THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!

Julia Edwards Ainsley @ NBC: DHS Set To Launch “Wait in Mexico” Program For Asylum Seekers — Expect Another Disaster!

https://www.nbcnews.com/politics/immigration/dhs-plans-begin-turning-asylum-seekers-back-mexico-await-court-n962401

Julia Ainsley

Julia reports:

WASHINGTON — The Trump administration plans to begin turning asylum-seekers back across the southern border on Friday to wait in Mexico under a new policy designed to crack down on immigration by Central American families, according to three Department of Homeland Security officials familiar with the matter.

Customs and Border Protection officers will begin returning asylum-seekers trying to enter at the San Ysidro port of entry in California from Tijuana, Mexico, where thousands of migrants from Honduras, Guatemala and El Salvador are already waiting in poor conditions.

Under current policy, immigrants who pass an initial “credible fear” interview are allowed to remain in the U.S. while they wait for immigration judges to decide their cases. Single adults are detained while they await their hearing, but a federal court decision in 2015 mandates that families with children be detained no longer than 20 days.

The Trump administration has blamed that court decision, known as the Flores settlement, for being a magnet that is driving record numbers of immigrant families to apply for asylum at the southern border. Last summer under the “zero tolerance” policy, DHS separated asylum-seeking parents from their children at the border, sparking international outcry.

Overall numbers of undocumented immigrants apprehended or stopped from legally entering the United States are lower than the historic highs reached in the early 2000s.

Children who travel without a guardian, immigrants who appear ill as well as other “vulnerable populations” will be exempt from the policy and allowed to wait in the U.S. for an immigration hearing.

Immigrant and civil rights organizations have threatened to sue the Trump administration over the policy, known as Migration Protection Policy, which Homeland Security Secretary Kirstjen Nielsen announced was coming in her congressional testimony in December.

The policy is a unilateral move by the U.S. and not part of an agreement with Mexico, two officials said, though Mexico has agreed to care for immigrants who are waiting to apply. The Lopez Obrador administration in Mexico has been vocal about its opposition to the policy in the past.

Beginning Friday, the asylum-seekers who come to the San Ysidro port of entry will be sent back to Tijuana with a notice to appear in court in San Diego. On their court dates, U.S. Immigration and Customs Enforcement will provide transportation from the port of entry to immigration court. Asylum-seekers will also be given a 24-hour hotline to call for the status of their asylum cases.

SHUTDOWN HAS FURLOUGHED IMMIGRATION COURT JUDGES

Due to a backlog in U.S. immigration courts of more than 800,000 cases, asylum-seekers currently have to wait months or even years to see a judge. DHS has asked the Justice Department to expedite the cases of immigrants waiting in Mexico, and two officials said they expect the asylum-seekers affected by the new policy to wait no more than a year.

Agents fire tear gas at migrants at the border

NOV. 26, 201802:26

CHASE, SCHMIDT, & THE REST OF “OUR GANG” READY TO “STEP UP” TO TEACH ASYLUM LAW FOR FURLOUGHED U.S. IMMIGRATION JUDGES! – Read The Latest From Hon. Jeffrey Chase On How Asylum Law Can Be Properly Interpreted To Save Lives (What It’s Supposed To Do) & “Move” Dockets Without Curtailing Anyone’s Rights!

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IJs Grant Gender-Based Asylum Claims

As my friend Paul Schmidt announced on his excellent blog immigrationcourtside.com, immigration judges in San Francisco and Arlington, VA recently issued written decisions granting asylum to victims of domestic violence.  Notably, the decisions concluded that “Mexican females” and “women in Honduras” constituted cognizable particular social groups under applicable case law, including the former Attorney General’s decision in Matter of A-B-.

Asylum advocates have sought for many years to have the Board of Immigration Appeals recognize a particular social group defined by gender alone.  However, the BIA has declined to consider the issue.1 The need for such guidance from the Board has increased significantly since the issuance of Matter of A-B- last June.  Even under the holdings of that decision, gender continues to meet all of the criteria for a cognizable particular social group, as gender is an immutable characteristic fundamental to one’s identity, is sufficiently particular to provide a clear benchmark for inclusion, is socially distinct in all societies, and is not defined by the harm which gives rise to the applicant’s fear of persecution.

In the seven months since Matter of A-B- was issued, the BIA has yet to respond with a precedent decision affirming the continued viability of domestic violence-based asylum claims.  Nor has the BIA affirmed that gender alone may constitute a cognizable particular social group for the above reasons, in spite of the fact that its members have had years to consider the issue, and could rely on so many outstanding legal sources on the topic.  The BIA showed an ability to respond quickly in issuing a precedent decision in only two months time following the Supreme Court’s decision in Pereira v. Sessions.  So the present silence should be interpreted as a specific choice by the BIA to remain silent, likely motivated by its fear of upsetting its higher-ups in the present administration.

In the absence of guidance from the BIA, and while waiting for appeals to work their way through the circuit courts (I am aware of appeals relating to this issue currently pending in the First and Fourth Circuits), the two recent immigration judge decisions are encouraging.  In the San Francisco case, Judge Miriam Hayward (who has since retired from the bench) found “Mexican females” to constitute a cognizable particular social group. In Arlington, Assistant Chief Immigration Judge Deepali Nadkarni made the same finding for the group consisting of “women in Honduras.”  Redacted copies of their written decisions may be read here: http://immigrationcourtside.com/wp-content/uploads/2019/01/SF-IJ-Hayward-DV-PSG-grant.pdf;  http://immigrationcourtside.com/wp-content/uploads/2019/01/Nadkarni-Grant-Women-in-Honduras-PSG.pdf

In addition to their particular social group analysis, both decisions conclude that at least one central reason for the persecution suffered was the asylum applicant’s membership in the gender-defined group.  For example, in the San Francisco case, Judge Hayward found such nexus was established by a combination of specific statements made by the male persecutor (i.e. “a woman’s only job was to shut up and obey her husband,” and “I’m the man and you’re going to do what I say”); a report of an expert on domestic violence citing gender as a motivating factor for domestic violence; and a statement in a multi-agency report that violence against women in Mexico “is perpetrated, in most cases, to conserve and reproduce the submission and subordination of them derived from relationships of power.”

In her decision, Judge Nadkarni held that the size of the group defined by gender does not prevent it from being defined with particularity, and noted that the BIA “has routinely recognized large groups as defined with particularity.”  It also bears mentioning that the ICE prosecutor in Judge Nadkarni’s case “conceded that the Honduran police was unable or unwilling to protect the respondent…” Without such concession in her case, Judge Hayward found that country reports and Mexican law itself were sufficient to establish that the government was unable or unwilling to protect the respondent even under the heightened standard expressed by the former AG in Matter of A-B-.

As I stated in an earlier article, immigration judges have received no guidance or training from EOIR in analyzing domestic violence claims in the aftermath of Matter of A-B-.  As a result, some immigration judges remain uncertain as to whether the law allows them to grant such claims at present.  It is hoped that these decisions will serve as a useful template for judges. It seems particularly instructive that one such decision was issued by Judge Nadkarni, a management-level judge who supervises all immigration judges sitting in the Arlington, Batavia, Buffalo, and Charlotte Immigration Courts, as well as the Headquarters court which hears cases remotely by televideo.  Judge Nadkarni is the direct boss of V. Stuart Couch, the Charlotte-based immigration judge whose refusal to grant asylum as directed by the BIA in Matter of A-B- led to the former Attorney General’s certifying that case to himself.

Congratulations to attorneys Kelly Engel Wells of Delores Street Community Services and Mark Stevens of Murray Osorio PLLC for successfully representing the asylum applicants.

In light of these decisions, and in the absence of guidance from EOIR, our group of former immigration judges and BIA members would be happy to provide sitting judges with outside training and resources on this topic.   Interested judges may contact me, and perhaps we can set up group training sessions for furloughed judged during the present shutdown.

Notes:

  1. See, e.g. Matter of A-R-C-G-, 26 I&N Dec. 388, 395, n. 16, acknowledging the argument of amici “that gender alone should be enough to constitute a particular social group in this matter,” but declining to reach the issue.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

 

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Thanks Jeffrey! I’m “with you” all the way, my friend!
EOIR would do much better if it were to lose the venomous “(junior) partner of DHS Enforcement, no sympathy, compassion, or kindness for the most vulnerable among us, and scofflaw” persona that it acquired under White Nationalist AG Jeff “Gonzo Apocalypto” Sessions and act more like a real court of law (or at least a fair and impartial quasi-judicial tribunal) again.
While there is zero chance of it happening, soon to be AG Bill Barr (who grotesquely has painted himself as a great admirer of his biased and incompetent predecessor) would do himself and our country a great and lasting service if he hired a retired Federal Judge with a strong record in (positive) humanitarian law, individual due process, and court administration (e.g., a “reincarnation” of the late Judge Patricia Wald) to run and rebuild EOIR with a Due Process, independent adjudication, and judicial efficiency focus, and kept the politicos out of the process, no matter how much they might complain or not like fair results on the “deportation railway.” But, not going to happen till we get “regime change.”
Viewing “law enforcement” as a solemn responsibility to insure that individuals’ rights are protected, individuals are treated fairly regardless of status, creed, gender, or race, and that life-saving protection is generously granted whenever legally possible is as much a part of the Attorney General’s Constitutional responsibility as  booting folks out of the country. It’s sad, disturbing, and very damaging to our country, that so few Attorneys General have taken this responsibility seriously, particularly in recent years.
PWS
01-21-18

TAL @ SF CHRON: Dreamer Deal To End Shutdown Seems Unlikely — PLUS BONUS COVERAGE: My Essay “Let’s Govern!”

https://www.sfchronicle.com/politics/article/Why-a-DACA-deal-to-end-the-shutdown-is-unlikely-13517915.php?t=e29fabd761

Tal reports:

WASHINGTON — A perennial trial balloon is once more floating on the horizon: Could protecting young undocumented immigrants from deportation in exchange for border security money get Washington out of a lengthy government shutdown?

The idea is already rapidly falling back to Earth.

President Trump and House Speaker Nancy Pelosi, D-San Francisco, have both brushed aside suggestions that passing protections like the Deferred Action for Childhood Arrivals program could be a way out of the shutdown, which is nearing the end of its third week with no hint of a resolution.

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DACA temporarily protects many undocumented immigrants who arrived in the U.S. under the age of 16 from being deported. Trump, whose attempt to end DACA is tied up in the courts, said Sunday that he would “rather have the Supreme Court rule and then work with the Democrats” on extending protections for program recipients.

“They’re two different subjects,” Pelosi said last month when asked about trading DACA for Trump’s southern border wall — $5.7 billion for which he is demanding before he will sign any government funding bills for the agencies that have been shut down.

Democrats are not universally against the idea. San Mateo Rep. Jackie Speier told MSNBC last week that she “personally would support it” and “there is a willingness to look” at a DACA-for-wall money deal in the caucus. DACA protections for nearly 700,000 immigrants nationwide, 200,000 of whom are in California, are in limbo, and hundreds of thousands more would be eligible for the program.

But numerous other Democrats — including several on the influential Hispanic, Asian Pacific and black caucuses that have leadership’s ear on immigration — said a DACA deal involving wall money is a nonstarter in shutdown negotiations without serious and uncharacteristic overtures from Trump.

Here’s why it’s unlikely:

Trump thinks time, and the Supreme Court, are on his side. The White House believes the court will ultimately invalidate the Obama-era DACA program or side with Trump’s attempt to end it, which has been blocked by lower courts. When that happens, the administration believes, Trump will have more leverage to cut a better deal with Democrats desperate to keep sympathetic young DACA recipients from being deported, and Congress will be forced to deal with a dilemma it has long avoided.

Democrats don’t trust Trump, who has walked away from a number of DACA proposals in the past year. “Donald Trump is not a deal-maker, he’s a deal-breaker,” said Rep. Ruben Gallego, D-Ariz. “We’ve seen this happen numerous times, and we’re not going to come approach him with a deal that he’s only going to take and then reject and then come back and move the goalposts on.”

Pelosi is in touch with her base, and her base isn’t eager to broach that deal. “People don’t want to trade a wall for something that isn’t even real,” said Rep. Pramila Jayapal, D-Wash., co-chair of the Congressional Progressive Caucus. “People don’t want a wall, period, and I think there’s no trust that there’s any credible negotiation around something positive on immigration, given (Trump’s) history.”

Trump wants much more on immigration than just physical border security, where there are some areas of potential compromise. A presentation that Homeland Security Secretary Kirstjen Nielsen prepared for congressional leaders last week included calls not just for the wall, but the rollback of a bipartisan bill designed to protect human trafficking victims and a court-ordered settlement intended to safeguard immigrant children. Both of those are nonstarters with Democrats, who say the protections are needed and getting rid of them does not promote border security.

Republicans question whether Democrats are as motivated as they say they are to resolve the DACA issue. They’re skeptical Democrats want to take the political leverage off the table. Rep. Mario Diaz-Balart of Florida, a moderate Republican who has long worked on immigration reform, called the potential to get a deal out of the shutdown fight the “opportunity of a lifetime.”

“It requires the Democratic leadership to actually do something that they have not done in the past,” Diaz-Balart said, “which is match their rhetoric on DACA with actual action.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan

 

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HERE’S YOUR “BONUS COVERAGE” ESSAY FROM “COURTSIDE:”

LET’S GOVERN!

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

I still think the best deal for America would be some form of “Wall for Dreamers” compromise. To me, the huge downside of “The Wall” would be more than offset by getting 800,000 great American young people — literally the future of our country – out of the shadows and contributing their maximum skills, talents, and creativity to making America really great (not the hollow mockery of “greatness’ peddled by Trump and his base).

But, Tal’s usually got her head “closer to the ground” than I do these days from my retirement perch in Alexandria. So, I’ll assume for the purposes of this piece that Tal is correct and that the “great compromise” isn’t in the cards – at least at this time.

So, where does we go from here? This is crystal clear: Trump can neither govern in America’s best interest nor can he cut any reasonable deal. So, it seems like the only alternative for America is for the Democrats in Congress to get together with the GOP and develop a plan for governing in the absence of a competent Executive. That means passage of “veto-proof” legislation that also places some specific limits and directions on Executive actions.

What could a “veto proof” compromise to reopen Government look like.  Well, of course, to start it must fund the affected Government agencies through the end of the fiscal year.

But, it also could include a robust $5.9 Million “Border Security” package.  Here’s what could be included:

  • Additional Asylum Officers;
  • Additional port of entry inspectors;
  • Additional Immigration Judges and court staff;
  • Additional funding for Office of Refugee Resettlement for health and safety of children;
  • Required e-filing and other management improvements at EOIR (including elimination of counterproductive “quotas” on judges, and providing at least one judicial law clerk for each judge);
  • Additional Assistant Chief Counsel for ICE;
  • Funding for counsel for asylum applicants and resettlement agencies;
  • Additional Anti-Smuggling, Intelligence, and Undercover Agents for DHS;
  • Smart Technology for and between ports of entry at the border and the interior;
  • Required improvements in management planning, hiring, and supervision within DHS;
  • Limitations on wasteful immigration detention (including a prohibition on long-term detention of children except in limited circumstances) and reprogramming of detention funds to alternatives to detention;
  • Funding for additional border fencing or fencing repairs in specific areas with an express prohibition on additional physical barriers without a specific appropriation from Congress.
  • Assistance to Mexico, the UNHCR, and other countries in the hemisphere to improve refugee processing and address problems in the Northern Triangle;

Sure, Trump could, and maybe would, veto it – although he’d be wise not to. And, I suppose, that veto, which would be overridden, could be the “red meat” for his base that he apparently favors over the “art of governing.”

But, in the meantime, Congress would fulfill its important role of governing in a bipartisan manner that will keep America moving forward even in the times of a weak and incompetent Executive. And, unlike the bogus “Wall,” the foregoing measures would actually contribute to our country’s security and welfare without wasting taxpayers’ money or trampling on individual rights and legal obligations. In other words, “smart governance.” That seems like a fair and worthy objective for both parties in Congress.

PWS

01-09-19

 

 

 

PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

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Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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

Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

 

 

 

PROFESSOR KAREN MUSALO: Persecution Of Women In El Salvador On The Basis Of Gender Is Real & Endemic – The Administration’s Attempts To Skew The Law Against Women Refugees Is Totally Dishonest, Immoral, & Illegal!

https://cgrs.uchastings.edu/sites/default/files/Musalo_El%20Salvador_A%20Peace%20Worse%20Than%20War_30%20Yale%20J.L.%20&%20Fem.%203_20018.pdf

Here’s part of the conclusion of Karen’s article “EL SALVADOR–A PEACE WORSE THAN WAR: VIOLENCE, GENDER AND A FAILED LEGAL RESPONSE” published at 30 Yale Journal of Law & Feminism 3 (2018):

Historical and contemporary factors have given rise to the extremely high levels of violence that persist in El Salvador today. Many of the Salvadorans interviewed for this article referred to a “culture of violence” going back to the brutal Spanish Conquest and continuing into more recent history, including the 1932 Matanza and the atrocities of the country’s 12-year civil war. Gender violence exists within this broader context. However, as almost every Salvadoran source noted, violence against women is even more deeply rooted than other expressions of societal violence as the result of patriarchal norms that tolerate and affirm the most extreme forms of domination and abuse of women.
. . . .

Levels of violence, including the killings of women, have continued to rise, while impunity has remained a constant. Criticism of the persistent impunity for gender violence resulted in El Salvador’s most recent legal development: the enactment of Decree 286, which created specialized courts. However, the exclusion of the most commonly committed gender crimes–intrafamilial violence and sexual violence–from the specialized courts’ jurisdiction, and the courts’ hybrid structure, which requires that cases still be initiated in the peace courts, do not inspire optimism for positive outcomes.

Notwithstanding these considerable obstacles, the Salvadorans interviewed for this article, who have long struggled for access to justice and gender equality, maintain the hope and the belief that change is possible. In the course of multiple interviews over a six-year period (2010 to 2016), Salvadoran sources have expressed deep frustration and disappointment but have not articulated resignation or defeat.

. . . .

The Salvadorans who I interviewed for this article have provided information, insights, and perspectives that are simply not available in written reports or studies. Although they come from a range of backgrounds–governmental and non-governmental; legal professionals as well as grassroots activists–they all acknowledge the complex causes of societal violence. As discussed throughout this article, they also have specific critiques and prescriptions for what must be done in order to see any real progress. Discussions of the country’s crisis, as well as of the international community’s response, must start by listening to the voices of the Salvadorans who, despite the seemingly intractable situation of violence and impunity in which they live, have refused to abandon the struggle for justice and equality. They are inspiring in their courage and resilience. By quoting extensively from these sources, this article has sought to amplify their voices.

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

Read Karen’s complete article at the above link.

Compare real scholarship and honest reflection of the experiences of women in El Salvador affected by this seemingly unending wave of persecution with the intentionally bogus picture painted by Jeff Sessions in Matter of A-B-. Hopefully, advocates will be able to use the research and expertise of Karen and others like her to enlighten fair-minded Asylum Officers and Immigration Judges, support their efforts to grant women the protection they merit as contemplated by the Refugee Act and the Convention Against Torture, and force the Article III Courts and eventually Congress to consign Sessions’s intentionally perverted reasoning to the dustbin of “Jim Crow Misogynist History” where it belongs.

Many thanks to my good friend and colleague in  “Our Gang,” Judge Jeffrey Chase, for passing this link to Karen’s important scholarship along.

Due Process For All Forever!

PWS

12-31-18

KAREN TUMULTY @ WASHPOST: Trump Is The Ugliest American – Amazingly, He Keeps Getting Uglier!

https://www.washingtonpost.com/opinions/2018/12/29/with-trump-there-is-no-bottom/

Karen Tumulty writes in WashPost:

With President Trump, there is no bottom. Every time you think you have seen it, he manages to sink even lower.

It is not news that the president is indifferent to human suffering. His limp response to the devastation of the 2017 hurricane in Puerto Rico — which he claimed to have been a “fantastic job” on the part of his administration — stands out in that regard. But on Saturday, we saw yet another level of depravity when Trump made his first comments regarding the deaths in recent days of two migrant Guatemalan children after they were apprehended by federal authorities. It revealed not only callousness but also opportunism, as he sought to turn this tragedy into a partisan advantage in his current standoff with Democrats over the government shutdown.

His statements came, not unexpectedly, over Twitter. First this:

Any deaths of children or others at the Border are strictly the fault of the Democrats and their pathetic immigration policies that allow people to make the long trek thinking they can enter our country illegally. They can’t. If we had a Wall, they wouldn’t even try! The two…..

And then, minutes later, this:

…children in question were very sick before they were given over to Border Patrol. The father of the young girl said it was not their fault, he hadn’t given her water in days. Border Patrol needs the Wall and it will all end. They are working so hard & getting so little credit!

Not a word of sympathy here — much less remorse on the part of the government over the deaths of a 7-year-old girl and 8-year-old boy while in its custody. Nor does Trump address questions that are being raised about whether the administration’s new policy seeking to limit the ability of immigrants to seek asylum protection might be a factor in putting more at risk. Under recent changes, migrants must remain in Mexico as their asylum cases are processed, possibly increasing their willingness to do something reckless to come across the border.

Then there was the dissonance: His blast came on a day that Homeland Security Secretary Kirstjen Nielsen was visiting Yuma, Ariz., after stopping in El Paso, Tex. Her department has promised more thorough medical screenings and is calling on other agencies to help. “The system is clearly overwhelmed and we must work together to address this humanitarian crisis and protect vulnerable populations,” Nielsen said in a statement.

Even if Trump were to get funding for the wall — and even if the wall were the deterrent he promises it would be, a more dubious proposition — that would be many months if not years in the future. This is an immediate crisis, for which the president seems to have no concern. Nor does Trump address the fact that what he claims are Democratic immigration policies have been in place for decades, and yet, until this month, it had been more than a decade since a child had died while in Customs and Border Protection custody.

It is true that greater numbers of vulnerable Central American children are being put into treacherous situations. My colleagues Joshua Partlow and Nick Miroff have done excellent reporting on how smugglers are gaming a dysfunctional immigration system:

This is happening because Central Americans know they will have a better chance of avoiding deportation, at least temporarily, if they are processed along with children.

The economics of the journey reinforces the decision to bring a child: Smugglers in Central America charge less than half the price if a minor is part of the cargo because less work is required of them.

Unlike single adult migrants, who would need to be guided on a dangerous march through the deserts of Texas or Arizona, smugglers deliver families only to the U.S. border crossing and the waiting arms of U.S. immigration authorities. The smuggler does not have to enter the United States and risk arrest.

The Trump administration tried to deter parents this spring when it imposed a “zero tolerance” family-separation policy at the border. But the controversy it generated and the president’s decision to halt the practice six weeks later cemented the widely held impression that parents who bring children can avoid deportation.

As Trump fulminates about the wall, he rarely brings up the idea of doing anything about the source of the problem: the desperation of people who are being driven from their native countries by poverty and violence. Until those forces are addressed, migrants will keep coming, even if it means taking greater risks to do so.

In the meantime, we have a president who is willing to politicize the deaths of two young children to score points against the opposition party. And the most shocking thing about seeing him scrape along a new moral bottom is this: It is no longer shocking at all.

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Read the original article at the link.

The key:

As Trump fulminates about the wall, he rarely brings up the idea of doing anything about the source of the problem: the desperation of people who are being driven from their native countries by poverty and violence. Until those forces are addressed, migrants will keep coming, even if it means taking greater risks to do so.

Walls, detention centers, tent cities, and more Border Patrol Agents won’t solve this problem. Nor will proposed changes in the law and administrative actions aimed at further undermining our legal obligations toward refugees and asylum seekers. In fact, as we can see, the Administration’s approach is making things worse.

Establishing a fairer and appropriately more generous interpretation and application of our asylum and related protection laws, investing in addressing  “push” conditions in Central America, establishing robust “in country” refugee programs in the Northern Triangle, cooperation with the UNHCR is seeking “regional solutions” closer to the Northern Triangle, more well-trained Asylum Officers, and more well-trained, fair and impartial U.S. Immigration Judges with a prior background in fair and humane treatment of asylum seekers would, over time, improve the situation. Perhaps in the long run, it would even solve the problems.

PWS

12-31-18

SYSTEMIC FAILURE: Tanking Immigration Court & Asylum Adjudications Mock Due Process! — Disgraceful Lack Of Professional Integrity & Simple Human Decency Have Become Hallmarks!

https://www.courthousenews.com/uncle-max-made-it-past-the-border-patrol/

Robert Kahn, Editor of Courthouse News writes:

My Uncle Max made it past the Border Patrol and became a doctor in the United States — a chest specialist. He wasn’t really my uncle. He was a med student who fled the Nazis in 1936 — before the United States started turning away Jewish refugees — and ended up living in Chicago with my grandparents.

I don’t know how Uncle Max found his way to my Oma and Opa, and I suppose I’ll never know. All of them are dead. I heard the story from Uncle Max in 1973, after I graduated from college and had a nagging cough.

I had no money for a doctor. I was working for the Post Office in Portland, Oregon, and playing baritone sax in a funk band.

“Call your Uncle Max,” my Mom told me from Chicago.

“Who’s Uncle Max?” I said.

Uncle Max examined me, suggested I cut down on the weed, and told me his story.

He was a medical student in Germany — fairly advanced, as he already had the tools of his trade. He lived with his parents. They were Jewish.

One day, some Nazi gentlemen knocked on their door, or barged in, ransacked the place, and found Max’s little black bag. In it they found a syringe and some hypodermic needles.

“Aha! A morphinist!” one said. They left, but said they’d be back.

Uncle Max’s parents — I do not know their names — told him he had to leave the country immediately. And he did — the next day, I believe.

This was two years before Kristallnacht — Nov. 9-10, 1938 — when the war on the Jews had become official policy. Four years after Kristallnacht, with the big war on, FDR turned away boatloads full of Jews fleeing the Third Reich. FDR called them a threat to national security.

Max’s entire family was murdered by the Nazis. In Auschwitz, I believe. But what does it matter where they died? We know who killed them, and why, and to some extent, how it could have been prevented.

How Max hooked up with my Oma and Opa, as I’ve said, I do not know. I suppose through some Jewish relief organization.

Uncle Max, a refugee, enlisted in the U.S. Army in 1944, though he did not have to, as he was 35 years old. He married in 1950 and he and his wife raised three children, two girls and a boy.

Now, here is an interesting thing. This is not the first time I’ve written this column. The first time was 30 years ago, give or take. I was city editor of The Brownsville Herald, in Texas, and the Reagan administration was rounding up and imprisoning tens of thousands of refugees from government death squads in Central America — women, children and babies — for the despicable crime of trying to escape from war.

The Herald hired me because I’d written a few news articles about the work I’d done as a paralegal in U.S. immigration prisons, helping attorneys represent victims of rape, torture and war. I’d also covered the privatization of our immigration prisons, in which our federal government hired private, money-seeking Republican campaign contributors — I mean, corporations — and gave them the power to strip-search children, mothers and babies.

The privatization of immigration prisons gives private corporations — above all, Corrections Corporation of America, or CCA, which changed its name to CoreCivic in 2016, because the CCA logo had become so thoroughly soaked in the blood of children; and GEO Group, CoreCivic’s main competitor; and dozens of well-intentioned but benighted church-affiliated groups that imprison refugee children to save the federal government the bother and expense — as I was saying, all these private prisons give the U.S. government a way to sidestep responsibility for the war crimes it is committing, and has been committing for decades — surely since 1985, when my 3-year-old client was strip-searched in CCA’s Laredo prison because her Salvadoran mother made the outrageous demand to speak to a pro bono attorney.

This is all true.

Do you like it?

I can’t see how you could.

What is going on today, under the Trump administration, is far worse.

I know what you’re thinking: What could be worse than strip-searching children?

Killing them.

I am tired, my friends. I worked for virtually nothing in U.S. immigration prisons to try to save Central Americans’ lives under the Reagan administration. I’m not going back to the prisons. But hundreds of other human rights workers are doing it.

They are doing — dare I say it? — God’s work, and doing it under obnoxious and intrusive government surveillance. Most of them are doing it for free, or for far less than minimum wage.

I would like to list the names of a few of them here — pro bono legal organizations, human rights groups — who are doing what our government should be doing, and failed to do, in the 1940s and 1980s, and is failing to do today. But times being what they are, I fear this might do them more harm than good.

We should support them. Most of them are tax-exempt nonprofits.

(Courthouse News editor Robert Kahn’s book, “Other People’s Blood: U.S. Immigration Prisons in the Reagan Decade,” (1996) was the first history of U.S. immigration prisons.)

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https://www.latimes.com/opinion/la-ol-2-enter-the-fray-here-are-just-a-few-of-the-ways-our-1546013604-htmlstory

Scott Martelle writes in the LA Times:

Two court actions a continent apart are driving home — yet again — the point that the U.S. asylum system neither lives up to basic standards of human decency and due process nor, it seems, to the promises of the Constitution.

In New York on Thursday, a federal district court judge slammed the government for failing to even offer a bond hearing to a man it had detained for 34 months after he arrived at the U.S.-Mexico border and asked for asylum because of threats he’d received in his native Ivory Coast over his political affiliations.

Is that sufficient grounds for granting asylum? Good question, and we have both laws and a court system to guide the answer. Was it necessary for the government to detain Adou Kouadio, 43, while his application worked its way through the system?

No one knows because the government has not been forced to answer two basic questions: Does Kouadio pose a flight risk? And does he pose a danger to public safety? Both those fundamental questions determining whether an asylum-seeker or other migrant will remain incarcerated get addressed in a bond hearing.

Which the government has not granted. For 34 months.

U.S. District Court Judge Alvin K. Hellerstein on Thursday ordered a bond hearing be held within 14 days, a ruling legal experts said was both a rebuke to federal detention policies and a recognition that fundamental rights of due process extend to migrants.

“Petitioner has a clean record, never having been arrested or convicted,” Hellerstein wrote. “There is little risk of flight, since he seeks asylum within the United States, and little risk of danger to the community, judging from his lack of a prior criminal history. Yet, Petitioner has suffered 34 months of detention without an opportunity for a bond hearing while waiting for a final decision on his petition for asylum.”

The judge noted that the government had an interest in weighing due process rights against the national interest but that it had failed to make the case that Kouadio posed a particular threat.

“This nation prides itself on its humanity and openness with which it treats those who seek refuge at its gates,” Hellerstein wrote. “By contrast, the autocracies of the world have been marked by harsh regimes of exclusion and detention. Our notions of due process nourish the former spirit and brace us against the latter. The statutory framework governing those who seek refuge, and its provisions for detention, cannot be extended to deny all right to bail.”

Meanwhile, here on the West Coast, the American Civil Liberties Union has filed a lawsuit in U.S. District Court in Riverside to protect another right of migrants. The suit accuses the federal government and some of the organizations it relies on for detaining people facing deportation — private prison operator Geo Group and the Orange County Sheriff’s Department — of making it nearly impossible for migrants to consult lawyers, which they have a right to do.

Geo Group operates the Adelanto ICE Processing Center in San Bernardino County, and the Orange County Sheriff’s Department operates the Theo Lacy Facility in Orange and the James A. Musick Facility near Irvine; all three facilities house migrants at ICE’s behest.

According to the complaint (which you really ought to read), three men seeking asylum have been unable to use telephones to find or consult with attorneys under bizarre systems in which the phones hang up automatically at the sound of an automated response, detained migrants are forced to make their calls within hearing of others (undermining fundamental attorney-client privilege), and detainees often don’t gain access to phones until after normal business hours.

Also, mail is slow to get delivered and sometimes arrives opened and damaged, further hindering the detainees’ ability to present their cases, the lawsuit charges.

These are no minor things. Hanging in the balance is the ability not only to get proper legal advice, but also to collect the sorts of documents often required to support an asylum claim. Detainees have missed court deadlines because of slow mails and inability to gather their documents from far-flung sources.

And I should note this isn’t a Trump thing. ICE officials, and their contracted detention overseers, have been acting in such manners for years. One of the plaintiffs, Jason Nsinano of Namibia, was initially detained under the Obama administration, as was Kouadio, the man for whom the New York judge ordered a bond hearing.

Though that hearing might not do much good. Shortly after his detention, ICE determined that Nsinano posed neither a flight risk nor a danger to public safety and set bond at $10,000 — an amount that Nsinano doesn’t have.

So Nsinano has been incarcerated for more than three years not because he has been charged with a crime, nor because he poses a flight risk or danger to society, but because he sought asylum and didn’t have the foresight to bring $10,000 with him.

That’s outrageous.

 

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Yup! Our treatment of asylum seekers and other migrants is outrageous! What’s even more outrageous are the legislators and Administration politicos who perpetuate this broken and corrupt system when fixing it should be legal and moral imperatives. And it would be a heck of a lot cheaper than the failed, corrupt, “killer” strategies being pursued now. We could get lots of much needed Due Process for less than $5 billion!

PWS

12-30-18

NOTORIOUS CHILD ABUSER JEFF SESSIONS ALSO TARGETED REFUGEE WOMEN & GIRLS FOR DEATH, RAPE, TORTURE, & OTHER MAYHEM — HIS EVIL PLANS HIT A ROADBLOCK: THE LAW! — Read The Latest Commentary From Hon. Jeffrey S.Chase On Challenges To Sessions’s Effort To Pervert The Law — Matter of A-B- In Light Of Grace v. Whitaker!

Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker.  The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-.  Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.

In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.”  In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.”  Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world.  However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid.  The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis.  And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1

If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2   A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others.  Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case.  Such Sisyphean approach seems ill suited to the current million-case backlog.

However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard.  When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations  harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.”  Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.

How far reaching is the Grace decision?  We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews.  But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?

USCIS of course is part of the Department of Homeland Security.  Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice.  Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal.  However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan.  The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.

Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR.  An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.”  The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard.  But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge.  The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard.  The USCIS memo reversed this, directing asylum officers to categorically deny such claims.  But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.

When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing.  Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings.  Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that.  Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.

But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)?  And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?

Many immigration judges are presently struggling to understand Matter of A-B-.  The decision was issued on the afternoon of the first day of the IJ’s annual training conference.  This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators.  But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon.  Needless to say, the training was not very useful in examining the nuances of the decision.  As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.

Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification.  However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4  I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process.  My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision.  Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.

A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

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Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.

  • Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
  • A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
  • Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
  • Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.

There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by  screwing the most vulnerable among us!

PWS

12-26-18

 

GENDER-BASED PERSECUTION OF WOMEN IN CENTRAL AMERICA IS WIDESPREAD & WELL-ESTABLISHED! — Trump Administration’s Disingenuous Refusal To Treat Them As Refugees Is Illegal & Immoral! –“Homicides will only be brought under control when we teach society that women’s lives are worth more.”

https://www.wsj.com/articles/it-is-better-not-to-have-a-daughter-here-latin-americas-violence-turns-against-women-11545237843?emailToken=5cbcc917221424825baa00c26277a3bdzdI+3vtll7KBkMM00Z6+dsoSHU6OaTUnSQQuir5waepAYBzkaUG3llg70bJ/Sf2HOx/vEO/irclDJDwOJpFXRJ2amiJz9BofjN/oVgB1wR4Meq2bA099I4KJFl6mnIF+UPdNqetFe3GINnT3AxJmN+bjIXPxZD7CpkIoH4UmAzE%3D&reflink=article_email_share

Juan Forero reports for WSJ:

Women in Latin America Are Being Murdered at Record Rates

The deadliest region for men has become perilous for women as well, especially in gang-riddled parts of Central America

  • El PLATANAR, El Salvador—Andrea Guzmán was just 17 but sensed the danger. For weeks, the chieftain of a violent gang had made advances that turned to threats when she rebuffed him.

    He responded by dispatching seven underlings dressed in black to the two-room house she shared with her family in this hamlet amid corn and bean fields. They tied up her parents and older brother, covered Andrea’s mouth and forcibly led her out into the night in her flip-flops.

    Hours later, one of her abductors fired a shot into her forehead in a field nearby. And once again, another woman had been slain, one of thousands in recent years in this violent swath of Central America, simply because of her gender.

    “It is better not to have a daughter here,” said her weeping father, José Elmer Guzmán, recounting how he had found his girl, wearing the shorts and a T-shirt she liked to sleep in, off the side of a road. “I should have left the country with my children.”

    ‘Andrea’s only sin was being beautiful,’ said Claudia Solórzano, shown holding a photo of her murdered daughter. (The Wall Street Journal chose to publish the photograph of Andrea Guzmán’s murder, at top of article, because it viscerally shows the reality of violence sweeping Latin America. Her parents provided the image and gave the Journal permission to use it.)
    ‘Andrea’s only sin was being beautiful,’ said Claudia Solórzano, shown holding a photo of her murdered daughter. (The Wall Street Journal chose to publish the photograph of Andrea Guzmán’s murder, at top of article, because it viscerally shows the reality of violence sweeping Latin America. Her parents provided the image and gave the Journal permission to use it.)

    Latin America has the highest homicide rate in the world. The region’s most-murderous corner—the so-called Northern Triangle of Central America, including El Salvador, Honduras and Guatemala—annually registers the deaths of thousands of young men who shoot, stab, bludgeon and asphyxiate each other, often in gang-related violence.

    Now, the Northern Triangle is turning deadly for women, too.

    El Salvador, a tiny country of 6 million, has seen homicides of women more than double since 2013 to 469 last year. The death rate per 100,000 women, at 13.5, is more than six times that of the U.S., with Honduras and Guatemala close behind.

    Gang violence has turbocharged the problem here, but doesn’t explain all of it. Women die disproportionately at the hands of men throughout much of Latin America. From Mexico to Brazil, episodes of lethal domestic violence are frequent staples on social media and television.

    Women in Danger

    A total of 2,559 cases of femicide were reported in Latin America and the Caribbean in 2017. Central American nations top the list of the 10 riskiest countries for women.

    *The definition of femicide varies from country to country, but at its narrowest means the intentional murder of women because they are women.

    Source: United Nations Economic Commission for Latin America and the Caribbean

    In August, Brazilians were horrified after a TV news show broadcast security camera video showing a muscle-bound young man chasing his 29-year-old wife around the underground parking lot in their building and then struggling with her in the elevator as it ascended to their fifth-floor apartment. The camera then captured her lifeless body—she had been strangled, investigators later said—falling from the apartment balcony to the street below.

    A Peruvian man poured gasoline on 22-year-old Eyvi Ágreda Marchena on a public bus in April and set her on fire. The attack so horrified the country that President Martín Vizcarra visited her in the hospital before she died in June from the burns. Her assailant admitted killing her, telling investigators she had spurned his advances.

    “She uses her looks to use men,” he said, according to authorities. “I gave her a stuffed bear and flowers last year when I saw that she was sad. But she was annoyed. She said I wasn’t her boyfriend.”

    Friends and family gather at the wake of 31-year-old Berta Hernández Arce, who was murdered in El Salvador by MS-13 gang members after refusing to pay $8,000 they were trying to extort from her and her husband. The assailants shot her 40 times in front of her 6-year-old niece.

    What amounts to a public health crisis has women of all ages living in fear, according to researchers and interviews with dozens of women in El Salvador. As elsewhere in Latin America, the challenge is enormous for an overtaxed and poorly funded judicial system that can solve only a minority of homicides, let alone effectively prosecute rapes and spousal battery cases, also endemic here.

    The ramifications are broken families and traumatized children. The violence generates migration to the U.S., with women who say they flee to save their lives increasingly filing asylum claims before American immigration judges.

    “Women are looked down upon as they grow up, making them second-class citizens,” said Silvia Juárez, a lawyer with the Organization of Salvadoran Women for Peace, which catalogs violence against women. “Homicides will only be brought under control when we teach society that women’s lives are worth more.”

    Specialists studying violent crime in Central America say the killings of women often come at the hands of their partners, and that the rise of vicious gangs has added a tragic new dimension.

    “Violence against women existed before the gangs,” said Angelica Rivas, a women’s rights lawyer. “The gangs make it worse.”

    Activists hold a candlelight protest against femicides in El Salvador on Nov. 30.
    Activists hold a candlelight protest against femicides in El Salvador on Nov. 30.

    The two gangs that operate in nearly all of El Salvador’s 262 municipalities—MS-13 and Barrio 18—treat women as little more than slaves, say law-enforcement authorities and women’s-rights advocates.

    Once an initiated gang member, or homeboy as they call themselves, takes possession of a teenage girl or young woman, she risks a beating or death if she tries to leave without permission.

    “When you have a woman, she becomes property for you, and only for you, no one else,” said Wilfredo Cabrera, who is 24 and recently left a gang.

    The safe houses the gangs use to store weaponry, cash and contraband are also used to imprison girls, some as young as 12 and 13. Gang rape is not uncommon.

    Lisseth, a slight, 21-year-old woman, cried gently as she described her life in such a house of horrors. Escaping an abusive family at 12, Lisseth said she was lured by gang members “who said they would take care of me and give the love that my family had not given me.”

    Instead, she was forcibly kept in the basement of a safe house. At one point, she recalled, 12 gang members took turns raping her. “When they wanted to use me, they’d say, ‘Come on up,’” said Lisseth, who made an escape and is now in a home that protects women who have been victims of violence.

    Lisseth, 21, poses for a portrait while in hiding from the gang MS-13 in El Salvador.
    Lisseth, 21, poses for a portrait while in hiding from the gang MS-13 in El Salvador.

    Families with girls in gang-controlled regions know they, too, can be targeted if a homeboy takes an interest. Saying “no” isn’t an option.

    The local gang overlord in Manuel Juárez’s neighborhood on the outskirts of San Salvador wanted his oldest daughter, he recounted. He warned her that if she didn’t go along with him, her family would be killed.

    “He would see her. He would touch her, kiss her wherever, in the street,” Mr. Juárez, 45, said. “He came and told me, ‘I’m going to take your girl. Do not look for her or else I will kill you.’ ” Mr. Juárez was too afraid to go to the police.

    Gang members did take his daughter, leaving her pregnant before the family was able to get her, eventually, to a new life in Spain. Now, Mr. Juárez worries about his youngest daughter, just 16, and whether one option might be to flee to the U.S. should gang members take interest.

    It’s too late for Mr. Guzmán and his wife, Claudia Solórzano. They can only recount the sense of hopelessness and anguish they felt as gang members began to notice Andrea, with her blue eyes and long black hair.

    First it was a chieftain nicknamed Thunder, who dated Andrea. But when he was jailed, the homeboy who replaced him, who went by the alias Little Spoon, wanted her for himself, said her mother, Ms. Solórzano.

    He followed Andrea. He phoned her constantly. Sometimes, he’d wave his semiautomatic handgun at her father, making clear he wouldn’t take no for an answer.

    “He’d come across, tell her, ‘Be careful. You look real good,’ ” Ms. Solórzano said. “She would say, ‘I don’t want to be the girlfriend of a gang member.’ When he sent her chocolates, she didn’t eat them.”

    Andrea seemed to sense that her life could be cut short. Ms. Solórzano said that near the end, her daughter went so far as to tell a neighbor she wanted two black roses placed on her casket.

    Prosecutor Graciela Sagastume, who heads a new unit that investigates violence against women, said attacks have been so commonplace that Salvadoran society had become inured. She said that may be changing in the wake of several high-profile killings of professional women at the hands of their partners, among them a Health Ministry doctor beaten to death by her husband in January.

    “Sadly, it took the death of a woman doctor for us to take note that the deaths of women due to domestic violence exist,” Ms. Sagastume said. “They are everyday cases.”

    The casket had to be closed at the wake of Berta Hernández Arce because her body was so badly mutilated.
    The casket had to be closed at the wake of Berta Hernández Arce because her body was so badly mutilated.

    Last year in El Salvador, 345 women became victims of what authorities classified as femicides, the killing of a woman for no other reason than her gender.

    Unlike the killings of men, women slain here usually know their killers. In more than half the cases, it was a partner, ex-partner, family member or other acquaintance, including a gang member known to the victim.

    Intentional Homicide Rate (per 100,000 people)

    Sources: Igarapé Institute (El Salvador, Honduras, Guatemala); FBI (U.S.); National Institute of Statistics and Geography (Mexico)

    Whereas men are often shot to death, women are killed with particular viciousness, according to a 2015 Salvadoran government study on femicides that noted how some victims had been tortured, had fingers cut off, been raped, tied up or burned.

    “In many cases,” the report said, “the methods used surpassed those needed to cause death.”

    Ms. Sagastume said the violence sometimes arises when men are threatened by women who challenge the traditional gender roles of Salvadoran society.

    Those factors were at play in the case of Karla Turcios, a newspaper columnist asphyxiated in April, her body left on the side of a road. Prosecutors charged her husband, Mario Huezo. He is jailed, awaiting trial and says he is innocent.

    Ms. Sagastume said various aspects of the relationship between Ms. Turcios and Mr. Huezo led investigators to conclude he bristled at her success.

    He would drive her to work and then wait in the parking lot until she finished her shift. She couldn’t spend time with co-workers or friends. He held control of her bank accounts.

    Yet, she had been the one with the salaried job. She owned the car. She paid for the couple’s daily needs. Her death came after she asked him to contribute his fair share, Ms. Sagastume said, adding, “He felt humiliated by her.”

    Mario Huezo, the accused husband of slain journalist Karla Turcios, is led away by police after a court hearing in San Salvador.
    Mario Huezo, the accused husband of slain journalist Karla Turcios, is led away by police after a court hearing in San Salvador. PHOTO: RODRIGO SURA/EPA-EFE/REX/SHUTTERSTOCK

    The Salvadoran government, with aid from the U.S., is developing courts to deal with violence against women and staffing them with specially trained prosecutors, judges and other personnel, among them psychologists, to work with victims. The number of cases of homicide processed has risen to 270 in 2017, from 130 in 2015. Convictions are still a minority of all cases but they rose from 76 in 2015 to 117 last year.

    Judge Glenda Baires said the new system, which also handles assaults and sex crimes against women, is persuading more women to denounce their assailants. “Women are now saying, ‘I’m going to say something before I get killed,’” she said.

    In a ballad popular here and elsewhere in Latin America, “Kill Them With An Overdose of Tenderness,” the singer advises an extreme response when confronting heartbreak.

    “Get a gun if you want, or buy a dagger if you prefer, and become a killer of women,” the lyrics go.

    It’s a melodic refrain sung with gusto at parties.

    More than a quarter of women in El Salvador reported being a victim of violence in their lifetime while 43% said they had suffered a sexual assault, according to a national household survey in 2017 by the country’s statistics agency.

    Women from the “La Cachada” theatre troupe perform a play about the struggles of informal street vendors in El Salvador based on their personal experiences. The troupe has delved into issues of gender-based violence both as a cathartic exercise for themselves and as a public service.
    Women from the “La Cachada” theatre troupe perform a play about the struggles of informal street vendors in El Salvador based on their personal experiences. The troupe has delved into issues of gender-based violence both as a cathartic exercise for themselves and as a public service.

    In San Salvador, Meghan López, an American expert on family violence working on her doctorate at Johns Hopkins University, is carrying out research on the impact of parenting skills on children in dangerous, poverty-stricken environments.

    She uses a research tool called the Adverse Childhood Experiences International Questionnaire, or ACE-IQ, which identifies 13 factors in young lives that can lead to problems in adulthood. Those ACEs, which include violence, sexual abuse, family dysfunction, neglect, poverty and other factors, are each assigned a point.

    Ms. López’s work is still preliminary, but she has found that parents of young children in the four communities she is examining score an average of 8, which she calls “astronomical.” In the U.S., a 4 would be considered high.

    Exposure to ACEs can alter the development of a child’s brain as well as their hormonal system, stunting the cognitive tools they need as adults to rationalize and react calmly to stressful situations, Ms. López said. That can cause the brain’s more primitive areas to overdevelop while those responsible for emotional control can be underdeveloped.

    What that means on a national scale is violence is bred from one generation to another in El Salvador, a country already buffeted by pervasive violence and the legacy of civil war in the 1980s.

    “If we don’t break the cycle of violence,” said Ms. López, “it’s not going to get better.”

    A mural painted by artist Julia Valencia on a wall in San Salvador denounces femicide.
    A mural painted by artist Julia Valencia on a wall in San Salvador denounces femicide.

    Write to Juan Forero at Juan.Forero@wsj.com

    Appeared in the December 20, 2018, print edition as ‘Latin America Turns Deadly for Women.’

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

    Go to the link above for the full article and to be able to read the charts!

    Folks, this is the Wall Street Journal, bastion of conservative thought and rhetoric, for Pete’s sake! It’s not HuffPost or Slate. And, it’s not just Latin American Countries that are guilty of devaluing the lives of women. Trump, Pence, Sessions, Kelly, Nielsen, Whitaker, Francisco, U.S. Immigration Judge Couch, some BIA Appellate Immigration Judges, EOIR Officials, DOJ Politicos, Pompeo, GOP Legislators, to name just a few dehumanize women and trash their legal rights on a regular basis by pushing a scofflaw restrictionist immigration agenda targeting people of color, particularly women and girls of color.

    “Women in [X Country]” clearly fits the three basic criteria for a “particular social group” protection under asylum and refugee law:  1) immutable/fundamental to identity; 2) particularized; 3) socially distinct. It’s not material that not all women are equally in danger. Those harmed clearly are targeted largely (sometimes entirely) because of their gender. So, there’s a clear “nexus” or “at least one central reason” as the law states. The idea pushed by Sessions and other restrictionists that countries in the Northern Triangle are “willing and able” to protect them is preposterous, as this article demonstrates.

    Also women who are activists, members of religious groups opposed to gangs, political candidates, or members of indigenous populations are targeted for political, racial, or religious reasons.

    In other words, refugee women fleeing Central America often fit squarely within “classic” refugee protection.

    Some are granted protection by conscientious and courageous U.S. Immigration Judges who simply refuse to let the anti-refugee, anti-Central-American bias of their “superiors” in the Administration influence their decisions. But, many other female refugees find themselves improperly denied (or denied any hearing at all by the Asylum Office) by those anxious to please the White Nationalist restrictionists in power, to “expedite” dockets by looking for anti-immigrant “handles” in Sessions’s skewed precedents, or actually relish their chance to release their own anti-asylum biases on women of color.

    And, in the absence of positive BIA precedents requiring grants and recognizing the truth about female refugees from Central America, justice is terribly uneven and depends largely on the “luck of the draw.” Traditionally, U.S. Immigration Judges serving in DHS Dentition Centers and at the border often have been less willing than others to recognize legitimate refugees by granting asylum. Not incidentally, those also happen to be locations where representation rates for asylum seekers are lowest.

    The treatment of these legitimate refugees by our country is a national disgrace! Recently, in Grace v. Whitaker, U.S. District Judge Emmet Sullivan (what a difference a real, truly independent judge makes) began the arduous process of exposing the legal flaws and bias in the Sessions-initiated attack on justice for vulnerable refugees from Central America.

    But, it will take much more effort, as well as a continuing outcry of public outrage, for justice to be restored to the system corrupted by Sessions and his restrictionist ilk. It’s also something that Democrats must and should address for the record during the upcoming Barr confirmation hearings.

    No more “Jeff Sessions” as Attorney General! We need a U.S. Attorney General (regardless of party) who will uphold human dignity and enforce the legal rights and privileges of everyone under our Constitution, not just the privileged. We also need an Attorney General with the confidence in and respect for our justice system to let the BIA and the Immigration Courts operate in an independent manner and set their own dockets and legal standards, free from political interference and White Nationalist restrictionist agendas.

    PWS

    12-26-18

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

    https://apple.news/ABxGIu1zQSumaDYsJutu1uA

    Scott Bixby reports for The Daily Beast:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    PWS

    12-23-18

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

    WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

     

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

    NOTE TO THE NDPA:

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

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

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

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

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

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

    Go for it!

    Due Process Forever! Scofflaw Administration Never!

    PWS

    12-21-18

    UPI ANALYSIS OF LATEST EOIR ASYLUM STATS ACTUALLY SHOWS THAT MANY FROM NORTHERN TRIANGLE (PARTICULARLY EL SALVADOR) HAVE VALID CLAIMS FOR PROTECTION, BUT SESSIONS’S POLITICAL ACTIONS AND CONTROL OVER U.S. IMMIGRATION JUDGES ARTIFICIALLY FORCED THE GRANT RATE DOWN! – It’s Time For An Independent “Article I” U.S. Immigration Court & A Level, Apolitical Playing Field For Asylum Applicants!

    https://apple.news/AHg-L3Cy-SEG6Gi9SR1rk_w

    Patrick Timmons reports for UPI:

    Asylum denials jump; immigration judges’ discretion attacked

    MEXICO CITY, Dec. 10 (UPI) — New data about the number of asylum applications granted by the United States this year show how the Trump administration has dramatically narrowed asylum granted to people fleeing persecution in their home countries — though significantly more Central Americans have been admitted over the past decade.

    “Asylum acceptance rates are at a 20-year low, and the recent TRAC data confirms that,” said Sarah Pierce, policy analyst for the non-partisan and independent Migration Policy Institute, referring to data from the Transactional Records Access Clearinghouse.

    For fiscal 2018, TRAC’s statistics show immigration judges denied 65 percent of asylum claims — up from 42 percent in 2017. There were 42,224 asylum cases decided in 2018, an 89 percent increase over the total number of cases decided in 2016.

    Due to a backlog in the immigration system, some asylum seekers have been able to live in the United States for three years to five years while their claims are adjudicated, a situation the administration has tried to address by changing some rules and practices.

    “This administration is trying to address people who are trying to take advantage of the system. But unfortunately this administration’s approach tends to punish asylum seekers rather than just specifically looking at those individuals who are taking advantage of the system,” Pierce said.

    The administration’s broad approach to all asylum seekers has had the effect of narrowing asylum by increasing immigration judges’ workloads by setting quotas, ending discretionary decision making and rewriting immigration rules to deny relief to asylum seekers fleeing domestic and gang violence.

    Immigration experts told UPI the administration’s changes to how immigration judges work has spiked a general increase in asylum denials.

    Northern Triangle

    There has been an increased flow of asylum seekers from Central American countries, particularly those from the Northern Triangle countries of Honduras, El Salvador and Guatemala.

    And the fact that more of them are getting approved shows they are “sincere humanitarian migrants,” Pierce said.

    A new TRAC tool shows Central Americans now fare better than in previous years. Salvadorans receive asylum in rates higher than Guatemalans or Hondurans. In 2004, Salvadorans’ asylum approval rate was 6 percent. In 2018, it rose to 23 percent. Guatemala’s grant rate in 2018 was 18 percent, the lowest of three countries, with Honduras at 20 percent.

    Pierce said that changes in immigration law under the Obama administration help account for significant changes in asylum approval rates for people fleeing the Northern Triangle. Immigration judges over the past decade were more accepting of domestic and gang violence as grounds for asylum, with successes helping to develop case law.

    The rise in asylum for Salvadorans has to do with direct violent threats, rather than domestic violence, which is a common claim among Guatemalan asylum seekers, or gang violence, common among Hondurans.

    “The circumstantial evidence suggests El Salvador tends to have the most direct violent threats,” said Everard Meade said, director of the Trans-Border Institute at the University of San Diego.

    Data comparing the Northern Triangle countries’ asylum seekers’ claims is hard to come by. However, Meade said in 2014 the United Nations High Commissioner for Refugees issued its report, “Children on the Run,” about unaccompanied Central American minors highlighting direct violence in El Salvador as a reason for flight. UNHCR interviewed almost 400 children with 66 percent of El Salvadorans reporting flight for threat of direct violence Guatemalans reported 20 percent, Hondurans at 44 percent.

    But Central Americans’ asylum approvals might be a blip. Former Attorney General Jeff Sessions this year removed domestic violence and gang violence as grounds for asylum in immigration court proceedings.

    “These private acts of violence claims are typically the ones we are seeing from the Northern Triangle,” Pierce said, “including El Salvador.”

    Discretionary decision-making

    The general picture, however, is that more people are failing to win asylum than ever before because the Trump administration has changed how judges work.

    “The asylum decisions and denial data for fiscal year 2018 is really about discretionary relief that used to be available under [President Barack] Obama but is not available under [President Donald] Trump anymore,” Meade said.

    Prior to Trump-Sessions, immigration judges used to employ a form of discretionary relief called administrative closure. This was a form of temporary protection against deportation that did not grant any permanent immigration status, unlike asylum, which is a pathway to citizenship.

    “Immigration judges had people coming before them who had really compelling stories but those stories did not necessarily cleave close enough to the asylum standard to grant them asylum. But the judges really felt they did not want to return them to dangerous situations, either. They also felt they were people who were credible, who had told the truth, and so they were administratively closing their cases,” Meade said.

    The practice of administrative closure ended this year with a Sessions memorandum.

    “Administrative closure was a widespread practice and that is exactly what explains how the denial rate can go up so dramatically without the grant rate going down. Actually, the grant rate has gone up. In defense of the institutions, the modest increase in the grant rates suggest people have some really good asylum claims,” Meade said.

    The situation in El Paso

    Carlos Spector, a veteran El Paso immigration lawyer, said that although the asylum rate has increased nationwide, there is little evidence of successful asylum claims in El Paso’s immigration court.

    “This year, I have lost some asylum cases that had really compelling claims,” Spector said, adding that 98 percent of his clients are Mexican.

    Mexicans generally do not fare well in immigration court. In 2018, 14.5 percent of Mexican asylum seekers received asylum. Part of the reason is that immigration judges were administratively closing cases, protecting from deportation but stopping short of permanent relief.

    For 2018, the latest TRAC data reveal El Paso’s immigration judges reviewed 297 cases, granting asylum 47 times. In 2017, they reviewed 148 cases and granted asylum 12 times. These low asylum rates, some of the lowest in the nation, mean El Paso’s immigration judges have a reputation for enforcing law and order, Spector said.

    “I’ve been tracking asylum cases of Mexican nationals for the past few years and it is more or less the same rate along the border from San Diego to Brownsville,” Spector said.

    “Because we are on the border and these judges are political appointees and these judges do understand the government’s mandate of holding or guarding the border and they take that law enforcement approach,” Spector said, “the denials are much, much higher on the U.S.-Mexico border, and they always have been.”

    TRAC compiled asylum approval and denial statistics for fiscal year 2018, the first full year of Trump’s presidency, based on Freedom Of Information Act requests to the Justice Department’s Executive Office of Immigration Review, the agency charged with adjudicating defensive asylum claims in immigration court.

    Photoby Ariana Drehsler/UPI : Jose Hernández, 17, styles his hair at El Barretal shelter in Tijuana, Mexico, on Dec. 9, 2018.

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

    Just as I have been saying all along!  The Trump Administration’s claim that low asylum approval rates indicate the system is being “gamed” by applicants is a bogus cover up. Even taken at “face value,” a 20-25% chance of being granted asylum hardly shows a system being “gamed.” At most, it shows that Immigration Judges are applying a much more restrictive standard than Asylum Officers considering “credible fear” claims at the border. Far from being “gaming,” that would be consistent with (although not necessarily required by) an intentionally much more generous standard for getting a fair adjudication in a removal hearing (“passing credible fear”) than for actually achieving relief (“a favorable order from an Immigration Judge after a full merits hearing”).

    But, what really appears to be going on here are artificially restrictive, politically inspired “tweaks” to asylum law and procedures specifically intended to disadvantage those in danger from the Northern Triangle. Additionally, inappropriate detention policies are intended to force many more applicants to proceed without lawyers or to abandon appeals — making it like “shooting fish in a barrel” for those Immigration Judges with a predilection to deny relief who are under great pressure to “produce” more final orders of removal. It also appears that a disturbing number of Immigration Judges along the Southern Border view themselves as agents of DHS and Administration enforcement policies, rather than as fair and impartial decision makers committed to giving asylum seekers the “benefit of the doubt” under the law.

    This all adds up to what appears to me to be a significant “cover up” of politicized wrong-doing and a mass denial of Due Process orchestrated by the Administration through the Department of Justice.

    Why are the Administration, DHS, and DOJ so afraid of giving asylum applicants fair access to lawyers, time to prepare and document their cases, and timely fair hearings before impartial quasi-judicial adjudicators whose  sole focus is getting the right substantive result, rather than achieving some type of assembly line enforcement-related “production quotas?”

    Why waste time on “gimmicks” — most of which eventually prove to be illegal, ineffective, or both — rather than  concentrating on getting to the merits of these cases in a timely manner and “letting the chips fall where they may.”

    Surely, among a largely artificially created 1.1 million case “backlog” there are hundreds of thousands of cases that could be “administratively closed” as an exercise of prosecutorial discretion to allow more recently arrived cases to be timely heard without increasing backlogs or creating further wasteful “Aimless Docket Reshuffling.”

    Eventually, the “mask will be ripped off” what’s really happening in  our U.S. Immigration Court system. When that happens, the results could be ugly and damaging to the reputations of those orchestrating and enabling what certainly appears to be a disgraceful and intentional miscarriage of justice!

    PWS

    12011-18

    “Bottomless Pinocchios” — A Catalog Of The Liar-in-Chief’s Most Repeated Lies — Not Surprisingly, A Number Of Them Involve Immigration!

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    https://www.washingtonpost.com/classic-apps/the-false-claims-that-trump-keeps-repeating/2018/12/09/c2859d36-fc0c-11e8-862a-b6a6f3ce8199_story.html

    Glenn Kessler and Joe Fox report for the Washington Post:

    The Fact Checker has evaluated false statements President Trump has made repeatedly and analyzed how often he reiterates them. The claims included here – which we’re calling “Bottomless Pinocchios” – are limited to ones that he has repeated 20 times and were rated as Three or Four Pinocchios by the Fact Checker.

    The Trump tax cut was the biggest in history

    Trump repeated some version of this claim 123 times

    Even before President Trump’s tax cut was crafted, he promised it would be the biggest in U.S. history – bigger than Ronald Reagan’s 1981 tax cut. Reagan’s tax cut amounted to 2.9 percent of the gross domestic product and none of the proposals under consideration came close to that level. Yet Trump persisted in this fiction even when the tax cut was eventually crafted to be the equivalent of 0.9 percent of GDP, making it the eighth largest tax cut in 100 years. This continues to be an all-purpose applause line in the president’s rallies. Read more

    No, President Trump’s tax cut isn’t the ‘largest ever’

    Overstating the size of U.S. trade deficits

    Trump repeated some version of this claim 117 times

    President Trump frequently overstates the size of trade deficits. But he tips into Four-Pinocchio territory with his repeated use of the word “lost” to describe a trade deficit. (Alternatively, he sometimes says China “made” or “took out” $500 billion.) Countries do not “lose” money on trade deficits. A trade deficit simply means that people in one country are buying more goods from another country than people in the second country are buying from the first country. Trade deficits are also affected by macroeconomic factors, such as currencies, economic growth, and savings and investment rates. Read more

    Fact-checking Trump’s tough trade talk

    The U.S. economy has never been stronger

    Trump repeated some version of this claim 99 times

    In June 2018, the president hit upon a new label for the U.S. economy: It was the greatest, the best or the strongest in U.S. history. The president can certainly brag about the state of the economy, but he runs into trouble when he repeatedly makes a play for the history books. By just about any important measure, the economy today is not doing as well as it did under Presidents Dwight D. Eisenhower, Lyndon B. Johnson or Bill Clinton — or Ulysses S. Grant. Read more

    Is this the ‘best economy ever’?

    Inflating our NATO spending

    Trump repeated some version of this claim 87 times

    During the presidential election, Trump consistently inflated the U.S. contribution to the North Atlantic Treaty Organization. Once he became president, his inaccuracy has persisted, but with a twist. He often claims that “billions and billions” of dollars have come into NATO because of his complaints. All that is happening is that members have increased defense spending as a share of their economies — a process that was started before Trump even announced his candidacy. Read more

    President Trump’s ongoing misunderstanding of NATO funding

    The U.S. has started building the wall

    Trump repeated some version of this claim 86 times

    President Trump has sought $25 billion to fund his long-promised wall along the southern border. But Congress has not given it to him. There was nearly $1.6 billion included in the appropriations bill he signed early in 2018 for border protection, but the legislative language was specific: None of the funds could be used for Trump’s border wall prototypes. Instead the money was restricted to fencing, and it was generally used for replacement fencing. He also frequently overstates the amount of money he has obtained for the nonexistent wall. Read more

    Has construction of Trump’s border wall started?

    The U.S. has the loosest immigration laws in the world — thanks to Democrats

    Trump repeated some version of this claim 52 times

    Trump repeatedly claims that the United States has the loosest immigration laws, but that’s simply not true. In fact, the United States has among the world’s most restrictive laws, placing it 25th among developing nations in welcoming immigrants, according to data from the Organization for Economic Cooperation and Development. The president frequently blames Democrats for the current legal system but that’s wrong, too — much of current immigration policy was decided either under a Republican president or through court cases. Read more

    Is there a law that requires families to be separated at the border?

    Democrats colluded with Russia during the campaign

    Trump repeated some version of this claim 42 times

    Throughout the special counsel’s investigation of possible ties between the Trump campaign and Russia, Trump has sought to deflect attention by asserting that the Democrats colluded with Russia. But he has little evidence to make his case, which largely rests on the fact that the firm hired by Democrats to examine Trump’s Russia ties at the same time was working to defend a Russian company in U.S. court. In fact, U.S. intelligence agencies found that Russian entities hacked Democratic leaders’ email during the campaign. Read more

    Did Hillary Clinton collude with the Russians to get ‘dirt’ on Trump to feed it to the FBI?

    The border wall will stop drug trafficking

    Trump repeated some version of this claim 40 times

    In demanding a wall on the southern border, Trump has asserted that it would stop the flow of drugs. But the Drug Enforcement Administration says that most illicit drugs enter the United States through legal ports of entry. Traffickers conceal the drugs in hidden compartments within passenger cars or hide them alongside other legal cargo in tractor-trailers and drive the illicit substances right into the United States. Meanwhile, fentanyl, a deadly synthetic opioid, can be easily ordered online, even directly from China. Read more

    Will a border wall stop drugs from ‘pouring in?’

    U.S. Steel is building many new plants

    Trump repeated some version of this claim 37 times

    This is one of Trump’s strangest claims. Since he imposed tariffs on steel, the president has repeatedly claimed that U.S. Steel was building new steel plants. Depending on his mood, the number has ranged from six to nine plants. But U.S. Steel made no such announcement. It merely stated that it would restart two blast furnaces at the company’s Granite City Works integrated plant in Illinois — one in March and the other in October, for a total of 800 jobs. The company in August also said it would upgrade a plant in Gary, Ind., but without creating any new jobs. Read more

    The U.S. has spent $6 trillion (or more) on Middle East wars

    Trump repeated some version of this claim 36 times

    Trump started making a version of this claim shortly after taking office, first claiming $6 trillion but then quickly elevating it to $7 trillion. Trump acts as if the money has been spent, but he is referring to a study that included estimates of future obligations through 2056 for veterans’ care. The study combines data for both George W. Bush’s war in Iraq (2003) and the war in Afghanistan (2001), which is in Central/South Asia, not the Middle East. The cost of the combined wars will probably surpass $7 trillion by 2056, when interest on the debt is considered, almost four decades from now. Read more

    Has the U.S. spent $7 trillion in the Middle East?

    Thousands of MS-13 members have been removed from the country

    Trump repeated some version of this claim 33 times

    Within six months of becoming president, the president began claiming that his administration had deported thousands of members of the violent MS-13 gang. There had been a crackdown, but the count is in the hundreds. Then, he expanded the claim to say thousands had been deported or imprisoned. But there is nothing that supports these claims. For most of the country, MS-13 is not a threat; the estimated 10,000 members are concentrated in a few Hispanic communities, primarily around Long Island, Los Angeles and the Washington area. Read more

    McCain’s vote was the only thing that blocked repeal of the Affordable Care Act

    Trump repeated some version of this claim 30 times

    Sen. John McCain (R-Ariz.) dramatically refused to advance in the Senate a limited repeal of the Affordable Care Act, but Trump has repeatedly used that vote as his all-purpose excuse for the failure to eliminate the health-care law. This oversimplifies the precarious state of Obamacare repeal at the time. The Senate version of full repeal had failed, with nine “no” votes from Republicans. Even if McCain had supported the “skinny” repeal, lawmakers still would have had to negotiate a compromise agreement and passage was not assured. Read more

    Robert S. Mueller III is biased because of conflicts of interest

    Trump repeated some version of this claim 30 times

    Trump has often misleadingly claimed the “witch hunt” is tainted because of conflicts of interest, such as an unverified (and denied) dispute over golf fees when Mueller was a member of a Trump golf club. Eleven out of 16 attorneys on Mueller’s team have contributed to Democrats, including Clinton and Obama; 13 are registered Democrats. Under federal law, Mueller is not allowed to consider the political leanings of his staff when hiring them, but he took action against a former team member when texts expressing anti-Trump sentiments were discovered. Read more

    Fact Check: Do the political preferences of Mueller’s team risk its independence?

    Inflating gains from a 2017 trip to Saudi Arabia

    Trump repeated some version of this claim 23 times

    Trump has repeatedly inflated the gains from his 2017 trip to Saudi Arabia, upping the amount from $350 billion to $450 billion when he came under fire for defending crown prince Mohammed bin Salman. According to the CIA, Mohammed ordered the killing of Washington Post contributing columnist Jamal Khashoggi. The administration, with double-counting, could only document $270 billion in tentative agreements. Separately, Trump inflated the jobs said to be created from the purported investments. Many are in Saudi Arabia, indicating few jobs would be created for Americans. Read more

    Fact Check: The Trump administration’s tally of $350 billion-plus in deals with Saudi Arabia

    About this story

    Source: Washington Post reporting. Reporting by Glenn Kessler, Meg Kelly, Salvador Rizzo, Michelle Ye Hee Leeand Nicole Lewis. Meg Kelly also contributed to this story.

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    More bogus border narratives are unfolding as I’m writing this. Disingenuous CBP officials are manipulating data to tell the Senate that the border is out of control.

    What is really happening is that kids and other asylum seekers are basically turning themselves in to be processed and get the hearings to which they are entitled.  Why? Because the Trump Administration has purposely slowed down the process at legal Ports of Entry.

    Clearly, instead of wasting money on troops and unneeded detention, the Administration should be sending Asylum Officers to the border to complete the screening. Once screened, those with “credible fear” can be matched with lawyers. Represented asylum applicants show up for hearings nearly 100% of the time, thus making prolonged detention unnecessary.

    Also, since it now appears that the bulk of the “artificial backlog” in Immigration Court actually was “illegally commenced” though defective notices, those cases could simply be removed from the docket. That would free up U.S. Immmigration Judges to hear asylum cases within a reasonable (6-18 month) time frame.

    Where there is a will, there’s a way. Additionally, as I often point out, doing things the right, legal way would likely cost far less than the “publicity stunts” now being conducted by the Administration at the border. But, doing the right thing and making the laws work just isn’t something that Trump and his minions are interested in, as the “Bottomless Pinocchios” related above show!

    PWS

    12-11-18

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    WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success

    WINNING ASYLUM

    WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success*

    By Paul Wickham Schmidt

    United States Immigration Judge (Retired)

    NEW YORK CITY BAR

    DECEMBER 4, 2018

     

    Good evening, and thanks so much for inviting me.  In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the Bar Association, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks tonight.  They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!

    “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.” “Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”

     

    Those, my friends, are obviously not my words. They are the words of former Attorney General Jeff Sessions. Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual was in charge of our U.S. Immigration Court system which helps explains why it is such a total mess today. And Acting Attorney General Whitaker’s certification of two cases yesterday promises a continuation of improper political interference with the Immigration Courts in derogation of Due Process.

     

    One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence. Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually worked and provided a way of consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world.

     

    Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”

     

    I’m going to give you seven very basic tips for overcoming Matter of A-B-.  I’m sure that my colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.

     

    First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta. On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”

     

    Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.

     

    Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.  

     

    Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG.  It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.

     

    And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.

     

    Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. In many cases, claiming political or religious persecution will be a stronger alternative ground than PSG.

     

    Fifth, develop your record.  The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.

     

    Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.

     

    Seventh, and finally, appeal to the “real” Article III Courts. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.

     

    Either the Article III’s do their jobs, step in, and put an end to this travesty, or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate heroes” and those public officials who supported racism and “Jim Crow.”

     

    Now is the time to take a stand for fundamental fairness and decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever!

     

     

    *This is not a “verbatim transcript” of what I said. Rather it is a compendium and extension of the “talking notes” that I used as a member of the panel.