Credible Fear – Page 13 – immigrationcourtside.com

BARR EXPANDS “NEW AMERICAN GULAG” — Indefinite Detention Without Bond Hearings For Those Who Establish Credible Fear Of Persecution — DHS Detention Capacity Already Outstripped, Requiring 90 Day Delay In Implementing!

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

matter_m-s-_27_in_dec._509_a.g._2019_002

BIA HEADNOTE:

(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.

KEY QUOTE:

Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have “an immediate and significant impact on [its] detention operations.” DHS Br. 23 n.16. DHS accordingly requests that I delay the effective date of this decision “so that DHS may conduct necessary operational planning.” Id. Federal circuit courts have discretion to delay the effective dates of their decisions, see Fed. R. App. P. 41(b), and I conclude that I have similar discretion. I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions.

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Short Takes:

An increase in mandatory detention is sure to mean more “Aimless Docket Reshuffling” (“ADR”); as more detained cases are moved to the front of the docket, they will displace lower priority (but “ready to try”) non-detained cases which will be “shuffled off to Buffalo” thus increasing the already overwhelming backlog; as more Immigration Judges are sent to detention facilities near the border, they will “leave behind” already full dockets creating even more chaos in an already dysfunctional system;
Expanding mandatory detention raises the stakes even higher in the pending litigation on whether mandatory prehearing detention without recourse to individualized bond determinations by Immigration Judges violates the Due Process Clause of the Fifth Amendment — See Rodriguez v. Marin, https://immigrationcourtside.com/2018/11/27/our-gang-in-action-9th-cir-remands-jennings-v-rodriguez-keeps-injunction-in-effect-hints-that-administration-scofflaws-could-be-in-for-another-big-loss-will-we-see-th/
Obviously, planning for the result they asked for (and these days were almost certain to get from the AG) wasn’t part of the DHS program.

PWS

04-16-19

9TH CIR. TEMPORARILY STAYS ORDER BARRING “REMAIN IN MEXICO”

https://www.nytimes.com/2019/04/12/us/trump-asylum-seekers-mexico.html?smid=nytcore-ios-share

Mihir Zaveri reports for the NY Times:

A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a stay of a lower-court ruling four days earlier that blocked the administration’s protocol. The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.

The administration in December announced its new policy, called the migration protection protocols, arguing that it would help stop people from using the asylum process to enter the country and remain there illegally. President Trump has long been angered by so-called catch and release policies, under which asylum seekers are temporarily allowed in the United States while they wait for their court hearings.

On Monday, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against Mr. Trump’s new protocols, saying that the president did not have the power to enforce them and that they violated immigration laws.

Judge Seeborg said in his ruling that the protocols did not include “sufficient safeguards” to comply with the Department of Homeland Security’s obligation against returning migrants to places where their “life or freedom would be threatened.”

On Friday, as Judge Seeborg’s injunction was set to go into effect, a three-judge panel for the Ninth Circuit issued the temporary stay.

In a tweet late Friday night, President Trump wrote: “Finally, great news at the Border!” He has previously criticized the Ninth Circuit, which is based in San Francisco, saying that the court always ruled against him. While that is not always true, the administration’s track record in the circuit has been poor.

The Justice Department, which appealed Judge Seeborg’s decision, argued that the injunction would “impose immediate, substantial harm on the United States, including by diminishing the executive branch’s ability to work effectively with Mexico to manage the crisis on our shared border.”

The Ninth Circuit will consider next week whether to keep the stay — and Mr. Trump’s protocols — in place during the appeal.

Judy Rabinovitz, the deputy director of the Immigrants’ Rights Project at the American Civil Liberties Union, who argued the case, said she expected that decision to come next week.

“The question will be, can the government continue to implement the policy while it appeals it to the Ninth Circuit,” she said. “Obviously, we don’t think it should be able to.”

She called the policy unlawful and cruel.

“We think it should be stopped,” she said.

Lawyers for the Justice Department did not immediately respond to requests for comment.

The appeals court’s decision comes as the nation’s immigration system may have reached a breaking pointas migrants increasingly arrive at the country’s southwestern border with Mexico.

The flow of migrant families has reached record levels, with February totals 560 percent above those for the same period last year. Many are seeking asylum, in which they have the burden to show evidence of past persecution or testimony that establishes the “well-founded” fear that they would face danger if they return home.

The Trump administration’s migration protection protocols were an attempt to deter migrants. Mexico’s government reluctantly agreed to house the migrants in December.

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No dull moments. Stay tuned.

PWS

04-13-19

TRUMP’S WHITE NATIONALIST DRIVEN “MALICIOUS INCOMPETENCE” HAS MADE THE BORDER SITUATION WORSE — Refugees, Many Of Them Abused Women & Children, & Other Vulnerable Migrants Are Being “Re-Victimized” By An Administration That Spreads Racist-Inspired Lies, Mocks The Rule Of Law, & Has Abandoned Human Decency!

https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html

Michael D. Shear, Miriam Jordan, and Manny Fernandez report for the NY Times:

. . . .

American diplomats say the best way to confront that kind of lawlessness is with the hundreds of millions of dollars in foreign aid that has been flowing to Guatemala, El Salvador and Honduras for several years, designed to bolster the rule of law and improve the economy.

Image

At the Good Neighbor Settlement House in Brownsville, migrants rest, exhausted, after a meal.CreditIlana Panich-Linsman for The New York Times

Last week, Mr. Trump abruptly abandoned those efforts, ordering the State Department to scrap about $500 million in aid to the three countries. Mr. Trump’s decision has been criticized by members of both parties, who call it shortsighted.

Likewise, critics say that Mr. Trump’s repeated denigration of Mexico over the years — including his insistence on building a border wall — risks undermining Mexico’s willingness to help to keep Central American migrants from traveling to the United States.

“This is the first Mexican administration that has even been oriented toward doing that,” Ms. Meissner, the Clinton administration immigration commissioner, said.

But blaming other countries and painting those coming across the border from Mexico as a national security threat has never failed to animate Mr. Trump’s core supporters — the ones who helped deliver him the White House in 2016.

“It’s an invasion,” Mr. Trump declared in February, after Congress denied him money to build a wall. “We have an invasion of drugs and criminals coming into our country.”

In fact, the migrants are mostly victims of the broken immigration system. They are not, by and large, killers, rapists or gang members. Most do not carry drugs. They have learned how to make asylum claims, just as the law allows them to do. And nearly all of them are scared — of being shipped off to Mexico, separated from their children, sent to prison. Scared, especially, of going home.

Zolan Kanno-Youngs and Caitlin Dickerson contributed reporting.

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This is just the conclusion of the much longer article that you can read at the above link.

Unless and until the U.S. recognizes the situation for what it is — Forced Migration —- there can be no effective solutions.

Tone-deaf (and worse) legislators and policy makers (mostly in the GOP) refuse to recognize the fundamental truth — Forced Migrants are Forced Migrants — they ultimately won’t be deterred by harsh laws, malicious prosecutions, biased judges, unfair “expeditious returns,” inhumane imprisonments, racist rhetoric, or any of the other often tried always failed enforcement policies that this Administration and its supporters so love.

The other fundamental truth that Trump ignores is that refugees, asylees, and other forced migrants overall have a positive impact on receiving countries. They are a human force that should be regulated but not generally avoided. Indeed, that’s a “win-win” formula for success that should replace our current Administration’s insistence on intentionally turning migration situations from opportunities for success into otherwise avoidable “lose-lose” situations.

What will work is dealing with the root causes of forced migration; providing feasible alternatives to coming to the U.S.; fairly and timely adjudicating applications for protection; assimilation; and in some cases truly voluntary, interest-based decisions to return to a country of origin after conditions improve (not expulsion or forced returns).

Targeting human smugglers, drug smugglers, persecutors, and other types of criminals through sophisticated, intelligence-biased undercover-type operations could also be effective.

International cooperation and involvement of the UNHCR and other humanitarian NGOs is also essential.

Better government produces better results; that’s not “rocket science.”

PWS

04-10-19

THE GIBSON REPORT — 04-09-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project — Why Acting DHS Secretary Kevin McAleenan Should End Up In Jail If He Follows Trump’s Unlawful & Unconstitutional Plans!

TOP UPDATES

Trump: Congress needs to ‘get rid of the whole asylum system’

WaPo: The Trump administration has already implemented ways to make it more challenging for immigrants to seek asylum in the United States. But suggesting that the entire asylum system be scrapped is a step further than he has gone in the past. See also President Trump in California pushes border security, says ‘our country is full’andTrump backs off threat to close border, says he’ll give Mexico ‘one-year warning’ on drugs, migrants.

Homeland Security Secretary Kirstjen Nielsen resigns

Vox: Homeland Security Secretary Kirstjen Nielsen submitted her resignation to President Donald Trump Sunday night, in an unexpected move that appears related to the president’s ongoing rage over the number of Central American families and asylum seekers coming into the United States. Kevin McAleenan, the head of Customs and Border Protection, will serve as acting DHS secretary. It’s not yet clear whether Trump will formally nominate a successor to Nielsen in the near future.

Trump suddenly pulls ICE nominee to go with someone ‘tougher’

CNN: President Donald Trump is pulling the nomination of Ron Vitiello to lead US Immigration and Customs Enforcement, saying he wants to go in a “tougher direction” — a move that came at the urging of White House senior adviser Stephen Miller.

Border Patrol agents to double as asylum officers for ‘credible fear’ cases

WaTimes: Brandon Judd, president of the National Border Patrol Council, said the pilot program will begin in two weeks, with agents deputized to begin hearing “credible fear” claims lodged by migrants who say they need protection in the U.S.

U.S. Says It Could Take 2 Years to Identify Up to Thousands of Separated Immigrant Families

NYT: It may take federal officials two years to identify what could be thousands of immigrant children who were separated from their families at the southern United States border, the government said in court documents filed on Friday.

ICE Raids Texas Technology Company, Arrests 280 Over Immigration Violations

NPR: Immigration and Customs Enforcement arrested 280 employees at a technology repair company in Collin County, Texas, on charges of working in the United States illegally. It’s the largest work site raid in the country in more than a decade, according to a Homeland Security Investigations official.

Waiting for Asylum in the United States, Migrants Live in Fear in Mexico

NYT: About 633 Central American asylum seekers have been turned away since January, unable to prove sufficient fear of being tortured and persecuted in Mexico.

Whose Court Is This Anyway? Immigration judges accuse executive branch of politicizing their courts

ABA: Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes.

Lawyers slam ‘Wild West’ atmosphere in Texas immigration court

CNN: Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.

Trump administration nearly doubles H-2B guest visa program, which brings many Mexican workers

WaPo: As President Trump threatened to shut down the U.S.-Mexico border in recent days, his Department of Homeland Security nearly doubled the number of temporary guest worker visas available this summer.

Immigrants Denied Citizenship for Working in the Legal Marijuana Industry

AIC: USCIS is denying some immigrants U.S. citizenship over their work in the legal marijuana industry, exposing a conflict between state and federal laws.

ACLU warns ‘immigrants and people of color,’ against travel in Florida

WashEx: The American Civil Liberties Union has issued a travel advisory for “immigrants and people of color to use extreme caution” in Florida because of a pending immigration bill the state legislature is considering that would ban so-called sanctuary cities.

Lee: Voucher Plan to Be Provided Only to ‘Legal Residents’

US News: Republican Gov. Bill Lee said Tuesday he’s working to ensure his proposed $125 million school voucher program will be provided only to “legal residents” of Tennessee — a plan that some critics say could be illegal.

Yellow Light For Immigrant Driver’s Licenses As State Bill Revs Up

TheCity: Fresh off passage of a state budget that included the DREAM Act to fund higher education for undocumented immigrants, some Democrats in the Legislature are looking for a bigger win: New York state-issued driver’s licenses.

LITIGATION/CASELAW/RULES/MEMOS

DHS Sends Letter to Congress Requesting Changes to TVPRA and the Flores Settlement

On 3/28/19, DHS Secretary Kirstjen Nielsen sent a letter to Congress to request legislative changes to the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) and the Flores settlement agreement to address “root causes of the emergency” along the U.S./Mexico border. AILA Doc. No. 19040801

Motel 6 will pay $12 million to settle lawsuit after sharing guest info with ICE

ABC: The budget motel operator illegally shared the personal information of about 80,000 customers for more than two years, resulting in a “targeted” ICE investigation into guests with Latino-sounding names, the Washington state attorney general’s office announced Thursday.

NYC Immigration Attys Not Off The Hook In RICO Suit

Law360: New York federal court has ruled two local immigration attorneys can’t shake a suit alleging they misled clients about services they could provide and filed asylum petitions without their clients’ knowledge, which then allegedly plunged the noncitizens into removal proceedings.

Democrats file suit against border wall spending

WaPo: House Democrats have filed a lawsuit aimed at preventing President Donald Trump from spending more money than Congress has approved to erect barriers along the southwestern border. See also Twenty states file motion to block Trump border wall funding – N.Y. attorney general.

Trump Administration’s Census Citizenship Question Plans Halted By 3rd Judge

NPR: U.S. District Judge George Hazel of Maryland in a 119-page opinion released Friday. Hazel concluded that the decision by Commerce Secretary Wilbur Ross, who oversees the census, to add the question violated administrative law. See also Commission divided on funding needs for census outreach.

CA5 Upholds Denial of Motion to Reopen Where Petitioner Did Not Provide U.S. Mailing Address

Posted 4/5/2019

The court held that the BIA did not abuse its discretion in finding that the information that the petitioner had provided to immigration officials—the names of his town and county in El Salvador—did not satisfy the notice requirement of INA §242b(a)(1)(F)(i). (Ramos-Portillo v. Barr, 4/1/19)

AILA Doc. No. 19040530

CA5 Finds Petitioner Failed to Rebut Presumption of Receipt of Notice of Hearing Sent by Regular Mail

Posted 4/5/2019

The court found the BIA did not abuse its discretion when, in applying the Matter of M-R-A- factors and looking to the totality of the circumstances, it determined that petitioner had failed to overcome the weaker presumption of effective service. (Navarrete-Lopez v. Barr, 4/1/19)

AILA Doc. No. 19040503

CA5 Upholds Denial of Asylum to Member of Minority Clan in Somalia

Posted 4/1/2019

The court denied the petition for review, holding that substantial evidence supported the BIA’s determination that the petitioner had failed to show that he would suffer persecution in Somalia because he belonged to the Ashraf minority clan. (Qorane v. Barr, 3/26/19)

AILA Doc. No. 19040134

CA8 Remands for BIA to Explain Why It Did Not Apply Sanchez-SosaFactors to Remand Request

Posted 4/5/2019

The court remanded for BIA to explain why it found it made no difference that petitioner had included a U visa filing receipt in his remand request, when Matter of Sanchez-Sosasuggests that a completed application should pause the removal process. (Caballero-Martinez v. Barr, 4/3/19)

AILA Doc. No. 19040531

CA9 Says Petitioner’s Conviction for Third-Degree Robbery in Oregon Is Not a CIMT

Posted 4/1/2019

The court granted in part the petition for review, holding that petitioner’s conviction for third-degree robbery in Oregon was not categorically a crime involving moral turpitude (CIMT) that would render the petitioner ineligible for cancellation of removal. (Aguirre Barbosa v. Barr, 3/28/19)

AILA Doc. No. 19040137

CA9 Declines to Rehear Sanchez v. Barr En Banc

Posted 4/5/2019

The court issued an order denying the rehearing en banc of Sanchez v. Barr, in which the court held that the petitioner may be entitled to termination of removal proceedings after he made a prima facie showing of an egregious violation of 8 CFR §287.8(b)(2). (Sanchez v. Barr, 4/1/19)

AILA Doc. No. 19040533

DOJ Settles Immigration-Related Discrimination Claim Against Housing Authority in Texas

Posted 4/1/2019

The Justice Department announced that it has reached a settlement agreement with the Housing Authority of Victoria, Texas, after finding that it discriminated against a LPR when it rejected his valid employment documents and fired him. AILA member Paul Parsons represented the employee.

AILA Doc. No. 19040132

Secretary Nielsen Orders Additional CBP Personnel to Southern Border and Expansion of Migrant Protection Protocols

DHS Secretary Nielsen ordered CBP increase its temporary reassignment of personnel and resources to address the influx of migrants at the southern border. She also directed CBP to expand the Migrant Protection Protocols and return hundreds of additional migrants per day to Mexico. AILA Doc. No. 19040174

EOIR Issues Memo on “No Dark Courtrooms”

EOIR issued PM 19-11, No Dark Courtrooms, to ensure that all available courtrooms are used for hearing cases every day during normal court operating hours, including maximizing the use of video teleconferencing and immigration adjudication centers. The memo is effective 5/1/19. AILA Doc. No. 19040130

Complaint Highlights Due Process Violations in El Paso Immigration Court and Calls for Immediate Oversight

A complaint filed with DOJ’s EOIR, OIG, and OPR by the American Immigration Council and AILA highlights systemic due process violations that are undermining justice for detained immigrants called before judges at the El Paso Service Processing Center immigration court. AILA Doc. No. 19040260

RESOURCES

Symposium before the oral argument in Department of Commerce v. New York

Withdrawal of Representation in Immigration Practice

An Attorney’s Ethical and Legal Obligations to Pereira-Affected Clients

Avoiding Disciplinary Action for Requesting Multiple Continuances in Immigration Court

Tax Prep Sites that Can Help with ITIN: Urban Upbound in LIC and Ariva (the site at Mexican Consulate)

Immigration Psych Eval Directory

EVENTS

4/9/19 The Unequal Path of United States Immigration Laws: Navigating Systemic Barriers Faced by Women, Children, and the LGBTQ Community

4/11/19 2019 National Day of Action

4/11/19Heating up History: An Exploration of Spice, Hot Sauce, and Immigrant Foods

4/16/19Planning with Unpredictable Priority Dates and Winning Cases

4/18/19 Green Card Renewals, Corrections, and the Phasing Out of InfoPass

4/18/19 Appealing your Naturalization Case: Administrative Hearings and District Court Appeals

4/20/19Options for Clients with a Prior Removal Order Picked Up by ICE

4/23/19Hot Topics in U and VAWA cases

5/2/19 NYCBA: The Assault on Due Process and the Need for an Independent Immigration Court

5/3/19Asylum Under Attack – Restrictions on Asylum at the Border and Beyond

5/30/19Understanding Denaturalization and its Impact on Your Clients

6/17/192019 AILA/GMS Annual Global Immigration Forum

8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue

ImmProf

Monday, April 8, 2019

From the Bookshelves: Defending Latina/o Immigrant Communities: The Xenophobic Era of Trump and Beyond by Alvaro Huerta

Nixon and Reagan tried closing the border to pressure Mexico – here’s what happened

More on DHS Secretary’s Departure

Sunday, April 7, 2019

DHS Secretary Kirstjen “Not Cages” Nielsen Resigns

Third state denounces Trump’s Census question

LAST CALL: Submit your WIP or Incubator idea for the Emerging Immprof Conf at BYU June 7 & 8

Sen. Mitt Romney: Asylum is “Magic Word”

Asylum for Sale? NBC News Series

Saturday, April 6, 2019

Nonimmigrant of the Day: Efe Obada, Defensive End for the Carolina Panthers

Congresswomen Denied Access to Homestead Detention Facility

Study of High Speed Chases by the Border Patrol

President Visits US/Mexico Border, Declares “Our Country is Full”

Friday, April 5, 2019

Immigration Article of the Day: Precarious Citizenship: Asian Immigrant Naturalization 1918 to 1925 by Angela M. Banks

From the Bookshelves: Refuge beyond Reach: How Rich Democracies Repel Asylum Seekers by David Scott Fitzgerald

I Can’t Believe I’m Watching TWITCH

President Pulls Nominee to Head Immigration and Customs Enforcement

Trump backs off threat to close the U.S.-Mexico border

A Video from Freedom University

Immigration Article of the Day: Critiquing Matter of A-B-: An Uncertain Future in Asylum Proceedings for Women Fleeing Intimate Partner Violence by Theresa A. Vogel

Thursday, April 4, 2019

Migrants Held Under El Paso’s Bridge of the Americas

Fox Apologizes for Graphic: “Trump Cuts U.S. Aid to 3 Mexican Countries”

A New Type of Immigration Court is Needed

Volunteering to Assist Asylum Seekers in Tijuana

We Fled the Gangs in Honduras. Then the U.S. Government Took My Baby.

ICE arrests more than 280 at Texas business, biggest workplace immigration raid in a decade

Humanitarian Assistance to Migrants in Mexico: Migrants using WhatsApp can get advice on how to stay safe and avoid illness, sickness

Wednesday, April 3, 2019

El Paso Detained Docket: “The Bye-Bye Place”

SCOTUSBlog Special Feature: Symposium before the oral argument in Department of Commerce v. New York

University of Arizona will charge 2 students over protest of Border Patrol

Former DHS Secretary: Central American Migration Must be Addressed at the Source

Tuesday, April 2, 2019

Ola: British Comic Strip Tackles Complex Migration Issues

Trump’s ignorant policies inflict immense suffering on immigrant families and children

A Statute of Limitations for Deportation

May 1 Driving Without Fear Campaign

United States Losing Credibility on Refugee Matters

GCIR Job Openings

Migration Information Source: Remain in Mexico Plan Echoes Earlier U.S. Policy to Deter Haitian Migration

Campaign 2020: Julian Castro: People First Immigration Policy

President Trump to Appoint Immigration “Czar”?

Monday, April 1, 2019

“It’s a big, fat con job”: Trump on Asylum Seekers

Immigration Restriction by Remote Control: Visa Denials on the Rise

The Latest Immigration Crackdown May Be Fake Social Security Numbers

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Elizabeth’s items #1 and #3 (in addition to being totally outrageous and illegal) could spell either a short career for Acting DHS Secretary Kevin McAleenan or some time in Federal Prison.

- Trump has no authority to get rid of the Asylum System and Immigration Judges, nor will Congress do so. Moreover, any attempt by Congress to eliminate asylum or a fair hearing process for individuals who entered the U.S. regardless of status would be likely to violate both the Due Process Clause of the Constitution and our international treaty obligations. To the extent that Trump tries to do this through “back door” methods (as other reports have indicated), they clearly will be both illegal and unconstitutional. Any officer carrying them out will be “at risk.”
- The “Program,” described in Item #3 of substituting Border Patrol Officers for trained Asylum Officers is clearly illegal. Under the 8 U.S.C. 1325(b)(1)(E), an Asylum Officer must have extensive training in “country conditions, asylum law, and interview techniques comparable to that given full-time adjudicators of asylum applications.” Border Patrol Officers would not normally meet those criteria;
- Indeed, this provision is a reflection of Congress’s specific intent that someone other than a law enforcement official make asylum and credible fear determinations;
- The statute further requires supervision by an Officer who “has had substantial experience adjudicating asylum applications;” any supervisor who signed off on this bogus program would be acting illegally;
- The Government is already under an injunction in Grace v. Whitaker from Judge Sullivan preventing an illegal attempt by former Attorney General Sessions and Kristjen Nielsen to rig the credible fear process against asylum applicants;
- The bogus “pilot program” intended to result in illegal rejections of those claiming credible fear by agents patently unqualified to make such determinations under the statute would violate that injunction;
- Judge Sullivan has a reputation for not taking much guff from anyone, including the Government;
- Implementation of this illegal program should result in the Border Patrol Agents who carry it out as well as McAleenan and hopefully scofflaw Stephen Miller being held in contempt by Judge Sullivan and doing some jail time.

PWS

04-11-19

SCOFFLAWS STUFFED AGAIN: U.S. Judge Finds Trump’s “Remain In Mexico” Program Illegal – Orders Halt! – Malicious Incompetence, Illegal Gimmicks Thwarted – We Need A Government That Follows The Laws!

https://www.washingtonpost.com/immigration/federal-judge-blocks-trump-administration-program-forcing-asylum-seekers-to-remain-in-mexico-while-awaiting-court-hearings/2019/04/08/68e96048-5a42-11e9-a00e-050dc7b82693_story.html?utm_term=.137c9c2e12a3

By Maria Sacchetti

April 8 at 5:46 PM

A federal judge on Monday blocked an experimental Trump administration policy that requires asylum seekers to wait in Mexico while their cases make their way through the immigration court system, a major blow to President Trump as border crossings have surged to their highest point in more than a decade.

U.S. District Court Judge Richard Seeborg in San Francisco enjoined the Migrant Protection Protocols policy days after outgoing Homeland Security Secretary Kirstjen Nielsen pledged to expand the program. The policy began in January.

[Read the Migrant Protection Protocols ruling]

Trump has justified blocking asylum seekers from entering the United States by claiming that many asylum seekers are trying to carry out a scam — that they are coached to file false asylum claims knowing that they will be released into the country because of a lack of detention bed space. The administration had hoped to keep more asylum seekers in Mexico — and off U.S. soil — while they await court hearings on their claims.

Migrants who reach U.S. soil — including areas that are outside U.S. border barriers but inside U.S. territory — have the legal right to seek asylum. They generally are either held in detention facilities to await rulings in their cases or are released into the United States.

The policy had been one idea to stem the flow of migrants into the country, but Seeborg said his order ending the policy will take effect at 5 p.m. on April 12. Within two days, he said, the 11 migrants named in the lawsuit must be allowed to enter the United States, and the administration may not implement or expand the program.

The American Civil Liberties Union, one of the groups that filed the lawsuit, hailed the ruling as a “very important decision” on an “unpredecented” attempt to block asylum seekers from setting foot on U.S. soil.

“What it will mean is that nobody else can be sent to Mexico,” said Judy Rabinovitz, an ACLU lawyer. “They can’t enforce this policy.”

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As I had predicted!

PWS

04-08-19

FORMER ACTING ICE DIRECTOR JOHN SANDWEG TELLS CNN TRUMP’S MINDLESS PROPOSAL TO ELIMINATE U.S. IMMIGRATION JUDGES AND ABOLISH ASYLUM LAW IS “THE SINGLE DUMBEST IDEA I’VE EVER HEARD” – And, That’s Saying Something Given Some Of Trump’s Other Insane Threats, Lies, and Hoaxes!

https://apple.news/AWKeqCVDGSce8oOk8NklD4A

Ex-ICE head: Trump had ‘single dumbest idea I’ve ever heard’

New Day

Former Acting Director of US Immigration and Customs Enforcement John Sandweg says President Trump’s suggestion to eliminate immigration judges is “the single dumbest idea I’ve ever heard” in terms of dealing with border crossings.

Source: CNN

Nevertheless, I do take issue with John’s implicit assumption that the current 20-25% grant rate for Northern Triangle countries represents reality. This Administration in particular, but also previous Administrations, worked hard to unfairly skew the asylum system against asylum seekers from the Northern Triangle.

This includes:

Limiting opportunities for representation by counsel (counsel increases success rates by at least 4X);
Using detention in a coercive and punitive way to discourage claims and punish those who pursue them;
Skewing the law to make gender-based and gang-based claims, which could fairly easily be fitted into the conventional asylum framework, unnecessarily complicated and hard to establish;
Hiring mostly former prosecutors as Immigration Judges and then sending them a “deny and remove” message through the Attorney General, who unethically and in violation of any common sense concept of Due Process controls the Immigration Courts;
Failing to provide proper training and guidance to Immigration Judges through precedent decisions on how asylum claims can and should be granted;
Tolerating Immigration Judges who have shown bias toward asylum seekers and almost never grant asylum;
Intentionally making asylum law overly legalistic and focused on finding reasons to deny and remove, rather than protect.

One need look no further than two of my recent posts about judges who never grant asylum to see how sick, biased, and unfair the Immigration Court system has become to asylum seekers.

https://immigrationcourtside.com/2019/04/07/podcast-reveals-due-process-disaster-in-immigration-courts-particularly-for-transgender-individuals-deep-seated-problems-existed-this-administration-made-them-w/

https://immigrationcourtside.com/2019/04/04/courts-of-injustice-lawyers-groups-rip-bias-asylum-free-zone-at-el-paso-immigration-court/

And make no mistake — the racist scofflaws who have assumed control of immigration policy under Trump intend to eradicate asylum, the rule of law, and our Constitution. Don’t think that just because you might happen to be a U.S. citizen or even a Trump supporter you will be immune from the destruction of the foundations of our republic and your individual rights. Some day, your turn will also come. Who will defend and speak up for those who have watched the rights and the lives of the vulnerable among us be trampled?

For much of my tenure at the Arlington Immigration Court the asylum grant rate hovered around 70% with few DHS appeals. As someone who worked on the Refugee Act of 1980 and has been involved in the administration and application of U.S. asylum laws for decades, from all sides, that high grant rate was completely warranted. Those finding reasons to deny at rates approaching 100% are not fairly, impartially, and correctly applying asylum law in accordance with Due Process and the actual legal standards. For too long we have tolerated gross abuses of asylum seekers — it has been taken to a new level under this Administration.

It’s illegal, it’s unconstitutional, it’s unethical, and it must stop!

PWS

04-08-19

TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!

TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!

By Paul Wickham Schmidt

United States Immigration Judges (Retired)

In short, families are coming to ports of entry and crossing the border to turn themselves in to be screened for credible fear and apply for asylum under our existing laws. That’s not a “border crisis;” it’s a humanitarian tragedy. It won’t be solved by more law enforcement or harsher measures; we’re actually quite fortunate that folks still believe in the system enough to voluntarily subject themselves to it.

Most don’t present any particular “danger” to the U.S. They are just trying to apply for legal protection under our laws. That’s something that has been denied them abroad because we don’t have a refugee program for the Northern Triangle. This Administration actually eliminated the already inadequate one we had under Obama.

Certainly, we have enough intelligence to know that these flows were coming. They aren’t secret. There was plenty of time to plan.

What could and should have been done is to increase the number of Asylum Officers and POE Inspectors by hiring retired Asylum Officers, Inspectors, adjudicators, and temps from the NGO sector who worked in the refugee field, but no longer have anything to do overseas since this Administration has basically dismantled the overseas refugee program.

A more competent DOJ could also have developed a corps of retired Immigration Judges (and perhaps other types of retired judges who could do bond setting and other functions common to many judicial systems) who already “know the ropes” and could have volunteered to go to the border and other places with overloads.

Also, working closely with and coordinating with the NGOs and the pro bono bar would have helped the credible fear process to go faster, be fairer, the Immigration Courts to function more fairly and efficiently, and would have screened out some of the “non viable” cases.

For some, staying in Mexico is probably a better and safer option, but folks don’t understand. Pro bono counsel can, and do, explain that.

By treating it as a humanitarian tragedy, which it is, rather than a “fake law enforcement crisis,” the Administration could have united the private sector, border states, communities, and Congress in supporting the effort; instead they sowed division, opposition, and unnecessary litigation. I’m actually sure that most of the teams of brilliant “Big Law” lawyers helping “Our Gang of Retired Judges” and other to file amicus briefs pro bono would just as soon be working on helping individuals through the system.

A timely, orderly, and fair system for screening, adjudicating, and recognizing refugee rights under our existing laws would have allowed the Administration to channel arrivals to various ports of entry.

I think that the result of such a system would have been that most families would have passed credible fear and the majority of those would have been granted asylum, withholding, or CAT.

Certainly, others think the result would have been mostly rejections (But, I note even in the “Trump Era” merits approval rates for Northern Triangle countries are in the 18-23% range — by no means an insignificant success rate). But, assuming “the rejectionists” are right, then they have the “timely rejection deterrent” that they so desire without stomping on anyone’s rights. (Although my experience over decades has been that rejections, detention, prosecutions, and harsh rhetoric are ineffective as deterrents).

No matter who is right about the ultimate results of fair asylum adjudication, under my system the Border Patrol could go back to their job of tracking down smugglers, drug traffickers, criminals, and the few suspected terrorists who seek to cross the border. While this might not satisfy anyone’s political agenda, it would be an effective and efficient use of law enforcement resources and sound administration of migrant protection and immigration laws. That’s certainly not what’s happening now.

PWS

04-06-19

RUTH ELLEN WASEM @ THE HILL: There Are Better Options At The Border – This Administration Refuses To Use Them!

https://thehill.com/opinion/immigration/436725-to-solve-the-us-crisis-at-the-border-look-to-its-cause

Ruth writes:

When a problem is misdiagnosed, it is no surprise that it gets worse. The current “crisis at the border” is real, but one that results from flawed policy analysis and inappropriate policy responses.

The Department of Homeland Security (DHS) officials overseeing Customs and Border Protection (CBP) project that they will have over 100,000 migrants in their custody for the month of March, the highest monthly total since 2008. CBP reported that over 1,000 migrants reached El Paso on one day alone last week. As many border security experts have noted, these numbers are not unprecedented. Border apprehensions of all irregular migrants (including asylum seekers) remain lower than the peak of 1.6 million in fiscal year 2000.

The policy crisis we face is not one of the volume of migrants but the demographic mix of the migrants and the factors that are propelling their flight to the United States. Stuart Anderson, executive director of the National Foundation for American Policy and former senior official in the Immigration and Naturalization Service (INS) during the George W. Bush administration, makes a compelling case that the current apprehension statistics are not comparable to those of the past: “In the past, nearly everyone entering the United States unlawfully attempted to evade authorities, whereas today’s border crossers are mostly turning themselves in to Border Patrol agents and seeking asylum.”

Making matters worse, DHS uses dated policy tools that were crafted in response to young men attempting to enter the United States to work. The threat of detention was considered a deterrent for economic migrants. At that time, they most often were from Mexico and thus could just be turned around at the border because they came from a contiguous country.

Today, the migrants are families with children from the northern triangle countries. Rather than being pulled by the dream of better jobs, these families are being pushed by the breakdown of civil society in their home countries. As the Pew Research Center reports, El Salvador had the world’s highest murder rate (82.8 homicides per 10,000 people) in 2016, followed by Honduras (at a rate of 56.5). Guatemala was 10th (at 27.3). Many of them have compelling stories that likely meet the “credible fear” threshold in the Immigration and Nationality Act.

It is abundantly clear that policies aimed at deterring single men are inappropriate and that CBP is unequipped to deal with families seeking asylum. Journalist Dara Lind maintains that these policy inadequacies have contributed to death of multiple children in DHS custody. Former DHS Secretary Jeh Johnson recently stated that the Trump administration strategy at the border is not working because it does not address the underlying factors.

It is becoming clear that the harsh, capricious policies of the Trump administration are exacerbating the influx of asylum seekers from Central America. The Migration Policy Institute’s Doris Meissner, who served as the commissioner of the Immigration and Naturalization Service during the Clinton administration, understands these underlying migration patterns and policies. She recently responded to a question posed by NPR’s Steve Inskeep: “If you can explain, how would the administration’s actions to try to stop this flow actually make the flow worse?”

Meissner replied: “Because people are uncertain about what’s going to happen. They see the policies changing every several months. They hear from the smugglers that help them, and from the communities in the United States that they know about, that the circumstances are continually hardening. And so with the push factors that exist in Central America — lots of violence, lots of gang activity — they’re trying to get here as soon as they can.”

Fortunately, the United States has an array of policy options that would more effectively respond to the surge of families seeking asylum from Central America than the erratic and ill-conceived policies of the Trump administration.

Aid to Central America to stimulate economic growth, improve security and foster governance is a critical policy response to address the factors propelling migrants. Congress appropriated $627 million for these purposes, but reportedly the distribution of the funds is stalled because President Trump wants to cut the aid countries because they failed to stop the flight of their people. This is another misguided policy reaction — if these countries would crack down on people trying to leave, it would escalate people’s panic to flee.

As is often said, the most important step is to beef up the asylum corps in DHS’s Citizenship and Immigration Services and to fully staff the immigration judges in the Department of Justice’s Executive Office for Immigration Review. This action would enable expeditious processing of asylum claims in a fair and judicious manner — key to reversing the bottleneck of asylum seekers at the border.

Current law enables asylum seekers arriving without immigration documents to have a credible fear hearing and be released from detention pending their court dates. Those who establish that they have well-founded fear of returning home would be permitted to stay in the United States and those who do not would be deported. If DHS implemented our asylum laws to the fullest effect, it would increase the likelihood that migrants understood our laws.

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Absolutely, Ruth! Basically what others and I who have spent years working in and studying this system have been saying all along.

The current law provides the necessary tools for addressing the only real border crisis: the humanitarian tragedy. But, this Administration has neither the competence nor the interest to address that problem in a constructive, effective, and humane manner. It wouldn’t fit their bogus White Nationalist false narratives and agenda.

That’s why we need “regime change” in 2020. Until then, we’ll have to rely on private groups, some states, and the New Due Process Army to keep the country functioning until we get better, wiser, and more competent leaders.

PWS

04-05-19

THE HILL: NOLAN SAYS TRUMP HAS BETTER OPTIONS ON THE BORDER

Trump has better options to stop dangerous flood of asylum-seeking migrants

By Nolan Rappaport

President Donald Trump has not been able to stop a surge in illegal border crossings, which, according to Customs and Border Protection (CBP) Commissioner Kevin K. McAleenan, is at the breaking point. In February, more than 76,000 migrants were detained, the highest number in 12 years. Most of them were asylum-seeking migrants from Central America.

The State Department told CNN on Saturday that the United States is cutting off aid to those countries.

Apparently, Trump thinks he can gain some control over the situation by pressuring the governments of El Salvador, Guatemala, and Honduras (known as the Northern Triangle) into assisting him with his efforts to secure the border.

I think he is mistaken. The amount of the aid he cut off is much smaller than the amount of money migrants from the Northern Triangle are sending home from jobs in America.

In 2017, migrants from the Northern Triangle who work in the United States sent billions of dollars home to their families. These remittancestotaled more than $5 billion for El Salvador, $4 billion for Honduras, and $8.68 billion for Guatemala. This was 20.1 percent of the Gross Domestic Product in El Salvador, 17.4 percent in Honduras, and 11.5 percent in Guatemala.

What is the aid supposed to do?

In 2016, the United States gave $131.2 million in aid to Guatemala, $98.3 million to Honduras, and $67.9 million to El Salvador, and Congress has appropriated about $2.1 billion for the program since then.

Read more at https://thehill.com/opinion/immigration/436694-trump-resorts-to-desperate-ineffective-measure-to-stop-flood-of-asylum

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I encourage you to go on over to The Hill at the above link to read Nolan’s complete article.

I generally agree with Nolan’s observations, except for the idea of lengthening the time for family detention. Family detention is inhumane, unnecessary, expensive, and ineffective.

Why not just operate the asylum system in a fair and efficient manner? Fairly and efficiently administer the “credible fear” system in the Asylum Office as established by law. Give those who pass fair access to legal counsel and process their cases fairly and efficiently through the Immigration Courts. Remove the lower priority cases from the Immigration Court docket to allow priority processing of new asylum cases without long waits or increasing the backlogs. Give folks fair, impartial, and unbiased adjudications of their claims and let the chips fall where they may.

Most of us who are familiar with the asylum system believe that under a fair, impartial, “depoliticized” system that focused on due process and asylum expertise, many, probably a majority, of the arriving cases would be granted asylum or protection under the Convention Against Torture. While the Administration claims otherwise, we can never know because they keep insisting on “gaming” the system against asylum seekers from the Northern Triangle and using gimmicks to prevent individuals from getting the fair determinations to which they are entitled under law.

Trump’s White Nationalism is driving us towards a self-created international economic disaster. Why, when fair administration of our existing asylum system at the border is within our power and capability? Trump just lacks the will, integrity, and competence to make it happen.

PWS

04-02-19

PREDICTABLE YET REPREHENSIBLE: Nielsen Proposes War On Children To Cover Up Administration’s Cruelty, Incompetence, and Scofflaw Conduct — Idiotic Proposal Likely To Be DOA In House!

jhttps://www.nbcnews.com/politics/immigration/dhs-ask-congress-sweeping-authority-deport-unaccompanied-migrant-children-n988651

Julia Edwards Ainsley reports for NBC News:

WASHINGTON — Department of Homeland Security Secretary Kirstjen Nielsen will ask Congress for the authority to deport unaccompanied migrant children more quickly, to hold families seeking asylum in detention until their cases are decided and to allow immigrants to apply for asylum from their home countries, according to a copy of the request obtained by NBC News.

In a letter to Congress, Nielsen said she will be seeking a legislative proposal in the coming days to address what she called the “root causes of the emergency” that has led to a spike in border crossingsin recent weeks. The letter has not yet been sent.

The legislative proposal would have to clear the Democratic-controlled House of Representatives, which is likely to respond with strong opposition.

Click here to read Nielsen’s letter

Since February, Customs and Border Protection has seen a jump in the number of undocumented immigrants attempting to cross the border each day.

Daily border crossings have recently hit a 13-year high, leading immigration agents to release immigrants from their custody rather than transferring them to prolonged detention. The influx has left many charities in the U.S. and Mexico scrambling to provide care and has left many asylum seekers waiting in dangerous areas without shelter on the southern side of the border.

Under current law, children who enter from non-contiguous countries, which effectively means children from Central America, are transferred to the custody of the Department of Health and Human Services, which works to reunite them with a relative or sponsor in the United States. And under a federal court agreement, immigrant families with children cannot be detained longer than 20 days. The Trump administration has previously tried to reverse the court decision through executive action, but has so far been unsuccessful.

In the letter, Nielsen makes the case that the law’s limitations on DHS’s ability to deport migrant children is serving as “another dangerous ‘pull’ factor.”

“The result is that hundreds of Central American children come into our custody each day, await transfer to (Health and Human Services) care, and, ultimately are placed with a sponsor in the United States,” Nielsen said in the letter, which is expected to be sent to members of Congress on Thursday night.

The letter also indicates that the Trump administration will be requesting emergency funds to deal with the migrant flow, including what Nielsen predicts to be thousands of shelter beds for unaccompanied migrant children.

Image: Kirstjen Nielsen — Kirstjen Nielsen, from center, Secretary of the Department of Homeland Security, tours the border area with San Diego Section Border Patrol Chief Rodney Scott at Borderfield State Park along the United States-Mexico Border fence in San Ysidro, California on Nov. 20, 2018.Sandy Huffaker / AFP – Getty Images file

HHS, the agency responsible for sheltering children who arrive at the border without a parent, “is still approaching its maximum capacity and will very likely require thousands of additional beds in the coming weeks and months,” the letter said.

Nielsen said in the letter that the exact dollar amount of the request is still being worked out with the Office of Management and Budget, but a senior administration official told NBC News the request is likely to be in the hundreds of thousands of dollars.

The funding would also cover more medical teams and vehicles to transport immigrants, following the deaths of immigrants in the custody of CBP agents who were not able to provide care in time.

Julia Ainsley

Julia Ainsley is a national security reporter for NBC News.

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Every day demonstrates the complete “malicious incompetence” of the Trump Kakistocracy! Clearly DHS needs (but won’t get) competent management at all levels that knows how to deal with humanitarian situations in some way other than rolling out more gimmicks and bogus requests in an attempt to turn a refugee situation into a fake law enforcement crisis.

There is no real law enforcement crisis with refugees turning themselves in to assert their legal rights under our laws. Indeed, a more competent Administration with all this advance notice could have channeled most folks to designated ports of entry where they should have been guaranteed prompt, fair, and humane processing. Instead they mindlessly wasted time and money on unneeded troops, dumb walls, and illegal gimmicks that haven’t and won’t “deter” forced migrants (but do encourage, empower, and enrich smugglers).

Why not rehire retired Asylum Officers, Refugee Officers, and other retired personal at the USCIS Office of International Operations? Why not use VOLAGS involved in overseas refugee processing who now under Trump’s destruction of refugee programs have nothing to do overseas? Why not ask for processing help from the UNHCR? Why not use some of the bloated DHS enforcement and detention budgets to hire temporary Asylum Officers from the private sector? Why not offer grants to Catholic Conference, LIRS, HIAS and other experienced refugee resettlement agencies to aid in temporary placement of those who pass credible fear? Why not beef up accreditation programs for non-attorney representatives working for charitable organization to meet representation needs? Why not simply recognize gender-based persecution as a subset of “particular social group” rather than forcing slow and intensive re-litigation of gender-based issues in ever case with inconsistent results and no guidance for parties or adjudicators.

There are lots of things a competent Administration dedicated to fairly administering refugee and asylum laws could do to handle this humanitarian situation. But, that won’t happen without “regime change” and removal of the Kakistocracy.

Indeed, the most likely outcome of the Trump Admonistration’s “malicious incompetence” will be complete loss of faith in our legal system. Folks will do what they have to do to save their lives — even if it means abandoning a system that has betrayed Due Process and fundamental fairness.

Then, we finally will have a Trump-caused “law enforcement crisis.” While the presence of more refugees in the U.S. presents more of an opportunity than a security problem, the disappearance of our Constitutional protections and intentional destruction of our legal system will be a lasting problem for all of us.

PWS

03-28-19

THE HILL: NOLAN ON THE CURRENT BORDER CRISIS

Will Democrats be held accountable for diverting attention from border crisis when there was time to fix it?

By Nolan Rappaport

As Chairman of the Committee on Homeland Security, Congressman Bennie G. Thompson (D-Miss.) must know what is happening at the border. Yet he asserted at a recent hearing that President Donald Trump issued a national emergency declaration on the basis of a “nonexistent emergency” at the border.

Thompson claimed that when it comes to border security, the Trump administration is misleading the American people. Maybe, but I watched a video of the hearing and it seemed to me that the Democrats are the ones who are misleading the American people.

According to the testimony of the hearing’s only witness, DHS Secretary Kirstjen Nielsen, the country is facing a very real humanitarian and security crisis. Uncontrolled illegal migration is posing a serious and growing risk to public safety, national security, and the rule of law.

She is not the first DHS Secretary to make that claim. Every DHS Secretary since the Department’s inception has sounded the alarm about our unsecured border.

Nielsen testified that DHS expects to apprehend more migrants crossing the border illegally in the first half of fiscal 2019 than it did in the entirety of fiscal 2017, and the numbers are rising. This, however, is not the only problem.

There also has been a change in who is making the illegal crossings.

Historically, illegal crossers were predominantly single adult males from Mexico who generally could be removed within 48 hours if they had no legal right to stay. Now, more than 60 percent of them are family units and unaccompanied alien children.

The detention facilities were intended to be short-term processing centers that would hold adult men for 72 hours or less. They are not suitable for lengthy detentions of women and children.

Read more at https://thehill.com/opinion/immigration/435994-will-democrats-be-held-accountable-for-diverting-attention-from-border

Published originally on The Hill.

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

Based on EOIR’s own statistics, the actual overall 2018 asylum grant rate on the merits in Immigration Court was 36.7%.
The actual merits asylum grant rates for 2018 for applicants from El Salvador, Honduras, and Guatemala were 23%, 20% and 18% respectively. https://immigrationcourtside.com/2018/12/11/upi-analysis-of-latest-eoir-asylum-stats-actually-shows-that-many-from-northern-triangle-particularly-el-salvador-have-valid-claims-for-protection-but-sessionss-political-actions-and-contr/
There is little actual risk to releasing families who apply for asylum pending Immigration Court hearings. Most released on “alternatives to detrention” appear for their hearings, regardless of expected outcome. And, for those represented by counsel the appearance rates are very high — over 90%. https://www.washingtonpost.com/news/politics/wp/2018/07/11/how-big-a-risk-is-it-to-release-migrant-families-from-custody-before-evaluating-asylum-claims/
The Trump Administration has manipulated both the asylum legal system and asylum statistics in an attempt to prove their false narrative about widespread fraud and abuse. Indeed, it’s notable that even with all these political machinations and roadblocks to fair asylum adjudication, approximately 20% from the Northern Triangle succeed — certainly a significant number. Moreover, many of those who fail actually face danger if returned — they just can’t fit it within our somewhat arcane asylum system. Failing to be granted asylum is not an indication of fraud and has little or nothing to do with our obligation to provide fair and unbiased asylum adjudications consistent with Due Process. https://immigrationcourtside.com/2019/02/15/heidi-altman-heartland-alliance-how-eoir-other-trump-toadies-lie-distort-statistics-to-support-a-white-nationalist-immigration-agenda/
Something that jumps out: those who are represented succeed at a significantly higher rate, understand the system better, and are highly likely to appear. Therefore, the single most cost efficient and obvious measure to take would be providing funding for universal representation of asylum seekers. It’s much cheaper than cruel, expensive, and unnecessary “civil” detention and walls that will have no effect on the current rule flow of asylum seekers. And, as more cases are granted the less necessary it becomes for DHS to waste court time by contesting every case and the more the “problem of removals” diminishes. Those granted asylum don’t have to be removed or monitored — they can actually go to work and begin contributing to our society.
Addressing the causes of the human rights debacle in the Northern Triangle would also be more helpful, logical, and cost effective in the long run than more gimmicks and futile attempts to solve a refugee situation unilaterally at the “receiving” end by “designed to fail” enforcement efforts, while ignoring or intentionally aggravating the causes of the refugee flow.

PWS

03-28-19

ATTORNEY MARTIN GARBUS @ LA TIMES: We’re Rejecting Those We Should Be Protecting: “[T]he process for asylum seekers is long, grueling and often arbitrary.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=481b8998-3e3e-4f42-9a33-126eda2ae2fe

I met with G, an asylum seeker from Honduras, in a large open space at the South Texas Family Residential Center in Dilley, Texas, last month. As a volunteer attorney working with immigrants detained by Immigration and Customs Enforcement, it was my job to help her prepare for her initial asylum interview. First, though, I needed to hear her story.

The setting was not ideal, since anyone in the room could overhear what she said, including her two daughters, ages 10 and 12. She began hesitantly, describing how she had been raped by her father when she was 12. Her mother and six siblings, rather than being supportive, blamed G, whose full name I am not using because of her pending asylum claim, and her mother began beating her regularly. When she was 14, her father committed suicide, and the family held her responsible for his death.

In her neighborhood, everyone knew of her abuse history, G told me, and she was considered damaged goods, available to any man who wanted her at any time. She soon met an older man who said he loved her, and for two years she stuck with him. He was abusive, though, and she learned he was married.

As she sat across from me crying, recalling events she’d rather forget, I learned she was now 25 and had four children. As best as I could tell given the timeline, the two daughters sitting nearby had been fathered by her father. Since the girls had never heard these stories, G was ashamed and tried to minimize what she had been through. It took two hours of patient questioning to pull the full story out of her, and as she spoke, her daughters cried.

In the end, it hadn’t been her own troubles that made G flee Honduras. That decision was made in December of last year, she said, when local gang members told her that if she did not make her daughters sexually available to them, all her children would be killed.

I spent 10 days in February interviewing women like G in Dilley. I realize that many Americans suspect that Central American families come to the United States simply because it’s a better place to live, and that their asylum claims are fraudulent. But I wish they could meet the women I spoke with and hear their stories of fleeing to protect their children from imminent danger back home. I believe it would change even the most skeptical minds.

Nearly all of those I met with were, like G, applying for asylum, a process that begins with an interview to establish whether an applicant has a credible fear of returning home. Former Atty. Gen. Jeff Sessions attempted last year to disallow asylum claims based on fear of gang violence or domestic abuse, but in December a federal judge in Washington blocked the administration from categorically banning such claims. An appeal by the government is pending.

Whatever the outcome of that case, the process for asylum seekers is long, grueling and often arbitrary, and most Central American applicants will not ultimately be granted asylum.

The women I talked to all knew the difficulties they faced, but felt they had no alternative but to try to stay in the United States for their children’s safety.

Two days after our initial meeting, G had her credible fear hearing, in a windowless trailer 50 feet from the detention center. The stakes were high. If she did not persuade the asylum officer she had a justifiable fear her children would be harmed in Honduras, they would all be sent back.

Although I have practiced law for many decades, I’ve never felt as terrified and helpless entering a legal proceeding. I had no idea whether G would be able to tell the hearing officer what she had told me, and I could do nothing to help her. In a regular courtroom, I could ask questions, object and make statements on behalf of my client. Here I was not allowed to speak. I hoped I my presence would provide at least a modicum of emotional support.

The asylum officer explained at the outset that attorneys who urged their clients to tell false stories would be prosecuted, and asked G if I had told her what to say. She said no. Then, hesitantly, she told her story.

G passed her credible fear interview, but there is no knowing what will happen ultimately to her or her children when their case is heard in immigration court. What I do know is that they and thousands of other women and children are at high risk of being returned to dangerous situations. Most have little education and don’t understand English, yet they must navigate a complicated legal labyrinth to avoid being sent back to their torturers.

Asylum laws exist to provide refuge to people like G. The United States should not abandon its responsibility to assist them.

Martin Garbus, a trial attorney, is the author of the forthcoming book “North of Havana.”

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Yup. Thank goodness for pro bono at tourneys like Martin Garbus who can make the difference between life and death in a system that could work in a fair and humane way, but consciously chooses not to.

Deprived of reasonable access to legal counsel and held in intentionally degrading and coercive conditions, many individuals with valid claims for protection don’t even have the faintest idea what standards they have to meet and what proof is expected from them. These are basic requirements of Due Process that our Government ignores and mocks on a daily basis.

PWS

03-26-19

TRUMP IMMIGRATION POLICIES APPEAR TO BE ENCOURAGING ILLEGAL ENTRIES!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d5c94949-b401-4f6b-9302-b19af62066b3

Wendy Fry reports in the LA Times/San Diego Times-Union:

SAN DIEGO — Three months into the Department of Homeland Security’s program that requires asylum-seeking migrants to wait in Mexico until their U.S. immigration hearings, observers said Friday that the policy may actually be encouraging illegal border crossings.

Last week, migrants rushed the border at least four times at Playas de Tijuana, many of them saying they were motivated by not wanting to wait in Mexico.

A Customs and Border Protection official said migrants who cross the border illegally are not being returned to Mexico while they seek asylum. Instead, they are taken into custody, where they eventually get to wait in the United States, sometimes up to three or four years until their asylum hearings before an American immigration judge.

“Why would I spend three years here in Tijuana when I could be in the United States?” asked Jeydi Fuentes Lopez Montes, a 29-year-old mother from Honduras traveling with a 1-year-old child. “I know there is work here in Tijuana, but isn’t the work better over there?”

Fuentes said she went to Tijuana planning to wait in line to ask for asylum, but she said that when she learned the list to get an initial appointment with U.S. officials could take several months, she decided to try to find another way into the U.S.

Legal experts say a judge is not allowed to deny a person’s asylum request based solely on whether he or she entered the country legally or illegally.

Samuel Rodriguez Guzman, from El Salvador, arrived in Tijuana this month. He said he went to the beach Thursday after hearing about more people successfully entering the U.S. illegally, and seeing on the news people getting through the border infrastructure at Playas.

“I’m trying whatever way I can to immigrate to the United States,” Rodriguez said. “I had problems with the gangs in my country and my father did, too. They want to kill us. When we get there to the United States, they have to respect our human rights to ask for asylum, right?”

Alan Bersin, the former commissioner of U.S. Customs and Border Protection, said there is no coordinated system between the Mexican government and the U.S. to accept large numbers of migrants returned to Tijuana.

So far, fewer than 300 people have been returned to Mexico under the program.

“It’s an incompetent program,” said Bersin, adding that people who cross illegally should be returned to Mexico in the same numbers as those who wait for months in line for their turn to cross legally.

“This policy has a chance of succeeding as a deterrent,” he said. “But [Mexican President Andres Manuel] Lopez Obrador is trying to avoid a fight with Trump so he says yes to everything but does nothing.”

This month, migrants have been climbing through holes in border fencing at Playas or climbing over the 15-foot-high fence.

On March 13, some people slipped through a hole in the border fencing near the beach. One of the men, who was seen in a video running down the beach carrying a small child while a border agent chased him, provided updates via WhatsApp to several people in his group and some witnesses. He said he was not apprehended and made it to Los Angeles.

A group of about 60 people who crossed on March 14 included men, women and children, most of whom said they were from Honduras. Customs and Border Protection spokesman Ralph DeSio said 52 people from that group were arrested.

Border officials also arrested 23 people from Honduras and one from Guatemala on Tuesday after they scaled the fence near the beach.

Then Thursday, activity at the border intensified as border agents and migrants clashed.

Two migrants and several witnesses said agents shot pepper spray across the fence and into their eyes. During the incident, one man climbed the fence and dropped into the U.S. before he was detained by border agents.

DeSio said Customs and Border Protection is averaging 167 arrests a day in the San Diego County area of responsibility, which stretches east to past Jacumba.

“Every arrest in San Diego Sector is investigated. Every breach in San Diego County is a concern whether it’s near Imperial Beach or in Jacumba,” DeSio said in a written statement. “Compromises in our fence are common due to our aging infrastructure. Efforts are made to repair breaches or compromises in a timely manner.”

On Friday, another hole big enough for people to climb through was visible at the base of the border fence at Playas.

“Really, we’re tired of fighting because we just want to cross and ask for asylum…. We’re not rude. We are allowed to come here and ask for asylum,” said Jose Reinera, a Honduran migrant who climbed up on top of the fence at Las Playas on Thursday.

Reinera said he turned back and climbed back down on the Mexican side of the border when he realized his wife and children would not be able to make the climb.

Fry writes for the San Diego Union-Tribune.

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Up until now, the Administration has been fortunate that their cruel, sometimes illegal, and always incompetent policies haven’t made things even worse.

Fact is, most individuals applying for asylum still turn themselves in either at legal ports of entry or shortly after crossing the border to apply for asylum. They can be logged in, fingerprinted, screened for criminal records and credible fear. Those who can’t demonstrate credible fear can be expeditiously returned.

Those who pass, become part of the legal system. If given an opportunity to understand the asylum system, obtain legal a representation (we know that represented asylum applicants succeed at a rate of 4X to 17X those who are forced to proceed without representation) and fairly present their cases, most will show up in Immigration Court. Many of those who are represented and treated fairly will qualify for asylum, withholding of removal, or relief under the Convention Against Torture (“CAT”), even in today’s administrative system which has been intentionally and unfairly skewed against them and their claims.

Those who don’t qualify will be subject to removal, although many will nevertheless face very real and legitimate harm (not fitting within our legalistic and often arcane asylum system) that a more prudent and humane Administration might use to fashion some type of temporary or long-term respite from removal.

But, if the Administration succeeds in it’s mindless plan to destroy the legal asylum and Immigration Court systems, forced migrants, who come of necessity not choice, will simply stop using it. With the help of smugglers, and paying higher prices and taking more deadly risks, many will simply be smuggled into the interior of our country. There, they will lose themselves in our huge country with a diverse population and an insatiable need for labor at all levels.

No screening, no registration, no taxes, etc. — some will undoubtedly be caught and removed. But the vast majority will remain “in the underground” until 1) we legalize them; 2) they decide that conditions have changed so it is their best interests to return to their native lands, or 3) they eventually get old and die. Not to mention that by forcing them into the “immigration black market” we deprive them of their human dignity and a chance to contribute their full potential to our country, while we lose the many benefits of having them do so.

Sounds like a bad system. But, it’s the type of mindless, White Nationalist, “lose, lose, lose” restrictionism that this Administration loves to feed to its “political base.” A bigger “immigration underground” means more folks to hate, loathe, blame, and run against.

PWS

03-26-19

U.S. IMMIGRATION JUDGE JONATHEN SCOTT SIMPSON EXPRESSES FRUSTRATION WITH FECKLESS “COURT” SYSTEM THAT KOWTOWS TO DHS ENFORCEMENT’S “STAY IN MEXICO PROGRAM” — DOJ’s “Captive Courts” Expected To Assist DHS In Misusing Asylum Laws To Discourage & Punish Asylum Seekers”

https://www.cnn.com/2019/03/20/politics/asylum-return-to-mexico-hearing-migrant-protection-protocols/index.html

Priscilla Alvarez reports for CNN:

San Diego (CNN)Twelve asylum seekers required to stay in Mexico for the duration of their immigration hearings presented themselves one by one before an immigration judge over nearly four hours Wednesday. Each case appeared to raise a similar set of questions about the new policy for Judge Jonathen Scott Simpson, and the hearing culminated in a dose of skepticism from the judge.

“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.

RELATED: Homeland Security expands program of returning migrants to Mexico to await hearings

The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.

The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.

As of March 12, the US had returned 240 migrants to Mexico under these protocols.

The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.

The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.

Border Patrol facility over capacity as government struggles to keep pace in the Rio Grande Valley

In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.

“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”

“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”

All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.

In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.

Senate panel approves Trump’s nominee to lead ICE

Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.

“Immigration officers need four hours,” said Robert Wities, an ICE attorney.

“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.

In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.

In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.

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

Can you imagine what would happen if the ICE Assistant Chief Counsel Robert Wities told a U.S. District Judge when he or she could or couldn’t schedule hearings? What if a private attorney said he or she would only appear in the afternoon? What kind of “court system” doesn’t give its own judges flexibility to set their own court schedules in the manner they believe will be most fair, effective, and efficient? Why has the statutory contempt of court authority that Congress conferred on U.S. Immigration Judges more than two decades ago never been implemented by the DOJ?

A real court would examine both the legality and the procedures that the DHS unilaterally, and apparently incompetently, put in place for their “Stay in Mexico” program. Deputy AG Rod Rosenstein’s rewriting of the oath of office notwithstanding, U.S. Immigration Judges, like other Federal employees, swear an oath to uphold our Constitution (e.g., Due Process) not an oath of loyalty to the Attorney General, the President, or the DOJ.

PWS

03-24-19

Amín E. Fernández @ NY Law School: A FIRST-HAND ACCOUNT FROM THE BORDER — “As I would inform families of the future that awaited them, I felt embarrassed of my country. I felt anger at the fact that we are telling folks who are fleeing cartel, gang and military violence to grab a number and wait in line for four to five weeks. That I had to help mothers and fathers write their information on their babies in case they were separated. It broke my heart to have to tell a mother that her pain and suffering just couldn’t be pigeon holed into ‘race, religion, nationality, political opinion or a particular social group.'”

Amín E. Fernández

            Prior to this year, I had never been on a college spring break trip. I had never experienced the stereotypical American “Cancun trip” full of debauchery, innocentfun and the fantasy MTV sold me in the early 2000s. Part of this was due to financial considerations, the other part was that I always had some kind of commitment whenever this season came upon me. This year, I finally got to go on a spring break trip with some of my law school peers. But the Mexico I saw was far from a carefree oasis for the inebriated and the carefree.

            This past March, I along with my Asylum clinic professor and four New York Law School classmates volunteered in Tijuana for a week at an organization called Al Otro Lado, Spanish for “On the Other Side.” Al Otro Lado (“or AOL”) is a not for profit organization run almost exclusively by volunteers. AOL provides free legal and medical services to migrants both in Tijuana and San Diego and is currently in the process of suing the U.S. government for its recently adopted border policies. AOL is composed of volunteers from all walks of life. Some are attorneys, others doctors or nurse practitioners. Most, though, are concerned U.S. citizens who wanted to see for themselves the humanitarian crisis occurring in our country. They come from all walks of life, ages, races and socioeconomic backgrounds. But for that week, our collective problems and biases were set aside due to the more pressing concerns facing the people we were seeking to assist.

            During my week volunteering with AOL in Tijuana, my classmates and I utilized our studies in immigration and asylum law to educate asylum seekers as to the process that awaits them. I met with over a dozen migrants, one-on-one, and heard their stories of plight and fear. I didn’t tell them what to say, instead I explained to them that asylum is a narrowly applied form of relief. That in order to be granted asylum in the U.S. that they had to essentially prove 1. They have suffered a harm or credible fear of harm. 2. This fear or harm is based on an immutable trait (such as race, religion, nationality, political opinion or membership to a particular social group) 3. They cannot relocate to another area of their country because their government either cannot or refuses to help them. 4. They tried to go to the police or couldn’t due to inefficacy or corruption. Many of the folks I spoke with had no idea what asylum was or what exactly were its requirements. At times, I would find out that the family I was speaking to was crossing that same day meaning that I had 5 minutes to explain to them what a “credible fear interview” was.

            My favorite part of my week though, was when I got to conduct the Charla slang for “a talk.” The Charla is a know your rights workshop where AOL explains the asylum procedure, the illegal “list” number system currently being conducted by the U.S. and Mexican government, and what possibilities await them after their credible fear interviews. Currently, if you arrive in Tijuana and want to plead for asylum in the U.S. you can’t just go and present yourself to U.S. Customs and Border Protection officials. The Mexican government has security keeping you from being able to speak to U.S. CBP. Mexican officials, though, do not want to take on this responsibility either, so the idea somehow came about of having the migrants themselves keep a list or a queue amongst themselves. The way it works is that every morning at El Chaparral, one of the ports of entry between Tijuana and San Diego, a table with a composition notebook is set up. In that notebook is a list usually somewhere in the several thousands. For each number, up to ten people can be listed and in order to sign up and receive a number you have to show some form of identification. Once you have a number, the average wait time is about 4-5 weeks. Sometimes families and people disappear as their persecutors come to Tijuana and seek them out. Every morning at El ChaparralI would see families lined up either to receive a number or to hopefully hear their number be called. Best of all, right next to the migrants who would be managing “the list” would be Grupo Betas, a Mexican “humanitarian” agency who aids in the siphoning of migrants to the U.S.

            If and when your number is called, you’re shuttled off to U.S. CBP officials who will likely put you inLa Hieleras or “The Iceboxes.” Migrants named them as such because they are purposely cold rooms where migrants are kept for days or weeks until their credible fear interviews. Here, families can be separated either due to gender or for no reason given at all. Migrants who had been to La Hieleras would tell me that they were given those aluminum-like, thermal blankets marathon runners often get. They state how they are stripped down to their layer of clothing closest to the skin and crammed into a jail like cell with no windows and lights perpetually on. After La Hieleras, a U.S. immigration official will conduct a credible fear interview. The purpose of this interview is for the U.S. to see if this permission has a credible asylum claim. If you fail this interview your chances of being granted asylum become slim to none. If you pass three possibilities await you. First, you might be released to someone in the U.S. who can sponsor you, so long as that person has legal status and can afford to pay for your transport. The second, and newest, is that you might be rereleased and told to wait for your court date in Tijuana. And the last is indefinite detention somewhere within the U.S.

            As I would inform families of the future that awaited them, I felt embarrassed of my country. I felt anger at the fact that we are telling folks who are fleeing cartel, gang and military violence to grab a number and wait in line for four to five weeks. That I had to help mothers and fathers write their information on their babies in case they were separated. It broke my heart to have to tell a mother that her pain and suffering just couldn’t be pigeon holed into “race, religion, nationality, political opinion or a particular social group.” Thank you, try again. I feel like after this trip I have more questions than answers. That the work volunteer work I was doing was more triage than anything else. That even if I graduate law school and become an attorney at most I would be putting a band aid on a gunshot wound and never really addressing the disease.

            It’s easy to feel defeated. It’s much more difficult to work towards a solution. I’m not an expert on any of these subjects. But I know that xenophobia and racism have no place in international police or immigration practices. I know that the folks I encountered during my time at the border were families fleeing not criminals scheming. I know that I may not have all the solutions but we should begin by instilling empathy, humanity and altruism into how we speak of asylum seekers and immigrants in general. That not much separates me, an American citizen, from the people I met in Tijuana. I may not have the answers to the turmoil I saw at the border but I’m determined to giving the rest of my life to figuring it out.

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

Thanks, Amín!

He is one of the students of NY Law School Clinical Professor Claire Thomas who went to the border to “fight for the New Due Process Army” following the Asylum and Immigration Law Conference at New York Law School. Putting knowledge into practice! Saving lives!

Two really important points to remember from Amín’s moving account. First, because of BIA and AG interpretations intentionally skewed against asylum seekers from Latin America, many of whom should fit squarely within the “refugee” definition if properly interpreted, many refugees from the Northern Triangle intentionally are “left out in the cold.” That, plus lack of representation and intentionally poor treatment by DHS meant to discourage or coerce individuals results in unrealistically “depressed” asylum grant rates. Many who have been to the border report that a majority of those arriving should fit within asylum law if fairly and properly interpreted.

Second, many of those who don’t fit the asylum definition are both highly credible and have a very legitimate fear of deadly harm upon return. They merely fail to fit one of the “legal pigeon holes” known as “nexus” in bureaucratic terms. The BIA and this Administration have gone to great lengths to pervert the normal laws of causation and the legal concept of “mixed motive” to use “nexus” as an often highly contrived means to deny asylum to those genuinely in danger. A better and more humane Administration might devise some type of prosecutorial discretion or temporary humanitarian relief as an alternative to knowingly and intentionally sending endangered individuals and their families back into “danger zones.”

What clearly is bogus is the disingenuous narrative from Kirstjen Nielsen and other Administration officials that these are “frivolous” applications. What is frivolous is our Government’s cavalier and often illegal and inhumane treatment of forced migrants who seek nothing more than a fair chance to save their lives and those of their loved ones.

Whether they “fit” our arcane and intentionally overly restrictive interpretations, they are not criminals and they are not threats to our security. They deserve fair and humane treatment in accordance with our laws on protection and Due Process under our Constitution. What they are finding is something quite different: a rich and powerful (even if diminishing before our eyes) country that mocks its own laws and bullies, dehumanizes, and mistreats those in need.

PWS

03-23-19

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

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