"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Randy Moss U.S. District Judge Washington, DCRandy Moss NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)“Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation
L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20
U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers.
KEY QUOTE FROM JUDGE MOSS’S OPINION:
The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.
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Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.
Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.
While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.
Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future!
For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!
Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published
PANEL:Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.
OPINION BY:Judge William A. Fletcher
DISSENTING OPINION:Judge Ferdinand F. Fernandez
KEY QUOTE FROM MAJORITY:
In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will
INNOVATION LAW LAB V. WOLF 49
suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.
The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.
The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:
On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”
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are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).
932 F.3d at 779 (alteration in original).
VII. Scope of the Injunction
The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.
We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.
For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.
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First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.
There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).
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Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the
INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform
immigration law and policy.” Id. at 1166–67. Conclusion
We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.
We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.
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At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.
But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.
But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.
NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!
Paulina Vera Professorial Lecturer in Law GW Law
NDPA stalwart (and former Arlington Immigration Court Intern) Professor Paulina Vera reports:
Good afternoon,
The above is what our client said to Immigration Judge Cynthia S. Torg after she granted her asylum claim this afternoon. A-A-‘s husband was politically involved in their home country of Venezuela, actively protesting against Nicolas Maduro. Because of his political involvement, both A-A- and their 11-year-old son were targeted by security forces and threatened with their lives should the political opposition continue. Additionally, A-A- has been diagnosed with stage 4 breast cancer and feared that she would not be able to get medical treatments in her home country due to a shortage of medical supplies there.
After a 15 minute hearing, the Immigration Judge (IJ) agreed to grant relief, which the trial attorney did not oppose. Both the IJ and trial attorney commended student-attorney, Halima Nur, JD ‘20, for her preparation. The IJ commented that because of the amount of documentation and the legal arguments presented, she was able to issue a decision quickly. In addition to their 11-year-old son, the couple has a 1.5 year old son, who was born in the United States. With this grant, the family will remain together in the U.S.
Please join me in congratulating Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for all their hard work on the case.
Best,
—-
Paulina Vera, Esq.
Acting Director, GW Law Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
Professorial Lecturer in Law
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These are the moments that everyone, judges, lawyers, interpreters, respondents, families, “live for” in Immigration Court. It’s what “kept me going” for 13 years on the trial bench. “Building America, one case at a time,” I used to say!
It’s the “polar opposite” of the “haste makes waste gimmicks” that unqualified politicos and administrators who don’t handle regular dockets have forced on judges and parties in a system where “docket control” has effectively been disconnected from its proper objectives of achieving due process and fundamental fairness.
Unfortunately, as Miller and the restrictionists seek to farther skew the regulations to screw asylum seekers, just results like this are likely to be even harder to achieve. That means that more and more asylum applicants will have to appeal to the Article III Courts, flawed as they have become, for any chance whatsoever of achieving a fair and unbiased outcome. I also discussed this unhappy likely future development in my post at the preceding link.
Thanks again to Judge Torg, the ICE Assistant Chief Counsel, Paulina, and GW Clinic Student AttorneysHalima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for being inspiring examples of how the Immigration Court system could work to achieve “due process and fundamental fairness with efficiency” under “different management” and an “independent structure” in the future.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
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For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
The trauma Donald Trump’s administration caused to young children and parents separated at the US-Mexico border constitutes torture, according to evaluations of 26 children and adults by the group Physicians for Human Rights (PHR).
The not-for-profit group’s report provides the first in-depth look at the psychological impact of family separation, which the US government continued despite warnings from the nation’s top medical bodies.
“As a clinician, nobody was prepared for this to happen on our soil,” the report co-author Dr Ranit Mishori, senior medical adviser at PHR, told the Guardian. “It is beyond shocking that this could happen in the United States, by Americans, at the instruction and direct intention of US government officials.”
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Legal experts have argued family separation constituted torture, but this is the first time a medical group has reached the determination.
PHR volunteer psychiatrists evaluated 17 adults and nine children who had been separated between 30 to 90 days. Most met the criteria for at least one mental health condition, including post-traumatic stress disorder, major depressive disorder or generalized anxiety disorder “consistent with, and likely linked to, the trauma of family separation”, according to the report.
Not only did the brutal family separation policy create trauma, it was intensified by the families’ previous exposure to violence on their journey to the US and in their home countries of Honduras, Guatemala and El Salvador.
All but two of the adults evaluated by PHR said they had received death threats in their home countries and 14 out of the 17 adults said they were targeted by drug cartels. All were fearful their child would be harmed or killed if they remained at home.
Almost all the children had been drugged, kidnapped, poisoned or threatened by gangs before they left. One mother told investigators she moved her daughter to different schools in El Salvador several times so gang members couldn’t find her and kill her.
In the face of these threats, parents tried to move within the country, change their phone numbers, meet extortion demands and go silent on social media. Ultimately, however, the report said: “Parents were confident that the journey to the United States would result in protection for their children.”
This is not what happened at the border.
The Trump administration instituted a policy in April 2018 that formally enabled the mass separation of children and parents at the US-Mexico border. Trump ended the policy in June 2018, but it has since been revealed that the administration separated thousands of families before and after the policy was in place.
There was also no system to reunite the families, according to an internal government watchdog. The Trump administration also ignored warnings from the nation’s leading medical organizations that family separation would traumatize children and adults.
How Trump’s immigration policies hurt people’s lives – in pictures
People who experience trauma, especially as children, have higher rates of medical conditions such as cancer and cardiovascular disease. They also have an increased risk of psychiatric disorders and detrimental coping behaviors such as alcohol and drug abuse.
“Something like that does not just resolve once you’re reunified with your parents, it’s something you carry with you possibly forever,” Mishori said.
One Honduran father described how badly his son reacted the four times a psychologist came to their apartment for treatment in the report: “Each time the son would refuse to cooperate and would throw things at the therapist … It appears his son was afraid of strangers, afraid they will take him away from his father.”
Kathryn Hampton, a senior officer in PHR’s asylum program, said the group PHR had assessed was small but represented separated families from different detention centers and foster homes across the country over a two-year period.
“This is a really disparate group of people and yet their stories are practically identical,” said Hampton. “So that’s very disturbing, to see that level of consistency.”
Amid the despair, PHR has seen an outpouring of support in money and volunteers. Hampton said since the beginning of 2018, its Asylum Network had more than doubled to 1,700 clinicians who provide free medical and psychological evaluations to asylum seekers. There were also three times as many medical school clinics partnering with the organization in that period.
Dr Stuart Lustig, a California-based psychiatrist and longtime volunteer, evaluated a seven-year-old girl from Guatemala. He said when he and the girl did a common evaluation tool called the Squiggle Test, she had one of the more inhibited reactions he had seen in 20 years.
“These kinds of separations were filled with uncertainty, there was no information about where people are going, so it is not surprising at all that these separations ended up being extremely traumatizing for kids and parents,” Lustig said.
In November, a federal court ordered the US to compensate for the trauma separated families faced at the hands of the government. Lustig said there were many treatment options for children who experienced this deep level of trauma in the US, but he and PHR were concerned about how these families would have access to them.
Lustig said: “Part of the work is simply building trust in humanity again.”
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We are diminishing ourselves as a nation; but, in the end, it won’t stop human migration. While the purpose of torture is dehumanization and degradation of the “other,” torture actually increases the humanity of its victims while dehumanizing the torturers and their enablers.
It’s also worthy remembering the next time “Big Mac With Lies,” Nielsen, Kelly, ”Gonzo” Sessions and other noted torturers want to “clean up their images” and capitalize on their misdeeds by speaking to an organization to which you belong or attend. Remember who they REALLY are beneath their facades: unpunished perpetrators of “Crimes Against Humanity.”
Kevin has already posted about Baby Jails, the new book from immprof Philip G. Schrag (Georgetown) that explores the detention of migrant children.
I write today as someone who recently devoured this book. Let me start by telling you two things about myself: I hate flying and I am not much of a fan of nonfiction books. Combining these two things, I tend to read a riveting YA novel while flying in an effort to distract myself from how many feet I am unnaturally suspended above the earth’s surface. Yet I recently read Schrag’s book over the course of 3 flights. It was utterly engrossing.
The book is jam-packed with law and yet manages to read like a narrative. You get a feel for characters (Jenny Flores, certain attorneys and judges) and find yourself rooting from the sidelines even as you know victories will frequently fail to live up to their promise.
The book included numerous vignettes and insights that were entirely new to me. For example, did you know Ed Asner was responsible for Flores’ legal representation? Yes, the grumpy old man from Pixar’s Up set out to help his housekeeper’s daughter who was housed with Flores and connected the young women with Peter Schey, founder of the National Center for Immigrants’ Rights (now the Center for Human Rights and Constitutional Law).
Here’s another one: Leon Fresco represented the government in a 2015 lawsuit brought by Schey to enforce the Flores settlement — arguing that the settlement didn’t apply to children traveling with parents and that the agreement was “no longer equitable.” Leon Fresco! I wrote about him a few years back — he was a key player in the failed 2013 comprehensive immigration reform led by the Gang of Eight.
I’m also impressed by how comprehensive the book is. I recently spoke to a friend who is on the cusp of publishing a book and we talked about how, at some point in the writing process, the publisher will charge by the word for additions of any kind. Yet Schrag’s book must have been edited and added upon right up until the last moment of publication. There is nothing of current import that is left behind (remain in Mexico, asylum cooperation agreements, third country transit).
This book is marvelous. A tour de force. I recommend it to everyone — even terrified flyers. Instead of gasping at every bump in the jet stream you’ll be scribbling away in the margins, furious at what our nation has done to children in the name of immigration enforcement.
-KitJ
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Thanks, Phil & KitJ, my friends and colleagues. Both of you are amazing inspirations to all of us in the “New Due Process Army.”
The Trump regime seeks to take child abuse many steps further to effectively “repeal by administrative fiat” all asylum protection laws, to insure that as many families and children as possible suffer, die. or are forced to remain in life-threatening conditions outside the U.S., and to abandon any effective cooperative efforts to improve conditions in “refugee sending” countries.
Meanwhile, many complicit Article III Judges (U.S. District Judge Dolly Gee being a notable exception) simply “look the other way” — not THIER kids and families being tortured and killed, so who cares what happens to them — and a depressing segment of the U.S. public just doesn’t care that the Trump regime is putting America among the most notable international human rights abusers. After all, THEY have jobs, THEIR kids aren’t the Trump regime’s targets (yet), and the stock market is going up. So, who cares what dehumanization, intentional human rights abuses, and violations of legal norms are taking place in their name?
Still, I think that Phil, Kit, the Round Table, and many other members of our “New Due Process Army” are clearly “on the right side of history” here. It’s just tragic that so many innocent folks, many of them children, will have to die or be irreparably harmed before America finally comes to its senses and restores morality and human values to our government.
We’ve got a chance to “right the ship” this November. Don’t blow it!
Due Process Forever; Government Child Abusers & Their Enablers Never!
Dead Refugee Child Washes Ashore in Turkey — Stephen Miller Hopes To Kill More Refugees in The AmericasMr. & Mrs. Stephen Miller Look Forward to Planning Together for More “Crimes Against Humanity” Targeting World’s Most Vulnerable Refugees
“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”
“There’s a killer on the road His brain is squirmin’ like a toad Take a long holiday Let your children play If ya give this man a ride Sweet memory will die Killer on the road, yeah”
— From “Riders on the Storm” by The Doors (1971)
By Paul Wickham Schmidt
Courtside Exclusive
Feb. 24, 2019
I have been getting “unverified hearsay” reports from Courtside readers and others across the country that an emboldened and now totally unrestrained Trump regime actively is planning an all-out extralegal, extrajudicial onslaught against established asylum laws. It’s likely to claim the lives of many of the most vulnerable and deserving asylum seekers in the United States.
Predictably, this atrocious attack on humanity and human dignity is the “brainchild” of newly married neo-fascist White Nationalist hate monger Stephen Miller. Although unconfirmed, these reports have come from diverse enough sources and sound so consistent with the regime’s nativist, xenophobic approach to asylum that I, for one, give them credence. It’s time to start sounding the alarm for the regime’s latest vile assault on the rule of law and our common humanity!
I have gleaned that there is a 200-page anti-asylum screed floating around the bowels of the regime’s immigration bureaucracy representing more or less the nativist version of the “final solution” for asylum seekers. The gist of this monumental effort boils down along these lines:
[W]ould ban the grant of asylum claims involving PSGs defined solely by criminal activity, terrorist activity, persecutory actions, presence in country with generally high crime rates, attempted recruitment by criminal, terrorist, persecutors, perception of wealth, interpersonal disputes which government were not aware of or involved in and do not extend countrywide; private criminal acts which government was not aware of and do not extend countrywide; status as returned from U.S. and gender. Note the inclusion of “gender” at the end.
Thus, in one “foul swoop” the regime would illegally: 1) strip women and the LGBTQ community of their decades-long, hard-won rights to protection under asylum laws; 2) eliminate the current rebuttable regulatory “presumption of countrywide future persecution” for those who have suffered past persecution; 3) reverse decades of well-established U.S. and international rulings that third party actions that the government was unwilling or unable to protect against constitute persecution; and 4) encourage adjudicators to ignore the legal requirement to consider “mixed motivation” in deciding asylum cases.
There is neither legal nor moral justification for this intentional distortion and rewriting of established human rights principles. Indeed, in my experience of more than two decades as a judge at both the appellate and trial levels, a substantial number, perhaps a majority, of the successful asylum and/or withholding of removal claims in Immigration Court involved non-governmental parties and/or gender-based “particular social groups.” They were some of the clearest, most deserving, and easiest to grant asylum cases coming before the Immigration Courts.
At the “pre-Trump” Arlington Immigration Court, many of these cases were so well-documented and clearly “grantable” that they were “pre-tried” by the parties and moved up on my docket by “joint motion” for “short hearing” grants. This, in turn, encouraged and rewarded multiparty cooperation and judicial efficiency. It was “due process with efficiency, in action.”
Consequently, in addition to its inherent lawlessness, cruelty, and intentional inhumanity, the regime’s proposed actions will stymie professional cooperation between parties and inhibit judicial efficiency. This is just one of many ways in which the regime has used a combination of wanton cruelty and “malicious incompetence” to artificially “jack up” the Immigration Court backlog to over 1.3 million pending and “waiting” cases, even with the hiring of hundreds of additional Immigration Judges.
In a functioning democracy, with an independent judiciary, staffed by judges with knowledge, integrity, and courage, you might expect a timely judicial intervention to block this impending legal travesty and humanitarian disaster as soon as it becomes effective. But, as Justice Sotomayor recently pointed out in a blistering dissent, Chief Justice Roberts and his four GOP colleagues appear to have “tilted” in favor of the regime.
They can’t roll over and bend the laws fast enough to “greenlight” each new immigrant-bashing gimmick instituted by the regime. Moreover, as I’m sure is intended, once these new anti-asylum regulations are railroaded into force, the USCIS Asylum Offices will deny “credible fear” in nearly all cases, thus preventing most asylum applicants from even getting a day in court to properly challenge the regulations. All this will happen while the life-tenured Article III Courts look the other way.
For Stephen Miller, the coming Armageddon for defenseless asylum seekers must represent the ultimate triumph of fascism over democracy, hate over reason, and racism over tolerance. Miller was recently quoted in a New Yorker article about how screwing asylum applicants, and presumably knowing that they and their families would suffer and die, be tortured, or be otherwise harmed by his unlawful acts, was, in effect, his “life’s dream.” “It’s just that this is all I care about. I don’t have a family. I don’t have anything else. This is my life,” said Miller after a meeting in which he had promoted a fraudulent “Safe Third Country Agreement” with El Salvador, a country he acknowledged was without a functioning asylum system.” https://slate.com/news-and-politics/2020/02/stephen-miller-immigration-this-is-my-life.html.
It appears that even Miller’s forlorn “love life” has taken an upturn. Although the Trump Administration has been a “coming out party” for racists, White Nationalists, and White Supremacists of all stripes, the “hater dater circuit” has remained somewhat “restricted.” Evidently, not everyone “gets off” on the chance to get “up close and personal” with “wannabe war criminals.”
Nevertheless, in the middle of all the suffering he has caused, Miller finally found somebody who apparently hates and despises humanity just as much as he does, in Vice Presidential Press Secretary Katie Waldman. They were recently married at the Trump Hotel in D.C. with the “Hater-in-Chief” himself attending the festivities. How can America “get any greater,” particularly if you have the good fortune not to be a refugee condemned to rape, torture, abuse, family separation, beatings, disfiguration, burning, cutting, extortion or other horribles by this cruel, scofflaw, and “maliciously incompetent” regime?
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.
Read the full article at the above link.
Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:
Here’s a “key quote” from Justice Sotomayor’s dissent:
These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge
6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting
rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.
Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.
Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.
I respectfully dissent.
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Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”
Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,”“separate but equal,”“plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”
Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?
But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.
Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”
The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.
U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.
Republicans defend Barr as Klobuchar looks forward to testimony
Lawmakers and White House counselor Kellyanne Conway commented Feb. 16 on President Trump’s tweets and the conduct of Attorney General William P. Barr. (The Washington Post)
On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.
A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.
Rufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.
The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.
In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.
“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”
Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”
Trump keeps lashing out at judges
President Trump has a history of denouncing judges over rulings that have negatively affected him personally as well as his administration’s policies. (Drea Cornejo/The Washington Post)
Faced with more than 100 adverse rulings in the federal courts, Trump has continued verbal attacks on judges.
Rufe’s comments gave no hint of what the association could or would do in response.
Some individual judges have already spoken out critically about Trump’s attacks generally, among them U.S. District Judge Paul L. Friedman, a colleague of Jackson’s in Washington, and most recently, the chief judge of the court in Washington, Beryl A. Howell.
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In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Will Trump & Barr eventually separate Article III Judges’ families or send them to danger zones in Mexico or the Northern Triangle to “deter” rulings against the regime? Will Mark Morgan and Chad Wolf then declare “victory?” Will their families be scattered to various parts of the “New American Gulag” with no plans to reunite them? Will they be put on trial for their lives without access to lawyers? Are there costs for failing to take a “united stand” for the rule of law, Constitutional Due Process, human rights, and the human dignity of the most vulnerable among us?
Why does it take the case of a lifetime sleaze-ball like Roger Stone to get the “life-tenured ones” to “wake up” to the attacks on humanity and the rule of law going on under noses for the past three years?
Arian Moayed ActorLee Sunday Evans Artistic Director WaterwellHon. Jeffrey S. Chase Jeffrey S. Chase BlogHon. Robert D. Weisel Retired U.S. Immigration Judge Member, Round Table of Retired Immigration JudgesHon. Elizabeth Lamb Retired U.S. Immigration Judge Member, Round Table of Retired Immigration JudgesElora Mukherjee “American Hero” Clinical Professor of Law & Director of the Immigrants’ Rights Clinic Columbia Law School
Here’s a recent anecdote from my good friend, colleague, and leader of our Round Table of Former Immigration Judges, Hon. Jeffrey S. Chase:
More theater news! On Monday, the director of The Courtroom emailed me in Rome to ask if I would perform at a special performance at the Lucille Lortel Theater in NYC on Wednesday night, in which three Tony winners were making guest appearances. Curtain was at 7 pm; our flight was scheduled to land at JFK at 4 pm. Just as we were about to board the flight, a delay was announced due to mechanical problems. We took off an hour and a half late, and were told we would be further slowed by strong headwinds. As I was worrying about making it in time, it occurred to me what a charmed life I am living in which worrying whether I will return from a 10-day vacation in Italy in time to act with three Tony Award winners constitutes a problem.
Landing at almost 6 pm, we cleared customs and jumped in a taxi; we arrived at the theater about 15 minutes into the play. I had emailed my daughter in NY asking her to bring one of her fiancé’s ties and a printed copy of my script (since we write out own remarks) to the theater. I performed my part; my wife and daughter each got to meet their theater idols; and my daughter and I attended the after-party in the West Village. I had been awake since 1 am NYC time, and got home at 11:30 pm.
At the party, I was talking with Arian Moayed (Stewy in “Succession” on HBO) and Kelli O’Hara (Tony Award winner who played the lead on Broadway in both South Pacific and The King and I). Kelli had played the IJ in Act I, and said that she had been in the audience at one of the very early performances, at which our group’s Betty Lamb had performed. Both Kelli and Arian said how powerful and impressive Betty’s performance had been!
I’m hoping others from this group get the opportunity to perform in the future. The Chicago IJs in our group probably know the real-life lawyer in the case, Richard Hanus, and you certainly know the real-life IJ, Craig Zerbe. The ICE attorney was Gregory Guckenberger. Do the last two realize they are being portrayed by actors of such caliber in a play that made the New York Times Best Theater of 2019 list?
Click on the link below to listen to the 37 minute podcast:
Waterwell Theater Company’s latest play, The Courtroom, has no playwright. Or even a theater. But as Waterwell founder (from HBO’s “Succession” and Tony nominee) Arian Moayed and Artistic Director Lee Sunday Evans tell Kevin, that’s the point. They found their inspiration — and their script — in the actual language of a deportation trial. And as immigrant rights advocate/attorney Elora Mukherjee reveals, they also found themselves pulled to ground zero of today’s drama: all the way to the border.
Resources
The Courtroom returns for monthly performances at civic venues in NYC through November 2020. For information and tickets visit https://waterwell.org/.
Jeffrey S. Chase, a former immigration judge, was the legal advisor for The Courtroom. Read his article “The Immigration Court: Issues and Solutions” here.
Follow guest Arian Moayed on Twitter at @arianmoayed.
Credits
The Backdrop is hosted by Kevin Bleyer and produced by Nella Vera.
E.O.H.C.; M.S.H.S. v. Sec. U.S. Dep’t of Homeland Security, 3d Cir., 02-13-20, published
PANEL: AMBRO, KRAUSE, and BIBAS, Circuit Judges
OPINION BY: Judge Bibas
KEY QUOTE:
This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here.
. . . .
Immigration claims ordinarily proceed from an immigra- tion judge through the Board of Immigration Appeals to the court of appeals by petition for review of a final removal order. Review by district courts is not the norm. But neither is this case. Most of the claims here cannot await a petition for re- view. By the time appellants are ordered removed to Guatemala (if ever), it will be too late to review their claims about their return to Mexico in the meantime. Only their statutory right-to-counsel claim will still be redressable. So the INA does not bar review of the remaining claims. And there is federal-question jurisdiction over the Flores claim. Because the United States is a party to the Flores Settlement Agreement, the contract claim is governed by federal common law and so arises under federal law. In short, the District Court has juris- diction over most of the claims. We will thus affirm the dis- missal of the statutory right-to-counsel claim and otherwise re- verse and remand for the District Court to address the merits.
The court actually makes one highly questionable assumption: That folks returned to Mexico will survive long enough to challenge the inevitable denial of their asylum claims in Barr’s biased “kangaroo courts.” The court fails to recognize/articulate the real driving force behind “Let ‘Em Die In Mexico:” Kill off the asylum applicants, make it impossible for them to raise their claims in the U.S. legal system by denying reasonable access, and/or demoralize individuals so that they will give up and accept their fate, even where it likely means death or torture. That’s what our “justice system” has become under the regime.
Perhaps, Article III Courts are starting to take notice of what Let ‘Em Die in Mexico is really about. The dead can’t get judicial review, at least in this world. We can only hope!
Too bad the awareness hasn’t extended to the 9th Circuit and their truly abominable, not to mention cowardly, decision in Innovation Law Lab v. McAleenan.
Article III Courts twiddle and fiddle, hem and haw, while real people die!
(CNN)The Trump administration is reinforcing a tight deadline for immigration cases of unaccompanied migrant children in government custody in an effort to make quicker decisions about deportation, according to an email obtained by CNN.
The message seems designed to apply pressure on immigration judges to wrap up such cases within a 60-day window that’s rarely met and falls in line with a broader effort by the administration to complete immigration cases at a faster speed.
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said deadlines are “putting the judge between a rock and a hard place.”
“The only thing that can get done within 60 days is if someone wants to give up their case or go home or be deported,” Tabaddor told CNN.
The Executive Office for Immigration Review, which oversees the nation’s immigration court system, sent the email last month to assistant chief immigration judges, reminding them that unaccompanied children in government custody are to be considered the same as detained adults for purposes of scheduling cases.
While the 60-day deadline cited in the email is not new, it’s difficult to meet for cases of unaccompanied kids, in part, because of the time it takes to collect the relevant information for a child who comes to the United States alone. As a result, cases can often take months, if not years, to resolve.
Last year, an uptick in unaccompanied children at the US-Mexico border strained the administration’s resources. Over the course of the 2019 fiscal year, Border Patrol arrested around 76,000 unaccompanied children on the southern border, compared to 50,000 the previous fiscal year.
Unaccompanied children apprehended at the southern border are taken into custody by the Department of Homeland Security and referred to Health and Human Services. While in care at shelters across the country, case managers work to place a child with a sponsor in the United States, like a parent or relative.
Like adults and families who cross the US-Mexico border, unaccompanied children are put into immigration proceedings to determine whether they can stay in the United States.
The email from EOIR, dated January 30, says unaccompanied migrant children who are in the care of the government should be on a “60-day completion goal,” meaning their case is expected to be resolved within 60 days. It goes on to reference complaints received by the office of the director, but doesn’t say who issued the complaints or include a punishment for not meeting the completion goal.
EOIR spokeswoman Kathryn Mattingly told CNN that she could not comment on internal communications.
Golden McCarthy, deputy director at the Florence Immigrant and Refugee Rights Project, which works with unaccompanied migrant children, said “it does take time to reach out to” a child’s caretaker or adults in the child’s life.
“We all know that many times the child doesn’t necessarily have the full picture of what happened; it does take time to reach out to caretakers and adults in their lives to understand,” McCarthy said.
Initiatives designed to quickly process cases have cropped up before.
The Obama administration tried to get cases scheduled more expeditiously but deferred to the judges on the timeline thereafter, whereas the Trump administration’s move seems to be an intent to complete cases within a certain timeframe, according to Rená Cutlip-Mason, chief of Programs at the Tahirih Justice Center and a former EOIR official.
The Trump administration also appears to be getting cases scheduled faster. In Arizona, for example, the Florence Immigrant and Refugee Project has begun seeing kids called into immigration court earlier than they had been before.
In a statement submitted to the House Judiciary Committee in January, the group detailed the cases of children, one as young as 10 years old, who appeared before an immigration judge within days of arriving to the US.
“I think our clients and the kids we would work with are resilient,” McCarthy, the deputy director at the project, said. “But to navigate the complex immigration system is difficult for adults to do, and so to explain to a kid that they will be going to court and a judge will be asking them questions, the kids don’t typically always understand what that means.”
It can also complicate a child’s case since he or she may eventually move to another state to reunify with a parent or guardian, requiring the child’s case to move to an immigration court in that state.
Under the Trump administration, the Justice Department has rolled out a slew of other policies — such as imposing case quotas — to chip away at the nearly one million pending cases facing the immigration court system. Some of those controversial policies have resulted in immigration judges leaving the department.
In its latest budget request to Congress, the White House called for $883 million to “support 100 immigration judge teams” to ease the backlog.
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How to build a 1.3 million case backlog with no end in sight: Anatomy of “Aimless Docket Reshuffling:”
2017: Trump Administration “deprioritizes” unaccompanied minors, creating more docket chaos;
2020: Trump Administration “reprioritizes” unaccompanied minors, creating more docket chaos;
Result:
Unfairness to unaccompanied minors rushed through the system without due process;
Unfairness to long-pending cases continuously “shuffled off to Buffalo:”
Gross inconvenience to the public;
Demoralized judges whose dockets are being manipulated by unqualified bureaucrats for political reasons;
Growing backlogs with no rational plan for resolving them in the foreseeable future.
This reminds me of my very first posting on immigratoncourtside.com – from Dec. 27, 2016 —
SAVING CHILD MIGRANTS WHILE SAVING OURSELVES
By Paul Wickham Schmidt
They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.
I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”
Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.
Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.
For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.
Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.
To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.
Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”
Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.
The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied
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children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.
Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.
Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.
It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.
The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.
Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather
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than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.
Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.
The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.
The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.
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Tragically, as a nation, we have learned nothing over the past more than three years. Things have actually gotten much, much worse as we have unwisely and unconscionably entrusted the administration of our laws to a cruel, corrupt, scofflaw regime that sees inflicting pain, suffering, and even death on children and other vulnerable seekers of justice as an “end in an of itself.” They actually brag about their dishonesty, racism, selfishness, contempt for human decency, and “crimes against humanity.”
So far, they have gotten away nearly “Scot-free” with not only bullying and picking on vulnerable children and refugee families but with diminishing the humanity of each of us who put up with the horrors of an authoritarian neo-fascist state.
History will, however, remember who stood up for humanity in this dark hour and who instead sided with and enabled the forces of evil, willful ignorance, and darkness overtaking our wounded democracy.
Due Process Forever; Child Abuse & Gratuitous Cruelty, Never.
More than two-thirds of the migrants fleeing Central America’s northern triangle countries – Guatemala, Honduras and El Salvador – experienced the murder, disappearance or kidnapping of a relative before their departure, according to a new study by the medical charity Doctors Without Borders (MSF).
The MSF study said 42.5% of interviewees reported the violent death of a relative over the previous two years, while 16.2% had a relative forcibly disappeared and 9.2% had a loved one kidnapped.
The study – based on interviews with migrants and refugees at MSF medical facilities in Central America and Mexico – once again showed the despair driving migrants to abandon some the hemisphere’s poorest, most violent and most corrupt countries.
Central America’s rampant violence fuels an invisible refugee crisis
“We’re speaking of human beings, not numbers,” Sergio Martín, MSF general coordinator in Mexico, said at the study’s presentation on Tuesday. “In many cases, it’s clear that migration is the only possible way out. Staying put is not an option.”
In 45.8% of the interviews, migrants said that “exposure to violent situations” was a key reason for leaving their home country. Of those fleeing due to violence, 36.4% had become internally displaced in their countries of origin, but were eventually forced to flee.
The research was published at a time when the US border is becoming increasingly difficult to reach.
Mexico has been launched a crackdown against people trying to cross its southern frontier and deployed its newly created national guard to dismantle large groups of migrants, while the Trump administration has made the asylum process practically impossible for most applicants.
US officials are returning asylum seekers to dangerous Mexican border cities – where MSF has found many are kidnapped and preyed upon by drug cartels – under scheme known as migrant protection protocols to await their court cases. Some migrants are now being flown to Guatemala to apply for asylum in the impoverished Central American country.
Remain in Mexico: 80% of migrants in Trump policy are victims of violence
“The aggressive migration policies adopted by the US and Mexico mean that more and more people are trapped in a vicious circle,” the MSF report stated. “Patients describe an increase in the predatory violence perpetuated by criminal organisations operating along the migrant route.”
Meanwhile, violence against migrants transit Mexico is escalating, the study found: 39.2% of interviewees were assaulted in the country, while 27.3% were threatened or extorted – with the actual figures likely higher than the official statistics as victims tend not to report crimes committed against them.
Nearly 6% of migrants reported witnessing a death during their time in Mexico, according to MSF. In 17.9% of those cases, it was a murder.
Members of MSF teams have themselves witnessed kidnappings outside migrant shelters.
“The physical obstacles to entering the United States are taken for granted. But what surprises [migrants] … is the violence that they experience in Mexico,” the report said.
“Coming from a country where violence is endemic, they decide to make the journey because they have no other option.”
Violence is just of a range of factors driving migration, and motives vary from region to region and country to country.
A 2019 survey from Creative Associates International found violence was the main driver of migration for 38% of Salvadorans, 18% of Hondurans and 14% of Guatemalans. In Guatemala – the main source of migrants detained at the US border with Mexico – 71% of respondents cited “economic concerns” as their main motive.
Fleeing a hell the US helped create: why Central Americans journey north
Climate change is increasingly being recognized as a driver of migration – especially from areas in Central America’s “Dry Corridor” – as is political corruption.
“Over the last 20 years in Honduras, the poverty rate hasn’t fallen beneath 60%,” said Father Germán Calix, Honduras director of the Catholic Church’s charitable arm Caritas.
“The lack of policies and actions in favor of the poor has been such that people have lost confidence that this situation can ever be reversed from Honduras.”
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As folks die, are raped, kidnapped, extorted, and abused, as a result of DHS’s policies, Acting CBP Commish Mark Morgan touts how effective massive violations of legal, constitutional, and human rights are at deterring refugees seeking legal protection.
WASHINGTON — The number of apprehensions at the U.S.-Mexico border declined for the eighth month in a row in January, but Acting Customs and Border Protection Commissioner Mark Morgan said during a briefing with reporters on Tuesday that in recent weeks the number of average daily apprehensions has risen.
In four of the past five years, apprehensions have begun to increase in February, according to CBP statistics. Morgan said he thinks there might be a spring surge in migrants from Mexico motivated in part by the country’s stagnant economy. The recent uptick is occurring despite tough limitations on asylum opportunities and more aggressive deportation policies.
Morgan noted that the majority of people crossing the border are now individual adults from Mexico, and said that the Trump administration was having success in dissuading Central American families from coming north.
Total apprehensions at the border were lower in January than in recent months, but during the month daily apprehensions began increasing. U.S. Border Patrol apprehended 29,200 individuals crossing at the Southwest border between ports of entry during January, CBP said Tuesday morning, a decrease from the 32,858 people apprehended in December and 33,511 in November.
Morgan touted the agency’s January successes, including the discovery of the longest cross-border tunnel used for smuggling in history and the seizure of more than 50,000 pounds of drugs on the Southwest border.
“We continue to see positive results because of the steps taken by the Trump Administration to control the border and uphold the rule of law,” said Morgan. “We’ve seen eight straight months of decline, but as we see from the seizure of the longest-ever tunnel between the U.S. and Mexico and significant drug seizures, much work remains.”
Migrants from El Salvador, Guatemala and Honduras have decreased, said Morgan. He hailed the administration’s success in reducing numbers of apprehensions from these three countries, crediting security agreements with their governments. He noted that CBP has been promoting the message that if citizens from those countries come to the U.S., “They will be promptly removed and returned.”
The Trump administration has long sought to deter migrants, many of whom were Central American families, from making the journey to the U.S. southern border. Some of the administration’s policies at the border have stoked outrage over the treatment of migrants, such as the 2018 family separation policy that removed children as young as a few months old from their parents and kept them in separate detention facilities.
Last year, the administration implemented a policy to send many asylum-seekers to wait in Mexico while their cases play out. It recently began sending some asylum-seekers to Guatemala.
Critics of the Trump administration’s immigration policies have said such policies violate migrants’ rights and further endanger them by making them wait in dangerous border towns or in one of the most violent countries in the world, which lacks a robust asylum system. A Human Rights Watch report released earlier this month highlighted the potentially deadly risks to Salvadorans in particular — many of whom are fleeing gang violence — when they are sent to wait in Mexico or deported to El Salvador.
Morgan was also asked about the detention of Iranian Americans on the Northern border in Washington state after the U.S. killed Iranian general Qassem Soleimani in January. CBP denied there was any directive to agents in a tweet, but a memo surfaced weeks later showing the CBP Seattle Field Office had told much of the Northern border to conduct additional screenings of anyone with ties to Iran or Lebanon. He noted that while there was no national directive, the Seattle Field Office got “overzealous” in screening Iranian-Americans and headquarters immediately corrected the action.
Rep. Pramila Jayapal, D-Wash., who represents Seattle, said, “It’s deeply disturbing that it took my inquiries, a leaked memo and press reports for CBP to finally acknowledge that it inappropriately targeted Iranian Americans at the Washington State-Canada border.”
“We need to know how far-reaching the order was, who it came from and why it took so long for CBP to come clean.”
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The dead can’t speak. Those illegally deported to torture, rape, extortion, abuse, and exploitation often don’t want to.
In an era where the “truly courageous heroes of public service” are punished by Trump while his GOP sycophants cheer, Morgan is a shining example of the very worst and most disgraceful characteristics of those who falsely claim to be serving our national interests!
Obviously, in the age of extreme regime unaccountability, Congressional fecklessness, and Article III Judicial complicity, folks like Morgan literally can “get with murder.” How grotesque, and arrogantly immoral to tout the deadly results of dehumanization and degradation of some of the most vulnerable and needy human beings!
Also worth noting that until hard evidence to the contrary emerged, under Morgan CBP initially lied about detentions of U.S. citizens of Iranian descent at the border.All of this flagrant dishonesty, racism, and impunity was originally enabled and encouraged by the “head in the sand” approach to the regime’s dishonesty and gross violations of the Constitution in the “Travel Ban Cases” by the Supremes led by the “J.R. Five.” Remember that the next time J.R. fecklessly and disingenuously pontificates on the “loss of civility” in legal discourse. What about the loss of human lives due to your complicit performance, J.R.?
A note to future historians:Don’t forget the role played by Morgan and other regime toadies in what properly will be viewed as intentional “crimes against humanity” and attendant cover-ups and minimization of intentionally inflicted human misery and unnecessary suffering. And, certainly J.R. and his other GOP judicial enablers should be “outed” and held accountable for their role in destroying our democratic institutions, encouraging evil, and promoting injustice and dehumanization. They are enablers and knowing participants in “America’s Jim Crow Revival!”
Due Process Forever; Crimes Against Humanity & Toady Bureaucrats & Judges Never!
(1) An alien’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal.
(2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question.
(3) The respondent’s proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence In the record.
PANEL:MALPHRUS, Acting Chairman; CREPPY and HUNSUCKER, Appellate Immigration Judges
OPINION BY: Acting Chairman Judge Garry D. Malphrus
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I’ll leave a full analysis of this anti-asylum monstrosity to others more scholarly and patient. Here are a few “off the cuff” observations:
The BIA basically “blows off” contrary Circuit Court precedents. See, e.g., Córdoba v. Holder, 476 F. 3d 1106 (9th Cir. 2013) (wealthy educated landowners and businesspeople); N.L.A. v. Holder, 743 F.3d 425 (7th Cir. 2014) (landowners in. Colombia);
The BIA’s assertion that “landowners” must have “similar circumstances” conflates the requirements of a “particular social group” with “nexus.” Obviously, in some circumstances it won’t make any difference whether one is a big or small landowner, urban or rural. In other situations it might. If only certain landowners are persecuted, that is an issue of causation or “nexus,” not an element of the particular social group;
While “landownership” might not be “immutable,” it certainly is “fundamental to identity” in most situations. The BIA’s assertion to the contrary is absurd. Indeed, “landownership” was one of the keys to suffrage when our country was founded and has been one of the most clearly recognized and dearly held distinctions in human history. Even today, most individuals in the world who are fortunate enough to own land identify with it and are not likely to surrender it lightly;
The idea that a landowner should reasonably be expected to surrender his or her land is equally absurd, particularly in the context of surrendering it to drug cartels for their use. What truly perverted policy extremes the BIA engages in to avoid their responsibility to grant life-saving legal protection to the persecuted;
As pointed out in my “screaming headline,” throughout history, only religion or ethnicity might equal landownership as a basis for class identification, political standing, and persecution. The BIA’s obviously result-oriented decision in this case is both inane and ahistorical;
Don’t kid yourself! Notwithstanding some disingenuous suggestions to the contrary, no landowner will ever be recognized as within a “particular social group” and granted asylum under this decision. The BIA is encouraging Immigration Judges to “find any reason to deny” all such cases. And if the judge doesn’t deny it, the BIA will.
Will the Article IIIs continue to allow and facilitate these life-threatening perversions of the law, logic, facts, and history by the BIA and the Trump regime? Maybe.Maybe not. Only time will tell. But, history will record and “out” the twisted logic and intellectual dishonesty employed by the regime and the BIA to unlawfully deny protection to those in need.
In June 1939, about 900 Jewish refugees sailed close to Florida on the St. Louis in hopes of finding protection in the United States. U.S. authorities refused to let the ship dock. Desperate passengers sent cables to President Franklin D. Roosevelt, who never responded.
A State Department telegram stated that the passengers must “await their turns on the waiting list and qualify for and obtain immigration visas before they may be admissible in the United States.” Nearly all the passengers had already been refused admission to Cuba. Canada rejected them too. They had no choice but to return to Europe, where 254 of the passengers were eventually killed in the Holocaust.
Eighty years later, a modern version of this tragedy takes place daily at our southern border. This time, most of these people are fleeing rape, assault and death from the northern triangle of Central America — Honduras, El Salvador and Guatemala — as well as political oppression in Cuba, Venezuela and elsewhere. They are fleeing to save their lives and their children’s lives. They hope to find safety in the United States. When they get to America, U.S. authorities turn them around.
I spent a week recently in Juárez, Mexico, with four of my law students. We visited shelters across the city and its outskirts to provide pro bono legal services to some of the estimated 20,000 migrants there who are trying to apply for asylum in the U.S.
We met political dissidents from Cuba who had been jailed and beaten for refusing to join party meetings, mothers from Central America who had survived excruciating years of domestic violence and fled to save their children’s lives, and fathers with the courage to resist the ever-increasing violence of gangs in their communities. Nearly all genuinely feared being harmed and killed in their home countries.
Why are they in Juárez? A slew of policy changes enacted over the last year by the Trump administration has made it nearly impossible for asylum seekers to enter the United States through the southern border. Among them is the Migrant Protection Protocols program, which requires asylum seekers who try to enter the United States through the southern border to remain in Mexico while their asylum cases are processed in U.S. immigration courts. Since last January, when the new protocols were put in place, more than 60,000 asylum seekers have been stranded in Mexico.
The new rules make it nearly impossible for asylum seekers to find lawyers who can represent them in immigration court. Hardly any lawyers are willing to cross into Juárez to represent asylum seekers. Given the complexity of immigration law and language and cultural barriers, the process of seeking asylum when someone is in the United States is hard enough. Requiring asylum seekers to remain in Mexico makes navigating the process virtually impossible. Ninety-six percent of individuals stranded in Mexico do not have a lawyer to help them apply for asylum.
Of the 29,309 cases that had been completed under MPP as of December, just 187 people had been granted asylum — a reflection of the almost insurmountable barriers imposed by the new protocols. U.S. law requires asylum seekers to be given “credible fear” interviews to allow them into the U.S. while they go through the asylum process; MPP has eliminated that step.
While asylum seekers, including thousands of children and women, wait in Mexico they have become targets for vicious crimes by local and transnational gangs and cartels. According to a recent report from Human Rights First, there have been at least 816 publicly reported cases of murder, rape, torture, kidnapping and other violent assaults, including 201 cases of children being kidnapped or nearly kidnapped. These numbers almost certainly understate the violence since many victims don’t report crimes committed against them for fear of reprisal.
When U.S. officials rejected the St. Louis, the horrors that would befall the passengers were foreseeable. Congress and the U.S. State Department eventually apologized for refusing to let in the refugees on board — but it was 70 years too late.
One year after the inception of MPP, we clearly see the dangers befalling asylum seekers forced to remain in Mexico. U.S. government officials know that these regions of the border are extremely dangerous. The U.S. State Department’s travel advisories warn U.S. citizens not to travel to some of the same Mexican border towns where American authorities send asylum seekers. These areas are designated as level 4 risks — the same danger assessment as for Afghanistan, Iraq and Syria.
The Trump policy is not only inhumane and dangerous, it is also illegal. Under U.S. immigration law, asylum seekers are not to be turned away at the border when they have credible fears of persecution. As the union representing DHS asylum officers explained, “MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.”
We can’t turn a blind eye to the daily tragedies inflicted by Migrant Protection Protocols. The Asylum Seeker Protection Act, which would prohibit the use of federal funds to carry out MPP, has been pending in Congress for months. It’s time to uphold our nation’s core commitment to protecting those seeking safety in this country.
Elora Mukherjee is the Jerome L. Greene Clinical Professor of Law at Columbia Law School and director of its immigrants’ rights clinic.
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Professor Leah Litman Assistant Professor of Law University of Michigan Law
Last Tuesday, in explaining her vote to acquit Donald Trump of abuse of power and obstruction of Congress, Sen. Susan Collins suggested that the president had learned a “pretty big lesson” simply from being impeached and that he would be “much more cautious” about engaging in similar behavior again. By Friday, Trump had issued a series of firingsof public officials who had testified against the president during the impeachment inquiry, demonstrating his takeaway from impeachment: He can use the powers of his office to do whatever he wants. Having gotten away with abuses of power again and again, Trump is now unleashed to continue to corruptly use the powers of his office without consequence. He has already begun to show what that will look like over the remainder of his presidency.
In legal escapades outside of the realm of impeachment, for instance, Trump and his administration have internalized the lesson that if no one will stop you, there’s no reason to stop. Less than two years ago, the Supreme Court upheld the third iteration of the president’s ban on entry by nationals of several Muslim-majority countries (the “travel ban”). By upholding the ban, the court made clear that it would not stop the president from incorporating his bigotry into official immigration policy. Since then, the president has dramatically expanded the scope of the travel ban to other countries with substantial Muslim populations and has enacted several other immigration restrictions that disproportionately disadvantage nonwhite immigrants. After receiving a pass on xenophobia, the president has continued to do it again and again. Last week, he expanded the entry ban to cover five additional countries (Nigeria, Kyrgyzstan, Sudan, Eritrea, and Myanmar) with substantial Muslim populations. In one of those countries (Myanmar), a group of Muslims (the Rohingya) are fleeing religious persecution and genocide. The president had previously said, according to the New York Times, that Nigerians should “go back to their huts.”
With respect to impeachment, several senators came close to admitting that their impeachment votes signify that they are unwilling to stop the president from abusing his office. Sen. Lamar Alexander of Tennessee explained his vote against calling witnesses in almost exactly those terms. The senator claimed that there was no point in hearing from additional witnesses because he had already concluded that the president engaged in the conduct he was accused of. (The House has maintained that the president corruptly threatened to withhold financial assistance to Ukraine to get Ukraine to announce an investigation into former Vice President Joe Biden.) The senator explained that, in his final analysis, the president’s conduct mattered less than the Senate’s ability to continue to confirm more conservative judges and the risk that a Democrat would win the presidency.
That reasoning obviously invites the president to do the same thing—or worse—again and he wasted no time in retaliating against impeachment witnesses Lt. Col. Alex Vindman and Ambassador to the European Union Gordon Sondland. If Republicans senators and their constituents value conservative judges and tax breaks for the wealthy more than holding a president accountable for wrongdoing, then the president will just keep doing wrong.
Again, it is not just the Senate that has failed to curb the president’s worst impulses and told the president that he can get away with even more than he’s already done. As a candidate, Trump had promised to ban Muslims from entering the United States. After his election, the president immediately suspended entry from several Muslim-majority countries without so much as informing, much less consulting, any relevant agencies. And his advisers admitted that the travel ban was an effort to make a Muslim ban that looked (somewhat) more legal. The Supreme Court ultimately blessed that effort in 2018 under a 5–4 vote that split along ideological lines.
The five conservative justices, much like the Republican senators, said they didn’t care. In fact, the justices, like the Republican senators, acknowledged that the entry ban may very well have been motivated by anti-Muslim animus. But they claimed that, in light of the president’s expansive powers over immigration, the court would uphold the entry ban so long as someone could think that the ban had a valid purpose (such as protecting national security) even if the ban actually had an illegitimate one (such as targeting Muslims). And, the court continued, a person could think the president’s entry ban had a valid purpose because the ban did not apply to all of the world’s Muslims, among other reasons.
Again, it does not take a genius to see how that decision signals that the court is unwilling to stop the president from making policy based on bigoted, thinly veiled Islamophobia or racism. The president received the message and has run with it. His expanded travel ban clearly targets countries based on race and religion. The odds of this Supreme Court reversing course and stopping him this time is virtually nil.
Indeed, the administration apparently felt so emboldened by the court’s earlier ruling that its expanded entry ban largely abandoned the original pretense of the rationale for the earlier entry ban. Previously, the administration stated it was responding to information sharing deficiencies in some countries. The administration now suggests it is trying to restrict immigration: Officials stated they are suspending entry from Nigeria because some Nigerians overstay their visas.
The administration has created other immigration restrictions that likewise disadvantage nonwhite immigrants. They have refused to process asylum applications from Central American migrants who did not apply for asylum in other countries they passed through on their way to the United States. They have tried to prohibit asylum applications from people who enter the United States outside of ports of entry. And they have authorized immigration officials to refuse to admit immigrants who might ever use public benefits (even temporarily). The Supreme Court approved this last effort just two weeks ago, again through a 5–4 decision split along ideological lines.
With the Senate’s blessing, the president will continue to corruptly abuse the powers of his office to undermine elections and our rule of law—and, as demonstrated by the Friday Night Massacre, he will do so in even more aggressive and ostentatious ways. With the court’s blessing, the president will expand his racist, xenophobic, and anti-Muslim immigration practices with little limit to what he may try to enact.
Neither the Senate nor the Supreme Court has been willing to stand up to the president for abusing the powers of his office for personal benefit or to stoke bigotry for partisan ends. By failing to do so, they have encouraged Trump to abuse his powers even more. It is unclear what, if anything, can stop him now.
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Alison Leal Parker Managing Director, U.S. Program Human Rights Watch
Alison Parker is the managing director of the U.S. Program at Human Rights Watch.
Asylum seekers in the United States face dangerous, even deadly, consequences when their claims are not taken seriously.
Those at risk are people like Santos Amaya, a Salvadoran police officer who had received death threats from gang members. He was deported from the United States in April 2018 and was shot dead, allegedly by gangs, that same month. People like a young Salvadoran woman who fled domestic violence and rape and was deported to El Salvador in July 2018. She now lives in fear, hiding from her abusers.
These lives hang in the balance while the Trump administration attacks every legal means of protecting them in the United States.
On Feb. 5, Human Rights Watch released a report that identified 138 cases of Salvadorans who had been killed since 2013 after being deported from the United States; more than 70 others were beaten, sexually assaulted, extorted or tortured. These numbers are shocking but certainly an undercount, because no government or entity tracks what happens to deportees.
The Trump administration has put pressure on immigration judges to use overly narrow readings of the definition of a refugee. This approach may result in judges denying asylum to people like Amaya and the young Salvadoran woman — survivors of domestic violence, people who fear violence at the hands of gangs, or people who fear being targeted based on their family relationships. The administration has further proposed several new obstacles to gain asylum, including barring people convicted of illegal reentry into the United States, an offense often committed by people desperate to seek safety.
The Trump administration has tried to destroy the U.S. asylum process in other ways — among them by forcing people to remain in dangerous and inhumane conditionsin Mexican border towns while their claims are processed under its Migrant Protection Protocols. A Syracuse University analysis of government data revealed that as of December, 7,668 Salvadorans have been forced to wait in Mexico for their asylum claims to be processed. We have documented cases, included in a tallymaintained by Human Rights First, of Salvadorans who have been kidnapped and attacked while waiting.
The United States is also returning asylum seekers to Guatemala, after pressing its government to sign an “asylum cooperation agreement,” despite the fact that many Guatemalans are fleeing for the same reasons as their Salvadoran neighbors.
Salvadorans in the United States are at risk for reasons other than the Trump administration’s attempt to eviscerate the right to seek asylum. More than 220,000Salvadorans are affected by the administration’s decision to end temporary protected status and Deferred Action for Childhood Arrivals (DACA) protections. The administration also decided to end work authorization for Salvadorans with TPS, which allowed many Salvadorans to come to the United States in 2001 after a series of natural disasters.
These policies cover people who have worked, raised families, educated themselves and built their lives in the United States. This alone should be reason to value their relationship to the United States and regularize their legal status. But the killings and abuse that many Salvadorans will face if they are returned makes the need for Congress to enact legislation to protect recipients of these programs even more acute.
Former long-term residents of the United States face unique risks. Salvadorans who have lived in the United States are often extorted by gangs, as two cases we investigated in detail illustrate. In each, the person’s long-term residence meant that they were seen as having more wealth than most Salvadorans. They were repeatedly extorted by gangs and ultimately killed for their refusal to pay bribes.
But the Trump administration is not solely at fault here. Existing law, passed long before President Trump took office, has largely barred people with criminal convictions from seeking asylum, even when they face harm. They include a young man whose case we investigated, who at age 17, in 2010, fled gang recruitment and violence for the United States. After serving a sentence for two counts related to burglaries in the United States, he was denied protection, deported in 2017 and killed about three months later.
There is a simple way to prevent the murders and abuse we spent the past year and a half investigating: Give all noncitizens a full and fair opportunity to explain what abuses they fear before deporting them. As Sen. Robert Menendez (D-N.J.) said in a statement after we released our report, the United States must stop “knowingly signing a death sentence by forcibly returning vulnerable people to the very place they fled.”
The right to a fair hearing on claims for protection should apply to everyone — including the more than 59,000 people waiting in dangerous and inhumane conditions in Mexican border towns, people who had been living under the TPS or DACA programs, or those who have paid their debt to society after serving criminal sentences.
Now U.S. authorities are on notice about what is likely to happen when they deport Salvadorans without adequately considering their cases. This shameful and illegal practice should stop.
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Unfortunately, Eleora,Leah, & Alison, the MPP (better known as “Let ‘Em Die in Mexico”) is just the tip of the Trump/Miller neo-fascist iceberg here. As “fixed against them” as the Immigration Court hearing process for asylum seekers has now become at the Southern Border, with complicit Article IIIs looking the other way (so far), the regime as now come up with far more reliably deadly and “cost effective” alternatives.
Indeed, I’d argue that death, torture, rape, extortion, and exploitation of refugees from the Northern Triangle has always been a main objective of the Trump regime’s White Nationalist, anti-asylum policies, just like inflicting punishment through child separation and thereby achieving “deterrence” was the real objective of the “zero tolerance policy.”
Obviously, folks in charge lied about it to the press, the Congress, and to the U.S. courts. And, to date, they have gotten away with it. But, oppressors, particularly arrogant and self-righteous ones, usually leave “paper trails.” Despite shredding machines and “lost” databases, I imagine that the truth about Miller, Bannon, Sessions, Barr, Cuccinelli, and others will eventually come out when historians finally get their hands on the “Trump regime papers.” I’ll be long gone by then. But, I can virtually guarantee that the whole truth will be much, much worse than we can even imagine at this point.
It isn’t that the regime and even the Article III Federal Courtsdon’t know what happens or is likely to happen to those “orbited” to the Northern Triangle. It’s just that the don’t care. As I constantly point out, this is all about dehumanizationand “Dred Scottification“ of “the other.”If we dehumanize them, its easier to ignore what we’re doing to them. How else could anybody justify the absolute unconstitutional farce and mockery of fundamental fairness and the rule of law that unfolds in our Immigration “Courts,” run by an openly enforcement-driven DOJ every day, right in plain view. The evidence has always been “out there.” “Extermination as deterrence” has become part of our national policy right here in the 21st Century.
Matthew 25:44-46 English Standard Version (ESV):
44 Then they also will answer, saying, ‘Lord, when did we see you hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to you?’ 45 Then he will answer them, saying, ‘Truly, I say to you, as you did not do it to one of the least of these, you did not do it to me.’ 46 And these will go away into eternal punishment, but the righteous into eternal life.”
