THE HONORABLE JEFFREY CHASE: HOW THE PERNICIOUS INFLUENCE OF JEFF SESSIONS IS STANGLING THE US ASYLUM SYSTEM AND ITS “GO ALONG TO GET ALONG” ADJUDICATORS AND “JUDGES” — “Matter of A-B- Being Misapplied by EOIR, DHS”

https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs

Matter of A-B- Being Misapplied by EOIR, DHS

One month after Attorney General Jeff Sessions issued his cruel, misguided decision in Matter of A-B-, we are seeing the first signs of how the decision is being implemented by the BIA, USCIS, and ICE.

There is no question that Sessions’ intent was to eliminate domestic violence and gang violence as bases for asylum.  How can I be so certain of this?  While Matter of A-B- was pending before him, Sessions told a Phoenix radio station in March: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States.  Well, that’s obviously false but some judges have gone along with that.”   (here’s the link: https://ktar.com/story/2054280/ag-jeff-sessions-says-closing-loopholes-can-fight-illegal-immigration/).

However, Sessions chose to attempt to achieve this goal by issuing a precedent decision.  A decision is not a fiat.  It must be analyzed in the same manner as any other legal decision and applied to the facts accordingly.

Asylum experts and advocacy groups analyzing the decision have reached the following conclusions.  The main impact of Sessions’ decision is to vacate the Board’s 2014 precedent decision, Matter of A-R-C-G-, holding that a victim of domestic violence was eligible for asylum as a member of a particular social group.  Therefore, asylum applicants can no longer rely on that decision.

However, Sessions’ decision otherwise cobbled together already existing case law (which was taken into consideration in deciding Matter of A-R-C-G-), and added non-binding dicta, i.e. his statement that “generally, claims by aliens pertaining to domestic violence or gang violence…will not qualify for asylum.”  (Note the use of the pejorative “aliens” to describe individuals applying for asylum.)

Furthermore, most of the items covered by Sessions involved questions of fact (which are specifically dependent on the evidence in the individual case, and which the BIA and AG have very limited ability to reverse on appeal) as opposed to questions of law, which can be considered de novo on appeal and have more general applicability.  The questions of fact raised by Sessions include whether the persecutor was aware of the existence of the group and was motivated to harm the victim on account of such membership; whether the society in question recognizes the social group with sufficient distinction; whether the authorities in the home country are unable or unwilling to protect the victim, and whether the victim could reasonably relocate to another part of the country to avoid the feared harm.

So in summary, Sessions felt that the Board’s decision in Matter of A-R-C-G- did not provide a sufficiently detailed legal analysis, therefore vacated it, and laid out all of the legal analysis that future decisions must address.  Domestic violence and gang violence claims still remain very much grantable, provided that all of the requirements laid out by the Attorney General are satisfied.  Hearings on these cases may now take much longer, as testimony will need to be more detailed, additional social groups will need to be proposed and ruled on, more experts must be called, and more documents considered.  But nothing in A-B- prevents these cases from continuing to be granted.

Therefore, how discouraging that the first decision of the BIA to apply this criteria failed to do what is now required of them.  A single Board Member’s unpublished decision issued shortly after A-B-’s publication did not engage in the detailed legal analysis that is now warranted in domestic violence cases.  Instead, the decision noted that the case involved a social group “akin to the group defined in Matter of A-R-C-G-.”  The Board then found that the AG’s decision in A-B- “has foreclosed the respondent’s arguments,” because “the Attorney General overruled Matter of A-R-C-G- and held that it was wrongly decided.”

What is particularly dispiriting is that the decision was authored by Board Member Linda Wendtland.  A former OIL attorney whose views are more conservative than my own, I have always respected her scholarly approach and her intellectual honesty.  At the BIA, staff attorneys draft the decisions which the Board Members then edit.  Judge Wendtland always took the time to write her edits as academic lessons from which I always learned something.  She recently authored the lone dissenting opinion in a case involving a determination of whether a women was barred from relief for having provided material support to terrorists; Judge Wendtland correctly determined that the cooking and cleaning that the woman was forced to perform after having been kidnapped by rebels did not constitute “material support.”  It is therefore perplexing why she would sign the post-A-B- decision that so sorely lacked her usual degree of analysis.

In addition to the BIA, on July 11, both USCIS and ICE issued guidance on applying A-B- to asylum adjudications.  Much like the BIA decision, the USCIS guidelines to its asylum officers, which serve as guidance not only in adjudicating asylum applications, but also for making credible fear determinations, seem to apply the personal opinion of Sessions rather than the actual legal holdings of his decision.  USCIS decided to print in boldface Sessions’ nonbinding dicta that such cases will generally not establish eligibility for asylum, refugee status, or credible or reasonable fear of persecution.

Credible fear interviews are conducted right after an asylum seeker arrives in this country, while they are detained, scared, often unrepresented by counsel, before having a chance to understand the law or gather documents or witnesses.  The interviewer is supposed to find credible fear if there is a significant possibility that the applicant will be able to establish eligibility for relief at a future hearing before an immigration judge.  It is likely that, at such future hearing, the applicant will have an attorney who will make the proper legal arguments, call expert witnesses, formulate the particular social group according to the requirements of case law, submit other supporting evidence, etc.  But now asylum officers are being instructed to ignore all of that and deny individuals the chance to even have the opportunity to apply for asylum before an immigration judge essentially because Jeff Sessions doesn’t believe these are worthy cases.

ICE (through its Office of the Public Legal Advisor) has issued guidance that, while probably reflecting internal conflict within the bureau, is nevertheless somewhat more reasonable than the interpretations of either USCIS or the Board.  The ICE guidance does ask its attorneys to hold asylum applicants to some exacting legal standards, to look for flaws in supporting evidence, and to question asylum applicants in great detail.  It also asks its attorneys not to opine on whether gender alone may constitute a PSG until further guidance is offered (again, probably reflecting internal conflict within the bureau on the issue).  But the guidance does not simply conclude that all domestic violence and gang violence cases should be denied.  It even encourages attorneys to employ a “collaborative approach” by pointing out flawed social groups offered by pro se applicants in the hope that the IJ might help the applicant remedy the situation early on.

However, let’s remember that ICE stipulated to grants of asylum for victims of domestic violence in both Matter of R-A- (during the Bush administration, and to the consternation of then Attorney General John Ashcroft), and in Matter of A-R-C-G-.  ICE argued in its brief to Sessions in Matter of A-B- that Matter of A-R-C-G- was good law and should not be vacated.  So then shouldn’t ICE be applying these same principles to its guidance to attorneys?

It should also be noted that ICE and USCIS could see a way to granting worthy cases in spite of Sessions’ decision.  In the early 1990s, then INS General Counsel Grover Joseph Rees III took exception with the BIA’s precedent decision holding that forcible abortions and sterilization under China’s family planning policies did not constitute persecution on account of a protected ground.  Rees instructed his attorneys to seek to remand cases involving such claim to the INS Asylum Office, where per his instructions, such claims were granted affirmatively by asylum officers.  There is no reason that a similar practice could not be employed now, particularly as both ICE and USCIS are not part of the Department of Justice and therefore are not controlled by Sessions.  The only thing lacking is the political will to take such a stand.  In the early 1990s, Rees’s stance involving abortion played to the Bush Administration’s political base.  Today, ICE and USCIS would have to take action contrary to the wishes of that same base because doing so is the just and humane thing to do.  Unfortunately, based on the tone of their recent advisals, doing the right thing is not enough of a motive in the present political climate.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Jeffrey amplifies and provides a more scholarly perspective on the preliminary comments I had made after seeing the USCIS and ICE “interpretations” of Matter of A-B-. I hadn’t been aware of the unpublished BIA decision until Jeffrey brought it to may attention. But, given that Sessions “owns” the BIA (along with the Immigration Courts), blasted them in Matter of A-B-, and that the BIA has been cultivated since 2000 as a “go along to get along — your job is on the line every time you exercise truly independent judgment” organization, it’s not too surprising to us “Board Watchers” that at this point they would be rushing to “out-Sessions Sessions!”

I also share Jeffrey’s views on Judge Wentland: I’ve always admired her scholarship and her independent thinking. I thought of her as the “intellectual powerpack” of OIL during her tenure there. It is indeed sad to see that nobody seems willing to stand up for Due Process and the rights of asylum seekers on a body whose mission was supposed to “be the world’s best administrative tribunal guaranteeing fairness and Due Process for all.” How far away from that we have come in the perverted age of Sessions and Trump.

I also find it remarkable that having expressed his clear bias against asylum seekers and particularly those who are victims of domestic violence, in a non-judicial forum, Jeff Sessions is allowed to intervene in a (totally bogus) “quasi-judicial capacity” in the Immigration Court system. Obviously any individual Immigration Judge or BIA Appellate Immigration Judge who made such an outrageous public statement would be subject not only to disqualification from asylum cases, but also severe disciplinary action. Just another example of why the US Immigration Court system under Sessions is a farce and why we need an independent Article I Immigration Court! And, why Jeff Sessions was supremely unqualified for the position of Attorney General in the first place!

A grim time for America, refugees, Due Process, intellectual honesty, and human decency. History will record, however, who stood up to Trump, Sessions, and their racist/White Nationalist cabal and who “went along to get along.”

PWS

07-14-18

EUGENE ROBINSON @WASHPOST ASKS THE QUESTION ALL DECENT AMERICANS SHOULD BE ASKING: WhyAren’t Child Abuser/Kidnapper Jeff Sessions & His Equally Vile & Dishonest Cohorts In Jail? — “Kidnapping children. Failing even to account for them. Sending families home to be killed. Give us your huddled masses, this administration seems to say, and let us kick them in their little faces.”

https://www.washingtonpost.com/opinions/the-trump-administration-kidnapped-children-someone-should-go-to-jail/2018/07/12/2128c51c-8605-11e8-8f6c-46cb43e3f306_story.html?utm_term=.d64b5c997413

The Trump administration kidnapped children. Someone should go to jail.

The Trump administration’s kidnapping — that’s the proper word — of the children of would-be migrants should be seen as an ongoing criminal conspiracy. Somebody ought to go to jail.

Under a federal court order, all 103 children under the age of 5 who were taken from their families at the border were supposed to be returned by Tuesday. The government missed that deadline, and I wish U.S. District Judge Dana M. Sabraw, who issued the order, had held somebody in contempt. One candidate would be Health and Human Services Secretary Alex Azar, who on Tuesday had the gall to describe the administration’s treatment of immigrant children as “one of the great acts of American generosity and charity.”

On Thursday, officials announced with fanfare that 57 of the kids — some still in diapers — had been returned to their parents. But 46 others were deemed “ineligible,” meaning they remain in government custody.

The reasons for failing to comply fully with Sabraw’s order sound reasonable, unless you take into account the bad faith with which the administration has conducted this whole sordid exercise. In 22 cases, officials had “safety concerns posed by the adults in question,” presumably the parents; in 12 cases, parents have already been deported; in 11 cases, parents are in federal or state custody; and in one case, an adult believed to be the child’s parent cannot be found.

In a joint statement, Azar, along with Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen, took credit for working “tirelessly” to reunite the children with their families — which is rich, given that the Trump administration deliberately and cynically created this crisis in the first place.

“Our message has been clear all along: Do not risk your own life or the life of your child by attempting to enter the United States illegally,” the statement said. Translation: Don’t come to the border seeking asylum because, when others did, we took away their kids.

Given that the intention from the beginning was clearly to frighten and intimidate would-be migrants from Central America, why should anyone believe that the administration is acting or speaking in good faith now? Why should we accept at face value that exactly 103 children under 5 were seized? How can we be sure there is only one case in which officials can’t find or identify the parents? Given that it has taken weeks to return just 57 children, what is the likelihood the government kept adequate records?

This is an administration, after all, that conducts immigration court proceedings, or travesties, in which children too young to know their ABCs are expected to represent themselves without the benefit of legal counsel. Imagine your 3-year-old child or grandchild in that situation. Now tell me how adopting child abuse as a policy is supposed to Make America Great Again.

And what about the children older than 5 who were taken from their families? Sabraw ordered that they be returned to their parents by July 26, but don’t hold your breath. We don’t even know how many there are, because the government doesn’t seem to know. Officials first gave the number as about 2,300, but the latest estimate is nearly 3,000. Why can’t they settle on a precise figure? What reason could there be for such vagueness, other than ignorance?

I don’t think they know how many kids they ripped away from their families, and I believe it is inevitable some children will never again see their parents. The fact that my government would commit such a crime weighs on my conscience as an American. President Trump and his accomplices, from all appearances, couldn’t be prouder.

“Judges run the system and illegals and traffickers know how it works. They are just using children!” Trump tweeted Wednesday. As usual, he was ascribing his own base motives to others: He is the one who is “just using children.”

Remember what this is really about. The main flow of undocumented migrants consists of Hondurans, Guatemalans and Salvadorans seeking to escape rampant, deadly gang violence that their home governments cannot or will not check. The Trump administration issued new instructions on Wednesday to officers who interview asylum seekers at the border, telling them that fear of gang violence, no matter how well-founded, is no longer grounds for asylum. The same new guidance applies to immigration judges, who take their orders from Sessions.

Kidnapping children. Failing even to account for them. Sending families home to be killed. Give us your huddled masses, this administration seems to say, and let us kick them in their little faces.

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Yup.  Sessions and his group of fellow racists know very well that their actions violate the Constitution and the laws of our country governing both conditions for detention and reasons for detention. Yet, they walk free and smugly give press conferences at which they continue to lie about their actions. Their victims, on the other hand, largely languish in substandard prisons or are being removed to the dangerous situations they fled in their home countries without any pretense of Due Process or fundamental fairness.

PWS

07-14-18

GONZO’S WORLD: INSIDE JEFF SESSIONS’S “NEW AMERICAN GULAG” – WHERE INHUMANE CONDITIONS, ABUSE OF DETAINEES, HARM TO PREGNANT WOMEN, OVERWHELMED STAFF, LACK OF PROFESSIONALISM, & EVEN DETAINEE DEATHS ARE THE NORM — “We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=2cd55c1f-5d26-489c-b14e-711440e36812

Paloma Esquivel reports for the LA Times:

By Paloma Esquivel

VICTORVILLE — Immigration detainees who were sent to a federal prison here last month were kept in their cells for prolonged periods with little access to the outside and were unable to change their clothing for weeks, according to workers at the facility and visitors who have spoken with detainees.

Staffers at the prison also say they have not been given the proper resources or direction to handle the influx of detainees, putting those in custody as well as workers in danger.

“We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”

The Victorville Federal Correctional Complex is a sprawling federal prison in San Bernardino County that houses thousands of inmates who have been convicted of crimes in federal courts.

By contrast, the immigrants who have been sent there are considered “civil” rather than criminal detainees, meaning they are being held pending the outcome of their immigration cases. Some are asylum seekers; some are fathers who were separated from their children in recent months.

They were sent to the prison in June as part of the Trump administration’s policy of increasingly detaining asylum seekers and immigrants who are in the country illegally until their cases are decided. Federal officials have said using prisons to hold the detainees is a stopgap measure while officials find more holding space.

Officials with the Federal Bureau of Prisons say the facility had beds available because of a decline in the inmate population in recent years, and that it has managed the new population using existing staff, some of whom were reassigned from other facilities.

But workers and people who have been able to visit the detainees say the prison was seriously unprepared for its new role.

The prison, which workers have long complained was short-staffed, is now scrambling to care for hundreds of new detainees from around the world with language, medical and care needs that are very different from those of typical federal prisoners, workers say.

The situation has raised concern among Democratic and Republican lawmakers.

In late June, Rep. Paul Cook (R-Yucca Valley) wrote a letter to U.S. Immigration and Customs Enforcement and the Bureau of Prisons urging officials to increase staffing levels at Victorville to match the increase in population.

“Furthermore, I urge ICE to support and train [prison] staff so they are properly equipped to implement policies and procedures that may be unfamiliar to them when dealing with immigration detainees,” Cook wrote.

Rep. Mark Takano (D-Riverside), who visited the facility July 2, said he saw numerous signs that the prison was struggling to meet detainees’ needs.

“Every detainee group that we met said they had not had a change in clothes since they arrived on June 8. Their bedding had not been switched. They were wearing the same underwear,” Takano said.

Thirteen of the detainees who spoke with Takano and his staff were fathers who had been separated from their children. The men said they had been unable to speak with their children since arriving at the facility.

Detainees also complained of not getting enough food, of being “locked up for long periods of time in their cells” and having very limited access to the outdoors, Takano said.

Prison officials showed Takano a recreation area that he said was nicely equipped. But when he asked one group of detainees whether they were able to use that room, they told him they had been there only once, he said.

“That’s an indicator to me that the prison was not ramped up to be able to accommodate this incursion of detainees. They were understaffed before the detainees arrived, and the arrival of 1,000 detainees I think has fully stressed the staff’s ability to be able to safely oversee their health and safety,” Takano said.

Nearly 1,000 immigration detainees were initially transferred to the prison. As of this week, 656 remained, said ICE spokeswoman Lori Haley.

The complex includes a high-security prison, two medium-security prisons and a minimum-security camp. The detainees are being housed in one of the medium-security prisons. Visits to the facility are tightly controlled.

Workers say one of their biggest concerns is the lack of staff and resources to adequately handle detainees’ medical needs.

There have been three cases of chickenpox and about 40 scabies cases since the detainees arrived.

One worker who spoke to The Times on the condition of anonymity for fear of retaliation said medical workers are stretched so thin they can address only detainees’ most urgent needs.

“We’re not finding illness because we are so rushed,” the worker said. “As patients, they’re not getting the care they need.”

After Takano’s visit, the worker said, detainees were given a change of clothing — but for many of them it was paper gowns normally reserved for inmates with specific medical needs.

Eva Bitran, an attorney for the ACLU who has met with two detainees at the facility, said both men told her they had struggled to get medical care.

One man told her about a button that detainees could push for emergency medical care. When that button was pushed, they were asked: “Are you being raped or are you dying?” When the answer was no, no help would come, the man told her.

One detainee who has since left the facility told The Times that he and others in his unit were locked in their cells for most of the day for the two weeks he was at the prison, with food passed through a small opening in the door.

The man said he was not given a change of clothes during the 14 days he was at the facility and was not able to bathe for the first four days.

In late June, the ACLU sued the Department of Homeland Security and the Bureau of Prisons on behalf of detainees, saying they had been held “incommunicado,” asking the court to order the prison to allow lawyer visits and phone calls.

U.S. District Judge Otis D. Wright II sided with the ACLU and granted a temporary restraining order June 21 requiring the prison to allow detainees to communicate with immigration attorneys and attend “know your rights” workshops.

Haley, the ICE spokeswoman, referred questions about conditions at the prison to the Bureau of Prisons and said ICE was deferring to that agency’s standards on questions of things such as access to time outside of cells and outdoors time.

In an email response to questions from The Times, Bureau of Prisons officials said, “[D]etainees have regular inside and outside recreational opportunities.”

Officials also said that since the detainees’ arrival, 25 medical staff members had been temporarily assigned to help with intake screenings, physical exams and general care.

Regarding the chickenpox and scabies cases, officials said the facility was “taking the necessary precautionary measures to protect staff, inmates and detainees, and the community, from the possibility of being exposed.”

John Kostelnik, president of the American Federation of Government Employees Local 3969, which represents workers at the prison, said that although some medical staffers were briefly assigned to help with the detainees, it was far from enough to meet the need.

He said many problems stem from a lack of direction from officials about how to reconcile standards that are common to federal prisons but aren’t necessarily appropriate for immigration detainees.

“We’re still day by day, making things up as we go,” he said.

As the facility has received increasing scrutiny from political leaders, legal groups and others following the transfer of detainees, Kostelnik said, some things appear to be improving — such as more uniforms.

But the staff is still overtaxed, said Kostelnik, who worries about what might happen if bigger changes don’t come fast enough.

“You have this group of detainees that are starting to get upset,” he said. “You get a large group of individuals that are upset, you have the potential for anything.”

paloma.esquivel@latimes.com

 

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https://www.cnn.com/2018/07/12/us/georgia-ice-detainee-dies/index.html

Catherine E. Shoichet reports for CNN:

(CNN)Authorities are investigating after an ICE detainee facing possible deportation apparently killed himself.

Efrain De La Rosa, 40, was found unresponsive in a cell at the Stewart Detention Center in Lumpkin, Georgia, on Tuesday night and was later pronounced dead at a hospital, Immigration and Customs Enforcement said.
The apparent cause of death was self-inflicted strangulation, the agency said Thursday, adding that the case is under investigation.
De La Rosa, a Mexican national, was in removal proceedings at the time of his death, ICE said.
The Georgia Bureau of Investigation is investigating the death at the request of the local sheriff. There is no indication of foul play, GBI Special Agent in Charge Danny Jackson said.
A preliminary investigation revealed De La Rosa was alone in an isolation cell at the detention center when officials there found him, Jackson said.
It was not immediately clear why De La Rosa had been placed in isolation.
ICE spokesman Bryan Cox said he could not provide additional comment because an agency review of the death is ongoing.
Amanda Gilchrist, a spokeswoman for CoreCivic, which owns and operates the facility, said the company is fully cooperating with investigators but declined to comment further because of the active investigation.
De La Rosa is the eighth detainee to die in ICE custody in the 2018 fiscal year, the agency said.
De La Rosa’s death comes less than six months after the death of another ICE detainee who had been in custody at Stewart.
Yulio Castro Garrido, a 33-year-old Cuban national, was diagnosed with pneumonia at Stewart and was hospitalized as his condition worsened. He died in January at the Mayo Clinic in Jacksonville, Florida.
And in May 2017, Jean Jimenez-Joseph, a 27-year-old Panamanian national, killed himself in solitary confinement at Stewart.
Immigrant rights groups swiftly criticized the facility as word of De La Rosa’s death spread.
“The deaths and systematic abuse at Stewart are not only tragic, but infuriating,” said Azadeh Shahshahani, legal and advocacy director at Project South.
ICE said it is conducting an agency-wide review of De La Rosa’s death and “is firmly committed to the health and welfare of all those in its custody.”
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Ema O’Connor reports for BuzzFeed News:

Four Democratic senators are calling for an investigation into the treatment of pregnant women detained in Immigration and Customs Enforcement (ICE) facilities, following a BuzzFeed News report on several women who said they were mistreated while in immigration detention.

The letter to the Department of Homeland Security Acting Inspector General John Kelly, sent Friday, cites BuzzFeed News’ reporting on the conditions pregnant women in ICE and Customs and Border Patrol custody have faced under the Trump administration, particularly following a new policy issued in December allowing pregnant women to be detained. Under the Obama administration, ICE was ordered to release pregnant women past their first trimester from custody.

“Recent reports cite the inadequate care that pregnant women receive while in ICE custody, pregnant women’s lack of access to medical care, and their heightened vulnerability to sexual assault,” the letter reads. “Given the multiple findings of harmful and substandard conditions of detention for this particularly vulnerable population, we ask that you open an investigation into the treatment and care of pregnant women in ICE detention facilities.”

The letter was organized by Sen. Kamala Harris and signed by fellow Democratic Sens. Patty Murray, Maggie Hassan, and Tom Carper. A spokesperson for Harris’s office told BuzzFeed News that Harris was working “with a group of senators on legislative options to address this as well.”

In a story published Monday, BuzzFeed News related the stories of three women who had miscarriages while in the custody of ICE and Customs and Border Patrol and said they did not receive adequate medical care while pregnant or miscarrying. One woman told BuzzFeed News she was physically abused by CBP officials. All three said they bled for days without medical care and all said they were shackled while pregnant at some point during their detention. Shackling pregnant women is prohibited by ICE’s and CBP’s most recent standards-of-care policies, as well as by a congressional directive.

The report also included interviews with 11 legal, medical, and advocacy workers who work with pregnant detainees in or near detention centers, as well as two affidavits signed under “penalty of perjury” in which a fourth woman described being given clothes so small for her pregnant belly they gave her welts and “pain in [her] uterus.” A fifth woman said she underwent repeated X-rays, despite this being against the Food and Drug Administration’s recommendations and against CBP’s(but not ICE’s) policies for pregnant women.

“Pregnant women have repeatedly described the fear, uncertainty, and exhaustion they experience as a result of being detained,” the senators wrote in Friday’s letter. “Detained pregnant women have stated they experience routine mistreatment, including malnutrition, inadequate bedding, insufficient access to basic medical care, lack of privacy regarding their medical history, and even shackling during transportation for medical care.”

The senators’ letter said there was a 35% increase in the number of pregnant women detained by ICE in the fiscal year of 2017 compared to the year before, under the Obama administration. During that year, ICE detained nearly 68,000 women, 525 of whom were pregnant, the letter stated, and an additional 590 between December 2017, when the policy change was issued, and April 2018.

In June, Harris toured Otay Mesa Detention center, where the three women BuzzFeed News spoke with were held while miscarrying. There, Harris met with mothers who had been separated from their children as a result of the Trump administration’s “zero tolerance” policy, which has triggered national outrage, court cases, and an executive order from President Trump.

  • These human beings aren’t “inmates”
  • They “civil detainees”
  • Their only “crime” is seeking asylum under U.S. and international law
  • Their only mistake: believing that the United States is a nation of laws and human decency, not just another “Banana Republic” as it has become under Trump & Sessions
  • The solution: regime change
  • Another thought:  The problems in civil immigration detention were well-known and well-documented before Sessions and his cronies established the “New American Gulag” to punish, duress, and deter asylum seekers:
    • Shouldn’t that result in eventual successful suits against Sessions for ethical violations and for civil damages for intentionally violating the Due Process rights of asylum seekers?

 

PWS

07-14-18

ICE OFFICE OF PRINCIPAL LEGAL ADVISER (“OPLA”) HAS A MORE NUANCED TAKE ON SESSIONS/USCIS/ASYLUM OFFICE “SHOOT REFUGEES ON SIGHT” POLICY!

Here’s the OPLA analysis of “asylum law after Matter of A-B-:”

OPLA 7-11-18

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  • At least at first reading, the OPLA memo seems like a more neutral legal analysis than the USCIS “Sessions told us to shoot ’em all on sight” memo:
  • On its face it also seems like a much less biased analysis than the anti-asylum, anti-woman, anti-Hispanic screed that Sessions spewed forth in Matter of A-B-;
  • OPLA appears to be emphasizing that each claim must be individually evaluated and examined, rather than the idea promoted by Sessions and USCIS that all women from Central America and all Central Americans fleeing gang violence or domestic violence should be presumptively denied with only a few exceptions;
  • Does this mean that there is an internal split within DHS?
  • Interestingly, the OPLA memo specifically reserves judgement on “gender as a particular group” claims;
  • Of course, if Sessions and Cissna have their way nobody will ever get to Immigration Court to claim asylum, because nobody will get out of the now-gamed “credible fear” process, so perhaps OPLA’s views won’t have much effect.
  • How bad and biased are Sessions and Cissna? That ICE’s OPLA, the head of all the ICE prosecutors, sounds more reasonable should tell you all you need to know!
  • It’s also worth remembering that OPLA and the DHS General Counsel actually led the years-long effort to provide protection for victims of domestic violence that Sessions, without any reasonable explanation, reversed in Matter of A-B-.
  • Stay tuned!

THE HILL: NOLAN POINTS OUT THAT REFUGEES HAVE MANDATORY RIGHTS BEYOND THE ASYLUM PROCESS THAT TRUMP & SESSIONS DON’T HAVE DISCRETION TO ELIMINATE!

http://thehill.com/opinion/immigration/396611-can-trump-refuse-asylum-to-aliens-who-make-illegal-entries

 

Family Pictures

Nolan writes:

. . . .

The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees.

According to UNHCR, the U.S. cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

The United States is meeting this condition with the withholding of deportation provision in the INA. It provides that, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”

The burden of proof is higher for withholding than it is for asylum. Asylum just requires the applicant to establish a well-founded fear of persecution. Withholding requires the applicant to establish that it is more likely than not that he would be persecuted.

And withholding grants fewer benefits.

A grant of withholding does not convey legal immigration status to the alien. It just prohibits sending him to a country where he would face persecution. He can be removed to another country where he will not be persecuted.

Moreover, it is not derivative. A grant of withholding does not apply to the members of the alien’s family.

The United States also is a signatory to the UN’s Convention against Torture (CAT), which prohibits the U.S. from expelling, returning or extraditing “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 CAT does not confer lawful immigration status on the alien. It just prohibits his deportation to the country where he would be tortured. He can be deported to a country where he will not be tortured.

. . . .

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To fully understand the differences between asylum and withholding under the Refugee Convention and the CAT, read Nolan’s complete article over on The Hill!

Nolan makes a good point that although asylum is by statute discretionary, these other forms of relief are mandatory. Moreover, the current Federal case law limits discretionary denials of asylum to “egregious” adverse factors.

PWS

07-13-18

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MORE ON USCIS “DEATH SQUADS” FROM TAL@ CNN!

Trump administration to turn away far more asylum seekers at the border under new guidance

By Tal Kopan, CNN

 

The Trump administration is implementing a new asylum policy at the border that will result in potentially thousands of asylum seekers being turned away before they can plead their case in court.

The guidance, reviewed by CNN, also applies to refugee applicants — immigrants seeking similar protections in the US who are still abroad.

Under new guidance given Wednesday to the officers who interview asylum seekers at the US’ borders and evaluate refugee applications, claims based on fear of gang and domestic violence will be immediately rejected. In addition, the guidance tells officers they should consider whether an immigrant crossed the border illegally and weigh that against their claim, potentially rejecting even legitimate fears of persecution if the immigrant crossed illegally.

The move is likely to draw swift condemnation from immigration advocates and legal challenges. Advocates say international law is clear that asylum claims are valid even when a migrant enters a country illegally. They also argue that rejecting these traumatized immigrants puts their lives at risk immediately upon their return home.

The changes being implemented by the Department of Homeland Security come on the heels of Attorney General Jeff Sessions’ decision last month that gang and domestic violence victims no longer qualify for asylum. Asylum protects migrants already in the US who fear persecution in their home country.

More: http://www.cnn.com/2018/07/11/politics/border-immigrants-asylum-restrictions/index.html

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Ah, the transition to the “Banana Republic of America!”

PWS

07-12-18

INSTRUCTIONS TO THE FIRING SQUAD: USCIS ORDERS ASYLUM OFFICERS TO EFFECTIVELY “KILL OFF” ALL CENTRAL AMERICAN REFUGEES AND BURY THEIR CLAIMS IN BOGUS “CREDIBLE FEAR” PROCESS — Will The Article IIIs Ever Get The Backbone To Intervene In This Due Process Charade? — Or Will They Let The Slaughter Continue As Long As It’s Not Their Spouses, Siblings, Kids, Or Grandkids Being Sent Off To Be Abused, Tortured, Extorted, Or Killed In The Name Of The Trump/Sessions White Nationalist State?

Here’s the new “guidance:”

2018-06-18-PM-602-0162-USCIS-Memorandum-Matter-of-A-B

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Remember, folks, most of the intended “victims” of this policy are:

  • unrepresented
  • detained
  • traumitized
  • speaking through an interpreter (perhaps telephonic)
  • totally clueless as to what a “particular social group,” the “three criteria,” nexus,” or Matter of A-B- mean, and
  • Matter of A-B has never been tested or approved by any “real (Article III) court.”

Shoot first, ask questions later. This is America in the 21st Century. This is how we treat our fellow human beings —- most of them refugees seeking our help and protection under the law. This is what we are as human beings under Trump & Sessions. Someday, our descendants will look back on us and say “how could you!”

PWS

07-12-18

PROFESSOR DAVID A. MARTIN IN VOX NEWS: How To Fix Our Asylum System – PLUS SPECIAL BONUS COVERAGE: My Response To David!

https://www.vox.com/the-big-idea/2018/7/2/17524908/asylum-family-central-america-border-crisis-trump-family-detention-humane-reform

Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?

The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.

DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.

Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.

And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.

So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.

A precedent for a solution

Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.

We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.

How our two-track asylum system works

To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.

A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.

Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.

That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.

Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”

For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).

Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)

In the 1990s the system was also overwhelmed. We brought it back under control.

Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.

That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.

Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.

Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.

Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.

But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).

To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).

Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.

These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.

Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.

The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.

With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.

A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.

Concrete steps to fix the problems

Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.
Joe Raedle/Getty Images

There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:

1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.

But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.

This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.

This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.

2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.

Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.

In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)

Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.

The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.

Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.

Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.

To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.

3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.

A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.

The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.

But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.

Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.

But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.

US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.
Orlando Estrada/AFP/Getty Images

4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.

It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.

In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.

That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.

These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.

The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.

Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.

Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.

David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.

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MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL

By Paul Wickham Schmidt

As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.

 

David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.

 

David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).

 

Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.

 

The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!

 

With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.

 

Don’t Blame The Victims.

 

With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.

 

Let Judges Run The Courts.

 

The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.

 

Protection Not Rejection.

 

Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.

 

Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.

 

No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.

 

Detention Isn’t The Answer.

 

Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.

 

Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.

 

I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.

 

But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.

 

No, I Don’t Have All the Answers.

 

But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.

But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.

It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.

 

PWS

07-09-18

 

 

 

3RD CIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS: YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 — PLUS MY ESSAY: How “Go Along To Get Along” Judging Costs Innocent Lives!

172031p — SERL

 

S.E.R.L. v. Att’y Gen., No. 17-2031, 3rd Cir., July 3, 2018

HOLDING: Latinas fleeing persecution in the Northern Triangle can expect no protection under U.S. asylum laws in the Third Circuit.

PANEL:  Circuit Judges Kent Jordan, Cheryl Ann Krause; Senior Circuit Judge Ira Morton Greenburg

OPINION BY: Judge Kent Jordan

KEY QUOTES:

S.E.R.L., a native of Honduras, seeks review of the denial of her application for asylum and statutory withholding of removal based on membership in a proposed particular social group that she characterizes as “immediate family members of Honduran women unable to leave a domestic relationship[.]”2 (Opening Br. at 21.) She fears persecution by two men, Jose Angel and Juan Orellana. Jose Angel abducted, raped, and continues to stalk one of S.E.R.L.’s daughters, K.Y.R.L. That daughter has already been granted asylum in the United States. Juan Orellana is S.E.R.L.’s stepfather and has repeatedly abused S.E.R.L.’s mother. S.E.R.L. fears that if she is removed to Honduras, both men will persecute her, Jose Angel because of her relationship to her daughter, and Juan Orellana because of her relationship to her mother. S.E.R.L. and two of her children fled here from Honduras in 2014. Within a month of their unlawful arrival, the Department of Homeland Security initiated removal proceedings pursuant to INA § 212(a)(6)(A)(i). S.E.R.L. conceded removability, and timely applied for asylum and statutory withholding of removal.4 In support of her claims for relief, she alleged past persecution and a fear of future persecution based on the relationships just noted.

. . . .

S.E.R.L. contends that the BIA’s change innomenclature from “social visibility” to “social distinction” is the only change the BIA has made to its test for assessing a“particular social group,” and, she says, that is a “distinction without a difference.” (Reply Br. at 5.) According to S.E.R.L., our decision in Valdiviezo-Galdamez forecloses application of the “particularity” and “social distinction”requirements. She also argues that the BIA plainly acknowledges that it has not changed course, nor has itprovided a “principled” explanation for why it continues to impose criteria we rejected in Valdiviezo-Galdamez. (Opening Br. at 31.)

In addition, those who have filed amicus briefs in this case point out that the BIA’s decisions in M-E-V-G- andW-G-R- could be read as inconsistent with certain other BIA decisions and contrary to the canon of ejusdem generis. Amici note, for example, that in W-G-R-, the BIA concludedthat “‘former members of the Mara 18 gang in El Salvadorwho have renounced their gang membership’ does not constitute a particular social group” in part because “the group could include persons of any age, sex, or background.”26 I. & N. Dec. at 221. Yet, even though the groups varied significantly across age, sex, and background, the BIA has also held that “Filipinos of Chinese [a]ncestry” constituted a “particular social group,” In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997), and that “former member[s] of the national police” in El Salvador, Fuentes, 19 I. & N. Dec. at 662, likewise could be cognizable.15 And although the BIA expressly justified its new requirements as “[c]onsistent with the interpretive canon ‘ejusdem generis,’” M-E-V-G-, 26 I. & N. Dec. at 234, amici highlight that some of the enumerated grounds for persecution, including “political opinion,” and “religion,” 8 U.S.C. § 1101(a)(42)(A), may themselves be thought of as amorphous, diffuse, or subjective and therefore as insufficient bases for PSGs under M-E-V-G-’s requirements.

Those critiques raise legitimate concerns. The BIA has chosen to maintain a three-part test for determining the existence of a particular social group, and it has discussed how the revised particularity and social distinction requirements are not a departure from but a ratification of requirements articulated in its prior decisions. M-E-V-G-, 26 I. & N. Dec. at 234. And the arguable inconsistencies in its precedent highlight the risk that those requirements could be applied arbitrarily and interpreted to impose an unreasonably high evidentiary burden, especially for pro se petitioners, at the threshold. At the same time, however, we recognize thatM-E-V-G- is a relatively recent decision and clarity and consistency can be expected to emerge with the accretion of case law. That process is aided by M-E-V-G- itself, which addressed the specific concerns we raised in Valdiviezo- Galdamez, and explained why the particularity and social distinction requirements are different from one another and necessary. We now consider each of those requirements, beginning with social distinction, to explain why, notwithstanding our concerns, we conclude that the requirements are reasonable and warrant Chevron deference.

. . . .

Although S.E.R.L. also relies heavily on Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), where the BIAhad held that “married women in Guatemala who are unable to leave their relationship” constituted a particular socialgroup, the Attorney General recently issued a decision overruling A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

. . . .

At the same time, we are mindful of the role that courts can and must play to ensure that agencies comply withtheir “obligation to render consistent opinions,” Chisholm v. Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), including, as relevant here, review of BIA decisions for inconsistent application of M-E-V-G’s requirements to similarly situated petitioners, routine rejection of proposed PSGs without reasoned explanation, and the imposition of insurmountable evidentiary burdens that would render illusory the opportunity to establish a PSG. However, just as we will carefully examine cases on petition for review to guard against such dangers, we anticipate that the BIA will scrutinize the IJ decisions that come before it with those considerations in mind and with an eye towards providing clear guidance and a coherent body of law in this area.

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

3RDCIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS:  YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 – How “Go Along To Get Along” Judging Costs Innocent Lives!

 

By Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

 

Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit got together in Philly, ”our nation’s birthplace,” on July 3, 2018 to deliver an early July 4 message for courageous Latinas fleeing the Northern Triangle: Your lives don’t matter; we’re OK with femicide, rape, torture, and abuse of you and your children as long as it’s out of sight, out of mind in some foreigncountry where we don’t have to listen to your screams or come across your mutilated bodies!

 

These judges’ names and faces are worth remembering, since they went to such great lengths to avoid taking or acknowledging any legal or moral responsibility for their own actions. Obviously, they don’t want anyone to put names and faces with consequences.

 

While you wouldn’t recognize it from their 43 pages of intentionally legalistic, opaque, de-humanized, gobbledygook, there is actually a simple straightforward human tragedy behind their obfuscation and task shirking. Since they won’t tell it, I will.

 

“Ms. S.E.R.L”. (I’ll call her “Susana”) is a native and citizen of Honduras. Honduras is a patriarchal “failed state” with a corrupt and incompetent government that does little or nothing to control gang violence and violence against women, even encouraging it or participating in the abuses in many cases. By 2015, femicides in Honduras had far surpassed “epidemic levels.” For example, in 2013, one Honduran woman was murdered every fourteen hours!

 

Jose Angel abducted, raped, and continued to stalk Susana’s daughter “Karla.” Susana’s stepfather, Juan Orellana repeatedly abused Susana’s mother without any interference from the government. Juan also threatened Susana personally. Having witnessed what these men did to her closest relatives, her daughter and her mother, Susana reasonably believed that she would be next. Karla was granted asylum in the U.S. Susana fled to the United States with two other daughters and applied for asylum.

 

Since Karla was granted asylum in the U.S., Susana expected the same humane treatment, particularly since our Supreme Court once said that asylum laws should be generously applied to those with as little as a 10% chance of being persecuted. After all, Honduran women are a distinct, well-recognized class subject to essentially uncontrolled specifically gender-based violence in a patriarchal society. Additionally, the family members closest to Susana had already suffered severe harm in Honduras at the hands of two specific men. And, her daughter Karla was being allowed to stay.

 

The Immigration Judge supposedly believed Susana. However, he came up with some creative ways, pioneered by the BIA, to deny her protection. First, he found that she had no reason to fear harm because she hadn’t actually been harmed or killed by either Jose or Juan, despite the threats to her from Juan who obviously was capable of inflicting severe harm.  Second, he found she didn’t fit within any “particular social group,” whatever that might mean on a particular day. The went on to make the amazing finding that being a Honduran woman would have nothing to do with the harm anyway.

 

Perhaps, the judge believed that Honduran men suffered the same high rate of femicide as did women. Or, maybe he believed that guys like Jose and Juan and Honduran society in general wouldn’t recognize that Susana was a Honduran woman closely related to two previously abused Honduran women. The judge observed that refugee laws weren’t meant to protect women like Susana from “generalized violence,” even though Susana’s claim wasn’t based on generalized violence but rather specific violence directed at her.

 

The judge basically told Susana to buck up and accept her fate. The judge appeared to have no idea what actually happens to women like Susana in Honduras. Susana appealed to the BIA which had very recently found that a virtually identical situation qualified a woman for asylum. But, the other woman wasn’t Susana, and the BIA found some reasons why it was OK to send Susana back to where she might reasonably expect be killed, raped, or abused by Jose and/or Juan.

 

Susana appealed to a “real court”, the Third Circuit Court of Appeals. Unlike the Immigration Judge and the BIA, judges on the Third Circuit don’t work for Attorney General Jeff Sessions. Jeff hates foreign nationals, women, and particularly brown-skinned foreign women fleeing from persecution in Central America. He thinks that they are all coming here for economic reasons and should just go stand in a line to immigrate. But, Jeff knows that the line doesn’t really exist, and that they will likely be killed or disabled shortly after return anyway. What Jeff really wants is an America where only nasty old White guys like him hold all the power and non-White folks stay away.

 

Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg decided Susana’s case. They recognized that the BIA had rewritten asylum law so that fewer individuals would be protected and more rejected. They also recognized that Jeff Sessions had further rewritten the laws so that women like Susana would have no chance of protection. They also knew that there were lots of good arguments against what the BIA and Jeff were doing and in favor of protecting Susana.

 

But the judges found another Supreme Court case saying that they really didn’t have to decide legal questions if Jeff Sessions and his subordinates had done it for them. They thought that it made sense to rewrite protection law so that very few people, particularly women of color, would be protected. According to their thinking, the asylum law is intended to reject, not protect. They also thought that because these were relatively new interpretations, Jeff and the BIA should have a chance to kill or harm as many Latinas as possible before they as judges might think about whether it was a good idea. Of course, by then, it would be too late for Susana and others like her. And, these judges don’t really have any intent or will to hold Sessions accountable anyway.

 

So, Judge Jordan, Judge Krause, and Judge Greenburg told Susana that she should be separated from her daughter Karla and go back to Honduras with her other daughters to die, be raped, be beaten, or whatever. They knew that she would receive no help from the Government. But, they just didn’t care. Because Susana and her daughters were not their daughters or granddaughters and they wouldn’t have to hear her screams or look at their dead bodies. But, history has recorded what they did. Let the slaughter of innocents commence.

 

Better, more courageous judges might have said the obvious: that “women in Honduras” are a particularized, distinct, immutable/fundamental protected group; that Susana is a member of that group; and that any reasonable person in her position would have an objectively reasonable fear of persecution if returned to Honduras.

 

They also could have castigated the BIA and Jeff Sessions for intentionally manipulating asylum law so as not to grant protection to some of the most vulnerable and needy refugees among us. But, this “Gang of Three’ who decided Susana’s case would have been happy pushing the St. Louisand its cargo of Jewish refugees from Germany back out to sea again. Any of the judges who looked at Susan’s case could have had spoken out for saving her life and the lives of her daughters. None did!

 

After abdicating their judicial functions to hold the Executive accountable, this “Gang of Three” dishonestly expresses concerns about consistency and not creating “insurmountable evidentiary burdens.” Get serious!

Everyone knows Jeff Sessions is ordering Immigration Judges to crank out more removal orders with little or no Due Process. He has publicly stated his disdain for asylum seekers and women asylum seekers from the Northern Triangle. He has made it clear that he intends to “deconstruct:” the entire U.S. protection system until the only “consistency” will be that nobody gets asylum. And with cases like his decision in Matter of A-B-and spineless “go along to get along” precedents like this from the Article III courts, Sessions is implementing his real plan – insuring that nobody who comes to the border and seeks asylum passes “credible fear” and even gets to an Immigration Judge hearing.

 

Judges like these can shirk their responsibilities and hide behind mountains of hollow words and legal platitudes. But, they won’t escape the judgement of history for their lack of courage, backbone, integrity, and their unwillingness to stand up for human rights and human decency in the face of tyranny.

 

Happy July 4, 2018 from Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit! They can celebrate. But, for Susana, her family, and other vulnerable refugee like her, there will be no celebration. Indeed, they might not even live to see another July 4! That should make us all ashamed as a nation!

 

PWS

07-05-18

 

 

 

THE HILL: NOLAN HAS SOME IDEAS ON HOW TO DEAL WITH FAMILIES AT THE BORDER!

http://thehill.com/opinion/immigration/394201-trump-congress-have-options-on-the-table-to-prevent-family-separation

Family Pictures

Here’s Nolan’s conclusion in The Hill:

. . . .

Perhaps Trump’s “no due process” approach is the best solution if persecution claims can be considered outside of the United States.

Letting them apply here isn’t working well.

As of April 2017, the average wait for a hearing was 670 days, and the immigration court backlog has increased since then. It was 714,067 cases in May 2018.

It isn’t possible to enforce the immigration laws if deportable aliens can’t be put in removal proceedings, and the judges are being pressed to spend less time on cases, which puts due process in jeopardy.

Relatively few asylum applications are granted, and even fewer will be granted in the future.

We need a politically acceptable way to reduce the number of asylum applicants to a manageable level.

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

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

I agree with Nolan’s observation that pushing Immigration Judges to schedule more cases and spend less time on them puts due process in jeopardy. I also can see that Sessions intends to reduce asylum grant rates to about 0% by totally distorting the system until it is impossible for virtually anyone actually needing protection to get it.

As I have stated before, the problem isn’t the asylum law. The problem is the way Trump and Sessions have distorted and perverted asylum law and the Constitutional right to Due Process.

Asylum law is designed to protect individuals fleeing from persecution. We haven’t even begun to test the limits of our ability to give refuge. Indeed, at the time of the world’s greatest need, and our own prosperity, we have disgracefully turned our backs on accepting anything approaching a fair share of the world’s desperate refugees. We should be ashamed of ourselves as a nation! Refugees of all types bring great things to our nation and help us prosper. But, even if they didn’t, that wouldn’t lessen our moral and humanitarian obligations to accept our fair and more generous share of the world’s refugees.

And never forget that the backlog and the waiting times have little or nothing to do with fault on the part of asylum applicants. Many of them have also been unfairly screwed by the mess that Congress, the DOJ, DHS, and politicos have made of the Immigration Court system.

The backlog is almost entirely the result of “Aimless Docket Reshuffling” which has been kicked into high gear under Sessions, exceptionally poor choices in docket management and bad prosecutorial decisions by DHS, and years of neglect and understaffing by Congress, as well as stunningly incompetent management of the Immigration Courts by the DOJ under the last three Administrations.

Here’s the truth that Trump and the restrictionists don’t want to deal with:

SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must  Change!

By Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.

The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.

That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.

And the reasonable solutions are readily available under today’s U.S. legal system:

  • Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.
  • Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).
  • Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.
  • Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.
  • Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.
  • Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.
  • If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.
  • Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).
  • My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.
  • ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).

As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”

That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.

PWS

06-23-18

 

I also take note of how EOIR under Sessions has disingenuously manipulated the asylum adjudication numbers to support a false narrative that most asylum  claims are meritless.

The only “real ” number is a comparison of asylum grants to denials, not grants to the total number of cases involving asylum applications including the substantial number that were never decided on the merits. The fact that a case is disposed of in some other manner does not mean that the asylum application was meritless; it just means that the case was disposed of in another way.

Here are the “real” numbers from EOIR’s own Statistics Yearbook, before they were dishonestly manipulated under Sessions’s instructions to support his false claims about asylum seekers:

Asylum Grant Rate

Grants

Denials

Grant Rate

FY 12

10,575

8,444

56%

FY 13

9,767

8,777

53%

FY 14

8,672

9,191

49%

FY 15

8,184

8,816

48%

FY 16

8,726

11,643

43%

 

In 2016, the “real” grant rate was 38%. Even under Sessions in the partial FY 2018, the merits grant rate is 35%. That’s by no means negligible — one in three! And, remember folks, this is with asylum law that was already badly skewed against applicants, particularly those from the Northern Triangle with potentially bona fide claims. (But, admittedly, before Sessions recent rewriting of asylum law to improperly deny asylum and  essentially impose death sentences or torture on vulnerable women fleeing from the Northern Triangle.)

And, in my experience, the vast majority of denied asylum seekers had legitimate fears of harm upon return that should have entitled them to some protection; they just didn’t fit our unrealistically and intentionally restrictive interpretations. By no means does denial of an asylum claim mean that the claim was frivolous!

The real question we should be asking is that with the refugee situation in the world getting worse and with continually deteriorating conditions in the Northern Triangle, how do asylum merits grant rates drop from 56% and 53% as recently as FY 2011 & 2012 to 35% in 2018? What those numbers really suggests is large-scale problematic behavior and improper influence within the DOJ and the Immigration Judges who are denying far, far too many of these claims. Some of that includes use of coercive detention in out-of-the-way locations and depriving individuals of a fair opportunity to be represented by counsel, as well as a number of BIA decisions (even before Sessions’s Matter of A-B- atrocity) specifically designed to promote unfairness and more asylum denials.

There is no “southern border crisis,” other than the unnecessary humanitarian crisis that Trump and Sessions created by abusing children. Nor is there a problem with our asylum laws except for the intentional failure of our Government to apply them in a legal, fair, and Constitutional manner. But, there is a White Nationalist, racism problem clearly manifesting itself in our immoral and scofflaw national leadership.

Everyone committed to fairness, Due Process, and maintaining America as a country of humane values should fiercely resist, in every way possible, suggestions by Trump, Sessions, and some in the GOP  to further abuse Due Process and eliminate the already limited rights of the most vulnerable among us! 

We need to say focused on the real threats to our national security and continued existence as a democratic republic: Trump, Sessions, and their cohorts and enablers!

PWS

07-02-18

 

A-R-C-G- RULING SAVED THE LIFE OF THIS WOMAN, HER CHILDREN, & OTHERS LIKE THEM – SESSIONS PLANS “DEATH ROW” FOR FUTURE REFUGEE WOMEN & CHILDREN OF COLOR — Their Blood Will Be On Our Hands As A Nation If We Don’t Stop His White Nationalist Agenda!

https://www.huffingtonpost.com/entry/these-are-the-asylum-seekers-that-jeff-sessions-wants-to-turn-away_us_5b2b966ee4b0321a01ce5efb

Melissa Jeltsen reports for HuffPost:

BALTIMORE, Md. ― Aracely Martinez Yanez, 33, knows she’s one of the lucky ones. A deep scar that carves a line through her scalp, from crown to cheek, is proof of that fortune.

She got lucky when her abusive partner shot her point-blank in the head, and she survived.

She got lucky when she escaped her tiny village in Honduras. Local villagers blamed her for her partner’s death; he killed himself and their two young sons after he shot her.

She got lucky when she wasn’t harmed as she made the treacherous 2,000-mile journey to America.

And she got luckiest of all when she was granted asylum after she got here.

If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.

Domestic abuse of the kind experienced by Martinez Yanez is endemic in Central America. In Honduras, few services for victims exist, and perpetrators are almost never held criminally responsible. One woman is killed every 16 hours there, according to Honduras’ Center for Women’s Rights.

For many victims, the United States is their best shot at staying alive.

While the exact numbers are not available, immigration lawyers have estimated that the Trump administration’s decision could invalidate tens of thousands of pending asylum claims from women fleeing domestic violence. Advocates warn it will be used to turn women away at the border, even if they have credible asylum claims.

“This administration is trying to close the door to refugees,” said Archi Pyati, chief of policy at Tahirih Justice Center, a nonprofit organization that works with immigrant women and girls who have survived gender-based violence. They represented Martinez Yanez in her asylum case. Travel bans, increased detention and family separation are all being used as tools to deter individuals from coming here, Pyati said.

Still, that will not stop women from coming. Because there are thousands of women just like Martinez Yanez, and their stories are just as harrowing.

Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photogr

CHERYL DIAZ MEYER FOR HUFFPOST
Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photograph of her murdered sons: Daniel, 4, and Juancito, 6.

A Violent Start

Martinez Yanez grew up in a tiny village in Honduras with her parents and seven siblings. Her family made a living by selling homemade horchata, a sweet drink made from milky rice, and jugo de marañon, cashew juice. They also sold fresh tortillas out of their house. Her childhood was simple and happy.

But after she turned 15, a man in her village named Sorto became obsessed with her. At her cousin’s wedding, he tried to dance with her. She pushed him off: He was 15 years her senior, and gave her the creeps. A few days later, Martinez Yanez said, he waited outside her house with a gun and kidnapped her. He took her to a mountain and raped her repeatedly.

“I wanted to die,” she told HuffPost through an interpreter at her home in Baltimore on Tuesday. “I felt dirty. He said that I was his woman, and that I would not belong to anyone else.” As she told her story, she rubbed her legs up and down, physically uncomfortable as she recalled the terrible things that had happened to her.

Over the next six years, she said, Sorto went on to rape and beat her whenever he pleased. In the eyes of the village, she was his woman, just like he said. She got pregnant immediately, giving birth to her first son, Juancito, at 16, and her second son, Daniel, at 18. Sorto would come and go from the village, as he had a wife and children in El Salvador. But when he wasn’t there, she said she was watched by his family.

As for help, there were no police in her village, she said. She had seen what happened to other women who traveled to the closest city to report abuse: It made things worse. The police did nothing, and the abuser would inevitably find out.

“I felt like I was worthless, like I had no value,” she said.

A few years after her sons were born, she became friends with a local barber who cut her children’s hair. He was sweet and respectful, nothing like Sorto, she said. They began a secret relationship. Sorto had been gone from the village for a few years, and Martinez Yanez hoped she was free of him. Then she got pregnant. Scared that Sorto would find out, she fled to San Pedro Sula, a city in the north of the country. She didn’t tell anyone where she had gone.

But Sorto found her anyway. He called her on the phone and told her if she did not come back to the village within the next 24 hours, he would kill her family, she said. Martinez Yanez got on the next bus back.

A few days after she returned, she said, Sorto told her that he was taking her and their two boys to the river. He brought a hunting rifle with him. The family walked through the mountainside. Martinez Yanez recalled handing her children some sticks to play with, and crouching on the ground with them. Then she felt the rifle pressing into her head. The rest is a blank.

Sorto shot her in the back of the head, and killed her two sons, before shooting himself. Juancito was 6, Daniel was 4. Somehow, Martinez Yanez, five months pregnant, survived. She was hospitalized for months and had to relearn to walk and talk. She is still deaf in one ear, and has numbness down one side of her body.

When she returned home to the village, she said, people threw rocks at her and called her names. Someone fired a gun into her house. Someone else tried to run her over with a bicycle. The community blamed her for the killings because she had tried to leave Sorto, she explained. His family wanted to avenge his death.

“The whole village was against me,” she said. “Children, adults. I couldn’t go anywhere by myself.”

A few months later she gave birth to a girl, Emely, but she was overwhelmed with stress. On top of grieving the death of her two sons, learning to live with a traumatic brain injury, and caring for her newborn, she was constantly worried about being killed by people in her village.

It was too much. She eventually fled to Tegucigalpa, the capital of Honduras, but Sorto’s family found her there too, she said. In a last-ditch effort to save Martinez Yanez’s life, her family paid over $7,000, an enormous sum for the family, to a coyote, a person who helps smuggle people across the border to the U.S. Emely, who was now 2, had to stay behind. They couldn’t afford to send her, too.

Martinez Yanez made the heartbreaking decision to go alone.

The Journey To Freedom

She left in the middle of the night, traveling with a group of four or five people. They were transported in a van for part of the trip, and then in taxis.

There was very little to eat or drink, she said, and she barely slept. Her stomach was upset and she suffered from debilitating headaches. In Mexico, she almost turned back.

“I missed my parents and my daughter so much,” she said. “But the threats and the conditions that I knew were waiting for me in my village gave me the motivation to continue to the U.S. to be safe.”

It took them two weeks to get to the U.S. border. Then they waited two days before attempting to cross, she said. She was terrified that she would be caught by immigration officials and sent back. She crossed the border illegally in February 2009, and went to her uncle’s house in Houston, Texas, before traveling on to Annapolis, Maryland, where her brother lived.

Women like Aracely are saving their own lives.Kristen Strain, a lawyer who worked on Martinez Yanez’s asylum case.

Martinez Yanez didn’t know that she could apply for asylum as a domestic violence victim until a few years later, when she sought medical care for her head injury in Maryland. There, she was referred to Tahirih Justice Center.

Kristen Strain, an attorney who worked on her case, wrote the legal brief arguing that Martinez Yanez should be granted asylum.

Generally, applicants must show that the persecution they have suffered is on account of one of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. Strain successfully argued that being a female victim of severe gender-based violence in Honduras counted as a particular social group for purposes of obtaining asylum.

“There simply aren’t laws in place that protect women like Aracely,” she said. “They have no recourse. It is accepted in their communities that women can be treated like men’s property.”

She said it took over a year to gather all the evidence for Martinez Yanez’s claim, which included a neurological evaluation, medical documents, news stories from Honduran papers about the shooting, dozens of interviews, and statements from friends and family in Honduras to corroborate her story.

“It is not as if it’s easy,” Strain said. “In addition to having to physically get here, which is harrowing and dangerous, women have to navigate a complex legal system that is difficult to understand, especially when they don’t speak the language. It’s hard for them to even know what their rights are, let alone find an attorney who can advocate for them.”

“Women like Aracely are saving their own lives,” she went on.

Martinez Yanez was granted asylum in 2013. Her daughter, Emely, was allowed to join her in 2014. While they talked on the phone regularly, the mother and daughter had not seen each other for five years.

Martinez Yanez watches her daughters play outside the family's Baltimore apartment. 

CHERYL DIAZ MEYER FOR HUFFPOST
Martinez Yanez watches her daughters play outside the family’s Baltimore apartment. 

A New Life

In her Baltimore home, more than 3,000 miles from the tiny village in Honduras where she was raised, Martinez Yanez likes to be surrounded by photos. They remind her of those she had to leave behind.

There’s one of her sister graduating college. Another of her parents beaming happily.

And then, hanging in the entrance to the kitchen, is a photograph of her with her two deceased sons. It is the only picture she owns of them. She brought it with her when she fled Honduras. When she spoke to HuffPost about her sons, she cried. She still doesn’t understand why they were killed.

Since she’s been in the U.S., Martinez Yanez has expanded her family. Emely, who is 11, now has two sisters: Gabriela, 7, and Alyson, 4.

“I’m very fortunate to be able to have my daughters with me,” she said. “I can’t ask for anything better to happen. I am so happy with my life.”

Martinez Yanez still struggles with the repercussions of being shot in the head. She is forgetful and can get confused easily. She said she has to put every appointment she has in her phone with an alarm, otherwise she’ll miss it.

She said she was grateful that she was granted asylum, and heartbroken for other women who may not have the same opportunity she did.

“I just feel so sad that other women in my situation, or even in worse situations than mine will not be allowed in the country anymore,” she said. “Here, I don’t have to hide or run away from anyone.”

 

So, without the interference of the DOJ politicos, here was an actual working system that helped get deserving cases granted and off the docket, conserved judicial resources, saved time, saved lives, and complied completely with Due Process. In other words, a smashing Immigration Court and U.S. system of justice “success story” by any rational measure! 
That has all been disgracefully dismantled by Sessions. Now, following his perversion of the law in Matter of A-B-, He’s encouraging DHS and Immigration Judges to deny such cases without even hearing the testimony (even though every one of these individuals easily should qualify for the lesser relief of protection under the Convention Against Torture). That’s almost certain to result in appeals, prolonged litigation in the Courts of Appeals, and ultimately return of most cases to the Immigration Courts for full hearings and fair consideration.
At some point, not only is A-R-C-G- likely to be reinstated, but it is likely to be expanded to what is really the fundamental basis for these claims — gender as a qualifying “Particular Social Group.” It’s undeniably immutable/fundamental, particularized, socially distinct and clearly the basis for much of the persecution in today’s world!
In the meantime, however, those who don’t have the luxury of great pro bono representation, lack an attentive Circuit Court of Appeals, or who can’t get through the “credible fear interview” as it has now been “rigged for denial” by Sessions will likely be unlawfully returned to their home countries to suffer abuse, torture, and a lifetime of torment or death, along with those cute little kids in the pictures we’re seeing. 
The White Nationalist, neo-Nazi regime of Trump, Sessions, and their enablers will be one of the most horrible and disgusting periods in our history. History will neither forget nor treat kindly those who failed to stand up to the racists and child abusers running and ruining our Government, and destroying many innocent lives in the process.

Due Process Forever! Jeff Sessions Never!

PWS
06-25-18

THE TRUTH ABOUT THE TRUMP/SESSIONS BOGUS BORDER CRISIS: WE OWE CENTRAL AMERICAN REFUGEES MUCH MORE THAN INTENTIONALLY CRUEL & INHUMAN TREATMENT: “The United States is not suffering a crisis that justifies radical measures; the Central American families gathered at our border are. And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.” PLUS EXTRA SATURDAY BONUS: My Proposal For For An Easy, Legal, Cost Effective Resolution!

http://nymag.com/daily/intelligencer/2018/06/we-owe-central-american-migrants-much-more-than-this.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20June%2021%2C%202018&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

Eric Levitz reports for NY Maggie:

There is now a broad, bipartisan consensus that ripping infants from their mothers — and then putting both in (separate) cages — is not a morally acceptable way of treating families who cross our southern border. After weeks of deliberation, our nation has concluded that Central American migrants do not deserve to have their children psychologically tortured by agents of the state.

But what they do deserve remains in dispute.

The White House contends that migrants have a right to be caged with their family members (except for those who have already been separated from their children, who aren’t necessarily entitled to ever see their kids again). But the judiciary says that child migrants have a right not to be caged, at all. And progressives seem to believe that these huddled masses are entitled to something more — though few have specified precisely what or why.

In defending its “zero tolerance” policy — which is to say, a policy of jailing asylum-seekers for the misdemeanor offense of crossing the U.S. border between official points of entry — the White House has implored its critics to consider the bigger picture: Such “illegal aliens” have already undermined the rule of law in our country, and brought drugs, violent crime, and MS-13 to our streets. Locking up their families might look cruel when viewed in isolation; but when understood in the broader context of a migrant crisis that threatens the safety and sovereignty of the American people, the policy is more than justified.

In reality, however, this narrative inverts the truth: Context does not excuse the cruelty of our government’s “zero tolerance” policy, it indicts that policy even further. The United States is not suffering a crisis that justifies radical measures; the Central American families gathered at our border are. And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.

After all, it was the CIA that overthrew the democratically elected government of Guatemala in 1954, and thereby subjected its people to decades of dictatorship and civil war. It was the streets and prisons of California that gave birth to MS-13, and American immigration authorities that deported that gang back to El Salvador. And it is America’s taste for narcotics that sustains the drug trade in Honduras — and our war on drugs that ensures such trade is conducted by immensely profitable and violent cartels.

There is no easy answer to the Central American migrant crisis. But any remotely moral policy response will need to proceed from the recognition that we are not the victims of this crisis — and asylum-seekers are not its creators.

Central American families are not a threat to the United States.
It is very hard to make a reasoned case for why our nation’s current levels of undocumented immigration — or, of low-skilled immigration more broadly — represent major threats to the safety and material well-being of the American people.

We have long known that native-born Americans commit violent crimes at far higher rates than either legal or undocumented immigrants. And newer research into immigration and criminality has proven even more devastating to the nativists’ case: States with higher concentrations of undocumented immigrants tend to have lower rates of violent crime — and this correlation persists even when controlling for a given state’s median age, level of urbanization, and rate of unemployment or incarceration.

Meanwhile, the American economy is in great need of young, unskilled workers. On the Labor Department’s list of the 15 occupations that will experience the fastest growth over the next six years, eight require no advanced education. Further, with the baby-boomers retiring — and birth rates plummeting — the future of American economic growth, and the survival of Social Security, depends on an infusion of foreign workers. It is true that there is some basis for believing that mass, low-skill immigration depresses the wages of native-born high-school dropouts (although that claim is contentious). But there is no basis for believing that restricting immigration will do more to boost such workers’ take-home pay than encouraging unionization through labor-law reform, or expanding the Earned Income Tax Credit (EITC). Thus, given the positive material benefits of mass low-skill immigration, it is hard to see how more of it would constitute an economic crisis, even if we stipulate that it puts downward pressure on the wages of some native-born workers.

By contrast, the crisis facing the migrants themselves is wrenching and undeniable.

Asylum-seekers are fleeing violence and disorder, not exporting it.
To seek asylum in the United States, Central American families must travel many hundreds of miles through the desert, along a route teeming with rapists, thieves, and homicidal gangs. The hazards inherent to this journey aren’t unknown to most who take it — such migrants simply find the hazards of remaining in place more intolerable.

And that calculation isn’t hard to understand. El Salvador, Guatemala, and Honduras endure some of the highest rates of violent crime — and levels of official corruption — of any nations in the world. As recently as 2015, El Salvador was the single-most violent country (that wasn’t at war) on planet Earth, with a homicide rate of 103 per 100,000. And the vast majority of those homicides went unpunished — according to a 2017 report from the Georgetown Security Studies Review, roughly 90 percent of murders throughout the Northern Triangle go unprosecuted. This lawlessness is both a cause and effect of widespread public distrust in state police forces, which are largely non-professionalized, frequently penetrated by criminal gangs, and historically associated with atrocities carried out in times of political unrest and civil war.

Public trust in the region’s other governing institutions is similarly, justifiably, low. Due to corruption and bureaucratic inefficacy, nations in the Northern Triangle collect less in tax revenues than most other Latin American countries (relative to the size of each nation’s gross domestic product). This fact, combined with high levels of spending on (grossly underperforming) security forces leaves the region’s governments with little funding for social services and public investment. And corruption eats into what meager funding is allocated to such purposes — in Honduras, the ruling National Party has been accused of embezzling social security funds; Guatemala’s former president and nine of his ex-ministers were arrested in February for graft connected to a public transit project.

While the region’s governments have struggled to collect taxes, its drug cartels have proven quite effective at collecting tribute. In 2015, the Honduran newspaper La Prensa revealed that citizens of El Salvador, Honduras, and Guatemala were collectively making more than $651 million in extortion payments to criminal organizations annually. Those who fail to pay up are routinely murdered; many of the migrants seeking asylum in the U.S. claim (quite credibly) to be fleeing such homicidal extortion rackets.

So, these migrants are fleeing a genuine crisis. But that does not necessarily mean that our country has any special obligation to address their plight. The U.S. government is not forcing the Northern Triangle’s political and economic elites to engage in graft, or avoid taxes. It does not pay the region’s police to let murders go unsolved, or (directly) sell weapons to the region’s cartels. In fact, Congress has spent more than $3 billion on security aid for Central America over the past decade.

And yet, the United States still bears profound responsibility for the region’s troubles; because the Northern Triangle’s failures of governance — and wrenching security challenges — are inextricably-linked to our nation’s policy choices and consumption habits.

On the former point: The CIA subjected Guatemala to decades of authoritarian rule and civil war, for the sake of aiding a fruit company that its director was invested in.
In 1945, a revolutionary movement built a representative democracy in Guatemala. Nine years later, the United States tore it down. Officially, the Eisenhower administration orchestrated the overthrow of Jacobo Árbenz’s government to save the Guatemalan people from Communist tyranny. In reality, it did so to deny them popular sovereignty.

Árbenz had been democratically elected, and enjoyed widespread public support. He had legalized the Communist Party, but was no card-carrying member. His crime was not the suppression of dissent or the suspension of constitutional rule — but rather, an attempt to address his nation’s wrenching inequality by redistributing the United Fruit Company’s (UFC) unused land to impoverished peasants.

This was not an act of pure expropriation — the UFC had robbed the Guatemalan government of tax revenue, by vastly understating the value of its holdings. By seizing the company’s unused lands, Árbenz secured a measure of compensation for his state; and, more importantly, provided 100,000 Guatemalan families with land, and access to credit. Agricultural production increased, poverty fell. Árbenz’s constituents were pleased.

But the United Fruit Company was not. And both Secretary of State John Dulles and his brother, CIA director Allen Dulles had close ties to the UFC. So, our government took out Árbenz, and replaced him with a reactionary, former military officer — who promptly assumed dictatorial powers. Nearly four decades of civil war between authoritarian governments and left-wing guerrillas ensued — throughout which the United States provided support to the former. By the time the fighting ended in 1996, 200,000 people were dead.

It is impossible to know what life in Guatemala would be like today absent the CIA’s intervention. One can imagine Árbenz’s democracy thriving through the second half of the 20th century, and serving as a model for its neighbors in the Northern Triangle. One can also imagine less rosy counterfactuals. What we know for certain is that the United States deliberately undermined the national sovereignty of Guatemala and inadvertently triggered decades of civil war. And we know that said civil war left in its wake large groups of demobilized men with experience in killing, and access to (often, U.S.-made) military-grade weapons — and that many of those men ended up forming violent, criminal organizations that plague the Northern Triangle today.

And American drug users and policymakers sustain those criminal organizations.
Demand for narcotics is overwhelmingly concentrated in prosperous, developed countries; which means, in the Western Hemisphere, it is overwhelmingly concentrated in the United States. And the U.S. government’s Draconian (and profoundly ineffective) approach to reducing that demand has only inflated the profits that Central American criminal organizations can reap by satisfying our illicit appetites. As German Lopez reported for Vox in 2014:

These drugs cost pennies by the dose to produce, but their value is increased through the supply chain to reflect the risk of losing a harvest to drug-busting government officials or rival criminal organizations.

The inflated cost creates a huge financial incentive for criminal organizations to get into the business of drugs, no matter the risks. They might lose some of their product along the way, but any product that makes it through is immensely profitable.

Criminal groups would likely take up other activities — human trafficking, kidnapping, gun smuggling, extortion — if the drug market didn’t exist. But experts argue drugs are uniquely profitable and empower criminal organizations in a way no other market can.

One could argue that the downside risks of legalizing hard drugs justify the harms inherent to their prohibition. The fact that the United States refuses to remove marijuana from the black market — and thus, deny cartels a major profit source — is harder to justify. But either way, it remains the case that the costs of our nation’s consumption — and prohibition — of drugs fall heaviest on our neighbors to the south. In fact, some have even argued that America’s drug habit is responsible for nearly all of the violence in the Northern Triangle — among them, White House chief of staff John Kelly.

“There are some in officialdom who argue that not 100 percent of the violence [in Central America] today is due to the drug flow to the U.S.,” Kelly wrote in 2014, when he was serving as Southcom commander. “I agree, but I would say that perhaps 80 percent of it is.”

MS-13 was born in the U.S.A.
Donald Trump has accused Central American governments of “sending” their most violent and criminal residents to the United States — including the homicidal gangsters of MS-13. In truth, of course, the vast majority of migrants from Central America are self-selected and nonviolent.

But Trump’s mistake is almost understandable: After all, the U.S. government actually has sent some of its most violent and criminal residents to Central America: MS-13 was formed on the streets of Los Angeles, hardened in American prisons, and then deported back to the Northern Triangle.

True, the gang’s original members were (mostly unauthorized) Salvadoran immigrants who’d fled their nation’s civil war. But those immigrants arrived in California as troubled teenagers, not sadistic killers. Dara Lind offers a concise sketch of the competing theories for how some of them became the latter:

[The Salvadoran teens] faced hostility from other ethnic groups for being new, and from other young people for being long-haired mosher types, so they banded together and called themselves the Stoners — later Mara Salvatrucha, and eventually, once the gang had metastasized under the network of Southern California Latino gangs known as Sureños, MS-13.

When and why the “Stoners” became a hardened violent gang is up for debate. Avalos attributes it to repeated confrontations with other LA gangs, while journalist Ioan Grillo thinks it has more to do with the arrival of newer Salvadoran immigrants who were “hardened by the horrors” of civil war. Salvadoran journalists Carlos Martinez and Jose Luis Sanz, meanwhile, say that the gang’s story paralleled that of a lot of young men during the “tough on crime” era: They were minor delinquents stuffed into jails and prisons, where they had the time, opportunity, and incentive to become hardened criminals.

Whichever version of this story one accepts, our nation’s institutions remain implicated in the formation of MS-13. Salvadoran immigrants did not introduce the culture of street gangs to Los Angeles; L.A. introduced it to them. And, given the rates of recidivism in our criminal justice system, it is reasonable to assume that the failure of American prisons to rehabilitate these teenage immigrants (once they turned to violent crime) was not solely due to their inadequacies.

Regardless, the U.S. government bears unambiguous responsibility for MS-13’s evolution into an international menace. Despite the fact that El Salvador was ill-equipped to handle a massive influx of gang members, the U.S. deported roughly 20,000 convicts (including many MS-13 members) to that country between 2000 and 2004 — without telling the Salvadoran government which of the deportees being returned to them had criminal histories, and which did not.

Our debt to Central American migrants cannot be paid simply by reuniting them with their traumatized children.
Donald Trump does not deny that the migrants at our southern border hail from nations wracked by violence and instability (the brutality of Central American gangs is one of our president’s favorite topics of conversation). But Trump sees the Northern Triangle’s troubles as cause for turning away its refugees, not taking them in: In his understanding (or at least, in the one he projects to the public), Honduras is not violent and poor for complicated reasons of history, politics, and economics; it is violent and poor because Honduran people live there. Therefore, these migrants are not looking to escape their nations’ pathologies, but to export them; they’re not huddled masses yearning to breathe free, but virus-bearing insects yearning to “infest.

These sentiments reek of racism. But like so many other prejudices that the powerful harbor against the powerless, they also betray a will to evade responsibility.

If the pathologies of impoverished black communities can be attributed to the cultural (and/or biological) flaws of black people, then the American government owes them little. If we acknowledge that their troubles are inextricable from centuries of discriminatory policy, by contrast, our collective obligation to improve their well-being becomes immense. And the same is true of migrant families. If we can call these people “animals,” then we need not ask what caused the barbarities they’re fleeing. But rejecting Trump’s racism requires us to ask that question — and answering it honestly requires grappling with our collective responsibility for the traumas that migrant children suffered before they ever crossed our border.

What we owe them can be debated (accepting a much greater number of them into our country, and increasing aid to their region would seem like two possibilities). But there is no doubt that we owe them much more than this.

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

ESSAY:

SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must  Change!

By Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.

The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.

That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.

And the reasonable solutions are readily available under today’s U.S. legal system:

  • Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.
  • Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).
  • Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.
  • Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.
  • Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.
  • Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.
  • If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.
  • Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).
  • My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.
  • ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).

As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”

That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.

PWS

06-23-18

 

 

LAND OF THE NOT SO BRAVE & NOT SO WISE: AS USUAL, TRUMP’S CLUMSY EXECUTIVE ORDER ON DETAINING FAMILIES LIKELY TO CAUSE MORE PROBLEMS THAN IT SOLVES — Strategy Appears Designed To Fail & (Dishonestly) Shift Blame Elsewhere!

Text of Trump’s order reversing family separation policy –

“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:

Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.

Sec. 2. Definitions. For purposes of this order, the following definitions apply: (a) “Alien family” means

(i) any person not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and

(ii) that person’s alien child or alien children.
(b) “Alien child” means any person not a citizen or national of the United States who

(i) has not been admitted into, or is not authorized to enter or remain in, the United States;

(ii) is under the age of 18; and

(iii) has a legal parent-child relationship to an alien who entered the United States with the alien child at or between designated ports of entry and who was detained.

Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally. (a) The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.

(b) The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.

(c) The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(d) Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.

(e) The Attorney General shall promptly file a request with the U.S. District Court for the

Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.

Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP”

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

  • Section 1 maintains the abusive policy of prosecuting every misdemeanor illegal entry case (“zero-tolerance,” a/k/a “zero common sense,” a/k/a “zero humanity”). Most of those duressed into pleading guilty in assembly line Federal criminal courts are sentenced to “time served,” thus illustrating the absurd wastefulness of this policy and how it detracts from real law enforcement. Trump also throws in a gratuitous and totally disingenuous jab at Congress and the courts for causing the problem that he & Sessions actually created.
  • Section 3(a) directs the detention of families throughout criminal proceedings and until the end of Immigration Court proceedings (which often takes many months or even years), an abominable, costly, inhumane, unnecessary, and unsustainable policy originally developed during the Obama Administration. The Government lacks adequate family detention facilities, which are supposed to be non-secure facilities licensed by a child welfare agency. Additionally, asylum applicants in Removal Proceedings generally have a right to bond. In most cases, there would be no legitimate reason to deny  bond. Contrary to the Administration’s bogus suggestions and intentionally misleading statistics, studies show that those who are represented by counsel and understand the asylum process show up for their hearings more than 90% of the time. I found it was close to 100%. This suggests that a “saner” policy would be to help individuals find lawyers and then release them.
  • Section 3(c) makes the Secretary of Defense, an official without any qualifications whatsoever, responsible for providing family jails on military bases. It shouldn’t take the courts too long to find these facilities unsuitable for family immigration detention.
  • Section 3(e) recognizes that this order is largely illegal in that it contravenes the order of the U.S. District Court in Flores v. Sessions which was affirmed by the Ninth Circuit.  Flores orders the release of juveniles from immigration detention within 20 days unless they present a significant public safety risk or are likely to abscond. Where juveniles don’t meet the release criteria, they must be held in the least restrictive setting appropriate to age and special needs. While Trump orders the Attorney General to seek a modification of Flores, there is no legal rationale for that action. In fact, the abusive “fake emergency” situation that Trump & Sessions have created, shows exactly why Flores is needed, now more than ever. It also makes a compelling case for Congress to enact Flores protections into law, thereby making them permanent and avoiding future abuses by the Executive.
  • Section 4 basically orders the Attorney General to engage in more “Aimless Docket Reshuffling” (“ADR”) in the U.S. Immigration Courts by prioritizing cases of recently arrived families, many of whom have not had a chance to obtain lawyers and document applications, at the expense of cases that are already on the docket and ready for final hearings. That’s why the Immigration Court backlog is 720,000 cases and continuing to grow. It also shows why the Immigration Courts are a facade of Due Process, totally mismanaged by politicos, and must be removed from the DOJ and become  a truly independent court system that establishes court priorities and procedures without Executive interference.
  • The order is silent on whether it applies to those families who have already been separated and how those families might be reunited.

In summary, this “Temporary Executive Order” is not a credible attempt to solve the problem of family separation. Rather, it is another “designed to fail” charade intended to provoke litigation so that the predictable mess can be blamed on the courts, Congress, the asylum applicants and their families (“blaming the victims”), and their courageous lawyers. In other words, anyone except Trump and his cronies who are responsible for the problem.

It’s a prime example of what life in a Kakistocracy is and will continue to be until there is “regime change.”

What would a “real solution” to this issue look like. Well, I’ve said it before:

The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments. 

Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.

Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks really want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.

My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.

Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.

Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.

Don’t hold your breath! But, eventually the New Due Process Army will win the war and enough elections to finally bring sanity, humanity, and reality to the U.S. immigration system.

PWS

06-20-18

 

INSIDE THE CHILD ABUSE CONSPIRACY: LIKE MANY CRIMINALS, TRUMP’S “GANG OF SIX” CAN’T KEEP THEIR STORIES STRAIGHT — But, There Is One Consistency — Everything These “Kakistocrats” Say Is A Lie!

https://slate.com/news-and-politics/2018/06/how-the-trump-administration-is-defending-its-indefensible-child-separation-policy.html

Dahlia Lithwick reports for Slate:

Stephen Miller, Kirstjen Nielsen, Jeff Sessions, Donald Trump, Sarah Sanders, and John Kelly.

Photos by Win McNamee/Getty Images, Brendan Smialowski/AFP/Getty Images, Mark Wilson/Getty Images, Leon Neal/Getty Images, Chip Somodevilla/Getty Images, and Drew Angerer/Getty Images.

COVER STORY
POLITICS

How They Defend the Indefensible

The Trump administration is playing a game of choose your own facts, but every single version of this story ends with screaming children in cages.

You can call it a “policy” (Jeff Sessions) or you can call it a not-policy (Kirstjen Nielsen) or you can call it a “law” (Sarah Huckabee Sanders). You can say that yes it’s a policy but nobody likes it (Kellyanne Conway) or you can say it’s a “zero-tolerance” enforcement of a Democratic law (Donald Trump) or a zero-tolerance enforcement of an amalgam of various congressional laws (Nielsen) or a zero-tolerance enforcement of the Department of Justice’s own preferences with respect to enforcing prior laws (Sessions).

You can say the purpose of the Justice Department’s family separation policy is deterrence (Stephen Miller, John Kelly) or you can claim that asking if the purpose of the policy is deterrence is “offensive” (Nielsen). You can claim in your legal pleadings that the family separation policy is wholly “discretionary” and thus unreviewable by any court, meaning that only the president can change it (Justice Department in Ms. L v. ICE). Or you can claim that only Congress can “fix loopholes” (Nielsen) or you can say that Congress as a whole can’t fix anything because congressional Democrats are entirely to blame (Trump, Mike Huckabee).

You can blame all this newfound “loophole” action on a consent decree from 1997 in a case called Flores (Sessions, Paul Ryan, Chuck Grassley) or on a 9th U.S. Circuit Court of Appeals decision that interpreted Flores (Nielsen) or on a 2008 law called the Trafficking Victims Protection Reauthorization Act (Nielsen). Better yet, you can fault some magical mashup of “the law” that forces you to defend every statute to its most absurd extreme (Sanders). By this logic, you can also claim that Korematsu—the case authorizing the removal and detention of Japanese Americans during World War II—is still on the books and thus needs to be enforced because it’s also “the law,” but that would be insane. Oh, but wait. Trump proxies made that very claim during the campaign (Carl Higbie).

You can pretend that by turning every adult who crosses the border into a presumptive criminal your hands are tied, so you need to jail children to avoid jailing children (Nielsen). You can insist that the vast majority of children who cross the border are being smuggled in by gang members (Nielsen) or that all asylum-seekers are per se criminals (which they are not) or that lawful asylum-seekers should just come back at a better time (Nielsen). You can claim you never intended your policy (if it is in fact a policy) to have any impact on asylum-seekers at all (Nielsen) but of course it would turn out you were lying and this has been the plan all along (John Lafferty, Department of Homeland Security asylum division chief).

You can say the Bible wants you to separate children from parents (Sessions). You can say again, incredibly, that the Bible wants you to separate children from parents (Sanders). But that would be pathetic (Stephen Colbert).

You can blame the press for the photographs they take (Nielsen) and for the photographs they don’t take (Nielsen). You can suggest that the children in cages are not real children (not linking to Ann Coulter) or that the cages are not in fact cages (Steve Doocy) even though government officials admit that they are cages. You can claim that the detention facilities are “summer camps” or “boarding schools” (Laura Ingraham). You can take umbrage that the good people of DHS and CBP and ICE are being maligned (Nielsen).

You can say that separating children from their parents is a strategic move to force an agreement on Trump’s wall, which would make the children purely instrumental (Trump). Or you could say that this is a way to protect children by deterring their parents, which would also make the children purely instrumental (Kelly). Or you can instead say you are protecting the children from all the harm that happens to children transported over borders by doing untold permanent damage to them as they scream in trauma (Nielsen). Because the best way to deter child abuse is through child abuse.

You can fight to the death about comparisons to Nazis or you can celebrate a candidate (Corey Stewart) who is a hero to Nazis or you can merely show a staggering lack of comprehension about what Nazis actually did (Sessions).

You can fact check and fact check and fact check these claims and it won’t matter that they are false. And the fact that nobody in this administration even bothers to coordinate their cover stories at this point reflects just how pointless it is to fact check them anyhow. It’s an interactive game of choose your own logic, law, facts, and victims, but every single version of this story ends with screaming children in cages, sleeping under foil blankets as strangers change their diapers. The trick is twisting and dodging and weaving until you get to that final page.

It is very sad (Melania Trump). Something should be done (Ted Cruz). If only there were some mechanism to stop torturing children. If only there were some way to stop litigating why we’re doing it and who is doing it and just stop doing it.

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http://www.cnn.com/2018/06/19/politics/fact-check-trump-family-separations-immigration/index.html

Tal Kopan reports for CNN:

Washington (CNN)President Donald Trump on Tuesday delivered a stream-of-consciousness-style speech on immigration as furor over his administration’s separation of families at the border reaches a fever pitch.

But his speech at a small business event in Washington contained several factual inaccuracies.

White House says family separations at the border are a 'binary choice,' but stats say otherwise

White House says family separations at the border are a ‘binary choice,’ but stats say otherwise
Here is what Trump said, and what the reality is.

False claim: Family separations are Democrats’ fault

Trump said the family separations at the border are “a result of Democrat-supported loopholes in our federal laws” that he said could be easily changed.
“These are crippling loopholes that cause family separation, which we don’t want,” Trump said.
The reality: Trump’s administration made a decision to prosecute 100% of adults caught crossing the border illegally even if they came with children, and thus are separating parents from their kids at the border with no clear plan to reunite them after the parents return from jail and court proceedings.
The administration has long wanted to roll back a law unanimously passed under President George W. Bush and a court settlement dating back decades but most recently affirmed under the Obama administration — citing those two provisions as “loopholes.” Both were designed to protect immigrant children from dangers like human trafficking and to provide minimum standards for their care, including turning them over to the Department of Health and Human Services for resettlement within three days of arrest, as opposed to being held in lengthy detention, and dictating that children with their families also cannot be held in detention or jail-like conditions longer than three weeks.
The administration has complained the laws make it harder to immediately deport or reject immigrants at the border, and that they are not able to detain families indefinitely.

False claim: Thousands of judges

Trump said his administration was hiring “thousands and thousands” of immigration judges, that the US already has “thousands” of immigration judges and that other countries don’t have immigration judges.

Trump to huddle with Republicans during crucial week on immigration

Trump to huddle with Republicans during crucial week on immigration
In reality, there the Justice Department’s immigration courts division has 335 judges nationwide, with more than 100 more judges budgeted for, according to a DOJ spokesman.
Because of a massive backlog in the immigration courts, it can take years for those cases to work their way to completion, and many immigrants are allowed to work and live in the US in the meantime, putting down roots. The funding for immigration courts and judges has increased only modestly over the years as funding and resources for enforcement have increased dramatically. A proposal from Sen. Ted Cruz, R-Texas, to address the family separation issue would double the number of judges to 750.
Trump’s comments Tuesday echoed remarks he made last month. In a May Fox News interview, he claimed the United States was “essentially the only country that has judges” to handle immigration cases. But that is incorrect.
A number of other countries have immigration court systems or a part of the judiciary reserved for immigration and asylum cases, including Sweden, the United Kingdom and Canada.

False claim: Virtually all immigrants disappear

Trump also claimed falsely that when immigrants are let into the country to have their cases heard by a court, they virtually all go into hiding.
“And by the way, when we release the people, they never come back to the judge, anyway. They’re gone,” Trump said. “Do you know if a person comes in and puts one foot on our ground, it’s essentially, ‘Welcome to America, welcome to our country.’ You never get them out because they take their name, they bring the name down, they file it, then they let the person go. … Like 3% come back.”
In reality, the number of immigrants who don’t show up to court proceedings is far lower. And many of the immigrants released from detention are given monitoring devices such as ankle bracelets to ensure they return.

Republicans craft bill to keep detained families together

Republicans craft bill to keep detained families together
According to the annual Justice Department yearbook of immigration statistics from fiscal year 2016, the most recent year for which data is available, 25% of immigration court cases were decided “in absentia” — meaning the immigrant wasn’t present in court. In that year, there were 137,875 cases. The number of cases decided “in absentia” between fiscal year 2012 and fiscal year 2016 was between 11% and 28%.
When White House legislative chief Marc Short made a similarly inaccurate claim on Monday, the White House pointed to a statistic about the high percentage of deportation orders for undocumented children that were delivered in absentia, but amid total case completions for minors, the number of in absentia orders has ranged from 40% to 50% in recent years.
Advocates for immigrants attribute some of the missed hearings to often not receiving a court notice mailed to an old address or not having an attorney who can adequately explain the process to the child. Studies have shown that with legal advice and guidance, immigrants are far more likely to show up for hearings and have their claims ultimately be successful.

False claim: Countries are sending bad eggs to the US

Trump said that countries deserve to be punished for illegal immigration, and that they “send” bad eggs to the US.
“They send these people up, and they’re not sending their finest,” Trump said.
He continued: ‘When countries abuse us by sending people up — not their best — we’re not going to give any more aid to those countries.”
In fact, there is no evidence that countries “send” anyone in particular to the US — rather analyses of recent immigration flows have shown that in recent years, a much higher number of Central Americans have come to the US fleeing rampant gang violence and instability in especially the countries of El Salvador, Honduras and Guatemala. Experts who study the countries agree that cutting aid would only further destabilize the region, likely making illegal immigration worse, not better.
Though gang members do cross the border illegally alongside those fleeing violence, the administration has never been able to provide numbers showing that those are a large percentage of the cases. Only a handful of such prosecutions occur a year, while more than 300,000 people were apprehended trying to cross the border illegally last fiscal year. Nearly 120,000 defensive asylum applications were filed last year, according to government data, meaning those individuals believed they were fleeing violent situations back home.

False Claim: Mexico isn’t helping the US

Mexico, Trump said, “does nothing for us.”
As for Mexico’s contribution, experts say the country’s crackdown on immigrants within its borders has been a major help to the US in recent years. According to statistics from the US and Mexican governments compiled by the nonpartisan Migration Policy Institute and shared with CNN, over the past three years, Mexico has deported tens of thousands more migrants back to the primary countries in Central America that drive immigration north. Each of the last three years, Mexican removals exceeded US removals to those countries.
Mexico is also apprehending tens of thousands of Central Americans before they reach the US. According to the data, Mexico intercepted 173,000 Central Americans in fiscal year 2015, 151,000 in fiscal year 2016 and just under 100,000 in fiscal year 2017.
In the past two years, Mexico has lagged behind the US in apprehensions, but Migration Policy Institute President Andrew Selee, an expert on Mexican policy, said that could be due to a number of factors including smugglers successfully changing their routes to avoid detection or relations with Trump.
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Join the New Due Process Army today! 
Free the children.
Require Due Process and real justice for refugees.
Hold the lying child abusers in the kakistocracy accountable for their indefensible actions.
Remove the abusers and their enablers from office and political power.
Welcome more immigrants and refugees.
End racism masquerading as “government policy” or the “rule of law.”
Time for the decent, tolerant, majority to take  back our country from the forces of darkness, evil, and dishonesty.
PWS
06-20-18

ADVOCATES ALERT: NEW MEMO TO USCIS ASYLUM OFFICERS ELIMINATES A-R-C-G- AS A BASIS FOR CREDIBLE FEAR — To Get Through Credible Fear Interview, Applicants Must Meet The “Proof Heavy” Evidentiary Test — It Can Be Done! – Administration Obviously Looking At Unrepresented Applicants As “Fish In Barrel” To Be Summarily Denied & Shipped Off To Death, Abuse, Torture – Representation Can Force System To Deal With Real Facts In Northern Triangle!

https://www.vox.com/policy-and-politics/2018/6/19/17476662/asylum-border-sessions

Dara Lind reports at VOX News:

Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case.

But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.

That could be very good news for parents separated from their children, who will have to face an asylum screening to be allowed to stay in the US in immigration detention after they are criminally charged and convicted under the Trump administration’s “zero tolerance” policy.

The memo obtained by Vox was written by John L. Lafferty, the head of the Asylum Division for US Citizenship and Immigration Services, on Wednesday, June 13, two days after Sessions’s ruling in Matter of A- B- was released. It’s labeled “Interim Guidance” for asylum officers — the people in charge of conducting interviews for asylum and “credible fear” screening interviews for migrants at the border that determine whether they’ll be allowed to stay in the US and pursue an asylum claim.

As the “Interim” label suggests, Lafferty’s memo makes it clear that USCIS will be issuing more directives to asylum officers as it continues to analyze Sessions’s ruling. But in the meantime, it doesn’t dictate sweeping changes to asylum standards.

Michael Bars, a spokesperson for USCIS, told Vox, “Asylum and credible fear claims have skyrocketed across the board in recent years largely because individuals know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country. This exacerbates delays and undermines those with legitimate claims. USCIS is carefully reviewing proposed changes to asylum and credible fear processing whereby every legal means is being considered to protect the integrity of our immigration system from fraudulent claims — the Attorney General’s decision will be implemented as soon as possible.”

But the initial implementation doesn’t appear to be quite as aggressive as that rhetoric implies.

“While the Attorney General made some very sweeping assertions in Matter of A-B-, including as to what he thinks would happen to the claims of different kinds of asylum seekers under this ruling, the legal holding of this case is considerably narrower,” said Anwen Hughes, a lawyer for the advocacy group Human Rights First, when sent the text of the memo. “This guidance focuses on what the AG’s decision actually held.”

Sessions’s ruling declared, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” That language isn’t replicated in the memo — which urges officers to deal with claims on a case-by-case basis.

The only specific change the memo mandates to asylum policy is for officers to stop citing a past Board of Immigration Appeals precedent, Matter of A-R-C-G-, which found that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group — allowing some domestic violence victims to claim asylum based on their persecution as members of that group.

But while A-R-C-G- was the only precedent Sessions explicitly overturned, his ruling also said that “any other” precedent from the Board of Immigration Appeals was also moot if it had defined “particular social group” more broadly than Sessions did last week.

The initial implementation memo from USCIS doesn’t mention any such rulings. It emphasizes that officers should make decisions based on two precedents Sessions held up as gooddecisions — both of which denied asylum claims based on gang violence — but doesn’t identify any decisions that are too broad under Sessions’s standards.

That means that for the moment, at least, asylum officers would be able to determine that a victim of domestic or gang violence still deserves asylum — or deserves to plead her asylum case — if there’s another precedent decision that they think fits the case.

The USCIS memo does emphasize that people seeking asylum based on gang violence or any other “private crime” need to demonstrate that the government in their home country “condoned the behavior or demonstrated a complete helplessness to protect the victim.”

Before Sessions’s ruling, immigrants could claim asylum if they were persecuted by a nonstate group and the government was “unable or unwilling” to prevent it. Technically, that’s still the standard. But Sessions’s formulation about condoning or “complete helplessness” could set the bar higher for what counts as unable or unwilling — especially because his ruling emphasized (in a passage quoted by the implementation memo) that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim.

This guidance could be very good news for parents separated from children

The implementation of Sessions’s asylum ruling has real and immediate impacts for asylum seekers — including the thousands of parents who have been separated from their children at the border and prosecuted in recent weeks.

After being prosecuted and sentenced (usually to “time served”), asylum seekers are returned to the custody of Immigration and Customs Enforcement (ICE) for deportation. They face “expedited” deportation, without a full immigration court hearing, unless they can demonstrate that they have a “credible fear” of persecution and should stay in the US to pursue an asylum claim.

At the moment, the overwhelming majority of people are passing their “credible fear” screenings. Sessions sees this as a sign of widespread fraud and lax standards, and his ruling last week was explicitly written to raise the bar not only for eventual approvals or denials of asylum, but for the initial screenings as well.

If Sessions’s ruling were being interpreted as broadly as possible by USCIS, many parents would likely find it impossible to pass their screening interviews, and would find themselves deported without their children and with little time to locate or contact them. But because USCIS appears to be relatively cautious in its implementation, parents in custody — at least for the moment — appear to have a better shot of staying in the US to pursue their asylum case and reunite with their children.

Of course, asylum claims and initial screenings are both partly up to the discretion of individual asylum officers. It’s totally possible that some asylum offices will interpret this memo as an instruction to get much harsher. But the memo doesn’t force them to do that, at least in its interim form.

The text of the memo obtained by Vox is below.


From: Lafferty, John L
Sent: Wednesday, June 13, 2018 5:20 PM
To: [redacted by Vox]
Subject: Asylum Division Interim Guidance – Matter of A- B-, 27I&N Dec. 316 (A.G. 2018)

Asylum Division colleagues:

I’m sure that most of you have heard and/or read about the decision issued by Attorney General Sessions on Monday in Matter of A- B-, 27I&N Dec. 316 (A.G. 2018).

Below is our Office of Chief Counsel’s summary of the AG’s decision, which is followed by Asylum’s summaries of two 2014 decisions – Matter of M-E-V-G and Matter of W-G-R- – that were cited by the AG in support of his decision. While we continue to work with our OCC colleagues on final guidance for the field, we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF/RF [credible fear/reasonable fear] screening determinations:

Matter of A-R-C-G- has been overruled and can no longer be cited to or relied upon as supporting your decision-making on an asylum case or in a CF/RF determination.

Effective upon issuance of this guidance, no affirmative grant of asylum or positive CF/RF screening determination should be signed off on by a supervisor as legally sufficient, or issued as a final decision/determination, that specifically cites to or relies upon Matter of A-R-C-G- as justification for the result. Instead, it should be returned to the author for reconsideration consistent with the next bullet.

All pending and future asylum decisions and CF/RF screening determinations finding that the individual has shown persecution or a well-founded fear of persecution on account of membership in a particular social group must require that the applicant meet the relevant standard by producing evidence that establishes ALL of the following:

A cognizable particular social group that is 1) composed of members who share a common immutable characteristic; 2) defined with particularity, and 3) socially distinct within the society in question;

Membership in that PSG;

That membership in the PSG was or is a central reason for the past and/or future persecution; and

The harm was and/or will be inflicted by the government or by non-governmental actors that the government is unable or unwilling to control.

When the harm is at the hands of a non-governmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. This new decision stresses that, in applying this standard, “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” A-B- at 337-338. (See RAIO Lesson Plan – Definition of Persecution and Eligibility Based on Past Persecution, Section 4.2 “Entity the Government Is Unable or Unwilling to Control”, for further guidance).

The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Every asylum decision and CF/RF screening determination must consider and analyze whether internal relocation would be reasonable, as provided for at 8 CFR 208.

If you have questions on this interim guidance, please raise them up your local chain of command so that they can be brought to the attention of HQ Asylum QA Branch.

Thank you!!

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

Sure, the BIA has worked hard to reject almost every gang-related formulation in the past. But, that’s often 1) without effective representation; 2) without the respondent presenting the necessary specific and voluminous evidence; and 3) by intentionally misconstruing facts — more or less along the lines of Sessions in A-B-.

Keep it simple:

“Women in El Salvador” actually fits well within the BIA’s three PSG criteria and is “at least one central for persecution” in many cases.

“Public opponents of gangs in X Country” also should be a pretty straightforward fit with a proper factual record and specific legal arguments. It also fits the “political” ground if the accurate factual basis is presented and documented effectively.

The reality is that gender is a major reason for persecution all over the world  — one of the largest, in fact — and is well within the 1952 Convention’s ambit! Likewise, in countries where all real experts say gangs have infiltrated or in many cases are actually acting in concert with the Government, public opposition represents fundamental values that are limited to a readily identifiable segment of the population for which the punishment is immediate and severe. Likewise, it’s a rather clear case of political persecution, just like “whistleblowers” and “union activists.”

For years, the advocacy community has been willing to cooperate with the Government’s highly restrictive “incremental approach” to protection, because it was showing signs of real, if slow, progress and other viable alternatives such as “prosecutorial discretion” and “Special Immigrant Juvenile Status” were often available. Now, Sessions has intentionally reversed almost all of that progress and “returned us to the Dark Ages” as one expert put it.

So, no more “Mr. Nice Guy!” If it’s war that Sessions & Co. want, why not give it to them? Now is the time to simply “blow the roof off” of the Executive’s overly restrictive, unjustifiable, often disingenuous, confusing, contradictory, and clearly biased misinterpretation of what’s really happening in the Northern Triangle and elsewhere and how international protection laws must and should be applied if they are to have any meaning in the 21st century.

And, forget the bogus “floodgates” arguments. “Christians,” Jews,” “Muslims,” “Blacks,” “Pentecostals” are all potentially huge groups that have been recognized for asylum purposes.

Sure, maybe if forced to interpret the asylum and CAT laws properly Congress with withdraw from all of our international obligations so that nobody gets in. I doubt it. But if it happens, it happens.

At least it will then be out in the open that we are a “bogus” democracy that spreads false myths about our values, but won’t actually live up to them when the going gets tough (which, incidentally and not surprisingly,  is also a symptom of “False Christianity”).

Then, maybe when folks figure out that “we aren’t who we say we are,” they will stop coming! Or, we could simply set up machine gun nests along the border and gun down all the unwanted women and children before they can become a burden on our “justice” system. In the end, the results of that might not be lots different from using our asylum and “court” systems as a “deterrent” to those fleeing for their lives. Just more honest about who we really are deep down, when  it counts.

PWS

06-19-18