laws and policies in place to respond humanely — in keeping with our values and our laws.
There are varied estimates of the number of people in the caravan, ranging from the Mexican government’s estimate of 3,630 migrants to the United Nations spokesperson’s estimate of 7,000 migrants. According to the Washington Post, Mexican officials report that they have processed 1,700 asylum cases. Whether the caravan will grow in numbers or dissipate remains to be seen.
What we do know is that the United States has handled much larger influxes of asylum-seekers. And we did so without sacrificing our laws and our values.
Cuba long has been a source of asylum-seekers, as Haiti has been. In 1980, for example, a mass migration of asylum-seekers, known as the Mariel boatlift, brought approximately 125,000 Cubans and 25,000 Haitians to South Florida over a six-month period. In 1992, the U.S. Coast Guard interdicted 37,618 Haitians who had set sail to the United States and took many of them to Guantanamo Bay Naval Base. While the treatment of the Haitians was not our finest hour as a nation, we did pre-screen those at Guantanamo for credible fear and return others to Haiti with the option of in-country refugee processing. The estimates of migrants in the caravan are comparable to the number of Cubans (7,163) the U.S. Coast Guard and Border Patrol picked up in fiscal year 1997.
The civil wars in Central America during the 1980s prompted asylum-seekers that numbered in the hundreds of thousands. Data on asylum cases filed with the then-Immigration and Naturalization Service (INS) show that about 126,000 Nicaraguans, 126,300 Salvadorans and 41,942 Guatemalans applied for asylum in the United States from fiscal year 1981 through 1990.
In the aftermath of Hurricane Mitch in November 1998, then-Attorney General Janet Reno designated temporary protected status (TPS) for unauthorized Hondurans and Nicaraguans in the United States. In 2001, the George W. Bush administration decided to grant TPS to Salvadorans following two earthquakes that rocked El Salvador. The number of Central Americans who received these various temporary protections approached 270,000.
For those who are fearful that bad actors are hiding amid the asylum-seekers in the caravan, rest assured that U.S. Customs and Border Protection (CBP) puts all such migrants through rigorous border security screening systems. CBP collects biometric data, performs background checks, and runs them through a host of criminal and national security databases.
Lest we forget, border apprehensions of all irregular migrants (including asylum-seekers) are now at historic lows. From a peak of 1.6 million in fiscal year 2000, the U.S. Border Patrol apprehended just under 304,000 last fiscal year. Research conducted by Stephanie Leutert at the University of Texas found that in fiscal year 2017 less than 0.1 percent of those apprehended — 228 migrants — were members of the MS-13 gang.
We do not need to send military troops to the border; rather, we need to adequately staff the asylum offices and immigration courts at the border. Funding for asylum officers and immigration judges has not been commensurate with the substantial increases in border security funding, despite the obvious interconnections among these functions. We also need to reinstitute in-country refugee processing in El Salvador, Guatemala and Honduras, and extend it to include adults as well as minors. Cutting assistance to Mexico and Central America — which President Trump suggests would punish the source countries into stopping the migration — most likely would exacerbate the underlying problems and increase the number of people fleeing north.
It’s time to calm down and remember that we are a nation of laws and a people of values. We can handle this.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration.
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Right on, Ruth! Couldn’t agree with you more. But, sadly, I doubt that anyone in this Administration is paying attention. They aren’t trying to solve the problem. Rather they see the humanitarian plight and misfortune of others as an “opportunity” to promote and advance their White Nationalist agenda of lies, racism, and fear mongering to “energize their base” in advance of the midterms (and also to divert attention from Trump’s failure to deliver on his promise to build that wall).
But, setting the record straight is always a good idea even when it falls on deaf ears. Someday, we will have wiser leaders who will be generally interested in understanding the past and using its lessons to build a better future for everyone!
New questions raised on Trump’s family separations as 14 children discovered
By Tal Kopan
WASHINGTON — The Trump administration failed to recognize that 14 children in its care for months had been separated from their families at the Mexican border, officials conceded in a court filing late Thursday.
The disclosure raises fresh questions about whether the administration neglected to account for additional children after separating them from their parents under its “zero tolerance” immigration policy this spring. Two recent government reports faulted the administration’s tracking efforts, and one said officials feel no obligation to find children who were released to other homes before a judge ordered an accounting of the youths, suggesting the total separated under the policy may never be known.
Seven of the 14 children’s parents have criminal histories that disqualify them from reunification, officials with the Health and Human Services Department told a federal judge in San Diego. The judge demanded in June that the administration account for every child separated under the enforcement strategy ordered by Attorney General Jeff Sessions.
All of the newly discovered children are 5 years old or older.
While still picking up the pieces of their last border enforcement fiasco, the Administration is off and running on new policies that potentially will be found to be in violation of law.
The only solution is to find a way to process their asylum applications outside of the United States.
In July 2014, I suggested a way to do this to deter unaccompanied alien children from making the perilous journey from Central America to seek asylum in the United States. I proposed working with United Nations High Commissioner for Refugees (UNHCR) to set up refugee centers in Central America for children to make it unnecessary for them to travel to the United States.
A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.
Trump could establish such a program that would be open to adults too.
He also should be able to persuade UNHCR to process asylum seekers who come to the United States at a location outside of the United States if processing is limited to aliens who enter without inspection.
Notwithstanding claims to the contrary, undocumented aliens do not have a right to apply for asylum in the United States. Asylum is a discretionary form of relief. The asylum provision in the Immigration and Nationality Act just states that eligible aliens “may” be granted asylum.
The United States, however, is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
This obligation could be met by arranging for UNHCR to process their persecution claims in some other country with the understanding that an agreed upon number of them would be accepted by the United States as refugees.
It would have to be a very large number to make the program politically feasible.
Aliens who enter without inspection would be placed in expedited removal proceedings. The ones who fear persecution would be transferred to UNHCR. Asylum seekers also could go directly to the processing centers without having to make the journey to the United States.
The alternative is to accept the fact the that our 2,000-mile border is open to anyone who is willing to cross it illegally and ask for asylum.
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Go on over to The Hill at the above link to read Nolan’s complete article.
I disagree with Nolan’s statement that because asylum is, in the end, discretionary, there is no right to apply for asylum at the border or in the United States. The statute, 8 USC 1158(a)(1), specifically states that: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of status, may apply for asylum in accordance with this section or . . . .”
It couldn’t be clearer that ANY MIGRANT, whether documented or not and whether applying at a port of entry or not, who reaches the U.S., including the border, is legally entitled to apply for asylum. While the ultimate granting of the application might be discretionary (I note, however, that current Article III Court decisions restrict the grounds for discretionary denial), the right to apply is clear. Moreover, in light of the obvious care and comprehensiveness that Congress used in insuring that EVERYONE at the border or in the U.S. could at least apply for asylum, I doubt that “blanket denials,” based solely on nationality and/or method of arrival would be proper exercises of discretion.
However, Nolan is correct in that the Supreme Court has held that the INA.s right to apply for asylum does not apply extraterritorially to individuals stopped before they can reach U.S. territory (such as interdiction).
Nolan and I agree on a major point: The Trump Administration should be using the overseas refugee processing provisions of the Refugee Act, the auspices of the UNHCR, and cooperation with other countries who have signed the UN Convention & Protocol to address forced migration issues abroad, closer to the sending country, wherever possible.
However, this Administration has shown little interest in doing that. Threats of sanctions, welshing on our own obligations to take overseas refugees under the Act, false characterizations of the refugees as “criminals and terrorists,” and threats to reduce or eliminate foreign aid aimed at solving the very infrastructure and societal problems that produce refugee flows are certainly not ways to show leadership and to inspire international cooperation in solving refugee problems.
Finally, for “Nolan’s Fan Club,” here’s a link to all 162 of his published articles:
NIJC: After reviewing the statutory definition of a UIC, which includes as an element of the definition, being under 18 years of age, the BIA determined that the respondent was not a UIC at the time he filed for asylum and therefore the immigration court properly exercised initial jurisdiction over his asylum application.
USCIS: The updated policy, which goes into effect on Nov. 1, 2018, will require applicants to submit a Form I-693 that is signed by a civil surgeon no more than 60 days before filing the underlying application for an immigration benefit. The Form I-693 would remain valid for a two-year period following the date the civil surgeon signed it.
NPR: In early June, the agency announced it was sending up to 1,600 immigrant detainees to five federal prisons in Texas, Oregon, California, Washington, and Arizona. But now, a total of only three ICE detainees remain across the five prisons that once held hundreds of immigrants. Immigrant detainees left the federal prisons either because they were deported, transferred to civil detention facilities, or were granted bail
Atlantic: The attorney general has stepped up the hiring of immigration judges, ordered them to hear more cases, and shown a preference for those who’ve previously been prosecutors.
AIC: For years, the federal government has attempted to partner with local communities on immigration enforcement, raising a host of problems. Despite this dark legacy, the Trump administration continues to pursue a significant expansion of these partnerships.
SF Chronicle: The Trump administration has subpoenaed an immigration attorney in an attempt to determine who leaked an internal memo that laid out how Immigration and Customs Enforcement should implement Attorney General Jeff Sessions’ decision to restrict political asylum for victims of domestic violence and gang crimes. The attorney said he doesn’t intend to reveal his sources or any other information about how he obtained the memo.
Reuters: The Supreme Court ruled that paperwork failing to designate a time and place didn’t constitute a legal notice to appear in court. The ruling sparked a frenzy of immigration court filings. Over ten weeks this summer, a record 9,000 deportation cases, including Barrios’, were terminated as immigration attorneys raced to court with challenges to the paperwork their clients had received, a Reuters analysis of data from the Executive Office for Immigration Review shows.
AP: About 1.9 million Venezuelans have fled their collapsing nation since 2015 in one of the largest migrations in the world in recent years. The most desperate cannot afford a bus or plane ticket, and so they risk their lives to escape on foot. Every day, more than 650 migrants start on the walk out of Venezuela.
Politico: “I don’t think the business community has any clue how much this impacts them,” said Doug Rand, a former Obama administration official and president of Boundless Immigration, a firm that uses online tools to assist with immigration paperwork. “This means paying lawyers a lot more money and having every application being a nail-biter.”… The temporary visa holders subject to new questions about benefit use include those using the H-1B program for skilled workers, the H-2A program for agricultural workers, and the H-2B program for seasonal, non-agricultural workers.
Buzzfeed: The Trump administration is discontinuing the use of a form to vet attorneys for immigrant children that asked the attorneys to agree to a background check of their credit history, insurance, and information about their “personal characteristics” and “mode of living.”
AILA: AILA Executive Director Ben Johnson highlights the growing number of cases where ICE seizes people during the marriage interview component of their immigration application process, an interview required to pursue the legal status which would protect them. AILA Doc. No. 18101830
ABC: He was arraigned in court on Saturday and ordered held on $500 bail. He is due back in court on Tuesday. He is charged with criminal mischief in the fourth degree.
NYLAG: The federal government is illegally failing to publicly post thousands of final orders and opinions in immigration cases and should be ordered to post them online, the New York Legal Assistance Group (NYLAG) said in a lawsuit filed today by attorneys at NYLAG and Public Citizen.
Negusie is the case that held “An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.”
FTC: The Federal Trade Commission filed a complaint today against defendants Forms Direct, Inc., also known as American Immigration Center, and owner Cesare Alessandrini, alleging that they falsely implied that their websites were affiliated with U.S. Citizenship and Immigration Services (USCIS). The defendants allegedly used such deception since 2010 to sell immigration form preparation services to consumers, many of whom were attempting to reach the government site to renew their green cards or apply for naturalization. The FTC’s settlement bars the defendants from continuing their misleading business practices and requires them to pay $2.2 million to compensate consumers.
EOIR announced the opening of an immigration court in the DHS/ICE contract detention facility in Conroe, Texas. While there will no longer be an immigration court at the Houston Service Processing Center at 5520 Greens Road, EOIR will continue to operate a hearing location there. AILA Doc. No. 18101540
DOJ announced that during FY2018, there was a 38% increase over FY2017 of defendants charged with felony illegal re-entry (23,400) and a 86% increase over FY2017 of defendants charged with misdemeanor illegal entry (68,400). AILA Doc. No. 18101960
Notice clarifying that the Office of Refugee Resettlement is seeking public comments on its “Sponsorship Review Procedures for Approval for Unaccompanied Alien Children” information collection. Comments are best assured of having their full effect if received within 30 days. (83 FR 52221, 10/16/18) AILA Doc. No. 18101672
AILA, along with several other organizations, filed an amicus brief with the Ninth Circuit Court of Appeals in Martinez-De Ryan v. Sessions arguing that the term “crime involving moral turpitude” is unconstitutionally vague. AILA Doc. No. 18101702
AILA and the American Immigration Council filed an amicus brief with the Fourth Circuit Court of Appeals in Guzman Chavez v. Hott. The brief argues that respondents in withholding-only proceedings are governed by INA §236(a), and thus eligible for a bond hearing. AILA Doc. No. 18101700
USCIS announced that starting on 10/16/18, it began issuing new receipt notices for certain Forms I-751, Petition to Remove Conditions on Residence, to replace previously issued receipt notices containing inaccurate information. AILA Doc. No. 18101800
The Board of Immigration Appeals (BIA) provided an updated Practice Manual (last revised on October 16, 2018). This manual describes procedures, requirements, and recommendations for practice before the BIA. AILA Doc. No. 18101970
