NQRFPT: I’M ALREADY PROVED RIGHT ON NIELSEN’S LATEST HAREBRAINED SCHEME TO SCREW ASYLUM SEEKERS: Mexico is “Completely Unprepared,” DHS is Massively Incompetent, The “Real Experts” Among Advocacy Groups & NGOs Are Sharpening Their Litigation Knives, & The House Is Getting Ready To Hold Nielsen & Her Toadies Accountable For The Inevitable Deaths, Rapes, & Assaults On Asylum Seekers In Mexico!

https://apple.news/ABxGIu1zQSumaDYsJutu1uA

Scott Bixby reports for The Daily Beast:

Opponents of the Trump administration’s plan requiring all migrants seeking asylum in the United States to remain in Mexico for the duration of their immigration proceedings have vowed to challenge the policy, which they say—like nearly every other aspect of President Donald Trump’s immigration agenda—almost certainly violates constitutional protections, international treaties, and federal law.

The policy, dubbed the “Migration Protection Protocols” by the Department of Homeland Security, is “disgraceful and illegal” and “will result in the loss of life for vulnerable people seeking safety,” said Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission. “This president has, again, chosen to exploit and endanger the lives of women and children to advance his own self-serving agenda.”

“Pushing asylum-seekers back into Mexico is absolutely illegal under U.S. immigration law,” Eleanor Acer, senior director for refugee protection at the nonprofit Human Rights First, told reporters on a conference call on Friday morning. “This scheme will increase, rather than decrease, the humanitarian debacle at the border.”

Under the proposed rule change, migrants who attempt to claim asylum in the United States at the southern border will almost universally be held in Mexico for the duration of their immigration proceedings, a process that could take years.

Calling the move “a historic measure,” the Department of Homeland Security revealed the plan on Thursday, at the same time Secretary Kirstjen Nielsen was being grilled by members of the House Judiciary Committee on the Trump administration’s numerous immigration controversies, including its family separation policy (the existence of which Nielsen denied) and the recent death of a 7-year-old migrant girl in the custody of Immigration and Customs Enforcement.

In the announcement, Nielsen said that “aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates.” Instead, “they will wait for an immigration court decision while they are in Mexico. ‘Catch and release’ will be replaced with ‘catch and return.’ ”

Mexico’s foreign ministry, contradicting the foreign policy platform that helped sweep the country’s new president into power, said that it “will authorize, for humanitarian reasons and temporarily, the entry of certain foreign persons from the United States who have entered the country through a port of entry or who have been apprehended between ports of entry, have been interviewed by the authorities of migratory control of that country, and have received a summons to appear before an immigration judge.” (The country’s top immigration official now says that Mexico is completely unprepared to fulfill its end of the bargain.)

Organizations on the ground say that the policy is a clear violation of both federal and international law, as well as constitutional guarantees of due process—and plan to fight it in court.

“This administration knows that the border area is unsafe for women and children,” Brané said, “and still, this administration doubles down on policies that make everyone less safe.”

“The administration seems to have no plan for implementation,” said Kennji Kizuka, a senior researcher and refugee protection policy analyst at Human Rights First. “Will lawyers be able to visit their clients before hearings? Where will those hearings take place?… Access to counsel is one of the most important factors in whether or not an asylum seeker is able to live in safety in the United States.”

In addition to Article 33 of the United Nations Convention and Protocol Relating to the Status of Refugees, which prevents the forcible return of asylum-seekers to countries where they face persecution, torture or death—dubbed the principle non-refoulement in international law—advocates pointed to laws passed by Congress that mandate the admission of unaccompanied children seeking asylum at the U.S. border as being blatantly violated by the president’s policy.

“Refusing to process children very clearly violates the Trafficking Victims Protection Reauthorization Act, written specifically to protect this vulnerable population,” said Lisa Frydman, vice president for regional policy and initiatives at Kids in Need of Defense (KIND), a nonprofit that works on behalf of unaccompanied children who enter the U.S. immigration system alone. Speaking on a call with reporters, Frydman recounted interviews with unaccompanied children held in shelters in Tijuana, the conditions of which are “squalid,” Frydman said.

“Unaccompanied children are being systematically denied access to apply for protection in the United States” as they seek asylum protections, Frydman said, and their efforts to avoid both U.S. and Mexican immigration authorities are putting them in even more danger of exploitation.

Some of the children have even taken to living on the streets of Tijuana, Frydman said, where they have no access to medical treatment, food, or protection from those who might exploit them. The dangers are extreme: just this week, two Honduran children were murdered in Tijuana after being stopped by would-be robbers as they attempted to move from one shelter to another.

“All of our organizations have been on the ground in Tijuana recently and are united in our assessment that conditions there are very unstable and very unsafe,” said Wendy Young, president of KIND. Those conditions, Young continued, “are going to further deteriorate” as the number of asylum-seekers stuck at the border increases.

A 2017 study by Human Rights First documented 921 crimes against migrants committed by federal or state officials in Mexico, where nearly 70 percent of migrant children are held in “prison-like” immigration detention facilities, according to a report from Human Rights Watch, despite Mexican laws prohibiting children from being held in such facilities.

These unsafe conditions in Mexico make forcing asylum-seekers to remain their a blatant violation of the principle of non-refoulement, advocates said, and therefore a violation of international law.

“These migrant camps are not safe for children,” said Dr. Alan Shapiro, a pediatrician who co-founded Terra Firma, an organization that provides medical care to undocumented children. “They are not enclosed camps, they do not have roofs over their head.” On a recent visit to one camp in Tijuana, Dr. Shapiro said, he saw a two-year-old child who had recently suffered a seizure and had no access to medical care, or even proper food.

“This child was eating powdered baby formula out of the can—there was no water for them to mix it with,” Shapiro said.

“There are very real risks to unaccompanied children,” said Leah Chavla, a policy adviser at the Women’s Refugee Commission. “This is a system that is ripe for exploitation… Mothers that we’ve spoken with have flagged that there are a lot of new faces around the camps and they don’t necessarily feel comfortable leaving their children with strangers.”

Advocates also pointed to serious logistical hurdles for asylum-seekers to receive proper legal counsel as they navigate the labyrinthine immigration system from outside the United States, pointing to those difficulties as potential violations of due process.

“It is unclear how attorneys in the United States would be able to work in and access their clients in Mexico—if at all,” said Jennifer Podkul, senior director for policy and advocacy at KIND. “Moreover, legal services capacity in Mexico would be insufficient to address these needs or to ensure the provision of accurate legal information and preparation of cases in accordance with U.S., rather than Mexican, law.”

Those difficulties are doubled for unaccompanied children, Podkul said, in light of their age and limited ability to testify in their own defense. “Without quality legal representation, unaccompanied children and other asylum seekers will be unable to fully present their cases for protection, and as a result, may be returned to harm, danger, or death.”

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Imagine what it would be like to have a Government committed to following the law, including the generous humanitarian standards for asylum, rather than coming up with costly, impractical, and often illegal schemes to avoid the law.

Of course, following the law would likely result in many more asylum seekers being rapidly accepted after screening and settling down to lead peaceful, law-abiding, productive lives in the U.S. That would be good for the country, but bad for the racist White Nationalist agenda that this Administration peddles to its so-called “base” (which actually represents a minority of U.S. opinion, but a minority that strategically props up a minority government controlled by a minority party and an incompetent, out of control, would-be autocrat).

PWS

12-23-18

HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

“The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
Representation of asylum seekers generally improves results, sometimes by as much as 5X.
It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.

NOTE TO THE NDPA:

The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.

Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.

Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.

Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!

In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.

Thanks for all you do! Keep fighting the “good fight!”

Go for it!

Due Process Forever! Scofflaw Administration Never!

PWS

12-21-18

“OUR GANG” OF RETIRED JUDGES ISSUES STATEMENT ON GRACE v. WHITAKER!

Thanks to “Our Leader” Judge Jeffrey Chase for making this happen!

Retired Immigration Judges and Former Member of the Board of Immigration Appeals Statement on Grace v. Whitaker

December 19, 2018

Today’s decision in Grace v. Whitaker provides a lesson in what it truly means to return to the rule of law. In a 107-page decision, Judge Sullivan reminded the current administration of the following truths: that more than 30 years ago (in a decision successfully argued by our former colleague,Immigration Judge Dana Marks), our nation’s highest court recognized that the purpose of the 1980 Refugee Act was to honor our international treaty obligation towards refugees, and that the language of that treaty was meant to be interpreted flexibly, to adapt to changes over time in the agents, victims, and means of persecution, and to be applied fairly to all. The decision affirms that our asylum laws are meant to be applied on an individual, case-by-case basis and not according to a predetermined categorical rule. The decision wisely considered the interpretation of the UNHCR Handbook, and afforded it greater weight than the personal agenda of a former Attorney General in determining our legal obligations to afford protection to refugees who are victims of domestic violence.

The decision imposes a permanent injunction on DHS from applying the awful decision of the former Attorney General in Matter of A-B- in its credible fear determinations. This reasoned decision will prevent this administration from continuing to deny women credibly fearing rape, domestic violence, beatings, shootings, and death in their countries of origin from having the right to their day in court. We applaud Judge Sullivan’s just decision, as well as the truly heroic efforts of the lawyers at the ACLU and Center for Gender and Refugee Studies that made such outcome possible. We also thank all of the attorneys, organizations, judges, experts, and others whose contributions lent invaluable support to this effort.

Hon. Steven R. Abrams

Hon. Sarah M. Burr

Hon. Teofilo Chapa

Hon. George T. Chew

Hon. Jeffrey S. Chase

Hon. Cecelia M. Espenoza

Hon. Noel Ferris

Hon. John F. Gossart, Jr.

Hon. Rebecca Jamil

Hon. William Joyce

Hon. Carol King

Hon. Elizabeth A. Lamb

Hon. Margaret McManus

Hon. Charles Pazar

Hon. George Proctor

Hon. John Richardson

Hon. Lory D. Rosenberg

Hon. Susan Roy

Hon. Paul W. Schmidt

Hon. Polly A. Webber

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

Thanks to Jeffrey and the rest of the “Gang” for speaking out so promptly and forcefully!

PWS

12-20-18

SCOFFLAWS THWARTED: U.S. DISTRICT JUDGE EMMET G. SULLIVAN EXPOSES SESSIONS’ S OUTRAGEOUSLY ILLEGAL WHITE NATIONALIST ATTACK ON U.S. ASYLUM LAW — MATTER OF A-B- EXCEEDED SCOFFLAW A.G.’S AUTHORITY — Grace v. Whitaker

Grace v. Sessions, U.S.D.C. D.D.C., 12-19-18, Hon. Emmet G. Sullivan, Published

Grace 106 12-19-18

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

MY STATEMENT ON GRACE V. WHITAKER:

As a former United States Immigration Judge, Chair of the U.S. Board of Immigration Appeals, and Acting General Counsel and Deputy General Counsel of the “Legacy INS” involved in developing the Refugee Act of 1980, I am deeply gratified by the decision of U.S. District Judge Emmet G. Sullivan today in Grace v. Whitaker. Judge Sullivan strongly supports the rule of law and the generous humanitarian protections and procedural rights afforded by Congress to vulnerable asylum seekers against a lawless and unjustified attack by former Attorney General Sessions in Matter of A-B-, 27 I&N Dec. 316 (AG 2018) and the largely erroneous Policy Memorandum incorporating that decision issued by the Department of Homeland Security (“DHS”).

Among the most important holdings, Judge Sullivan:

Reaffirmed the duty of the Executive Branch to comply with the rule of law as enacted by Congress to protect individuals fleeing persecution;
Reaffirmed the generous humanitarian intent of the asylum provisions of the Refugee Act of 1980;
Recognized the generous “well-founded fear” (10% chance) standard for asylum as enunciated by the U.S. Supreme Court in 1987 in INS v. Cardoza-Fonseca;
Reaffirmed the “extraordinarily low” bar for applicants in “credible fear” interviews before DHS Asylum Officers: “to prevail at a credible fear interview, the alien need only show a ‘significant possibility’ of a one in ten chance of persecution, i.e., a fraction of ten percent;”
Found that Congress intended that the term “particular social group” must be interpreted generously in accordance with the United Nations’ guidance;
Rejected Sessions’s unlawful attempt to generally preclude domestic violence and gang-related claims from qualifying for asylum;
Reaffirmed the necessity of case-by-case determinations of credible fear and asylum;
Rejected Session’s unlawful attempt to engraft a “condoned or completely helpless” requirement on the interpretation of when a foreign government is “unwilling or unable” to protect an individual from persecution by a private party;
Reaffirmed Congress’s unambiguous understanding that persecution means “harm or suffering . . . inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control;”
Rejected DHS’s misinterpretation of the “circularity requirement” in the Policy Memorandum;
Rejected the Department of Justice’s disingenuous argument that Article III Courts must “defer” to administrative interpretations of Article III Court decisions;
Rejected the Policy Memorandum’s illegal requirement that an asylum applicant (usually unrepresented) “delineate” the scope of a particular social group at the credible fear interview;
Emphatically rejected the Policy Memorandum’s attempt to elevate administrative precedents over the conflicting decisions of U.S. Courts of Appeals.

Judge Sullivan’s cogent decision dramatically highlights the problems with an U.S. Immigration Court system that is controlled by political officials, like former Attorney General Sessions, who are not fair and impartial judicial officials and whose actions may be (and in Sessions’s case definitely were) driven by political philosophies and enforcement objectives inconsistent with judicial responsibilities to insure that non-citizens are fairly considered for and when appropriate granted the important, often life-saving, protections conferred by law and guaranteed by due process. A clearly biased political official like Jeff Sessions should ethically never been permitted to act in a quasi-judicial capacity.

As a result of Sessions’s anti-immigrant bias, unlawful actions, and gross mismanagement of the Immigration Courts, innocent lives have been endangered and one of our largest American court systems has been driven to the precipice with an uncontrolled (yet unnecessary) backlog of over 1.1 million cases and crippling quality control issues. When it finally plunges over, it will take a large chunk of our American justice system and the Constitutional protections we all rely upon with it!

Congress must create an independent Article I United States Immigration Court to ensure that the immigration and refugee laws enacted by Congress are applied to individuals in a fair, efficient, and impartial manner.

Many, many thanks to the ACLU and all of the other wonderful pro bono lawyers who stood up for the rule of law and the rights of the most vulnerable among us against the intentionally illegal actions and unethical behavior of this Administration.

PWS

12-19-18

JRUBE @WASHPOST: “Horrifying indifference to children’s lives”

https://www.washingtonpost.com/opinions/2018/12/16/horrifying-indifference-childrens-lives/

Rubin writes:

The Post reported this week:

A 7-year-old girl from Guatemala died of dehydration and shock after she was taken into Border Patrol custody last week for crossing from Mexico into the United States illegally with her father and a large group of migrants along a remote span of New Mexico desert, U.S. Customs and Border Protection said Thursday. . . .

According to CBP records, the girl and her father were taken into custody about 10 p.m. Dec. 6 south of Lordsburg, N.M., as part of a group of 163 people who approached U.S. agents to turn themselves in.

More than eight hours later, the child began having seizures at 6:25 a.m., CBP records show. Emergency responders, who arrived soon after, measured her body temperature at 105.7 degrees, and according to a statement from CBP, she “reportedly had not eaten or consumed water for several days.”

The Department of Homeland Security’s statement in response to reports of the child’s death was a moral and legal disgrace:

Traveling north through Mexico illegally in an attempt to reach the United States, is extremely dangerous. Drug cartels, human smugglers and the elements pose deadly risks to anyone who seeks to cross our border illegally. Border Patrol always takes care of individuals in their custody and does everything in their power to keep people safe. Every year the Border Patrol saves hundreds of people who are overcome by the elements between our ports of entry. Unfortunately, despite our best efforts and the best efforts of the medical team treating the child, we were unable to stop this tragedy from occurring.

“Once again, we are begging parents to not put themselves or their children at risk attempting to enter illegally. Please present yourselves at a port of entry and seek to enter legally and safely.”

For starters, the federal government is responsible for the health and welfare of anyone it detains — whether it is a criminal in a prison, a child in its foster-care system or families detained at the border. Regardless of what the children’s parents did or did not do, the United States has an obligation to the children the moment it detains them. Not to give food and water, or to check the health of those it has in custody, is inexcusable. Blaming the parents as Homeland Security Secretary Kirstjen Nielsen did (“This is just a very sad example of the dangers of this journey. This family chose to cross illegally”) reflects her legal and moral obtuseness. In our care, the child’s welfare became our responsibility.

“This tragedy represents the worst possible outcome when people, including children, are held in inhumane conditions,” the ACLU’s Border Rights Center said in a statement. “Lack of accountability, and a culture of cruelty within CBP have exacerbated policies that lead to migrant deaths.” The ACLU continued, “In 2017, migrant deaths increased even as the number of border crossings dramatically decreased. When the Trump administration pushes for the militarization of the border, including more border wall construction, they are driving people fleeing violence into the deadliest desert regions.” The statement pointed out that the incident wasn’t reported for a week. “We call for a rigorous investigation into how this tragedy happened and serious reforms to prevent future deaths,” the statement concluded.

Frank Sharry, executive director of America’s Voice, a progressive pro-immigration group, also responded. Sharry pointed out that a “tragic and preventable death of an innocent seven-year old girl should not be seen as a mistake made in an otherwise humane system, but rather a deliberately cruel and dehumanizing system that has produced yet another death.” His statement asserted that CBP’s holding facilities are characterized by “freezing temperatures, no beds, lights left on, no showers, not enough toilets or toilet paper, filthy conditions, horrible smell, inedible food and not enough clean water to drink, and [are] run by insulting and abusive agents.” The system the administration has set up is seemingly designed to inflict the maximum amount of suffering in a failed attempt to deter migrants:

[The] strategy has many components: tell those who want asylum to request it at ports of entry while making it nearly impossible to request asylum at ports of entry; prosecute those who present themselves to Border Patrol agents between ports of entry for “illegal entry;” separate families in numbers large (now halted by a federal judge) and small (under the flimsy pretext of protecting children from “criminal family members”); detain as long as possible those who seek asylum; lock up minors who arrive unaccompanied minors and scare away their U.S.-residing parents and relatives who want to sponsor them by threatening to arrest and detain those who come forward; and gut asylum standards by unilaterally changing the bases for deciding cases, pressuring trained Asylum Officers to reduce their high rates of deeming Central Americans as having a credible fear of return, and bullying Immigration Judges to deny cases when finally adjudicated.

Now if a pregnant migrant asserts her right to seek an abortion, this administration will go to any lengths to protect the life of the unborn child; for the already-born minors (and adults) in its custody, however, the administration cannot be bothered to ensure humane and safe conditions.

Under the Republican-majority House and Senate, rigorous oversight of the Department of Homeland Security and legislation to try to ameliorate these conditions were all but impossible. With a Democratic-majority House, this will no longer be the case. The House Judiciary Committee will be headed by Jerrold Nadler (D-N.Y.) in the new Congress. He left no doubt as to his intention to get to the bottom of the tragedy and the conditions that allowed this to occur:

On Friday, Nadler and Democrats who will head House Judiciary subcommittees sent a letter to the inspector general for the Department of Homeland Security requesting the IG “initiate an investigation into this incident, as well as CBP policies or practices that may have contributed to the child’s death [and] CBP’s failure to timely notify Congress of this incident.” The letter told the IG, “It is hard to overstate our frustration with the fact that we learned of this incident through media reports one week after the incident occurred. It is clear that CBP failed to follow the reporting requirements laid out in last year’s omnibus appropriations bill until after the news of this death was already public.”

With adequate border security and staffing, a sufficient number of immigration judges deployed to handle the caseload, reversal of the administration’s deliberately cruel policies, and effective diplomacy with and provision of assistance to the countries from which these people are fleeing for their lives, the current, intolerable situation should improve.

It’s a cruel irony that Trump has portrayed refugees as a threat to Americans. In fact, the reverse is true.

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

Rubin is right. Part of this Administration’s cruel scheme here is to deflect attention from the real threat to our national security and Constitution presented by Trump and his corrupt, scofflaw gang. And, in the long disgraceful tradition of cowards, bullies, and authoritarians, he does so by attacking the most vulnerable and least able to defend themselves, playing on racism and nationalist jingoism.

That’s why the New Due Process Army is such an important force for protecting the human and legal rights of migrants, and by so doing, protecting the rights of all Americans against Executive abuse!

PWS

12-17=18

HON. JEFFREY S. CHASE: DHS’S ARROGANT “IN YOUR FACE” APPROACH TO “PEREIRA NOTICE” CASES APPEARS TO BE BACKFIRING WITH ARTICLE IIIs — US District Judge in Nevada Latest To Find That “Pereira Defective NTAs” Gave Immigration Judge No Jurisdiction Over Removal Case!

https://www.jeffreyschase.com/blog/2018/12/8/interpreting-pereira-a-hint-of-things-to-come

I haven’t posted for a while. I’ve been extremely busy, but there was something else: my response to so many recent events has been just pure anger. Although I’ve written the occasional “cry from the heart,” I don’t want this blog to turn into the rantings of an angry old man.

So I resume posting with a case that provides a glimmer of hope (and, hopefully, a hint of things to come?). Last week, the U.S. Court of Appeals for the Eleventh Circuit, a court generally known for its conservatism, issued an order granting an emergency stay of removal in the case of Manuel Leonidas Duran-Ortega v. U.S. Attorney General. As is common in such types of grants, the three-judge panel issued a decision consisting of two sentences, granting the stay, and further granting the request of interested organizations to allow them to file an amicus (“friend of the court”) brief.

What made this decision noteworthy is that one of the judges on the panel felt the need to write a rather detailed concurring opinion. Among the issues discussed in that opinion is the impact of the Supreme Court’s decision in Pereira v. Sessions (which I wrote about here: https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court) on Mr. Duran-Ortega’s case. As in Pereira, the document filed by DHS with the immigration court in order to commence removal proceedings lacked a time and date of hearing. In her concurring opinion, Judge Beverly B. Martin observed that under federal regulations, jurisdiction vests, and immigration proceedings commence, only when a proper charging document is filed. The document filed in Mr. Duran-Ortega’s case purported to be a legal document called a Notice to Appear. But as Judge Martin noted, “The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time or place are not, in fact, notice to appears” within the meaning of the statute.

Judge Martin (a former U.S. Attorney and Georgia state Assistant Attorney General) continued that the Pereira decision “emphasized” that the statute does not say that a Notice to Appear is “complete” when it contains a time and date of the hearing; rather, he quotes the Pereira decision as holding that the law defines that a document called a “Notice to Appear” must specify “at a minimum the time and date of the removal proceeding.” The judge follows that quote with the highlight of her decision: “In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceeding.”

As this Reuters article reported (https://www.reuters.com/article/us-usa-immigration-terminations/u-s-courts-abruptly-tossed-9000-deportation-cases-heres-why-idUSKCN1MR1HK) enough immigration judges had a similar reading of Pereira to terminate 9,000 removal cases in the two months between the Supreme Court’s decision and the issuance of a contrary ruling by the Board of Immigration Appeals, in which the BIA’s judges, out of fear of then-Attorney General Jeff Sessions, chose appeasement of their boss over their duty to reach fair and independent decisions.

Judge Martin referenced that BIA decision, Matter of Bermudez-Cota, but stated: “This court need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law…In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.”

For those readers who are not immigration practitioners, attorneys with ICE (which is part of the Department of Homeland Security) and the Office of Immigration Litigation (“OIL”) (which is part of the Department of Justice, along with the BIA) have been filing briefs opposing motions to terminate under Pereira using language best described as snarky. A recent brief fled by OIL called the argument that proceedings commenced with a document lacking a time and date must be terminated under Pereira “an unnatural, distorted interpretation of the Supreme Court’s opinion,” and a “labored interpretation of Pereira.” A brief recently filed by ICE called the same argument an “overbroad and unsupported expansion of Pereira [which] is unwarranted and ignores the Court’s clear and unmistakable language.”

There is an old adage among lawyers that when the facts don’t favor your client, pound the law; when the law doesn’t favor your client, pound the facts; and when neither the law nor the facts favor your client, pound the table. I find the tone of the government’s briefs as sampled above to be the equivalent of pounding the table. The government is claiming that to interpret the Supreme Court’s language that “a notice that lacks a time and date is not a Notice to Appear” as meaning exactly what it says is an unnatural, distorted interpretation that is labored and ignores the clear language of the Court. The government then counters by claiming that the natural, obvious, clear interpretation is the exact opposite of what Pereira actually says.

So although it is just the view of one judge in one circuit in the context of a concurring opinion, it nevertheless feels very good to see a circuit court judge calling out the BIA, OIL, and DHS on their coordinated nonsense. Three U.S. district courts have already agreed with the private bar’s reading of Pereira, in U.S. v. Virgen Ponce (Eastern District of Washington); in U.S. v. Pedroza-Rocha (Western District of Texas); and just yesterday, in U.S. v. Soto-Mejia (D. Nev.). At this point, this is only cause for cautious optimism. But as an immigration lawyer named Aaron Chenault was articulately quoted as saying in the above Reuters article, for now, Pereira (and its proper interpretation by some judges) has provided “a brief glimmer of hope, like when you are almost drowning and you get one gasp.” Well said.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

REPRINTED WITH PERMISSION

JEFF CHASE

UNITED STATES OF AMERICA, Plaintiff,
v.
RAUL SOTO-MEJIA, Defendant.

Case No. 2:18-cr-00150-RFB-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

December 6, 2018

ORDER

        Before the Court is Mr. Soto-Mejia’s Motion to Dismiss [ECF No. 21] the Indictment in this case, for the reasons stated below the Court GRANTS the Motion to Dismiss.

        I. Factual Findings

        Based upon the record, including the joint stipulation of fact submitted by the parties [ECF No. 41], the Court makes the following factual findings. Mr. Soto-Mejia was encountered by immigration officials on February 7, 2018 in California. On that same day, February 7, the Department of Homeland Security issued a Notice to Appear for Removal Proceedings (NTA) against Soto-Mejia. The Notice to Appear stated that Soto-Mejia was to appear before an immigration judge on a date and time “[t]o be set” and at a place “[t]o be determined.” Soto-Mejia was personally served with the Notice to Appear at 10400 Rancho Road in Adelanto, California, 92401. The Notice to Appear contained allegations and provided a potential legal basis for Soto-Mejia’s removal from the United States. The Notice to Appear was filed with the Immigration Court in Adelanto, California on February 12, 2018.

        On February 27, 2018 an order advancing the removal hearing was served on a custodial officer for Soto-Mejia. On February 27, 2018, a letter entitled “Notice of Hearing in Removal Proceedings” addressed to Soto-Mejia at the Adelanto Detention Facility on 10250 Rancho Road

Page 2

in Adelanto, California, 92301 was served on a custodial officer for Soto-Mejia. The letter indicated that a hearing before Immigration Court was scheduled for March 7, 2018 at 1:00 p.m. The Notice of Hearing did not reference the nature or basis of the legal issues or charges for the removal proceedings. The Notice of Hearing also did not reference any particular Notice to Appear.

        On March 7, 2018, the “Order of the Immigration Judge” indicates that Soto-Mejia appeared at the Immigration Court hearing and that he was ordered removed from the United States to Mexico. Soto-Mejia was deported on March 8, 2018. Subsequently, Soto-Mejia was encountered in the United States again and was ordered removed on March 19, 2018. The March 19 Order, as a reinstate of the prior order, derived its authority to order removal from the March 7 Order. The Indictment in this case explicitly references and relies upon the March 7 and March 19 removal orders as a basis for establishing a violation of 8 U.S.C. § 1326 by Soto-Mejia.

        II. Legal Standard

        Since a prior order of removal is a predicate element of 8 U.S.C. § 1326, a defendant may collaterally attack the underlying removal order.United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on such a collateral challenge to a deportation order, the individual must demonstrate that (1) he exhausted any administrative remedies he could have used to challenge the order (or is excused from such exhaustion); (2) the deportation proceedings deprived the individual of judicial review (or is excused from seeking judicial review); (3) the entry of the order was fundamentally unfair. 8 U.S.C. 1326(d); Ramos, 623 F.3d at 680.

        A removal order is “fundamentally unfair” if (1) an individual’s due process rights were violated by defects in the underlying proceeding, and (2) the individual suffered prejudice as a result. Ubaldo-Figueroa, 364 F.3d at 1048.

        III. Discussion

        The Defendant argues that this case must be dismissed because his criminal prosecution derives from a defective immigration proceeding in which the immigration court did not have

Page 3

jurisdiction to commence removal proceedings against him because the Notice to Appear initiating the proceeding was defective. He argues that the March 7 Order is thus void as the immigration court did not have jurisdiction to issue an order. He further argues that, as the initial March 7, 2018 deportation order is void, the subsequent reinstatement removal order of March 19, 2018 is also void as it derived its authority from the March 7 Order. Specifically, Soto-Mejia argues that the initial Notice to Appear that issued in his case did not include a time and location for the proceeding. Relying upon the United States Supreme Court’s recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Soto-Mejia argues that a notice to appear must contain a location and time for a removal hearing in order to create jurisdiction for the immigration court. Id. at 2110. As the Notice to Appear in this case did not contain such information, the immigration court, according to Soto-Mejia, did not have jurisdiction to issue a removal or deportation order.

        The government responds with several arguments. First, the government argues that Soto-Mejia waived his argument regarding jurisdiction—claiming that it is personal rather subject matter jurisdiction which is at issue—by not raising a jurisdictional objection in the immigration proceeding and conceding to the immigration court’s jurisdiction by appearing. Second, the government avers that the immigration court’s jurisdiction is determined by the federal regulations and that the Notice to Appear in this case contained the information it must pursuant to those regulations to vest the immigration court with jurisdiction. See 8 C.F.R. §§ 1003.14(a), 1003.15(b) and (c). Third, the government argues that the holding in Pereia is limited to the cases in which a court must determine the validity of a particular notice to appear as it relates to the triggering of the “stop-time rule.” Id. at 2116. Fourth, the government argues that there is no prejudice to Soto-Mejia as any defect was cured by the Notice of Hearing and Soto-Mejia’s participation in the removal proceedings. The Court rejects all of the government’s arguments.

        A. The Removal Orders of March 7 and March 19 Violated Due Process As the Immigration Court Lacked Subject Matter Jurisdiction

        The Court finds that Supreme Court’s holding in Pereira to be applicable and controlling in this case. First, the Court finds pursuant to the plain language of the regulations that the jurisdiction of the immigration court “vests” only “when a charging document is filed with the

Page 4

Immigration Court.” 8 C.F.R. §1003.14. A “Notice to Appear” is such a “charging document.” Id. at § 1003.13. Relying upon the reasoning of Pereira, this Court finds that the definition of a “Notice to Appear” is controlled by statute and not regulation, as the Supreme Court expressly rejected in Pereira the regulation-based interpretation by the Board of Immigration Appeals in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). Pereira, 138 S. Ct. at 2111-14. And, pursuant to Pereira, a Notice to Appear must include the time and location for the hearing. Id. at 2114-17. As the Notice to Appear in this case failed to include the time and location for the hearing, the immigration court did not have jurisdiction to issue its March 7 deportation order.

        The Court rejects the government’s argument that Soto-Mejia waived his jurisdictional argument by not raising it earlier and by participating in the underlying immigration proceeding. The government’s argument conflates personal jurisdiction with subject matter jurisdiction. Soto-Mejia’s argument is founded upon his assertion that the immigration court lacked subject matter jurisdiction and not personal jurisdiction. Subject matter jurisdiction is a limitation on “federal power” that “cannot be waived” so “a party does not waive the requirement [of subject matter jurisdiction] by failing to challenge jurisdiction early in the proceedings.” Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702-03 (1982). Moreover, the plain language of the regulation establishing the immigration court’s jurisdiction explicitly notes that an immigration court’s authority only “vests” with the filing of a “charging document” and the regulation makes no reference to a waiver exception to this requirement for subject matter jurisdiction. 8 C.F.R. § 1003.14(a).

        The Court also rejects the government’s argument that the holding in Pereira is limited to cases determining the applicability of the stop-time rule. As noted, the Supreme Court’s holding in Pereira was based upon the plain language of the text of 8 C.F.R. §§ 1003.13 and 1003.14 and 8 U.S.C. § 1229(a). Pereira, 138 S. Ct. at 2111-13. Section 1003.13 specifies which documents can constitute a “charging document” for immigration proceedings after April 1, 1997. The parties all concede in this case that the only document in this record that is a “charging document” is the Notice to Appear. Id. The Court in Pereira explained that the text of Section 1229(a) lays out the statutory definition of and requirements for a “Notice to Appear” which includes the time and

Page 5

location for the hearing. 138 S. Ct. at 2114. The Supreme Court unambiguously proclaimed: “A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a).“‘” Id. at 2113-14 (emphasis added). While the Supreme Court applied this definition to the determination of the applicability of the stop-time rule, the express language of this holding does not suggest any limitation on the Court’s definition of what is and is not a “Notice to Appear” under Section 1229(a) with respect to the requirement for the notice to contain a time and location.

        There is no basis to assume or conclude that the definition of a “Notice to Appear” under Section 1229(a) would be different without reference to the stop-time rule. That is because the fundamental question that the Supreme Court was answering in Pereira is whether a notice must contain the time and location of the hearing to be a “notice to appear” under Section 1229(a). 138 S. Ct. at 2113-17. In answering this foundational question, the Court did not rely upon the stop-time rule to determine the definition of a notice to appear under Section 1229(a). To the contrary, the Court spent considerable time explaining why consideration of the stop-time rule’s “broad reference” to all of the paragraphs of Section 1229(a) did not alter the fact that the essential definition of and requirements for the notice arise in the first paragraph. 138 S. Ct. at 2114 (noting that the “broad reference to §1229(a) is of no consequence, because as even the Government concedes, only paragraph (1) bears on the meaning of a ‘notice to appear'”). This first paragraph requires that the notice contain the time and location for the removal proceeding.

        The Court is also unpersuaded that a defect in a “Notice to Appear” can be ‘cured’ as the government suggests by the filing and/or serving of the Notice of Hearing on Soto-Mejia. That is because such an argument is contrary to the plain text of the regulation, Section 1003.14(a), which unequivocally states that an immigration court’s jurisdiction only “vests” or arises with the filing of a “charging document.” A Notice of Hearing is not one of the “charging documents” referenced in Section 1003.13. A Notice of Hearing cannot therefore commence an immigration proceeding by subsequently providing a time and location for a removal hearing. Consequently, if the immigration court’s jurisdiction never arose because the Notice to Appear was invalid, then there is no proceeding in which a Notice of Hearing could properly be filed. There is nothing to cure.

Page 6

        Moreover, the Court also finds that the Notice of Hearing in this case did not reference a specific Notice to Appear. Indeed, the government conceded and the Court finds that the Notice of Hearing form does not generally, or in this case, reference a prior specific Notice to Appear and it does not contain information about the legal issues or charges which serve as a basis for the removal proceedings. The two documents only common identifying information is the A-file number of the particular person—Soto-Mejia in this case. This means that if an individual had multiple potential charges or legal issues related to his immigration status, the Notice of Hearing could not inform him about which charges were at issue in the upcoming hearing and the Notice of Hearing could be filed months or years after the Notice to Appear. Indeed, this is the very reason that the Supreme Court in Pereira rejected the argument that the “Notice to Appear” did not have to include the time and location of the removal proceeding, because that would defeat the ultimate objective of requiring notice—allowing the person to prepare for the hearing and potentially consult with counsel. 138 S. Ct. at 2114-15. As the Court noted, if there was no requirement for this information “the [g]overnment could serve a document labeled ‘notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.” Id. at 2115. Under such an interpretation “a noncitizen theoretically would have had the ‘opportunity to secure counsel,’ but that opportunity will not be meaningful” as the person would not truly have the opportunity to consult with counsel and prepare for the proceeding.” Id. As a Notice of Hearing, like the one here, is not explicitly connected to a particular Notice to Appear and the associated charges, the Court finds that it cannot serve to ‘cure’ a defective Notice to Appear such as in this case.

        B. The Defendant Suffered Prejudice¹

        The Court further finds that the Soto-Mejia suffered prejudice as a result of the defect in the underlying proceeding. Specifically, he was subjected to removal twice based upon the initial

Page 7

March 7 Order which the immigration court did not have jurisdiction to issue. The government’s argument that Soto-Mejia was not prejudiced because he “participated” in the removal proceedings misses the point. It is immaterial if he participated in the proceedings. He suffered prejudice by the issuance of the deportation orders because the immigration court lacked jurisdiction to order his removal on March 7, 2018.

        IV. Conclusion

        For the reasons stated, the Court finds that the March 7 and March 19 deportation orders are void due to the immigration court’s lack of jurisdiction. As these orders are void, the Court finds that the government cannot establish a predicate element—the prior removal or deportation of Soto-Mejia—of the sole offense in the Indictment. The Indictment in this case must therefore be dismissed.

        Accordingly,

        IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. The Indictment in this case is DISMISSED. The Clerk of Court shall close this case.

        IT IS FURTHER ORDERED that, as this Court has no authority to detain Defendant Soto-Mejia pursuant to this case, he is ORDERED IMMEDIATELY RELEASED.

        DATED this 6th day of December, 2018.

        /s/_________

        UNITED STATES DISTRICT JUDGE

——–

Footnotes:

        ^1. The Court finds that Soto-Mejia is not required to have exhausted any possible administrative remedies, because (a) the Supreme Court decision in Pereira issued after his March 7, 2018 proceeding and (b) defects as to subject matter jurisdiction may be raised at any time. Compagnie des Bauxites, 456 U.S. at 702-03.

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

Unlike the BIA’s convoluted reasoning in Matter of Bemudez-Cota, 27 I&N Dec. 441 (BIA 2018), Judge Boulware’s analysis is very straightforward and complies with both the statutory language and the Supreme Court decision. What’s not to like about that?

As I’ve pointed out before, Sessions was so busy artificially “jacking up” the backlog and intimidating the Immigration Judges working for him that he never bothered to address the many solvable legal and administrative problems facing the Immigration Courts. That could mean not only more failed criminal prosecutions, but perhaps more significantly, could invalidate the vast majority of the 1.1 million case backlog that Sessions artificially increased with his short-sighted, racially motivated “gonzo” polices and interpretations.

And Whitaker is following in his footsteps by taking issues off the “restrictionist checklist” for screwing asylum seekers and migrants, rather than addressing the real legal and administrative deficiencies that make the Immigration Court a parody of justice in America.

Sadly, I wouldn’t expect any improvement under Barr, whose recent totally revolting “paean to Jeff Sessions” (co-authored with former GOP AGs Meese & Mukasey) projects that until we get “regime change,” justice in America will continue to be reserved for well-to-do straight evangelical White men. https://www.washingtonpost.com/opinions/jeff-sessions-can-look-back-on-a-job-well-done/2018/11/07/527e5830-e2cf-11e8-8f5f-a55347f48762_story.html?utm_term=.aaad2f8e6250

People of color and other vulnerable minorities should continue to beware of the “Department of Injustice.”

Here’s a very compelling article by ACLU Legal Director David Cole on why Bill Barr is likely to be a “Button Down Corporate Version of Jeff Sessions.” https://www.aclu.org/blog/criminal-law-reform/no-relief-william-barr-bad-jeff-sessions-if-not-worse

Darn, perhaps carried away with all the tributes to Bush I, I had hoped for a conservative, law enforcement oriented, but non-racist, non-White-Nationalist approach to immigration. Something like firm, but fair, unbiased, professional, and rationally managed. Guess that just isn’t going to happen under a GOP that has made racist appeals, xenophobia, false narratives, and anti-democracy part of its official agenda. I have a tendency to give everyone the “benefit of the doubt” at least until proven otherwise. I guess I have to alter that when dealing with anyone associated with today’s GOP.

That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.

PWS

12-10-18

THE HILL: MORE FROM NOLAN ON ASYLUM AT THE BORDER

https://thehill.com/opinion/immigration/419492-most-recent-court-order-on-immigration-will-have-serious-unintended

Nolan writes:

. . . .

Immigration advocacy organizations filed a motion asking a U.S. District Court in Northern California to stop the rule from going into effect.

The parties agreed that the proclamation did not render any alien ineligible for asylum. District Judge Jon S. Tigar found, therefore, that the case did not present the question of whether section 212(f) authorizes the president to directly limit asylum eligibility, so he did not include the proclamation in his decision.

This was a mistake. Although the proclamation doesn’t say that it is making the illegal crossers ineligible for asylum, it prevents them from getting relief of any kind that would allow them to enter the United States.

Judge Tigar granted a temporary restraining order which prohibits any action to continue the implementation of the rule and requires a return to the pre-rule practices for processing asylum applications.

. . . .

Judge Tigar’s restoration of pre-rule practices for processing asylum applications means that the illegal crossers will not be prevented from establishing a credible fear of persecution in the expedited removal proceedings, which will entitle them to an asylum hearing before an immigration judge.

But the immigration judge will have to deny their applications because asylum would permit then to enter the United States – and the proclamation bars their entry.

Moreover, the denial will make them statutorily ineligible for asylum if they file another asylum application later.

The first paragraph in the asylum provisions states that any alien who is physically present in the United States may apply for asylum, but the second paragraph provides three exceptions.

One of the exceptions states that asylum is not available to an alien who has filed a previous application that was denied, unless he can show a change in circumstances which materially affects his eligibility for asylum.

The rule that Judge Tigar suspended would have avoided this problem by preventing the asylum seekers from getting to a hearing before an immigration judge at which their applications would be denied.

It is possible that when the proclamation is terminated, a court will find that the termination materially affects asylum eligibility and therefore that the bar to future asylum applications no longer applies.

But the third paragraph provides that no court shall have jurisdiction to review any determination on the exceptions. The courts, therefore, will not be able to reinstate asylum eligibility on this or on any other basis.

It will be up to Trump to decide whether aliens whose applications are denied on account of the proclamation will be able to file another asylum application when the proclamation is lifted.

Indefinite detention

Illegal crossers, however, may be able to avoid persecution by applying for withholding of removal.

Relief under the withholding provision just prohibits sending an alien to a country where it is more likely than not that he would be persecuted. Consequently, withholding would not violate the entry prohibition in the proclamation.

The relief would apply only to the alien who is at risk of being persecuted. It would not include his spouse or children.

The proclamation, nevertheless, would be a serious problem for aliens who are granted withholding. It would prevent them from being released from detention while arrangements are being made to find a suitable country that is willing to take them, and that may not even be possible, depending on the case.

Asylum seekers who go to ports of entry instead of making an illegal crossing are experiencing problems. Nevertheless, it might be wise to try at least some of the ports of entry before resorting to an illegal crossing.

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

Go on over to The Hill at the link to read Nolan’s complete article.

I’m not aware that anyone at DHS or EOIR has actually taken the legal position that Nolan has outlined. If they did, I would expect ACLU to have them instantly back before Judge Tigar on a contempt of court motion.

Also, that this theory hasn’t been pursued before Judge Tigar would make it unlikely that it would be argued before the Supremes, assuming that the case eventually winds up there (which I don’t). I do concede, however, that because the “Supremes are supreme” they basically can do whatever they want, including pursuing theories not argued or decided below. Most of the time, however, they prefer a more judicially (and politically) prudent approach.

I agree with Nolan’s bottom line that notwithstanding the inconvenience and the apparent slowdown by the Administration in asylum processing, asylum applicants would be well advised to patiently and peacefully wait in line to pursue their applications at ports of entry. There are also several cases pending which ultimately could provide some relief from both the intentional slowdown of processing at the ports of entry, and the skewing of the credible fear process against applicants from the Northern Triangle.

Stay tuned.

PWS

12-07-18

LEGAL ETHICS HAVE “TANKED” IN THE TRUMP/SESSIONS/WHITAKER DOJ, AS YET ANOTHER (“REAL”) FEDERAL JUDGE REBUKES GOV’S DISINGENUOUS & DILATORY TACTICS! –“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether!”

https://www.huffingtonpost.com/entry/census-citizenship-question-trial-delay_us_5bf48e1fe4b0eb6d93095d61

Sam Levine reports for HuffPost:

A federal judge in New York City strongly rebuked the Trump administration on Tuesday over its repeated attempts to slow down a lawsuit challenging the addition of a citizenship question to the 2020 census.

The ruling from U.S. District Judge Jesse Furman came in response to a request that he halt further proceedings in the trial until the U.S. Supreme Court ruled on what evidence he could consider. The Supreme Court had rejected a very similar request to temporarily stop the litigation just weeks ago, the judge noted.

The judge, who sits in the Southern District of New York, did not hold back his frustration in his 7-page opinion, noting that the Department of Justice had submitted 12 separate requests to delay the proceedings since the Labor Day weekend.

“Unless burdening Plaintiffs and the federal courts with make-work is a feature of Defendants’ litigation strategy, as opposed to a bug, it is hard to see the point,” Furman wrote.

All along, the judge has expressed a desire to move the case along quickly, recognizing that any decision he makes is likely to be appealed to higher courts and that the issue needs to be resolved quickly so that the Census Bureau has time to print the census forms.

“Enough is enough,” Furman wrote in his Tuesday ruling.

The lawsuit ― brought by 18 states, the District of Columbia, several cities and a handful of immigrant groups ― argues that the decision to add the citizenship question was motivated by discriminatory intent. They also say the decision should be set aside on the grounds that it was “arbitrary and capricious.”

In this latest effort to stall the proceedings, the Justice Department said that doing so would help conserve judicial resources, an argument the judge dismissed as “galling.”

“If Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless,” Furman wrote. “Instead, Defendants would have focused their attention on the ultimate issues in this case, where the attention of the parties and the Court now belongs.”

Kelly Laco, a Justice Department spokeswoman, declined to comment on Furman’s ruling.

The Justice Department appealed this latest motion to the U.S. Court of Appeals for the 2nd Circuit even before Furman had ruled on it ― a highly unusual move that clearly annoyed the judge, who suggested the department’s conduct in the case was sanctionable.

“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” the judge wrote. “That conclusion is reinforced by the fact that Defendants, once again, appealed to the Second Circuit even before this Court had heard from Plaintiffs, let alone issued this ruling on the motion.”

Furman also noted that the 2nd Circuit had already denied that appeal as “premature.”

Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, who is leading the case for the plaintiffs, praised Furman’s decision.

“We agree with Judge Furman: enough is enough,” Spitalnick said in a statement.

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

Seems like it’s past time for the courts and bar associations to impose sanctions on the DOJ attorneys for their widespread unethical behavior and bad faith in conducting litigation in behalf of this scofflaw Administration!

PWS

11-23-18

TRUMP ADMINISTRATION SCOFFLAWS’ LATEST PLOT AGINST ASYLUM SEEKERS SURE TO CAUSE INTERNATIONAL CHAOS & DRAW NEW LEGAL CHALLENGES – No Wonder These Immoral Cowards Have Such Fear Of Truly Independent Judges (Not To Be Confused With EOIR’s “Captive Judges”)

https://www.washingtonpost.com/world/national-security/trump-plan-would-force-asylum-seekers-to-wait-in-mexico-as-cases-are-processed-a-major-break-with-current-policy/2018/11/21/5ad47e82-ede8-11e8-9236-bb94154151d2_story.html?utm_term=.4059c5192c0c

Nick MIroff, Joshua Partlow, and Josh Dawsey report for the WashPost:

November 21 at 10:18 PM

Central Americans who arrive at U.S. border crossings seeking asylum in the United States will have to wait in Mexico while their claims are processed under sweeping new measures the Trump administration is preparing to implement, according to internal planning documents and three Department of Homeland Security officials familiar with the initiative.

According to DHS memos obtained by The Washington Post on Wednesday, Central American asylum seekers who cannot establish a “reasonable fear” of persecution in Mexico will not be allowed to enter the United States and would be turned around at the border.

The plan, called “Remain in Mexico,” amounts to a major break with current screening procedures, which generally allow those who establish a fear of return to their home countries to avoid immediate deportation and remain in the United States until they can get a hearing with an immigration judge. Trump despises this system, which he calls “catch and release,” and has vowed to end it.

Among the thousands of Central American migrants traveling by caravan across Mexico, many hope to apply for asylum due to threats of gang violence or other persecution in their home countries. They had expected to be able to stay in the United States while their claims move through immigration court. The new rules would disrupt those plans, and the hopes of other Central Americans who seek asylum in the United States each year.

[Trump lashes out at judge after order to allow illegal border crossers to seek asylum]

Trump remains furious about the caravan and the legal setbacks his administration has suffered in federal court, demanding hard-line policy ideas from aides. Senior adviser Stephen Miller has pushed to implement the Remain in Mexico plan immediately, though other senior officials have expressed concern about implementing it amid sensitive negotiations with the Mexican government, according to two DHS officials and a White House adviser with knowledge of the plan, which was discussed at the White House on Tuesday, people familiar with the matter said.

The White House did not immediately respond to a request for comment.

According to the administration’s new plan, if a migrant does not specifically fear persecution in Mexico, that is where they will stay. U.S. Citizenship and Immigration Services is sending teams of asylum officers from field offices in San Francisco, Washington, and Los Angeles to the ports of entry in the San Diego area to implement the new screening procedures, according to a USCIS official.

To cross into the United States, asylum seekers would have to meet a relatively higher bar in the screening procedure to establish that their fears of being in Mexico are enough to require immediate admission, the documents say.

“If you are determined to have a reasonable fear of remaining in Mexico, you will be permitted to remain in the United States while you await your hearing before an immigration judge,” the asylum officers will now tell those who arrive seeking humanitarian refuge, according to the DHS memos. “If you are not determined to have a reasonable fear of remaining in Mexico, you will remain in Mexico.”

Mexican border cities are among the most violent in the country, as drug cartels battle over access to smuggling routes into the United States. In the state of Baja California, which includes Tijuana, the State Department warns that “criminal activity and violence, including homicide, remain a primary concern throughout the state.”

The new rules will take effect as soon as Friday, according to two DHS officials familiar with the plans.

Katie Waldman, a spokeswoman for DHS, issued a statement late Wednesday saying there are no immediate plans to implement these new measures.

“The President has made clear — every single legal option is on the table to secure our nation and to deal with the flood of illegal immigrants at our borders,” the statement says. “DHS is not implementing such a new enforcement program this week. Reporting on policies that do not exist creates uncertainty and confusion along our borders and has a negative real world impact. We will ensure — as always — that any new program or policy will comply with humanitarian obligations, uphold our national security and sovereignty, and is implemented with notice to the public and well coordinated with partners.”

A Mexican official, speaking on the condition of anonymity, said that current Mexican immigration law does not allow those seeking asylum in another country to stay in Mexico.

On Dec. 1, a new Mexican president, Andrés Manuel López Obrador, will be sworn in, and it’s also unclear whether his transition team was consulted on the new asylum screening procedures.

The possibility that thousands of U.S.-bound asylum seekers would have to wait in Mexico for months, even years, could produce a significant financial burden for the government there, especially if the migrants remain in camps and shelters on a long-term basis.

[At the U.S. border, migrant caravan will slow to a crawl]

There are currently 6,000 migrants in the Tijuana area, many of them camped at a baseball field along the border, seeking to enter the United States. Several thousand more are en route to the city as part of caravan groups, according to Homeland Security estimates.

U.S. border officials have allowed about 60 to 100 asylum seekers to approach the San Ysidro port of entry each day for processing.

Last week, BuzzFeed News reported that U.S. and Mexican officials were discussing such a plan.

Mexico also appears to be taking a less-permissive attitude toward the new migrant caravans now entering the country.

Authorities detained more than 200 people, or nearly all of the latest caravan, who recently crossed Mexico’s southern border on their way to the United States. This is at least the fourth large group of migrants to cross into Mexico and attempt to walk to the U.S. border. They were picked up not long after crossing. The vast majority of the migrants were from El Salvador, according to Mexico’s National Immigration Institute.

After the first caravan this fall entered Mexico, President Enrique Peña Nieto’s administration offered migrants the chance to live and work in Mexico as long as they stayed in the southern states of Chiapas and Oaxaca. Most chose not to accept this deal, because they wanted to travel to the United States.

nick.miroff@washpost.com

joshua.partlow@washpost.com

josh.dawsey@washpost.com

Partlow reported from Mexico City. Dawsey reported from West Palm Beach, Fla.

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

Let’s see, Trump shrugs off the murder of a Washington Post journalist by Saudi Arabia’s Crown Prince, downplays Putin’s overt interference in our elections, promotes mindless nationalism of the exact type responsible for two World Wars and tens of millions of avoidable deaths, and praises massive human rights violator and murderer Kim even as the latter is duping him on nukes. So, he’s scared to stand up to anyone powerful or for ideals and values that take courage to promote and advance.

But, when it comes to bullying, demonizing, and beating up on harmless but extremely vulnerable and desperate refugees, many of them women, children, and families fleeing for their lives, he excels. What does that tell us about the lack of character of the “man,” and the total lack of judgement and regard for American values of those in the minority who put him in office and continue to prop him up?

This appears to be a reaction to: 1) Federal Courts requiring Trump to follow the law; 2) Mexico’s refusal to be bullied into signing an absurdly inappropriate and totally one-sided “safe third country” agreement; 3) Congresses failure to fund the wasteful “Wall;” and 4) the near total, yet highly predictable, failure of Trump’s racist, White Nationalist inspired “get tough” immigration enforcement policies.

The Federal Courts are likely to permanently enjoin Trump from ignoring the law that specifically allows anyone in the U.S., legally or not, to apply for asylum. Additionally, Trump encourages violence against refugees and creates unsafe, inhumane conditions on the Mexican side of the border. Consequently, the end result of Trump’s intentional “making folks wait in Mexico” policy is likely to be encouraging individuals seeking asylum to enter illegally and then turn themselves in to the authorities to apply for asylum in the U.S.

Meanwhile, the better options of working with the UNHCR and Mexico to promote a multinational approach to protection and to solve the problems in the Northern Triangle causing this humanitarian flow remain unaddressed by the Trumpsters.

Also, when will the “Face of Evil,” Stephen Miller, finally be held accountable for his consistently cowardly and racist attacks on the law and the American legal system?

PWS

11-22-18

HAPPY THANKSGIVING! – TRUMP SCOFFLAWS OUTED AGAIN! – Judge Considers Sanctions Against Administration Officials & Their Lawyers For Lies, Disobeying Court Orders, & Continuous Course Of Unethical Behavior! — “Government Has Acted Ignobly In This Case” — Trumpsters Win “Courtside’s” Coveted Five Turkey Award!

http://www.aclumich.org/article/us-district-court-orders-release-iraqi-detainees

The ACLU reports:

The American Civil Liberties Union (ACLU) of Michigan applauds the decision of U.S. District Judge Mark A. Goldsmith to order the U.S. Immigration and Customs Enforcement (ICE) to release all Iraqis within 30 days.

“The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future,” wrote Judge Goldsmith in a 59-page opinion.

Judge Goldsmith also wrote that he will impose sanctions on the Government for “…failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.”

“Today’s decision is about accountability,” said ACLU senior staff attorney Miriam Aukerman. “ICE thought it could get away with lying to a federal judge. ICE thought it could get away with using indefinite detention to coerce Iraqis to accept deportation despite the dangers they face in Iraq. Today, Judge Goldsmith made it clear that ICE is not above the law.”

“It is appalling that ICE lied to the Court, and even more appalling that it did so in order to keep people wrongfully incarcerated,” said University of Michigan law professor Margo Schlanger, a cooperating attorney for the ACLU. “The Court made it absolutely clear that it will not tolerate such misconduct, and that ICE cannot simply lock people up and throw away the key.”

“We are delighted that families who have been separated for so long will finally be reunited,” said Kim Scott, an attorney at Miller Canfield who also represents the detainees. “As a result of today’s order, many of those who were unjustly detained will be home with their families for the holidays.”

Today’s ruling is the latest development in Hamama v. Adducci, a nationwide class action filed in June 2017 on behalf of hundreds of Iraqi nationals, who were arrested throughout the country without warning and threatened with immediate deportation. Many came to the U.S. as children and have lived and worked in the U.S. for decades. They now face persecution, torture, or even death in Iraq because of their religion, ethnicity, or the fact that they are Americanized. Approximately 120 Iraqis remain detained.

Read Judge Goldsmith’s order here.

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

Thanks to Dan Kowalski over at LexisNexis Immigration Community for passing this along. And, congrats to the ACLU for brightening the Thanksgiving Day of not only these long-abused Iraqi detainees, but also of the substantial number of us who still believe in and cherish real American values — even in the “Dark Ages” of the Trump Administration!

Great news, and long, long overdue! Many of us have been calling for some time now for full accountability for Trump officials and their often ethically challenged lawyers who are out to abuse and destroy our precious legal system. There was a time in the not too distant past when U.S.Government lawyers were supposed to be held to a higher standard of promoting fairness, justice, and judicial efficiency. As I used to tell newly hired INS lawyers — “The Government wins when justice prevails — regardless of which party ‘wins’ the case.” That went out the door when Trump and his corrupt cronies like Jeff Sessions stepped in.

Federal Judges finally are losing patience with the types of blatant, “in your face” abuses by the Trump Administration that undoubtedly would have landed private parties and counsel in hot water long ago. Where’s the justice in a system that imprisons, deports, and otherwise abuses victims while letting the abusers walk free to strike again?

“[T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.” — U.S. District Judge Mark A. Goldsmith

For their shockingly inappropriate and unethical conduct of and in Federal Court litigation, the Trump Administration officials involved in this and many similar abusive cases get “Courtside’s” Thanksgiving “Five Turkey Award.”

PWS

11-22-18

🦃🦃🦃🦃🦃

SCOFFLAWS OUTED AGAIN: U.S. DISTRICT JUDGE BLOCKS TRUMP’S ILLEGAL ATTACK ON ASYLUM LAW: ORDERS PROCESSING OF ALL WHO APPLY TO RESUME! — “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden!”

https://www.nytimes.com/2018/11/20/us/judge-denies-trump-asylum-policy.html?action=click&module=Top%20Stories&pgtype=Homepage

Miriam Jordan reports for the NY Times:

LOS ANGELES — A federal judge on Monday ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States, dealing at least a temporary setback to the president’s attempt to clamp down on a huge wave of Central Americans crossing the border.

Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.

“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Mr. Tigar wrote in his order.

As a caravan of several thousand people journeyed toward the Southwest border, President Trump signed a proclamation on Nov. 9 that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Only those who entered the country through a port of entry would be eligible, he said, invoking national security powers to protect the integrity of the United States borders.

Within days, the administration submitted a rule to the federal registry, letting it go into effect immediately and without the customary period for public comment.

But the rule overhauled longstanding asylum laws that ensure people fleeing persecution can seek safety in the United States, regardless of how they entered the country. Advocacy groups, including the Southern Poverty Law Center and the American Civil Liberties Union, swiftly sued the administration for effectively introducing what they deemed an asylum ban.

The advocacy groups accused the government of “violating Congress’s clear command that manner of entry cannot constitute a categorical asylum bar” in their complaint. They also said the administration had violated federal guidelines by not allowing public comment on the rule.

But Trump administration officials defended the regulatory change, arguing that the president was responding to a surge in migrants seeking asylum based on frivolous claims, which ultimately lead their cases to be denied by an immigration judge. The migrants then ignore any orders to leave, and remain unlawfully in the country.

”The president has sought to halt this dangerous and illegal practice and regain control of the border,” government lawyers said in court filings.

Mr. Trump, who had made stanching illegal immigration a top priority since his days on the campaign trail, has made no secret of his frustration over the swelling number of migrants heading to the United States. The president ordered more than 5,000 active-duty troops to the border to prevent the migrants from entering.

The new rule was widely regarded as an effort to deter Central Americans, many of whom request asylum once they reach the United States, often without inspection, from making the journey over land from their countries to the border.

United States immigration laws stipulate that foreigners who touch American soil are eligible to apply for asylum. They cannot be deported immediately. They are eligible to have a so-called credible fear interview with an asylum officer, a cursory screening that the overwhelming majority of applicants pass. As result, most of the migrants are released with a date to appear in court.

In recent years, more and more migrants have availed of the asylum process, often after entering the United States illegally. A record 23,121 migrants traveling as families were detained at the border in October. Many of the families turn themselves in to the Border Patrol rather than queue up to request asylum at a port of entry.

The Trump administration believes the migrants are exploiting asylum laws to immigrate illegally to the United States. Soaring arrivals have exacerbated a huge backlog of pending cases in the immigration courts, which recently broke the one-million mark. Many migrants skip their court dates, only to remain illegally in the country, which Mr. Trump derides as “catch and release.”

But advocates argue that many migrants are victims of violence or persecution and are entitled to seek sanctuary. Gangs are ubiquitous across El Salvador, Honduras and Guatemala, where lawlessness and corruption enable them to kill with impunity.

Daniel Victor contributed reporting from Hong Kong.

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

Entirely predictable. “Many of the families turn themselves in to the Border Patrol rather than queue up to request asylum at a port of entry.”

Why aren’t ethical requirements being enforced on Government lawyers who present and defend these clearly frivolous positions in court? Knowingly and intentionally depriving individuals of statutory, civil, and constitutional rights, while tying up Federal Judges and other “officers of the court” on frivolous political stunts directed at harming individuals on the basis of race and nationality must, at some point, be deterred!

These are not criminal proceedings, and the Administration is not entitled to a “presumption of innocence” for its lawless actions. At some point, ethical lawyers have an obligation “not to serve” a lawless Administration and to publicly disclose and oppose the Administration’s intentionally illegal actions and intentional wrongdoing aimed at migrants and communities of color in the U.S. “Job security” doesn’t entitle Government employees, let alone those who also are members of the bar, to violate their oaths to uphold the Constitution.

And no, no matter how much the GOP appointees might want to do so, the Supremes can’t authorize the President to rewrite the clear terms of the law at his whim.

PWS

11-20-18

THE HILL: NOLAN SAYS TRUMP’S BORDER ORDER IS NQRFPT!

“NQRFPT” = “Not Quite Ready for Prime Time” (as some might remember from my days on the bench)

https://thehill.com/opinion/immigration/416195-trump-should-withdraw-his-asylum-proclamation

Nolan writes:

. . . .

Detention will continue to be a major problem, regardless.

Under the proclamation, DHS would not have to screen aliens to determine whether they have a credible fear of persecution for asylum purposes, but it would have to screen them to determine if they have a reasonable fear of persecution.

The United States is a signatory to the Refugee Convention, which prohibits expelling a refugee to a country where it is likely that he will be persecuted. Asylum just requires a well-founded fear of persecution.

This condition is met with the withholding of deportation provision in the INA for aliens who establish that it is more likely than not that they will be persecuted.

America also is a signatory to the Convention Against Torture (CAT), which provides that, “No State Party shall expel … a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Relief under these provisions is limited to sending the alien to a country where he would not be persecuted or tortured.

The proclamation should be withdrawn until these problems can be resolved.

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

Go on over to The Hill at the link to read Nolan’s complete article (I have just reprinted the concluding section above). It also was a “headliner” at ImmigrationProf Blog: https://lawprofessors.typepad.com/immigration/2018/11/president-trump-should-withdraw-his-asylum-proclamation.html

Nolan’s conclusion ties in nicely to my preceding posts that confirm, as Nolan points out, that CBP, the Asylum Office, the Immigration Courts, and probably the Federal Courts are woefully unprepared for the additional chaos and workload that is likely to be created by Trump’s shortsighted actions. Like most of what Trump does in the immigration areas it demonstrates a chronic misunderstanding of the laws, how the system operates, the reality of what happens at the border, and ignores the views of career civil servants and experts in the area. In other words, a totally unprofessional performance. But, that’s what “kakistocracy” is all about.

We’ll see what happens next. I expect a U.S. District court ruling on the ACLU’s suit to stop implementation of the Executive Order and the “Interim Regs” to be issued in the near future.

PWS

11-13-18

GROUPS SUE TO BLOCK TRUMP’S ATTACK ON ASYLUM LAWS — Administration Outraged At Prospect Of Being Held Accountable For Violating Laws!

https://www.theguardian.com/us-news/2018/nov/09/trump-asylum-seekers-mexico-border-ban-lawsuit-aclu-splc?CMP=Share_iOSApp_Other

Amanda Holpuch in New York

Published: 17:44 EST Friday, 09 November 2018

Following Amanda Holpuch

Leading civil rights groups have filed a lawsuit asking a federal court to end Donald Trump’s ban on people seeking asylum at the US border with Mexico because it violates US law.

Migrant caravan families face illness, exhaustion and danger

Starting on Saturday, people fleeing persecution can be barred from the asylum process if they do not approach the border at designated border checkpoints.

The order will remain in effect for at least three months, unless a judge rules in favor of the lawsuit filed in federal court by the American Civil Liberties Union (ACLU), Southern Poverty Law Center (SPLC) and Center for Constitutional Rights.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said Trump and his administration were trying to override US law by instituting the ban. “This action undermines the rule of law and is a great moral failure because it tries to take away protections from individuals facing persecution – it’s the opposite of what America should stand for,” Jadwat said.

The government considers the bar an emergency measure to respond to people fleeing violence in the Honduras, Guatemala and El Salvador, but it comes after Trump repeatedly described desperate Central Americans as “an invasion”.

The 18-page lawsuit challenges Trump administration claims that the border is in “crisis” and instead describes how illegal border crossings have declined significantly from record highs in the early 2000s – 1.25 million fewer people were processed at the southern border in fiscal year 2018 than the in fiscal year 2000.

While Trump administration officials have for years accused many asylum seekers of manipulating the system, the lawsuit said many people seeking refuge are not well informed about the process or know that they should approach a designated port of entry to request asylum.

“Even those refugees who know that designated ports of arrival exist often have no idea where they are or how to find them,” the suit said.

The suit also claims asylum processing has slowed in recent months in ways that can be “life-threatening” for people seeking refuge.

“The region of Mexico near the border with the United States is a particularly violent area with limited law enforcement capacity,” the suit said. “Asylum seekers turned back from a port of entry have been raped, beaten and kidnapped and held for ransom by cartel members waiting outside.”

In a joint statement, the Department of Homeland Security and Department of Justice said the president’s order was lawful. “We should not have to go to court to defend the president’s clear legal authority or our rights as a sovereign nation, but we will not hesitate to do so,” the statement said. “We are confident that the rule of law will prevail.

“The fact that the ACLU and its partners would go to court to specifically sue for the right for aliens to enter the country illegally is demonstrative of the open border community’s disdain for our nation’s laws that almost all rational Americans find appalling.”

The suit was brought on behalf of the immigrant advocacy groups East Bay Sanctuary Covenant and Al Otro Lado, as well as the Innovation Law Lab and Central American Resource Center in Los Angeles. The suit says the new ban forces these aid groups to divert their resources from providing assistance and support to individuals fleeing persecution and violence.

Judge orders Trump administration to continue ‘Dreamers’ program

The bar follows two years of efforts by the Trump administration to restrict legal and illegal immigration to the US, including by targeting the asylum and refugee process.

In June, former attorney general Jeff Sessions ordered US immigration courts to stop granting asylum to victims of domestic abuse and gang violence.

In August 2017, the Trump administration announced it shut down the Central American Minors (Cam) program, which allowed people lawfully in the US to apply for refugee resettlement or temporary immigration status for their children or other eligible family members.

It has also shrunk refugee admissions to a record low – making it more difficult for people to apply for refuge from their home country instead of pursuing a case at the border.

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

Trump’s attempt to rewrite asylum law is a total sham. We’ll see how the Federal Court reacts.

Also interesting that there is no evidence that the Administration is sending additional Asylum Officers to ports of entry. Another indication that this is a sham meant to punish, discourage, and deter asylum seekers — not just to encourage them to go to ports of entry which many do already.

PWS

11-10-18

TRUMP’S TOADIES: EOIR JOINS “PARTNERS” AT DHS IN FRIVOLOUS “INTERIM” REG THAT CLEARLY VIOLATES ASYLUM STATUTE! — All In Pursuit Of Trump’s Racist, Anti-Asylum Agenda!

Here’s a link to the “Interim Regulations:”

https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-24594.pdf

Here’s “Tal’s Take:”

https://www.sfchronicle.com/politics/article/Trump-administration-to-issue-travel-ban-like-13376110.php

Trump administration to issue travel ban-like rule at southern border

Tal Kopan Nov. 8, 2018

WASHINGTON — The Trump administration is using travel ban-like authority to substantially curtail immigrants’ ability to seek asylum in the U.S.

The administration took the first step Thursday to bar immigrants from applying for asylum if they cross the southern border illegally. On Friday, President Trump is likely to issue a proclamation implementing the ban, a senior administration official suggested in a briefing.

The ban will apply to future illegal border crossers, not those who have already entered the country, the official said.

The move, which was first reported by The Chronicle last month, comes as a caravan of thousands of impoverished migrants is slowly traveling through Mexico toward the U.S. The migrants are still several weeks away from the border, but Trump has already sent 5,000 troops to the Southwest to prepare for their possible arrival.

Related Stories

Trump’s proclamation will apply only apply to those who cross the U.S.-Mexican border illegally. The goal, said a second administration official, is to “funnel” asylum seekers to legal border crossings, where the government is “better resourced” and has “better capabilities and better manpower and staffing.”

But the rule could have overwhelming consequences for crossings like San Ysidro in San Diego County. The busiest land crossing in the Western hemisphere, that port of entry already struggles to process immigrants who arrive seeking asylum, with wait times often approaching weeks.

The administration officials did not answer a question about how the ports of entry would be able to accommodate even more immigrants.

The San Ysidro crossing can process 50 to 100 immigrants a day, according to Customs and Border Protection Commissioner Kevin McAleenan. There were days in July when the line was 1,000 people long.

Officials cannot legally turn away immigrants seeking asylum at recognized border crossings. But they do conduct “metering,” stopping immigrants before they get to the crossing and telling them they have to come back.

That has created desperate situations south of the border. An inspector general’s report analyzing the administration’s handling of the family separation crisis this summer blamed “metering” for causing more people to cross into the U.S. illegally.

Federal law says asylum protections, which afford a path to citizenship for qualifying immigrants who fear persecution in their home countries, are available to immigrants “whether or not” they arrive at a legal crossing. The administration argues that other provisions of the law allow them to restrict that.

Immigrant advocates disagree, and have already said they will sue to block Trump’s expected proclamation.

“The asylum ban is patently unlawful and disregards our nation’s long commitment to providing a safe haven for those fleeing danger. Court challenges are coming,” said Lee Gelernt, a lead immigration attorney for the American Civil Liberties Union.

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

These “Interim Regs” are 78 pages of pure legal gobbledygook, bureaucratic doublespeak, and irrelevant and intentionally misleading stats purporting to “justify the unjustifiable.” So, I’ll make this simple.

The asylum statute says individuals have a right to apply for asylum regardless of legal status and without regard to whether they arrived or entered at a legal “port of entry;”
This “Interim Regulation” purports to make those who don’t arrive at a port of entry ineligible to apply for asylum;
The regulation cites a statutory provision that allows the AG and the Secretary of DHS to create “exceptions” and “conditions” on applicants by regulation;
But, that statute actually says those “exceptions and conditions” must be “consistent with” the statute;
The “exception” to eligibility in this Interim Regulation specifically contradicts the clear language of the statute permitting those who enter or arrive illegally to apply for asylum;
Therefore, the exception is beyond the authority of the AG and the Secretary to create by regulation;
Indeed, the facial invalidity of this Interim Regulation is so clear that the EOIR and DHS position is frivolous— not passing the “straight face test” — and the policy officials and bureaucrats involved are promoting frivolous litigation before the Federal Courts — generally frowned upon when done by members of the public!
Perhaps at some point the Federal Courts will assert themselves by starting to “take names” of those US Government officials wasting court time in pursuit of illegal, racially-motivated objectives.

No wonder the Dudes who drafted this piece of garbage wanted to bury their real actions and intent in 78 pages of pure nonsense! This from an Administration supposedly committed to cutting bureaucracy and eliminating unnecessary and burdensome regulations!

Tomorrow, as previously promised, Trump will continue to carry out his racist, White Nationalist political agenda by declaring a totally bogus “immigration emergency” by Executive Order (similar to the bogus emergency he used to justify the discriminatory and bogus “Travel Ban”). The only question is whether the Federal Courts will let him get away with thumbing his nose at the statute, our Constitution, and the authority of the Article III Courts themselves.

Stay tuned!

PWS

11-08-18

MOLLY HENNESSY-FISKE @ LA TIMES: Trump Administration Already Violating Law By Turning Away Asylum Applicants At Ports Of Entry: “Instead of expanding capacity to process asylum seekers at border crossings, officials have forced them to wait. The method varies from crossing to crossing.”

http://www.latimes.com/nation/la-na-border-immigrants-asylum-20181031-story.html

Molly reports in the LA Times:

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.

The Office of Inspector General at the U.S. Department of Homeland Security recently reported that the practice of metering may have increased illegal border crossings.

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.”

The asylum seekers lingered on the bridge.

“What can we do?” the Mexican mother said.

Out of money and options, they would wait.

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

The Trump Administration is squandering $50 million of your money to send troops to the US border for no tactical reasons whatsoever. https://www.newsweek.com/trump-administration-migrant-caravan-border-troops-1194215

And this is just for starters — the first few months. The total tab is likely to be multiples of $50 million.

The troops are prohibited by law from enforcing US immigration and criminal laws. As one critic of the previous, much smaller, deployment stunt indicated, the soldiers were basically used to “shovel horse manure” out of the Border Patrol’s stalls!https://thehill.com/homenews/administration/392582-national-guard-soldiers-trump-sent-to-border-are-shoveling-manure

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.”

PWS

10-31-18

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MY STATEMENT ON GRACE V. WHITAKER:

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That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.

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And no, no matter how much the GOP appointees might want to do so, the Supremes can’t authorize the President to rewrite the clear terms of the law at his whim.

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“NQRFPT” = “Not Quite Ready for Prime Time” (as some might remember from my days on the bench)

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These “Interim Regs” are 78 pages of pure legal gobbledygook, bureaucratic doublespeak, and irrelevant and intentionally misleading stats purporting to “justify the unjustifiable.” So, I’ll make this simple.

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