"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
IN THE 1990s, the United States was among the first countries to start granting sanctuary to LGBTQ refugees and asylum seekers fleeing persecution stemming from their sexual orientation or gender identity in their home countries. Now the Trump administration, intent on turning back the clock on almost every major facet of immigration policy, is increasingly complicit in their mistreatment.
As administration officials have intensified their efforts to hollow out the asylum system — narrowing eligibility criteria, creating bottlenecks for would-be asylum seekers at legal ports of entry and tearing apart families as a means of deterring future applicants — LGBTQ individuals have suffered inordinately. That is particularly true in the case of those from El Salvador, Honduras and Guatemala, the so-called Northern Triangle countries of Central America where sexual and gender-based violence is pervasive.
There are no statistics to indicate that LGBTQ asylum seekers are refused admittance to the United States more (or less) frequently than other applicants, though the rate at which migrants of all sorts are granted asylum seems to be plummeting because of the administration’s policies. However, sending LGBTQ migrants back across the southwestern border to Mexico subjects them to heightened risks: According to the U.N. High Commissioner on Refugees, two-thirds of such individuals reported that they had suffered sexual or gender-based violence in Mexico after entering that country.
In the case of those deported to their countries of origin in the Northern Triangle, their fates are often even worse. A report last year from the rights group Amnesty International said LGBTQ deportees were effectively “sent back to hell,” based on the horrific conditions from which they fled in the first place. The UNHCR reported that 88 percent of LGBTQ asylum seekers had been victims of sexual and gender-based violence in their countries of origin.
Police and other law enforcement authorities in Central America and Mexico are often indifferent, and frequently overtly hostile, to the fate of LGBTQ individuals. A 34-year-old transgender woman interviewed by Amnesty International said she had fled El Salvador after receiving threats from a police officer who lived near her; when she tried to report him, she said, “the response was that they were going to lock me and my partner up.” She finally fled to Mexico, where she was harassed and abused by officials before finally being granted refugee status.
Another Salvadoran transgender woman interviewed by Amnesty International said that after reaching the United States, she was detained for more than three months in a cell with men — “they never took account of my sexuality or that I was trans.” (Immigration and Customs Enforcement sometimes, but not always, detains transgender women in a dedicated facility whose capacity is 60 beds.)
To qualify for asylum in the United States, migrants must prove they are subject to persecution in their home countries based on specific criteria, including identification with a particular social group, and that the government is either complicit in their mistreatment or powerless to stop it. By any reasonable assessment, many or most LGBTQ asylum seekers meet those criteria.
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The qualification of LGBTQ individuals for asylum was established more than two decades ago by the BIA’s decision in Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990, 1994).
Since then, scores of well-documented LGBTQ asylum cases have been granted by the USCIS Asylum Office and in Immigration Court. Indeed, in the Arlington Immigration Court the cases were so well-documented by the counsel for the respondents that most could be “pre-tried” between the Assistant Chief Counsel and respondent’s counsel and placed on the Immigration Court’s “short docket” for brief hearings and granting of asylum.
Like refugees fleeing domestic violence, I found these cases to involve some of the most badly abused, most deserving, most grateful, and potentially most productive refugees that I dealt with over my many decades of involvement in t he U.S. refugee and asylum systems.
Once again, the biased, racist, White Nationalism of Trump, Sessions and their cronies have taken a well-working part of the asylum system and made it problematic.
Rosales Justo v. Sessions, 1st Cir., 07-16-18, published
PANEL: Torruella, Lipez, and Kayatt Circuit Judges
OPINION BY: Judge Lipez
KEY QUOTE:
In sum, the BIA’s justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government’s inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales’s son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales’s testimony about the particular circumstances of his case, were sufficient to support the IJ’s finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the IJ’s finding that Rosales did not report threats by organized crime to the police refuted the IJ’s ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ’s inability finding was clearly erroneous because the Mexican government’s failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable.
Because of these errors, we grant Rosales’s petition and remand to the BIA for further proceedings consistent with this opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam) (holding that remand to the BIA is generally the appropriate remedy when the BIA commits a legal error).
So ordered.
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Nice to see a Circuit Court, particularly a fairly conservative one like the First Circuit, take strong stand against the nonsense and mockery of Due Process and justice going on at EOIR under Sessions;
Expect more of these in the future as the “Just Find A Way To Deny & Deport” initiative by the xenophobic, scofflaw AG goes into high gear at EOIR;
Quite contrary to everything Sessions has been saying, which completely ignores the lessons of the Supreme Court’s decision in INS v. Cardoza Fonseca, asylum law is supposed to be interpreted and applied generously in favor of those seeking life saving protection;
This case illustrates the importance of dissent at the BIA, as the First Circuit basically adopted the correct interpretation of the law and facts set forth by a dissenting (female) BIA Appellate Immigration Judge;
This also shows the importance of full three-judge review by the BIA on asylum cases, rather than single judge panels or summary denials;
The number of fundamental errors committed by the BIA panel majority in reversing this asylum grant and the persistence of the DOJ in advancing untenable legal positions before the Court of Appeals is simply appalling, even if consistent with Session’s own lack of scholarship and total disrespect for fundamental fairness to respondents in Immigration Court;
This case also highlights a chronic problem in EOIR asylum adjudication: conflating “willingness to protect” with “ability to protect.” Too many Immigration Judges and BIA Appellate Judges seize on ineffective efforts by local police, cosmetic improvements by governments, and failure to seek (largely useless and perhaps actually harmful) police assistance to find that there has been “no failure of state protection;”
That’s exactly what Sessions himself did in his fundamentally flawed opinion in Matter of A-B-. He encouraged judges to conflate ineffective efforts to protect with actual ability to protect. And, his comparison of how domestic violence is policed and prosecuted in the United States with El Salvador’s pathetic efforts in behalf of domestic violence victims was simply preposterous;
This decision also addresses another chronic problem at EOIR: judges “cherry picking” the record and particularly Department of State Country Reports for the information supporting a denial, even though the record taken as a whole lends support to the respondent’s claim;
Once again, how would any unrepresented applicant make the kind of potentially winning asylum case presented by this respondent with the assistance of counsel? When are Courts of Appeals finally going to state the obvious: proceeding to adjudicate an asylum claim by an unrepresented respondent is a per se denial of Due Process!
This case should be taken as a message that Immigration Judges and BIA panels following the misguided Sessions’ dicta on “unwilling or unable to protect,” rather than applying the correct standards set forth by most Circuits are going to be getting lots of “do overs” from the Circuit Courts;
How could anybody justify “speeding up” a system with this many fundamental (and life-threatening) flaws to begin with? Under Sessions, EOIR is on track to becomes veritable “reversible error factory” — as well as a “Death Railroad!”
Here’s Emily Kassie’s short documentary containing actual descriptions from victims and their abusers. Also starring refugee advocates Michele Brane of the Women Refugee Commisson, Barbara Hines, Esq., and others who “blow the whistle” on Sessions’s depraved policies and the unnecessary pain and suffering they are causing!
I Just Simply Did What He Wanted’: Sexual Abuse Inside Immigrant Detention Facilities – Video – NYTimes.com
So, get this! Gonzo, for no particular reason, reverses a well-established, working precedent — agreed upon by all parties, sponsored by DHS, and the product of 15 years of painstaking work by attorneys on both sides — that protected abused women under our refugee laws. This precedent, Matter of A-R-C-G-, actually saved lives and helped some of the most deserving and long-suffering refugees I dealt with in my decades long career enter and contribute to U.S. society. It was a perfect example of how asylum law could and should work to protect the most vulnerable! A “win – win” for the refugees and for our country!
Then, Sessions intentionally creates a system where these already abused refugees are detained and further abused and persecuted in the United States. Then, he returns them (without fair consideration of their claims for protection) to the countries in which they were persecuted to face further abuse, torture, or death.
The problems faced by women in detention were well-known in the Obama Administration. In fact, the Trump Administration immediately abolished the office within DHS that had been established to deal with allegations of sexual abuse. So, this isn’t “mere negligence.” It’s knowing and intentional misconduct! Usually, that results in criminal prosecution or civil liability!
How perverse is Sessions? I’ll go back to Eugene Robinson’s question from a recent blog posted on “courtside:” Why aren’t kidnappers, child abusers, and promoters of sexual abuse like Sessions and his White Nationalist cronies in jail rather than holding high office?https://wp.me/p8eeJm-2O8
WE ARE DIMINISHING OURSELVES AS A NATION, BUT, THAT WON’T STOP HUMAN MIGRATION!
LOS FRESNOS, Texas (AP) — Patricia Aragon told the U.S. asylum officer at her recent case assessment that she was fleeing her native Honduras because she had been robbed and raped by a gang member who threatened to kill her and her 9-year-old daughter if she went to the police.
Until recently, the 41-year-old seamstress from San Pedro Sula would have had a good chance of clearing that first hurdle in the asylum process due to a “credible fear” for her safety, but she didn’t. The officer said the Honduran government wasn’t to blame for what happened to Aragon and recommended that she not get asylum, meaning she’ll likely be sent home.
“The U.S. has always been characterized as a humanitarian country,” Aragon said through tears at Port Isabel, a remote immigration detention center tucked among livestock and grapefruit groves near Los Fresnos, a town about 15 miles (25kilometers) from the Mexico border. “My experience has been very difficult.”
As part of the Trump administration’s broader crackdown on immigration, Attorney General Jeff Sessions recently tightened the restrictions on the types of cases that can qualify someone for asylum, making it harder for Central Americans who say they’re fleeing the threat of gangs, drug smugglers or domestic violence to pass even the first hurdle for securing U.S. protection.
Attorney General Jeff Sessions has overturned protections for asylum seekers in a decision that could affect thousands. Sessions ruled that a 2014 Board of Immigration Appeals decision that protected domestic violence victims from Central America was wrongly decided. Under the new ruling, “the applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims,” in order to qualify for asylum protection. Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world. I will be issuing a decision that restores sound principles of asylum and long-standing principles of immigration law.
Immigration lawyers say that’s meant more asylum seekers failing interviews with U.S. Citizenship and Immigration Services to establish credible fear of harm in their home countries. They also say that immigration judges, who work for the Justice Department, are overwhelmingly signing off on those recommendations during appeals, effectively ending what could have been a yearslong asylum process almost before it’s begun.
“This is a direct, manipulated attack on the asylum process,” said Sofia Casini of the Austin nonprofit Grassroots Leadership, which has been working with immigrant women held at the nearby T. Don Hutto detention center who were separated from their kids under a widely condemned policy that President Donald Trump ended on June 20.
Casini said that of the roughly 35 separated mothers her group worked with, more than a third failed their credible fear interviews, which she said is about twice the failure rate of before the new restrictions took effect. Nationally, more than 2,000 immigrant children and parents have yet to be reunited, including Aragon and her daughter, who is being held at a New York children’s shelter and whose future is as unclear as her mother’s.
In order to qualify for asylum, seekers must demonstrate that they have a well-founded fear they’ll be persecuted back home based on their race, religion, nationality, membership in a particular social group or political opinions. The interviews with USCIS asylum officers, which typically last 30 to 60 minutes, are sometimes done by phone. Any evidence asylum seekers present to support their claims must be translated into English, and they often don’t have lawyers present.
. . . .
“The asylum officer conducting credible fear (interviews) has been instructed to apply A.B., so when the person says, ‘My boyfriend or my husband beat me’ it’s, ‘So what, you lose,'” said Paul W. Schmidt, a former immigration judge in Arlington, Virginia, who retired in 2016. “It then goes to the immigration judge, who has just been ordered to follow Sessions’ precedent — and most of them want to keep their jobs and they just rubber stamp it, and there’s no meaningful appeal.”
. . . .
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Read the full article at the link.
The now long forgotten “EOIR Vision” developed by our Executive Group in the late 1990s was “To be the world’s best administrative tribunals guaranteeing fairness and due process for all.”
Under Sessions, the U.S. Immigration Courts have been converted into kangaroo courts that are a parody of Due Process and fairness. Since the Immigration Courts are one of the foundations upon which the U.S. Justice System rests, that doesn’t bode well for justice or the future of our country as a Constitutional democratic republic.
(CNN)A federal judge on Monday ordered the US government to temporarily pause deportations of reunited families to allow attorneys time to debate whether he should more permanently extend that order.
San Diego-based US District Court Judge Dana Sabraw addressed the issue at the top of a status hearing in a continuing family separations case filed by the American Civil Liberties Union.
Sabraw ordered the pause to allow for a full written argument on the ACLU’s request to pause deportations of parents for a week after reunification.
The ACLU argued that the week would be necessary for parents to have time to fully consider the decision whether to have their children deported along with them.
The ACLU’s filing was made earlier Monday morning, and Sabraw gave the Department of Justice a week to respond.
But in the meantime, he ordered a “stay” of deportations until that issue can be litigated.
Lawyers for the ACLU said their motion was due to “the persistent and increasing rumors — which Defendants have refused to deny — that mass deportations may be carried out imminently and immediately upon reunification.” They argue this issue is “directly related to effectuating the Court’s ruling that parents make an informed, non-coerced decision if they are going to leave their children behind.”
“A one-week stay is a reasonable and appropriate remedy to ensure that the unimaginable trauma these families have suffered does not turn even worse because parents made an uninformed decision about the fate of their child,” the ACLU’s lawyers added.
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Sounds like in the end, the “No-Due-Process Deportation Machine” will be allowed to resume. But, at least this gives the Judge a little time to pin the Government down on exactly what they are doing and to see for himself how Due Process is being compromised on a large-scale basis. In the end, permanently halting the “Deportation Railroad” might be beyond the scope of this particular suit. Stay tuned for the result. However it comes out, it’s always good to make a complete record of the Government’s misconduct and revolting disrespect for laws, human life, fundamental fairness, and human dignity for the history books and future generations.
And, many thanks to Tal & Laura for being “on top” of his breaking story.
Impact of Sessions’ asylum move already felt at border
By: Tal Kopan, CNN
Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.
In fact, immigration attorneys fear tens of thousands of migrants could be sent home to life-threatening situations before the courts are able to catch up.
Signs have already popped up across the border that their fears are being realized.
Over just a few days in immigration court early this month near Harlingen, Texas, CNN witnessed multiple judges upholding denials of claims of credible fear of return home, explicitly saying that gang violence and such fears do not qualify.
Immigration Judge Robert Powell at Port Isabel Detention Center, for example, upheld two denials of credible fear for immigrants, one man and one woman, paving the way for their immediate deportation.
Tightly clutching a rosary, the woman, Marcella Martinez, begged the judge to reverse the decision. With tears in her eyes, Martinez asked to provide testimony to the court.
“I can’t go back to Honduras” she said. “I was threatened over the phone, and need to stay here for the opportunity.”
The judge found, nevertheless, that Martinez didn’t enter anything into evidence that would qualify as going beyond the burden of proof required for her initial fear assessment. He informed her that the decision of denial was affirmed.
She exited the courtroom sobbing.
In another courtroom, Immigration Judge Morris Onyewuchi heard the case of Sergio Gavidia Canas, who had an attorney. But the judge said that because of the scope of proceedings, the attorney could not advocate on Canas’ behalf.
Canas, an El Salvador native, said he feared for his life back home, as he had been threatened and beaten by three gang members in front of his currently detained minor daughter.
He said he was a proud owner of a bus company in his native country, and that a gang had come to him demanding the transport of weapons and drugs. When he refused, he was severely beaten in front of his child.
He added that his initial asylum interview took place when he was distraught and worried about his daughter, which is why he didn’t provide this additional information at the time.
The judge indicated that “gang threats don’t fall under the law for asylum” and upheld his denial.
These asylum applicants are being returned, without appeal, under Matter of A-B-which has never been “tested,” let alone upheld, by any real Article III Court;
These unrepresented individuals have no idea what Matter of A-B- says;
Outrageously, and in violation of both common sense and and common courtesy, Sergio Gavidia Canas actually had a lawyer, but Judge Morris Onyewuchi wouldn’t let the lawyer participate in the hearing (by contrast, I never, ever, prevented a lawyer from participating in a credible fear review — in fact, if the person were represented and the lawyer were not present, I continued the hearing so the lawyer could appear, as required by Due Process and fairness);
Even though Matter of A-B– left open the possibility of some valid individual claims involving domestic violence or gang violence, these Immigration Judges appear to be making no such inquiry (the, apparently intentional, misapplication of Matter of A-B- by Asylum Officers and EOIR was mentioned in a previous blog by Judge Jeffrey Chase (https://wp.me/p8eeJm-2Ob));
These Immigration Judges also do not appear to be exploring the possibility of asylum claims based on other grounds;
These Immigration Judges do not appear to be making an inquiry into whether these individuals might also have a reasonable fear of torture;
In other words, this is a system specifically designed and operated to reject, rather than protect under our laws!
Do not misbehave. Do not sit on the floor. Do not share your food. Do not use nicknames. Also, it is best not to cry. Doing so might hurt your case.
Lights out by 9 p.m. and lights on at dawn, after which make your bed according to the step-by-step instructions posted on the wall. Wash and mop the bathroom, scrubbing the sinks and toilets. Then it is time to form a line for the walk to breakfast.
“You had to get in line for everything,” recalled Leticia, a girl from Guatemala.
Small, slight and with long black hair, Leticia was separated from her mother after they illegally crossed the border in late May. She was sent to a shelter in South Texas — one of more than 100 government-contracted detention facilities for migrant children around the country that are a rough blend of boarding school, day care center and medium security lockup. They are reserved for the likes of Leticia, 12, and her brother, Walter, 10.
The facility’s list of no-no’s also included this: Do not touch another child, even if that child is your hermanito or hermanita — your little brother or sister.
Leticia had hoped to give her little brother a reassuring hug. But “they told me I couldn’t touch him,” she recalled.
In response to an international outcry, President Trump recently issued an executive order to end his administration’s practice, first widely put into effect in May, of forcibly removing children from migrant parents who had entered the country illegally. Under that “zero-tolerance” policy for border enforcement, thousands of children were sent to holding facilities, sometimes hundreds or thousands of miles from where their parents were being held for criminal prosecution.
But more than 2,800 children — some of them separated from their parents, some of them classified at the border as “unaccompanied minors” — remain in these facilities, where the environments range from impersonally austere to nearly bucolic, save for the fact that the children are formidably discouraged from leaving and their parents or guardians are nowhere in sight.
Depending on several variables, including happenstance, a child might be sent to a 33-acre youth shelter in Yonkers that features picnic tables, sports fields and even an outdoor pool. “Like summer camp,” said Representative Eliot L. Engel, a Democrat of New York who recently visited the campus.
Or that child could wind up at a converted motel along a tired Tucson strip of discount stores, gas stations and budget motels. Recreation takes place in a grassless compound, and the old motel’s damaged swimming pool is covered up.
Image
Migrant children in a recreation area at a shelter in Brownsville, Tex.CreditLoren Elliott/Reuters
Still, some elements of these detention centers seem universally shared, whether they are in northern Illinois or South Texas. The multiple rules. The wake-up calls and the lights-out calls. The several hours of schooling every day, which might include a civics class in American history and laws, though not necessarily the ones that led to their incarceration.
Most of all, these facilities are united by a collective sense of aching uncertainty — scores of children gathered under a roof who have no idea when they will see their parents again.
Leticia wrote letters from the shelter in South Texas to her mother, who was being held in Arizona, to tell her how much she missed her. She would quickly write these notes after she had finished her math worksheets, she said, so as not to violate yet another rule: No writing in your dorm room. No mail.
She kept the letters safe in a folder for the day when she and her mother would be reunited, though that still hasn’t happened. “I have a stack of them,” she said.
Another child asked her lawyer to post a letter to her detained mother, since she had not heard from her in the three weeks since they had been separated.
“Mommy, I love you and adore you and miss you so much,” the girl wrote in curvy block letters. And then she implored: “Please, Mom, communicate. Please, Mom. I hope that you’re OK and remember, you are the best thing in my life.”
The complicated matters of immigration reform and border enforcement have vexed American presidents for at least two generations. The Trump administration entered the White House in 2017 with a pledge to end the problems, and for several months, it chose one of the harshest deterrents ever employed by a modern president: the separation of migrant children from their parents.
This is what a few of those children will remember.
No Touching, No Running
Diego Magalhães, a Brazilian boy with a mop of curly brown hair, spent 43 days in a Chicago facility after being separated from his mother, Sirley Paixao, when they crossed the border in late May. He did not cry, just as he had promised her when they parted. He was proud of this. He is 10.
He spent the first night on the floor of a processing center with other children, then boarded an airplane the next day. “I thought they were taking me to see my mother,” he said. He was wrong.
Once in Chicago, he was handed new clothes that he likened to a uniform: shirts, two pairs of shorts, a sweatsuit, boxers and some items for hygiene. He was then assigned to a room with three other boys, including Diogo, 9, and Leonardo, 10, both from Brazil.
The three became fast friends, going to class together, playing lots of soccer and earning “big brother” status for being good role models for younger children. They were rewarded the privilege of playing video games.
There were rules. You couldn’t touch others. You couldn’t run. You had to wake up at 6:30 on weekdays, with the staff making banging noises until you got out of bed.
“You had to clean the bathroom,” Diego said. “I scrubbed the bathroom. We had to remove the trash bag full of dirty toilet paper. Everyone had to do it.”
Diego and the 15 other boys in their unit ate together. They had rice and beans, salami, some vegetables, the occasional pizza, and sometimes cake and ice cream. The burritos, he said, were bad.
Apart from worrying about when he would see his mother again, Diego said that he was not afraid, because he always behaved. He knew to watch for a staff member “who was not a good guy.” He had seen what happened to Adonias, a small boy from Guatemala who had fits and threw things around.
“They applied injections because he was very agitated,” Diego said. “He would destroy things.”
A person he described as “the doctor” injected Adonias in the middle of a class, Diego said. “He would fall asleep.”
Diego managed to stay calm, in part because he had promised his mother he would. Last week, a federal judge in Chicago ordered that Diego be reunited with his family. Before he left, he made time to say goodbye to Leonardo.
“We said ‘Ciao, good luck,” Diego recalled. “Have a good life.”
But because of the rules, the two boys did not hug.
. . . .
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Read the full story at the link.
This is America in the age of Trump & Sessions. A few of these kids might get to stay in the U.S. Most will be returned (with little or no Due Process) to countries will they will be targeted, harassed, brutalized, extorted, impressed, and/or perhaps killed by gangs that operate more or less with impunity from weak and corrupt police and governments. Indeed, contrary to the false blathering of Sessions & co., gangs and cartels are the “de facto government” in some areas of the Norther Triangle. Those kids that survive to adulthood will have these memories of the United States and how we treated them at their time of most need.
One month after Attorney General Jeff Sessions issued his cruel, misguided decision in Matter of A-B-, we are seeing the first signs of how the decision is being implemented by the BIA, USCIS, and ICE.
There is no question that Sessions’ intent was to eliminate domestic violence and gang violence as bases for asylum. How can I be so certain of this? While Matter of A-B- was pending before him, Sessions told a Phoenix radio station in March: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.” (here’s the link: https://ktar.com/story/2054280/ag-jeff-sessions-says-closing-loopholes-can-fight-illegal-immigration/).
However, Sessions chose to attempt to achieve this goal by issuing a precedent decision. A decision is not a fiat. It must be analyzed in the same manner as any other legal decision and applied to the facts accordingly.
Asylum experts and advocacy groups analyzing the decision have reached the following conclusions. The main impact of Sessions’ decision is to vacate the Board’s 2014 precedent decision, Matter of A-R-C-G-, holding that a victim of domestic violence was eligible for asylum as a member of a particular social group. Therefore, asylum applicants can no longer rely on that decision.
However, Sessions’ decision otherwise cobbled together already existing case law (which was taken into consideration in deciding Matter of A-R-C-G-), and added non-binding dicta, i.e. his statement that “generally, claims by aliens pertaining to domestic violence or gang violence…will not qualify for asylum.” (Note the use of the pejorative “aliens” to describe individuals applying for asylum.)
Furthermore, most of the items covered by Sessions involved questions of fact (which are specifically dependent on the evidence in the individual case, and which the BIA and AG have very limited ability to reverse on appeal) as opposed to questions of law, which can be considered de novo on appeal and have more general applicability. The questions of fact raised by Sessions include whether the persecutor was aware of the existence of the group and was motivated to harm the victim on account of such membership; whether the society in question recognizes the social group with sufficient distinction; whether the authorities in the home country are unable or unwilling to protect the victim, and whether the victim could reasonably relocate to another part of the country to avoid the feared harm.
So in summary, Sessions felt that the Board’s decision in Matter of A-R-C-G- did not provide a sufficiently detailed legal analysis, therefore vacated it, and laid out all of the legal analysis that future decisions must address. Domestic violence and gang violence claims still remain very much grantable, provided that all of the requirements laid out by the Attorney General are satisfied. Hearings on these cases may now take much longer, as testimony will need to be more detailed, additional social groups will need to be proposed and ruled on, more experts must be called, and more documents considered. But nothing in A-B- prevents these cases from continuing to be granted.
Therefore, how discouraging that the first decision of the BIA to apply this criteria failed to do what is now required of them. A single Board Member’s unpublished decision issued shortly after A-B-’s publication did not engage in the detailed legal analysis that is now warranted in domestic violence cases. Instead, the decision noted that the case involved a social group “akin to the group defined in Matter of A-R-C-G-.” The Board then found that the AG’s decision in A-B- “has foreclosed the respondent’s arguments,” because “the Attorney General overruled Matter of A-R-C-G- and held that it was wrongly decided.”
What is particularly dispiriting is that the decision was authored by Board Member Linda Wendtland. A former OIL attorney whose views are more conservative than my own, I have always respected her scholarly approach and her intellectual honesty. At the BIA, staff attorneys draft the decisions which the Board Members then edit. Judge Wendtland always took the time to write her edits as academic lessons from which I always learned something. She recently authored the lone dissenting opinion in a case involving a determination of whether a women was barred from relief for having provided material support to terrorists; Judge Wendtland correctly determined that the cooking and cleaning that the woman was forced to perform after having been kidnapped by rebels did not constitute “material support.” It is therefore perplexing why she would sign the post-A-B- decision that so sorely lacked her usual degree of analysis.
In addition to the BIA, on July 11, both USCIS and ICE issued guidance on applying A-B- to asylum adjudications. Much like the BIA decision, the USCIS guidelines to its asylum officers, which serve as guidance not only in adjudicating asylum applications, but also for making credible fear determinations, seem to apply the personal opinion of Sessions rather than the actual legal holdings of his decision. USCIS decided to print in boldface Sessions’ nonbinding dicta that such cases will generally not establish eligibility for asylum, refugee status, or credible or reasonable fear of persecution.
Credible fear interviews are conducted right after an asylum seeker arrives in this country, while they are detained, scared, often unrepresented by counsel, before having a chance to understand the law or gather documents or witnesses. The interviewer is supposed to find credible fear if there is a significant possibility that the applicant will be able to establish eligibility for relief at a future hearing before an immigration judge. It is likely that, at such future hearing, the applicant will have an attorney who will make the proper legal arguments, call expert witnesses, formulate the particular social group according to the requirements of case law, submit other supporting evidence, etc. But now asylum officers are being instructed to ignore all of that and deny individuals the chance to even have the opportunity to apply for asylum before an immigration judge essentially because Jeff Sessions doesn’t believe these are worthy cases.
ICE (through its Office of the Public Legal Advisor) has issued guidance that, while probably reflecting internal conflict within the bureau, is nevertheless somewhat more reasonable than the interpretations of either USCIS or the Board. The ICE guidance does ask its attorneys to hold asylum applicants to some exacting legal standards, to look for flaws in supporting evidence, and to question asylum applicants in great detail. It also asks its attorneys not to opine on whether gender alone may constitute a PSG until further guidance is offered (again, probably reflecting internal conflict within the bureau on the issue). But the guidance does not simply conclude that all domestic violence and gang violence cases should be denied. It even encourages attorneys to employ a “collaborative approach” by pointing out flawed social groups offered by pro se applicants in the hope that the IJ might help the applicant remedy the situation early on.
However, let’s remember that ICE stipulated to grants of asylum for victims of domestic violence in both Matter of R-A- (during the Bush administration, and to the consternation of then Attorney General John Ashcroft), and in Matter of A-R-C-G-. ICE argued in its brief to Sessions in Matter of A-B- that Matter of A-R-C-G- was good law and should not be vacated. So then shouldn’t ICE be applying these same principles to its guidance to attorneys?
It should also be noted that ICE and USCIS could see a way to granting worthy cases in spite of Sessions’ decision. In the early 1990s, then INS General Counsel Grover Joseph Rees III took exception with the BIA’s precedent decision holding that forcible abortions and sterilization under China’s family planning policies did not constitute persecution on account of a protected ground. Rees instructed his attorneys to seek to remand cases involving such claim to the INS Asylum Office, where per his instructions, such claims were granted affirmatively by asylum officers. There is no reason that a similar practice could not be employed now, particularly as both ICE and USCIS are not part of the Department of Justice and therefore are not controlled by Sessions. The only thing lacking is the political will to take such a stand. In the early 1990s, Rees’s stance involving abortion played to the Bush Administration’s political base. Today, ICE and USCIS would have to take action contrary to the wishes of that same base because doing so is the just and humane thing to do. Unfortunately, based on the tone of their recent advisals, doing the right thing is not enough of a motive in the present political climate.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
The Trump administration’s kidnapping — that’s the proper word — of the children of would-be migrants should be seen as an ongoing criminal conspiracy. Somebody ought to go to jail.
Under a federal court order, all 103 children under the age of 5 who were taken from their families at the border were supposed to be returned by Tuesday. The government missed that deadline, and I wish U.S. District Judge Dana M. Sabraw, who issued the order, had held somebody in contempt. One candidate would be Health and Human Services Secretary Alex Azar, who on Tuesday had the gall to describe the administration’s treatment of immigrant children as “one of the great acts of American generosity and charity.”
On Thursday, officials announced with fanfare that 57 of the kids — some still in diapers — had been returned to their parents. But 46 others were deemed “ineligible,” meaning they remain in government custody.
The reasons for failing to comply fully with Sabraw’s order sound reasonable, unless you take into account the bad faith with which the administration has conducted this whole sordid exercise. In 22 cases, officials had “safety concerns posed by the adults in question,” presumably the parents; in 12 cases, parents have already been deported; in 11 cases, parents are in federal or state custody; and in one case, an adult believed to be the child’s parent cannot be found.
In a joint statement, Azar, along with Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen, took credit for working “tirelessly” to reunite the children with their families — which is rich, given that the Trump administration deliberately and cynically created this crisis in the first place.
“Our message has been clear all along: Do not risk your own life or the life of your child by attempting to enter the United States illegally,” the statement said. Translation: Don’t come to the border seeking asylum because, when others did, we took away their kids.
Given that the intention from the beginning was clearly to frighten and intimidate would-be migrants from Central America, why should anyone believe that the administration is acting or speaking in good faith now? Why should we accept at face value that exactly 103 children under 5 were seized? How can we be sure there is only one case in which officials can’t find or identify the parents? Given that it has taken weeks to return just 57 children, what is the likelihood the government kept adequate records?
This is an administration, after all, that conducts immigration court proceedings, or travesties, in which children too young to know their ABCs are expected to represent themselves without the benefit of legal counsel. Imagine your 3-year-old child or grandchild in that situation. Now tell me how adopting child abuse as a policy is supposed to Make America Great Again.
And what about the children older than 5 who were taken from their families? Sabraw ordered that they be returned to their parents by July 26, but don’t hold your breath. We don’t even know how many there are, because the government doesn’t seem to know. Officials first gave the number as about 2,300, but the latest estimate is nearly 3,000. Why can’t they settle on a precise figure? What reason could there be for such vagueness, other than ignorance?
I don’t think they know how many kids they ripped away from their families, and I believe it is inevitable some children will never again see their parents. The fact that my government would commit such a crime weighs on my conscience as an American. President Trump and his accomplices, from all appearances, couldn’t be prouder.
“Judges run the system and illegals and traffickers know how it works. They are just using children!” Trump tweeted Wednesday. As usual, he was ascribing his own base motives to others: He is the one who is “just using children.”
Remember what this is really about. The main flow of undocumented migrants consists of Hondurans, Guatemalans and Salvadorans seeking to escape rampant, deadly gang violence that their home governments cannot or will not check. The Trump administration issued new instructions on Wednesday to officers who interview asylum seekers at the border, telling them that fear of gang violence, no matter how well-founded, is no longer grounds for asylum. The same new guidance applies to immigration judges, who take their orders from Sessions.
Kidnapping children. Failing even to account for them. Sending families home to be killed. Give us your huddled masses, this administration seems to say, and let us kick them in their little faces.
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Yup. Sessions and his group of fellow racists know very well that their actions violate the Constitution and the laws of our country governing both conditions for detention and reasons for detention. Yet, they walk free and smugly give press conferences at which they continue to lie about their actions. Their victims, on the other hand, largely languish in substandard prisons or are being removed to the dangerous situations they fled in their home countries without any pretense of Due Process or fundamental fairness.
VICTORVILLE — Immigration detainees who were sent to a federal prison here last month were kept in their cells for prolonged periods with little access to the outside and were unable to change their clothing for weeks, according to workers at the facility and visitors who have spoken with detainees.
Staffers at the prison also say they have not been given the proper resources or direction to handle the influx of detainees, putting those in custody as well as workers in danger.
“We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”
The Victorville Federal Correctional Complex is a sprawling federal prison in San Bernardino County that houses thousands of inmates who have been convicted of crimes in federal courts.
By contrast, the immigrants who have been sent there are considered “civil” rather than criminal detainees, meaning they are being held pending the outcome of their immigration cases. Some are asylum seekers; some are fathers who were separated from their children in recent months.
They were sent to the prison in June as part of the Trump administration’s policy of increasingly detaining asylum seekers and immigrants who are in the country illegally until their cases are decided. Federal officials have said using prisons to hold the detainees is a stopgap measure while officials find more holding space.
Officials with the Federal Bureau of Prisons say the facility had beds available because of a decline in the inmate population in recent years, and that it has managed the new population using existing staff, some of whom were reassigned from other facilities.
But workers and people who have been able to visit the detainees say the prison was seriously unprepared for its new role.
The prison, which workers have long complained was short-staffed, is now scrambling to care for hundreds of new detainees from around the world with language, medical and care needs that are very different from those of typical federal prisoners, workers say.
The situation has raised concern among Democratic and Republican lawmakers.
In late June, Rep. Paul Cook (R-Yucca Valley) wrote a letter to U.S. Immigration and Customs Enforcement and the Bureau of Prisons urging officials to increase staffing levels at Victorville to match the increase in population.
“Furthermore, I urge ICE to support and train [prison] staff so they are properly equipped to implement policies and procedures that may be unfamiliar to them when dealing with immigration detainees,” Cook wrote.
Rep. Mark Takano (D-Riverside), who visited the facility July 2, said he saw numerous signs that the prison was struggling to meet detainees’ needs.
“Every detainee group that we met said they had not had a change in clothes since they arrived on June 8. Their bedding had not been switched. They were wearing the same underwear,” Takano said.
Thirteen of the detainees who spoke with Takano and his staff were fathers who had been separated from their children. The men said they had been unable to speak with their children since arriving at the facility.
Detainees also complained of not getting enough food, of being “locked up for long periods of time in their cells” and having very limited access to the outdoors, Takano said.
Prison officials showed Takano a recreation area that he said was nicely equipped. But when he asked one group of detainees whether they were able to use that room, they told him they had been there only once, he said.
“That’s an indicator to me that the prison was not ramped up to be able to accommodate this incursion of detainees. They were understaffed before the detainees arrived, and the arrival of 1,000 detainees I think has fully stressed the staff’s ability to be able to safely oversee their health and safety,” Takano said.
Nearly 1,000 immigration detainees were initially transferred to the prison. As of this week, 656 remained, said ICE spokeswoman Lori Haley.
The complex includes a high-security prison, two medium-security prisons and a minimum-security camp. The detainees are being housed in one of the medium-security prisons. Visits to the facility are tightly controlled.
Workers say one of their biggest concerns is the lack of staff and resources to adequately handle detainees’ medical needs.
There have been three cases of chickenpox and about 40 scabies cases since the detainees arrived.
One worker who spoke to The Times on the condition of anonymity for fear of retaliation said medical workers are stretched so thin they can address only detainees’ most urgent needs.
“We’re not finding illness because we are so rushed,” the worker said. “As patients, they’re not getting the care they need.”
After Takano’s visit, the worker said, detainees were given a change of clothing — but for many of them it was paper gowns normally reserved for inmates with specific medical needs.
Eva Bitran, an attorney for the ACLU who has met with two detainees at the facility, said both men told her they had struggled to get medical care.
One man told her about a button that detainees could push for emergency medical care. When that button was pushed, they were asked: “Are you being raped or are you dying?” When the answer was no, no help would come, the man told her.
One detainee who has since left the facility told The Times that he and others in his unit were locked in their cells for most of the day for the two weeks he was at the prison, with food passed through a small opening in the door.
The man said he was not given a change of clothes during the 14 days he was at the facility and was not able to bathe for the first four days.
In late June, the ACLU sued the Department of Homeland Security and the Bureau of Prisons on behalf of detainees, saying they had been held “incommunicado,” asking the court to order the prison to allow lawyer visits and phone calls.
U.S. District Judge Otis D. Wright II sided with the ACLU and granted a temporary restraining order June 21 requiring the prison to allow detainees to communicate with immigration attorneys and attend “know your rights” workshops.
Haley, the ICE spokeswoman, referred questions about conditions at the prison to the Bureau of Prisons and said ICE was deferring to that agency’s standards on questions of things such as access to time outside of cells and outdoors time.
In an email response to questions from The Times, Bureau of Prisons officials said, “[D]etainees have regular inside and outside recreational opportunities.”
Officials also said that since the detainees’ arrival, 25 medical staff members had been temporarily assigned to help with intake screenings, physical exams and general care.
Regarding the chickenpox and scabies cases, officials said the facility was “taking the necessary precautionary measures to protect staff, inmates and detainees, and the community, from the possibility of being exposed.”
John Kostelnik, president of the American Federation of Government Employees Local 3969, which represents workers at the prison, said that although some medical staffers were briefly assigned to help with the detainees, it was far from enough to meet the need.
He said many problems stem from a lack of direction from officials about how to reconcile standards that are common to federal prisons but aren’t necessarily appropriate for immigration detainees.
“We’re still day by day, making things up as we go,” he said.
As the facility has received increasing scrutiny from political leaders, legal groups and others following the transfer of detainees, Kostelnik said, some things appear to be improving — such as more uniforms.
But the staff is still overtaxed, said Kostelnik, who worries about what might happen if bigger changes don’t come fast enough.
“You have this group of detainees that are starting to get upset,” he said. “You get a large group of individuals that are upset, you have the potential for anything.”
(CNN)Authorities are investigating after an ICE detainee facing possible deportation apparently killed himself.
Efrain De La Rosa, 40, was found unresponsive in a cell at the Stewart Detention Center in Lumpkin, Georgia, on Tuesday night and was later pronounced dead at a hospital, Immigration and Customs Enforcement said.
The apparent cause of death was self-inflicted strangulation, the agency said Thursday, adding that the case is under investigation.
De La Rosa, a Mexican national, was in removal proceedings at the time of his death, ICE said.
The Georgia Bureau of Investigation is investigating the death at the request of the local sheriff. There is no indication of foul play, GBI Special Agent in Charge Danny Jackson said.
A preliminary investigation revealed De La Rosa was alone in an isolation cell at the detention center when officials there found him, Jackson said.
It was not immediately clear why De La Rosa had been placed in isolation.
ICE spokesman Bryan Cox said he could not provide additional comment because an agency review of the death is ongoing.
Amanda Gilchrist, a spokeswoman for CoreCivic, which owns and operates the facility, said the company is fully cooperating with investigators but declined to comment further because of the active investigation.
De La Rosa is the eighth detainee to die in ICE custody in the 2018 fiscal year, the agency said.
De La Rosa’s death comes less than six months after the death of another ICE detainee who had been in custody at Stewart.
Yulio Castro Garrido, a 33-year-old Cuban national, was diagnosed with pneumonia at Stewart and was hospitalized as his condition worsened. He died in January at the Mayo Clinic in Jacksonville, Florida.
And in May 2017, Jean Jimenez-Joseph, a 27-year-old Panamanian national, killed himself in solitary confinement at Stewart.
Immigrant rights groups swiftly criticized the facility as word of De La Rosa’s death spread.
“The deaths and systematic abuse at Stewart are not only tragic, but infuriating,” said Azadeh Shahshahani, legal and advocacy director at Project South.
ICE said it is conducting an agency-wide review of De La Rosa’s death and “is firmly committed to the health and welfare of all those in its custody.”
Four Democratic senators are calling for an investigation into the treatment of pregnant women detained in Immigration and Customs Enforcement (ICE) facilities, following a BuzzFeed News report on several women who said they were mistreated while in immigration detention.
The letter to the Department of Homeland Security Acting Inspector General John Kelly, sent Friday, cites BuzzFeed News’ reporting on the conditions pregnant women in ICE and Customs and Border Patrol custody have faced under the Trump administration, particularly following a new policy issued in December allowing pregnant women to be detained. Under the Obama administration, ICE was ordered to release pregnant women past their first trimester from custody.
“Recent reports cite the inadequate care that pregnant women receive while in ICE custody, pregnant women’s lack of access to medical care, and their heightened vulnerability to sexual assault,” the letter reads. “Given the multiple findings of harmful and substandard conditions of detention for this particularly vulnerable population, we ask that you open an investigation into the treatment and care of pregnant women in ICE detention facilities.”
The letter was organized by Sen. Kamala Harris and signed by fellow Democratic Sens. Patty Murray, Maggie Hassan, and Tom Carper. A spokesperson for Harris’s office told BuzzFeed News that Harris was working “with a group of senators on legislative options to address this as well.”
In a story published Monday, BuzzFeed News related the stories of three women who had miscarriages while in the custody of ICE and Customs and Border Patrol and said they did not receive adequate medical care while pregnant or miscarrying. One woman told BuzzFeed News she was physically abused by CBP officials. All three said they bled for days without medical care and all said they were shackled while pregnant at some point during their detention. Shackling pregnant women is prohibited by ICE’s and CBP’s most recent standards-of-care policies, as well as by a congressional directive.
The report also included interviews with 11 legal, medical, and advocacy workers who work with pregnant detainees in or near detention centers, as well as two affidavits signed under “penalty of perjury” in which a fourth woman described being given clothes so small for her pregnant belly they gave her welts and “pain in [her] uterus.” A fifth woman said she underwent repeated X-rays, despite this being against the Food and Drug Administration’s recommendations and against CBP’s(but not ICE’s) policies for pregnant women.
“Pregnant women have repeatedly described the fear, uncertainty, and exhaustion they experience as a result of being detained,” the senators wrote in Friday’s letter. “Detained pregnant women have stated they experience routine mistreatment, including malnutrition, inadequate bedding, insufficient access to basic medical care, lack of privacy regarding their medical history, and even shackling during transportation for medical care.”
The senators’ letter said there was a 35% increase in the number of pregnant women detained by ICE in the fiscal year of 2017 compared to the year before, under the Obama administration. During that year, ICE detained nearly 68,000 women, 525 of whom were pregnant, the letter stated, and an additional 590 between December 2017, when the policy change was issued, and April 2018.
In June, Harris toured Otay Mesa Detention center, where the three women BuzzFeed News spoke with were held while miscarrying. There, Harris met with mothers who had been separated from their children as a result of the Trump administration’s “zero tolerance” policy, which has triggered national outrage, court cases, and an executive order from President Trump.
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These human beings aren’t “inmates”
They “civil detainees”
Their only “crime” is seeking asylum under U.S. and international law
Their only mistake: believing that the United States is a nation of laws and human decency, not just another “Banana Republic” as it has become under Trump & Sessions
The solution: regime change
Another thought: The problems in civil immigration detention were well-known and well-documented before Sessions and his cronies established the “New American Gulag” to punish, duress, and deter asylum seekers:
Shouldn’t that result in eventual successful suits against Sessions for ethical violations and for civil damages for intentionally violating the Due Process rights of asylum seekers?
At least at first reading, the OPLA memo seems like a more neutral legal analysis than the USCIS “Sessions told us to shoot ’em all on sight” memo:
On its face it also seems like a much less biased analysis than the anti-asylum, anti-woman, anti-Hispanic screed that Sessions spewed forth in Matter of A-B-;
OPLA appears to be emphasizing that each claim must be individually evaluated and examined, rather than the idea promoted by Sessions and USCIS that all women from Central America and all Central Americans fleeing gang violence or domestic violence should be presumptively denied with only a few exceptions;
Does this mean that there is an internal split within DHS?
Interestingly, the OPLA memo specifically reserves judgement on “gender as a particular group” claims;
Of course, if Sessions and Cissna have their way nobody will ever get to Immigration Court to claim asylum, because nobody will get out of the now-gamed “credible fear” process, so perhaps OPLA’s views won’t have much effect.
How bad and biased are Sessions and Cissna? That ICE’s OPLA, the head of all the ICE prosecutors, sounds more reasonable should tell you all you need to know!
It’s also worth remembering that OPLA and the DHS General Counsel actually led the years-long effort to provide protection for victims of domestic violence that Sessions, without any reasonable explanation, reversed in Matter of A-B-.
According to UNHCR, the U.S. cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
The United States is meeting this condition with the withholding of deportation provision in the INA. It provides that, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”
The burden of proof is higher for withholding than it is for asylum. Asylum just requires the applicant to establish a well-founded fear of persecution. Withholding requires the applicant to establish that it is more likely than not that he would be persecuted.
And withholding grants fewer benefits.
A grant of withholding does not convey legal immigration status to the alien. It just prohibits sending him to a country where he would face persecution. He can be removed to another country where he will not be persecuted.
Moreover, it is not derivative. A grant of withholding does not apply to the members of the alien’s family.
The United States also is a signatory to the UN’s Convention against Torture (CAT), which prohibits the U.S. from expelling, returning or extraditing “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Relief under CAT does not confer lawful immigration status on the alien. It just prohibits his deportation to the country where he would be tortured. He can be deported to a country where he will not be tortured.
. . . .
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To fully understand the differences between asylum and withholding under the Refugee Convention and the CAT, read Nolan’s complete article over on The Hill!
Nolan makes a good point that although asylum is by statute discretionary, these other forms of relief are mandatory. Moreover, the current Federal case law limits discretionary denials of asylum to “egregious” adverse factors.
Trump administration to turn away far more asylum seekers at the border under new guidance
By Tal Kopan, CNN
The Trump administration is implementing a new asylum policy at the border that will result in potentially thousands of asylum seekers being turned away before they can plead their case in court.
The guidance, reviewed by CNN, also applies to refugee applicants — immigrants seeking similar protections in the US who are still abroad.
Under new guidance given Wednesday to the officers who interview asylum seekers at the US’ borders and evaluate refugee applications, claims based on fear of gang and domestic violence will be immediately rejected. In addition, the guidance tells officers they should consider whether an immigrant crossed the border illegally and weigh that against their claim, potentially rejecting even legitimate fears of persecution if the immigrant crossed illegally.
The move is likely to draw swift condemnation from immigration advocates and legal challenges. Advocates say international law is clear that asylum claims are valid even when a migrant enters a country illegally. They also argue that rejecting these traumatized immigrants puts their lives at risk immediately upon their return home.
The changes being implemented by the Department of Homeland Security come on the heels of Attorney General Jeff Sessions’ decision last month that gang and domestic violence victims no longer qualify for asylum. Asylum protects migrants already in the US who fear persecution in their home country.
Remember, folks, most of the intended “victims” of this policy are:
unrepresented
detained
traumitized
speaking through an interpreter (perhaps telephonic)
totally clueless as to what a “particular social group,” the “three criteria,” nexus,” or Matter of A-B- mean, and
Matter of A-B has never been tested or approved by any “real (Article III) court.”
Shoot first, ask questions later. This is America in the 21st Century. This is how we treat our fellow human beings —- most of them refugees seeking our help and protection under the law. This is what we are as human beings under Trump & Sessions. Someday, our descendants will look back on us and say “how could you!”
Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?
The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.
DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.
Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.
And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.
So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.
A precedent for a solution
Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.
We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.
How our two-track asylum system works
To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.
A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.
Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.
That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.
Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”
For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).
Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)
In the 1990s the system was also overwhelmed. We brought it back under control.
Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.
That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.
Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.
Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.
Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.
But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).
To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).
Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.
These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.
Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.
The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.
With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.
A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.
Concrete steps to fix the problems
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.Joe Raedle/Getty Images
There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:
1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.
But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.
This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.
This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.
2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.
Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.
In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)
Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.
The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.
Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.
Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.
To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.
3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.
A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.
The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.
But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.
Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.
But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.Orlando Estrada/AFP/Getty Images
4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.
It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.
In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.
That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.
These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.
The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.
Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.
Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.
MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL
By Paul Wickham Schmidt
As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.
David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.
David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).
Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.
The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!
With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.
Don’t Blame The Victims.
With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.
Let Judges Run The Courts.
The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.
Protection Not Rejection.
Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.
Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.
No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.
Detention Isn’t The Answer.
Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.
Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.
I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.
But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.
No, I Don’t Have All the Answers.
But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.
But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.
It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.
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