"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Folks, as we take a few minutes today to remember Dr. King, his vision for a better America, and his inspiring “I Have A Dream Speech,” we have to face the fact that everything Dr. King stood for is under a vicious and concerted attack, the likes of which we haven’t seen in America for approximately 50 years, by individuals elected to govern by a minority of voters in our country.
So, today, I’m offering you a “potpourri” of how and why Dr.King’s Dream has “gone south,” so to speak, and how those of us who care about social justice and due process in America can nevertheless resurrect it and move forward together for a greater and more tolerant American that celebrates the talents, contributions, and humanity of all who live here!.
On Martin Luther King’s birthday, a look back at some disquieting events in race relations in 2017.
Nearly 50 years ago, the Rev. Martin Luther King Jr. went to the mountaintop and looked out over the promised land. In a powerful and prophetic speech on April 3, 1968, he told a crowd at the Mason Temple in Memphis that while there would certainly be difficult days ahead, he had no doubt that the struggle for racial justice would be successful.
“I may not get there with you,” he said. “But I want you to know tonight, that we, as a people, will get to the promised land. And so I am happy tonight. I’m not worried about anything.”
The following day, he was assassinated.
The intervening years have been full of steps forward and steps backward, of extraordinary changes as well as awful reminders of what has not changed. What would King have made of our first black president? What would he have thought had he seen neo-Nazis marching through the streets of Charlottesville, Va., so many years after his death? How would he have viewed the shooting by police of unarmed black men in cities around the country — or the rise of the Black Lives Matter movement? He would surely have heard the assertions that we have become a “post-racial” society because we elected (and reelected) Barack Obama. But would he have believed it?
This past year was not terribly heartening on the civil rights front. It was appalling enough that racist white nationalists marched in Charlottesville in August. But it was even more shocking that President Trump seemed incapable of making the most basic moral judgment about that march; instead, he said that there were some “very fine people” at the rally of neo-Nazis and white supremacists.
Racial injustices that bedeviled the country in King’s day — voter suppression, segregated schools, hate crimes — have not gone away. A report released last week by the U.S. Commission on Civil Rights on inequities in the funding of public schools concludes — and this should surprise no one — that students of color living in poor, segregated neighborhoods are often relegated to low-quality schools simply due to where they live. States continued in 2017 to pass laws that make it harder, rather than easier, for people of color to vote.
The Trump administration also seems determined to undo two decades of Justice Department civil rights work, cutting back on investigations into the excessive use of force and racial bias by police departments. Atty. Gen. Jeff Sessions in March ordered a review of all existing federal consent decrees with local police departments with the possibility of dismantling them — a move that could set back police reform by many years.
Here in Los Angeles County, this statistic is telling: 40% of the estimated 57,000 homeless people — the most desperate and destitute residents of the county — are black. Yet black residents make up only 9% of the L.A. County population.
But despite bad news on several fronts, what have been heartening over the last year are the objections raised by so many people across the country.
Consider the statues of Confederate generals and slave owners that were brought down across the country. Schools and other institutions rebranded buildings that were formerly named after racists.
The Black Lives Matter movement has grown from a small street and cyber-protest group into a more potent civil rights organization focusing on changing institutions that have traditionally marginalized black people.
When football quarterback Colin Kaepernick took a knee during the national anthem to protest, as he said, a country that oppresses black people, he was denounced by many (including Trump) but emulated by others. Kaepernick has been effectively banished from professional football but he started a movement.
Roy Moore was defeated for a Senate seat in Alabama by a surge of black voters, particularly black women. (But no sooner did he lose than Joe Arpaio — the disgraced, vehemently anti-immigrant former Arizona sheriff — announced that he is running for Senate there.)
So on what would have been King’s 89th birthday, it is clear that the United States is not yet the promised land he envisioned in the last great speech of his life. But we agree with him that it’s still possible to get there.”
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See this short HuffPost video on “Why MLK’s Message Still Matters Today!”
Read about how the Arizona GOP has resurrected, and in some instances actually welcomed, “Racist Joe” Arpaio, an unapologetic anti-Hispanic bigot and convicted scofflaw. “Racist Joe” was pardoned by Trump and is now running for the GOP nomination to replace retiring Arizona GOP Senator Jeff Flake, who often has been a critic of Trump. One thing “Racist Joe’s” candidacy is doing is energizing the Latino community that successfully fought to remove him from the office of Sheriff and to have him brought to justice for his racist policies.
Spared from the threat of deportation by the Obama-era Deferred Action for Childhood Arrivals program, she campaigned to oust Joe Arpaio when he unsuccessfully ran for reelection as Maricopa County sheriff in 2016. She knocked on hundreds of doors in south Phoenix’s predominantly Latino neighborhoods to register voters. She made phone calls, walked on college campuses. Her message was direct, like the name of the group she worked with, Bazta Arpaio, a take on the Spanish word basta — enough Arpaio.
But now, the 85-year-old former sheriff is back and running for Senate. Sanchez, who had planned to step away from politics to focus on her studies at Grand Canyon University, is back as well, organizing once more.
“If he thinks he can come back and terrorize the entire state like he did Maricopa County, it’s not going to happen,” Sanchez, 20, said. “I’m not going to let it happen.”
Arpaio enters a crowded Republican primary and may not emerge as the party’s nominee, but his bid has already galvanized Arizona’s Latino electorate — one of the country’s largest and fastest-growing voter blocs.
Organizers like Sanchez, who thought they might sit out the midterm elections, rushed back into offices and started making calls. Social media groups that had gone dormant have resurrected with posts reminding voters that Arpaio was criminally convicted of violating a federal court order to stop racially profiling Latinos.
“We’ve been hearing, ‘Is it true Arpaio is back? OK, what can we do to help?’” said Montserrat Arredondo, director of One Arizona, a Phoenix nonprofit group focused on increasing Latino voter turnout. “People were living in terror when Arpaio was in office. They haven’t forgotten.”
In 2008, 796,000 Latinos were eligible to vote in the state, according to One Arizona. By 2016, that potential voting pool jumped to 1.1 million. (California tops the nation with the most Latinos eligible to vote, almost 6.9 million.)
In 2016, Latinos accounted for almost 20% of all registered voters in Arizona. Latinos make up about 30% of Arizona’s population.
. . . .
Last year, President Trump pardoned Arpaio of a criminal conviction for violating a federal court order to stop racially profiling Latinos. When announcing his candidacy Tuesday, Arpaio pledged his full support to the president and his policies.
On Saturday, Arpaio made his first public appearance since announcing his candidacy, attending a gathering of Maricopa County Republicans. He was unmoved when asked about the enthusiasm his candidacy has created among Latinos.
“Many of them hate me for enforcing the law,” he said. “I can’t change that. … All I know is that I have my supporters, they’re going to support who they want. I’m in this to win it though.”
Arpaio, gripping about a dozen red cardboard signs that read “We need Sheriff Joe Arpaio in DC,” walked through the crowd where he mingled with, among others, former state Sen. Kelli Ward and U.S. Rep. Martha McSally, who also are seeking the GOP Senate nomination. Overall, Arpaio was widely met with enthusiasm from attendees.
“So glad you’re back,” said a man wearing a “Vietnam Veteran” hat.
“It’s great to be back,” Arpaio replied.
Arpaio, who handed out business cards touting his once self-proclaimed status as “America’s toughest sheriff,” said he had no regrets from his more than two decades in office.
“Not a single one,” he said. “I spoke my mind and did what needed to be done and would do it the same in a minute.”
In an interview, Arpaio, who still insists he has “evidence” that former President Obama’s birth certificate is forged, a rumor repeatedly shown to be false, did not lay out specific policy platforms, only insisting he’ll get things done in Washington.
During his tenure as sheriff, repeated court rulings against his office for civil rights violations cost local taxpayers tens of millions of dollars.”
Read the complete story at the link.
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Professor George Yancy of Emory University writing in the NY Times asks “Will America Choose King’s Dream Or Trump’s Nightmare?”
“Let’s come clean: President Trump is a white racist! Over the past few days, many have written, spoken and shouted this fact, but it needs repeating: President Trump is a white racist! Why repeat it? Because many have been under the grand illusion that America is a “post-racial” nation, a beautiful melting pot where racism is only sporadic, infrequent and expressed by those on the margins of an otherwise mainstream and “decent” America. That’s a lie; a blatant one at that. We must face a very horrible truth. And America is so cowardly when it comes to facing awful truths about itself.
So, as we celebrate the Rev. Dr. Martin Luther King Jr.’s birthday, we must face the fact that we are at a moral crossroad. Will America courageously live out Dr. King’s dream or will it go down the road of bigotry and racist vitriol, preferring to live out Mr. Trump’s nightmare instead? In his autobiography, reflecting on the nonviolent uprising of the people of India, Dr. King wrote, “The way of acquiesce leads to moral and spiritual suicide.” Those of us who defiantly desire to live, and to live out Dr. King’s dream, to make it a reality, must not acquiesce now, precisely when his direst prophetic warning faces us head on.
On the night before he was murdered by a white man on the balcony of his room at the Lorraine Motel in Memphis, Tenn., Dr. King wrote: “America is going to hell if we don’t use her vast resources to end poverty and make it possible for all of God’s children to have the basic necessities of life.” Our current president, full of hatred and contempt for those children, is the terrifying embodiment of this prophecy.
We desperately need each other at this moment of moral crisis and malicious racist divisiveness. Will we raise our collective voices against Mr. Trump’s white racism and those who make excuses for it or submit and thereby self-destructively kill any chance of fully becoming our better selves? Dr. King also warned us that “there comes a time when silence is betrayal.” To honor Dr. King, we must not remain silent, we must not betray his legacy.
So many Americans suffer from the obsessive need to claim “innocence,” that is, to lie to ourselves. Yet such a lie is part of our moral undoing. While many will deny, continue to lie and claim our national “innocence,” I come bearing deeply troubling, but not surprising, news: White racism is now comfortably located within the Oval Office, right there at 1600 Pennsylvania Avenue, embodied in our 45th president, one who is, and I think many would agree, must agree, without any hesitation, a white racist. There are many who will resist this characterization, but Mr. Trump has desecrated the symbolic aspirations of America, exhumed forms of white supremacist discourse that so many would assume is spewed only by Ku Klux Klan.”
Read the rest of Professor Yancy’s op-ed at the link.
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From lead columnist David Leonhardt and Ian Prasad Philbrick at the NY Times we get “Donald Trump’s Racism: The Definitive List.”
Donald Trump has been obsessed with race for the entire time he has been a public figure. He had a history of making racist comments as a New York real-estate developer in the 1970s and ‘80s. More recently, his political rise was built on promulgating the lie that the nation’s first black president was born in Kenya. He then launched his campaign with a speech describing Mexicans as rapists.
The media often falls back on euphemisms when describing Trump’s comments about race: racially loaded, racially charged, racially tinged, racially sensitive. And Trump himself has claimed that he is “the least racist person.” But here’s the truth: Donald Trump is a racist. He talks about and treats people differently based on their race. He has done so for years, and he is still doing so.
Here, we have attempted to compile a definitive list of his racist comments – or at least the publicly known ones.
The New York Years
Trump’s real-estate company tried to avoid renting apartments to African-Americans in the 1970s and gave preferential treatment to whites, according to the federal government.
Trump treated black employees at his casinos differently from whites, according to multiple sources. A former hotel executive said Trump criticized a black accountant: “Black guys counting my money! I hate it. … I think that the guy is lazy. And it’s probably not his fault, because laziness is a trait in blacks.”
In 1989, Trump took out ads in New York newspapers urging the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park; he argued they were guilty as late as October 2016, more than 10 years after DNA evidence had exonerated them.
In 1989, on NBC, Trump said: “I think sometimes a black may think they don’t have an advantage or this and that. I’ve said on one occasion, even about myself, if I were starting off today, I would love to be a well-educated black, because I really believe they do have an actual advantage.”
He uses the gang MS-13 to disparage all immigrants. Among many other statements, he has suggested that Obama’s protection of the Dreamers — otherwise law-abiding immigrants who were brought to the United States illegally as children — contributed to the spread of MS-13.
In December 2015, Trump called for a “a total and complete shutdown of Muslims entering the United States,” including refusing to readmit Muslim-American citizens who were outside of the country at the time.
In June 2017, Trump said 15,000 recent immigrants from Haiti “all have AIDS” and that 40,000 Nigerians, once seeing the United States, would never “go back to their huts” in Africa.
At the White House on Jan. 11, Trump vulgarly called forless immigration from Haiti and Africa and more from Norway.”
The disgusting list goes on and on. Go to the link to get it all!
“I find nothing more useless than debating the existence of racism, particularly when you are surrounded by evidence of its existence. It feels to me like a way to keep you fighting against the water until you drown.
The debates themselves, I believe, render a simple concept impossibly complex, making the very meaning of “racism” frustratingly murky.
So, let’s strip that away here. Let’s be honest and forthright.
Racism is simply the belief that race is an inherent and determining factor in a person’s or a people’s character and capabilities, rendering some inferior and others superior. These beliefs are racial prejudices.
The history of America is one in which white people used racism and white supremacy to develop a racial caste system that advantaged them and disadvantaged others.
Understanding this, it is not a stretch to understand that Donald Trump’s words and deeds over the course of his life have demonstrated a pattern of expressing racial prejudices that demean people who are black and brown and that play to the racial hostilities of other white people.
It is not a stretch to say that Trump is racist. It’s not a stretch to say that he is a white supremacist. It’s not a stretch to say that Trump is a bigot.
Those are just facts, supported by the proof of the words that keep coming directly from him. And, when he is called out for his racism, his response is never to ameliorate his rhetoric, but to double down on it.
I know of no point during his entire life where he has apologized for, repented of, or sought absolution for any of his racist actions or comments.
Instead, he either denies, deflects or amps up the attack.
Trump is a racist. We can put that baby to bed.
“Racism” and “racist” are simply words that have definitions, and Trump comfortably and unambiguously meets those definitions.
We have unfortunately moved away from the simple definition of racism, to the point where the only people to whom the appellation can be safely applied are the vocal, violent racial archetypes.
Racism doesn’t require hatred, constant expression, or even conscious awareness. We want racism to be fringe rather than foundational. But, wishing isn’t an effective method of eradication.
We have to face this thing, stare it down and fight it back.
The simple acknowledgment that Trump is a racist is the easy part. The harder, more substantive part is this: What are we going to do about it?
First and foremost, although Trump is not the first president to be a racist, we must make him the last. If by some miracle he should serve out his first term, he mustn’t be allowed a second. Voters of good conscience must swarm the polls in 2020.
But before that, those voters must do so later this year, to rid the House and the Senate of as many of Trump’s defenders, apologists and accomplices as possible. Should the time come where impeachment is inevitable, there must be enough votes in the House and Senate to ensure it.
We have to stop thinking that we can somehow separate what racists believe from how they will behave. We must stop believing that any of Trump’s actions are clear of the venom coursing through his convictions. Everything he does is an articulation of who he is and what he believes. Therefore, all policies he supports, positions he takes and appointments he makes are suspect.
And finally, we have to stop giving a pass to the people — whether elected official or average voter — who support and defend his racism. If you defend racism you are part of the racism. It doesn’t matter how much you say that you’re an egalitarian, how much you say that you are race blind, how much you say that you are only interested in people’s policies and not their racist polemics.
As the brilliant James Baldwin once put it: “I can’t believe what you say, because I see what you do.” When I see that in poll after poll a portion of Trump’s base continues to support his behavior, including on race, I can only conclude that there is no real daylight between Trump and his base. They are part of his racism.
When I see the extraordinary hypocrisy of elected officials who either remain silent in the wake of Trump’s continued racist outbursts or who obliquely condemn him, only to in short order return to defending and praising him and supporting his agenda, I see that there is no real daylight between Trump and them either. They too are part of his racism.
When you see it this way, you understand the enormity and the profundity of what we are facing. There were enough Americans who were willing to accept Trump’s racism to elect him. There are enough people in Washington willing to accept Trump’s racism to defend him. Not only is Trump racist, the entire architecture of his support is suffused with that racism. Racism is a fundamental component of the Trump presidency.
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Back over at the Washington Post, op-ed writer E.J. Dionne, Jr., tells us the depressing news that “We could be a much better country. Trump makes it impossible.”
Dionne concludes his piece with the following observations about our current “Dreamer” debate:
“Our current debate is frustrating, and not only because Trump doesn’t understand what “mutual toleration” and “forbearance” even mean. By persistently making himself, his personality, his needs, his prejudices and his stability the central topics of our political conversation, Trump is blocking the public conversation we ought to be having about how to move forward.
And while Trump’s enablers in the Republican Party will do all they can to avoid the issue, there should now be no doubt (even if this was clear long ago) that we have a blatant racist as our president. His reference to immigrants from “sh–hole countries” and his expressed preference for Norwegians over Haitians, Salvadorans and new arrivals from Africa make this abundantly clear. Racist leaders do not help us reach mutual toleration. His semi-denial 15 hours after his comment was first reported lacked credibility, especially because he called around first to see how his original words would play with his base.
But notice also what Trump’s outburst did to our capacity to govern ourselves and make progress. Democrats and Republicans sympathetic to the plight of the “dreamers” worked out an immigration compromise designed carefully to give Trump what he had said he needed.
There were many concessions by Democrats on border security, “chain migration” based on family reunification, and the diversity visa lottery that Trump had criticized. GOP senators such as Lindsey O. Graham (S.C.) and Jeff Flake (Ariz.) bargained in good faith and were given ample reason by Trump to think they had hit his sweet spot.
Trump blew them away with a torrent of bigotry. In the process, he shifted the onus for avoiding a government shutdown squarely on his own shoulders and those of Republican leaders who were shamefully slow in condemning the president’s racism.
There are so many issues both more important and more interesting than the psyche of a deeply damaged man. We are capable of being a far better nation. But we need leaders who call us to our obligations to each other as free citizens. Instead, we have a president who knows only how to foster division and hatred.”
Read the rest of the op-ed at the link.
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Our “Liar-in-Chief:” This short video from CNN, featuring the Washington Post’s “Chief Fact Checker” Glenn Kessler deals with the amazing 2000+ false or misleading claims that Trump has made even before the first anniversary of his Presidency: “Trump averages 5-6 false claims a day.”
Also on video, even immigration restrictionists sometimes wax eloquent about the exceptional generosity of U.S. immigration and refugee laws (even as they engage in an unending battle to undermine that claimed generosity). But, the reality, as set forth in this short HuffPost video is that on a regular basis our Government knowingly and intentionally returns individuals, mostly Hispanics, to countries where they are likely to be harmed or killed because we are unable to fit them within often hyper-technical and overly restrictive readings of various protection laws or because we are unwilling to exercise humanitarian discretion to save them..
I know first-hand because in my former position as a U.S. Immigration Judge, I sometimes had to tell individuals (and their families) in person that I had to order them returned to a country where I had concluded that they would likely be severely harmed or killed because I could not fit them into any of the categories of protection available under U.S. law. I daresay that very few of the restrictionists who glory in the idea of even harsher and more restrictive immigration laws have had this experience.
And clearly, Donald Trump, Jeff Sessions, Steven Miller, Bob Goodlatte and others in the GOP would like to increase the number of humans we return to harm or death by stripping defenseless juveniles and other vulnerable asylum seekers of some of the limited rights they now possess in the false name of “border security.” Indeed, Sessions even invented a false narrative of a fraud-ridden, “attorney-gamed” (how do folks who often don’t even have a chance to get an attorney use attorneys to “game” the system?) asylum system in an attempt to justify his totally indefensible and morally bankrupt position.
Check out this video from HuffPost, entitled “This Is The Violent And Tragic Reality Of Deportation” to see the shocking truth about how our removal system really works (or not)!
Thinking of MLK’S “I have a dream,” next, I’ll take you over to The Guardian, where Washington Correspondent Sabrina Siddiqui tells us how “Immigration policy progress and setbacks have become pattern for Dreamers.”
“Greisa Martínez Rosas has seen it before: a rare bipartisan breakthrough on immigration policy, offering a glimmer of hope to advocates like herself. Then a swift unraveling.
Martínez is a Dreamer, one of about 700,000 young undocumented migrants, brought to the US as children, who secured temporary protections through Barack Obama’s Deferred Action for Childhood Arrivals policy, or Daca.
She considers herself “one of the lucky ones”. Last year, she was able to renew her legal status until 2020, even as Donald Trump threw the Dreamers into limbo by rescinding Daca and declaring a deadline of 5 March for Congress to act to replace it.
Martínez is an activist with United We Dream, the largest youth-led immigration advocacy group in the US. She has fought on the front lines.
In 2010 and 2013, she saw efforts for immigration reform, and a pathway to citizenship for Dreamers, culminate in disappointment. She rode a familiar rollercoaster this week, as a bipartisan Daca fix was undermined by Trump’s reported – if contested – reference to African and Central American nations as “shithole countries”.
“It feels like a sequel,” Martínez told the Guardian, adding that Trump’s adversarial views underscored the need to hash out a deal. “This same man is responsible for running a Department of Homeland Security that seeks to hunt and deport people of color.”
Negotiations over immigration have always been precarious. Trump has complicated the picture. After launching his candidacy for president with a speech that called Mexican migrants “rapists” and “killers”, Trump campaigned on deporting nearly 11 million undocumented migrants and building a wall on the Mexico border.
He has, however, shown a more flexible attitude towards Dreamers – despite his move to end their protective status. Last Tuesday, the president sat in the White House, flanked by members of both parties. In a 45-minute negotiating session, televised for full effect, Trump ignited fury among his hardcore supporters by signaling he was open to protection for Dreamers in exchange for modest border security measures.
Then, less than 48 hours later, Trump’s reported comments about countries like Haiti and El Salvador prompted a fierce backlash.
“People are picking their jaws up from the table and they’re trying to recover from feelings of deep hurt and anger,” said Frank Sharry, founder and executive director of America’s Voice, a group which advocates for immigration reform.
“We always knew we were climbing a mountain … but it’s improbable to imagine a positive breakthrough for immigrants with the most nativist president in modern America in charge.”
As the uproar continued, it was nearly forgotten that on Thursday, hours before Trump’s remarks became public, a group of senators announced a bipartisan deal.
Under it, hundreds of thousands of Dreamers would be able to gain provisional legal status and eventually apply for green cards. They would not be able to sponsor their parents for citizenship – an effort to appease Trump’s stance against so-called “chain migration” – but parents would be able to obtain a form of renewable legal status.
There would be other concessions to earn Trump’s signature, such as $2bn for border security including physical barriers, if not by definition a wall.
The compromise would also do away with the diversity visa lottery and reallocate those visas to migrants from underrepresented countries and those who stand to lose Temporary Protected Status. That would help those affected by the Trump administration’s recent decision to terminate such status for some nationals of El Salvador, effectively forcing nearly 200,000 out of the country.
The bill would be far less comprehensive than the one put forward in 2013, when a bipartisan group of senators known as the “Gang of Eight” proposed a bill that would have given nearly 11 million undocumented migrants a path to citizenship.
The bill passed the Senate with rare bipartisan support. In the Republican-led House it never received a vote.
Proponents of reform now believe momentum has shifted in their favor, despite Trump’s ascent. The Arizona senator Jeff Flake, part of the 2013 effort and also in the reform group today, said there was a clear deadline of 5 March to help Dreamers.
“I do think there is a broader consensus to do this than we had before,” Flake told the Guardian. “We’re going have 700,000 kids subject to deportation. That’s the biggest difference.”
Read the rest of the story at the link.
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Finally, John Blake at CNN tells us “Three ways [you might not know] MLK speaks to our time.”
That’s a famous line from the 19th century philosopher Ralph Waldo Emerson, but it could also apply to a modern American hero: the Rev. Martin Luther King Jr.
As the nation celebrates King’s national holiday Monday, it’s easy to freeze-frame him as the benevolent dreamer carved in stone on the Washington Mall. Yet the platitudes that frame many King holiday events often fail to mention the most radical aspects of his legacy, says Jeanne Theoharis, a political science professor at Brooklyn College and author of several books on the civil rights movement.
“We turn him into a Thanksgiving parade float, he’s jolly, larger than life and he makes us feel good,” Theoharis says. “We’ve turned him into a mascot.”
Many people vaguely know that King opposed the Vietnam War and talked more about poverty in his later years. But King also had a lot to say about issues not normally associated with civil rights that still resonate today, historians and activists say.
If you’re concerned about inequality, health care, climate change or even the nastiness of our political disagreements, then King has plenty to say to you. To see that version of King, though, we have to dust off the cliches and look at him anew.
If you’re more familiar with your smartphone than your history, try this: Think of King not just as a civil rights hero, but also as an app — his legacy has to be updated to remain relevant.
Here are three ways we can update our MLK app to see how he spoke not only to his time, but to our time as well:
. . . .
But here’s one more uncomfortable thought that also explains why King remains so relevant:
The country is still divided by many of the same issues that consumed him.
On the last night of his life, King told a shouting congregation of black churchgoers that “we as a people” would get to “the Promised Land.” That kind of optimism, though, sounds like it belongs to another era.
What we have now is a leader in the White House who denies widespread reports that he complained about Latino and African immigrants coming to America from “shithole” countries; a white supremacist who murders worshippers in church; a social media landscape that pulsates with anger and accusations.
King’s Promised Land doesn’t sound boring when compared to today’s headlines. And maybe that’s what’s so sad about reliving his life every January for some people.
Fifty years after he died, King’s vision for America still sounds so far away.”
Read the complete article at the link.
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There you have it. A brief but representative sample of some of the many ways in which Dr. King’s dream of a “post racist America” is still relevant and why there’s still much more work still to be done than many of us might have thought several years ago.
So, the next time you hear bandied about terms like “merit-based” (means: exclude Brown and Black immigrants); “extreme vetting” (means: using bureaucracy to keep Muslims and other perceived “undesirables” out); “tax cuts” (means: handouts to the rich at the expense of the poor); “entitlement reform” (means: cutting benefits for the most vulnerable); “health care reform” (means: kicking the most needy out of the health care system); “voter fraud” (means: suppressing the Black, Hispanic, and Democratic vote); “rule of law” (means: perverting the role of Government agencies and the courts to harm Blacks, Hispanics, Gays, women, the poor, and other minorities); “job creation” (means: destroying our precious natural resources and the environment for the benefit of big corporations), “border security” (means: slashing rights for children and asylum seekers, and more money for building a wall and expanding prisons for non-criminal migrants, a/k/a/ “The New American Gulag”), “ending chain migration” (means keeping non-White and/or non-Christian immigrants from bringing family members) and other deceptively harmless sounding euphemisms, know what the politicos are really up to and consider them in the terms that Dr. King might have.
What’s really behind the rhetoric and how will it help create the type of more fair, just, equal, and value-driven society that majority of us in American seek to be part of and leave to succeeding generations. If it isn’t moving us as a nation toward those goals, “Just Say NO” as Dr. King would have done!
“As we approach the first anniversary of the Trump presidency, a clear pattern emerges.
A Muslim immigrant and her U.S.-born husband kill civilians. Candidate Donald Trump’s reaction was to propose a ban on all Muslim immigrants.
Some refugees commit crimes. His reaction is to bar all refugees for 120 days and drastically cut refugee admissions after that.
A diversity-visa immigrant commits a terrorist act. President Trump‘s reaction is to call for repealing the diversity immigrant program.
A man is admitted under the sibling preference. His accompanying child attempts a terrorist attack years later. President Trump’s reaction is that all “chain immigration” should be banned.
I wonder what his reaction will be if his “merit-based” program becomes law and a person admitted under that program commits a serious crime, perhaps years later. Would President Trump then call for the repeal of the entire “merit-based” program?
The absurdity of condemning an entire group because of the actions of a single member seems self-evident. If a left-handed immigrant commits a crime, no one would propose banning all left-handed immigrants. The real question is whether there is a causal link between the commission of the crime and either the substantive criteria or the processes of the particular program.
No such link exists. For one thing, everyone who seeks admission to the United States under any of these programs is rigorously vetted. I know this firsthand, from my experience as chief counsel of the federal agency that admits immigrants and refugees.
. . . .
Anti-immigrant groups are fond of pointing out that, if an individual who committed a crime had never been allowed to enter, the crime would not have occurred. And that is true. But that observation could be made about any admission program. No matter how strict the criteria or how rigorous the vetting, there is always some possibility, however remote, that a given individual will one day commit a crime. Short of banning all foreign nationals from ever setting foot on U.S. soil, there is no way to reduce the risk to zero.
As with any other policy decision, the risks have to be balanced against the benefits. And there are benefits in allowing U.S. citizens to reunite with their family members, benefits in attracting workers with needed skills, benefits in diversifying the immigrant stream, and benefits in fulfilling a moral responsibility to welcome our fair share of those who fear for their lives.
Let’s not throw out the baby with the bathwater.
Stephen Legomsky is an emeritus law professor at Washington University, the former chief counsel of the federal immigration services agency, and the principal author of “Immigration and Refugee Law and Policy,” which has been the required text for immigration courses at 185 law schools.”
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Go on over to The Hill at the link to read Steve’s complete article.
Thanks, Steve, for sending this my way and for these great and appropriate thoughts on MLK Day! It’s important for those of us who have spent a lifetime working in the field and have served the public in our Government to speak out against the various false narratives and perversions of programs that have served America well being pushed by the restrictionists who control this Administration’s immigration policies. Hate, fear, and loathing are not the answers that Dr. King was promoting!
“WASHINGTON ― President Donald Trump sent senators a lengthy set of demands on Friday that could tank a deal to help Dreamers ― young undocumented immigrants who came to the U.S. as children ― and might risk a government funding agreement in the process.
The document is essentially an immigration restrictionist wish list. It calls for a border wall, more immigration enforcement agents, punishment for so-called “sanctuary cities,” restrictions on citizens and legal residents sponsoring family members’ visas, and policies to make it easier to detain and deport undocumented immigrants. No dollar amounts were included in the list of demands, but The Wall Street Journal reported earlier Friday that Trump is seeking nearly $18 billion to pay for a border wall.
Democrats and immigrant rights activists have said they won’t accept the White House’s demands in a deal to grant legal status to Dreamers, hundreds of thousands of whom are at risk of losing deportation protections because Trump ended the Deferred Action for Childhood Arrivals or DACA program.
The list could be enough to trigger a Democratic revolt on a government funding bill that needs to pass later this month, Senate Minority Whip Dick Durbin (D-Ill.), whose office shared the White House’s list with reporters, said in a statement.
“President Trump has said he may need a good government shutdown to get his wall,” Durbin said. “With this demand, he seems to be heading in that direction. … It’s outrageous that the White House would undercut months of bipartisan efforts by again trying to put its entire wish-list of hardline anti-immigrant bills—plus an additional $18 billion in wall funding—on the backs of these young people.”
Trump ended DACA in September and said Congress should act to give more permanent protections to recipients of the two-year work permits and deportation relief. DACA recipients will begin to lose permits in greater numbers in March, although activists estimate they’re already losing them at a rate of about 122 per day.
In the months since Trump ended the program, the White House has put out long lists of immigration priorities, and Trump has made broad pronouncements in public comments and tweets, largely focused around building a wall, ending the diversity visa lottery and eliminating so-called “chain migration,” immigration restrictionists’ preferred term for family reunification visas.
The list of demands was initially created in October, with Stephen Miller, a Trump policy adviser, listed as the author of the document, according to the properties on the PDF file. But senators didn’t get a copy until Friday.
The White House did not immediately respond to a request for comment on the document.
Democrats have said they are willing to give Trump some of what he wants on border security, such as more infrastructure, technology and funds, in exchange for legal status for Dreamers. But they, and Dreamers themselves, have argued any deal must be proportional — not everything Republicans want in exchange for legal status for one subset of the undocumented population. During comprehensive immigration reform efforts in 2013, for example, Democrats agreed to an overhaul of the legal immigration system, border security measures and enforcement as part of a package that would have also granted a path to legal status and eventual citizenship for much of the undocumented immigrant population.
Democrats, activists and even some Republicans have warned that piling on more immigration issues has the potential to sink a deal — it happened during past reform efforts and could again now.
The document the White House sent to senators on Friday could indicate the administration either thinks it can get Democrats to settle because of their desire to help Dreamers, or that it doesn’t really want a deal at all.
I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it. Greisa Martinez Rosas, advocacy director for United We Dream
The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.
The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.
The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.
The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.
The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.
The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.”
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Read the rest of Elise’s report at the link.
I think that “Dreamers” are a good place for the Dems to take a stand. And, given the “Bakuninist Wing” of the GOP (who share Trump’s desire to destroy Government, but are dissatisfied with the pace of the destruction), it’s going to be very difficult for Trump to get any type of budget passed without Democratic support.
The DHS needs an additional 10,000 agents like we all need holes in our heads. They don’t have enough legitimate law enforcement functions to perform with the staff they have; that’s why they have time for chasing after kids and stuffing their generally law-abiding parents into an already overwhelmed Immigration Court system for hearings that probably won’t take place until long after this Administration is history. (And, that’s even without Gonzo’s current “plan” which appears to be intentionally “jacking up” the Immigration Court backlog to more than 1,000,000 cases overnight by “recycling” all of the currently “administratively closed” cases!)
The words of Greisa Martinez Rosas, advocacy director for United We Dream, are worth repeating and keeping in mind:
“I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it.”
Dec 28 Lawyer Files Disciplinary Complaint Against Chief Immigration Judge
On December 22, New York attorney Bryan S. Johnson filed a complaint with the Assistant Chief Immigration Judge for Conduct and Professionalism against Chief Immigration Judge MaryBeth Keller. The basis for the complaint was the Chief Judge’s issuance of guidelines to immigration judges on the handling of cases involving juveniles, including unaccompanied children (OPPM 17-03, Dec. 20, 2017). In that directive, Judge Keller instructed immigration judges that in spite of the sympathetic factors involved in children’s cases, “judges must remain neutral and impartial when adjudicating juvenile cases and shall not display any appearance of impropriety when presiding over such cases.” The complaint argues that such directive instructs immigration judges to violate federal statute, specifically the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which requires the Attorney General to train immigration judges to “work with unaccompanied alien children, including identifying children who are victims of severe forms of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate.” 8 U.S.C. § 1232(e).
Instructing judges to “remain neutral and impartial,” while open to interpretation, will be perceived by many as requiring passivity. As one senior judge explained to me when I was new to the bench, judges should consider themselves blank slates and only consider what the parties have chosen to write on that slate. However, exceptions exist. In a precedent decision issued 20 years ago, the BIA held that in asylum cases in which the parties have not presented enough evidence to provide an adequate record, immigration judges should themselves present country condition evidence into the record. The Board cited favorably to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which defines the role of the adjudicator as to “ensure that the applicant presents his case as fully as possible and with all available evidence.” Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997). Decided by a BIA that possessed some brilliant minds and courage, the Board in S-M-J- established that there are times that an immigration judge must not remain neutral when doing so will deny an asylum seeker justice.
Ten years later, the Chief Immigration Judge issued guidance to immigration judges handling juvenile cases to take a proactive approach, due to the vulnerability of the child respondents. It bears noting that the 2007 guidelines were issued under a Republican administration. Obviously, a neutral, passive approach by the judge will not ensure a fair hearing where the two parties involved are the Department of Homeland Security, represented in court by one of its attorneys, and a young (and possibly unrepresented) child. In such circumstances, the judge must to some degree advocate for the child to “ensure that the applicant presents his case as fully as possible and with all available evidence,” to use the language of S-M-J-. In response to this need, EOIR created special juvenile dockets, and provided specialized training to the immigration judges chosen to preside over them. In 2008, Congress passed the TVPRA, the statute relied upon by attorney Johnson in his complaint. In 2013, EOIR created an Assistant Chief Immigration Judge position specifically dedicated to “vulnerable populations.”
EOIR has the additional opportunity to create a more level playing field by assigning counsel to all unrepresented juveniles appearing in immigration court. Yet the agency strongly opposed this solution in a class-action lawsuit filed by advocacy groups (including the ACLU and the Northwest Immigrant Rights Project), J.E.F.M. v. Lynch. The U.S. Court of Appeals for the Ninth Circuit dismissed the case last year, finding that the court lacked jurisdiction to decide the issue. However, the court’s majority opinion emphasized that it was not ruling on the merits of the claim, and in a concurring opinion, two of the three judges on the case’s panel acknowledged that “thousands of children are left to thread their way alone through the labarynthine maze of immigration laws, which, without hyperbole, ‘have been termed second only to the Internal Revenue Code in complexity.’” The judges continued that “given the onslaught of cases involving unaccompanied minors, there is only so much the most dedicated and judicious immigration judges…can do.” The court called on Congress and the Executive branch to take action to provide government-funded counsel to all children appearing in immigration court. The judges concluded that “to give meaning to “Equal Justice Under Law,” the tag line engraved in the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration justice system, and to protect the interests of children who must struggle through that system, the problem demands action now.”
Democratic lawmakers have introduced draft legislation, entitled the Fair Day in Court for Kids Act, that would remedy this situation. Versions of the bill went nowhere in 2016; a 2017 version sponsored by Rep. Zoe Lofgren (D-Cal.) and 31 co-sponsors was introduced on April 6, 2017 and has made no progress since. The website GovTrack.us states that the bill has a 3 percent chance of being enacted. In the meantime, the Chief Immigration Judge’s latest memo signals a move in the opposite direction under the present administration. Last week, the Trump administration confirmed that it is considering a policy of separating children from their parents upon arrival at the U.S. border. While the administration claims that the policy is designed to discourage Central Americans from making the dangerous journey north, it ignores the fact that those making such journey are refugees fleeing the threat of death in what has become one of the most violent and dangerous regions in the world.
The administration has not explained what alternatives exist to parents seeking to save their children from being murdered and raped by violent gangs, including MS-13, whose members Trump himself has referred to as “animals.” As reported by the New York Post, Trump stated during a speech last July in Long Island, NY of MS-13 members: “They kidnap. They extort. They rape and they rob. They prey on children. They stomp on their victims. They beat them with clubs. They slash them with machete. They stab them with knives.” It would therefore seem that the current administration should be seeking to do everything in its power to provide children fleeing the above-described treatment to have their claims for asylum considered as fully and fairly as possible. Restoring the 2007 guidelines, respecting the TVPRA requirements, refusing to separate children from their parents, and providing counsel at government expense to unrepresented children would all be welcome steps towards that goal.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
JEFF CHASE
Dec 8 The Impact of Returning Children on Well-Founded Fear
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.
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I appreciate Judge Chase’s kind reference to Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997). I was on the en banc BIA that decided S-M-J-. (Yes, unlike now, most precedents were issued en banc, so that each Appellate Judge was required to take a public vote on the outcome. Something known as “transparency and accountability” that has disappeared from today’s BIA.)
Forget all the legal gobbledygook in the “Keller Memorandum.” Here’s what a straightforward policy from an Attorney General actually committed to upholding the Constitution and the “Rule of Law” might look like:
The first duty of a Judge is to insure Constitutional Due Process for each individual coming before the court.
A Judge should not conduct a merits hearing for any unrepresented child, including any individual the Judge reasonably believes to be a child.
The Judge and all court personnel should work cooperatively with nongovernmental organizations, bar associations, legal services groups, and community officials to insure that cases involving children are placed on the docket and scheduled in a manner that insures representation in each case
When in doubt, a Judge should always act in a manner that maximizes Due Process protections for each individual coming before the court.
“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.
The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.
An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.
Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.
President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.
One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”
The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.
The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.
‘WOLVES IN SHEEP CLOTHING’
Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.
Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”
“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”
Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.
In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”
The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.
While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.
Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”
Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”
Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”
“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”
In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.
The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.
Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”
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Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”
After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.
The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.
Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.
At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.
I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?
Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.
To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.
So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solutionfor getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?
But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reformsnecessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.
“The Trump administration is considering measures to halt a surge of Central American families and unaccompanied minors coming across the Mexican border, including a proposal to separate parents from their children, according to officials with knowledge of the plans.
These measures, described on the condition of anonymity because they have not been publicly disclosed, would also crack down on migrants living in the United States illegally who send for their children. That aspect of the effort would use data collected by the Department of Health and Human Services (HHS) to target parents for deportation after they attempt to regain custody of their children from government shelters.
The Department of Homeland Security (DHS) has previously considered some of these proposals, but there is renewed urgency within the administration to address an abrupt reversal of what had been a sharp decline in illegal immigration since Trump took office in January.
In November, U.S. agents took into custody 7,018 families, or “family units,” along the border with Mexico, a 45 percent increase over the previous month, the latest DHS statistics show. The number of “unaccompanied alien children,” or UAC, was up 26 percent.
Children’s shelters operated by HHS are at maximum capacity or “dangerously close to it,” an official from the agency said. Overall, the number of migrants detained last month along the Mexico border, 39,006, was the highest monthly total since Trump became president, according to DHS figures.
5:01
In a small city in Upstate New York, ICE arrests drive migrants into hiding
(Zoeann Murphy/The Washington Post)
The proposals, which have been presented for approval to new DHS Secretary Kirstjen Nielsen, were developed by career officials at Immigration and Customs Enforcement (ICE) and other DHS agencies, administration officials said.
Tyler Houlton, a DHS spokesman, confirmed the agency has “reviewed procedural, policy, regulatory and legislative changes” to deter migrants. Without giving further details, he said some of the measures “have been approved,” and DHS is working with other federal agencies “to implement them in the near future.”
“The administration is committed to using all legal tools at its disposal to secure our nation’s borders, and as a result we are continuing to review additional policy options,” Houlton said.
The most contentious proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be “well cared for as we deal with their parents.”
Kelly did not move forward with the plan, in part because of the backlash it triggered, administration officials said, and also because illegal migration had plunged to historic lows.
Trump administration officials described the measures as unpalatable but necessarily tough policy options to discourage Central American families from embarking on the long, dangerous journey to the border — or hiring smugglers to bring their children north.
2:21
In southern Texas, a rancher explains why he supports Trump but not the wall.
(Zoeann Murphy/The Washington Post)
“People aren’t going to stop coming unless there are consequences to illegal entry,” one DHS official said.
Migrants from El Salvador, Guatemala and Honduras represent the largest share of families and children taken into U.S. custody along the border, with many telling border agents that they fear for their lives if sent back to their home countries. The three nations, known as the “Northern Triangle” of Central America, are crippled by gang violence and homicide rates that are among the world’s highest.
Trump administration officials say Central American migrants and the paid smugglers who bring them to the border shamelessly exploit Americans’ compassion, entering the United States illegally and gaming the asylum process.
If a migrant’s stated fear of being sent home is considered “credible,” they enter an asylum process that may take years to adjudicate, and the flood of such petitions in recent years has worsened the backlog of more than 600,000 cases pending in U.S. immigration courts.
Asylum seekers are typically issued work permits while they wait for the process to play out, and when their rejected appeals are exhausted, they often ignore court orders to leave the United States, choosing to remain in the country illegally.
The Trump administration wants to significantly expand immigration detention capacity, and hire more judges and expedite asylum cases to stop migrants from taking advantage of “loopholes” in the asylum process.
The proposal to separate parents from their children is viewed by the agency as a more immediate tool to halt the latest border surge.
DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.
“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids,” said Andrew R. Arthur, a resident fellow at the Center for Immigration Studies, which seeks to reduce immigration. A former U.S. immigration judge and Republican congressional policy staffer, he called it “a reasonable step to take.”
“It might seem heartless, but it’s more heartless to give them the illusion they’re going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real,” Arthur said.
The unaccompanied minors are typically seeking to reunite with a parent already living illegally in the United States. By law, migrants under age 18 who arrived without a parent must be turned over to HHS within 72 hours of being taken into DHS custody. The shelters where they are housed are designed to be more like boarding schools than grim detention centers.
The minors are placed in the care and custody of the Office of Refugee Resettlement at HHS’s Administration for Children and Families (ACF), which seeks to identify an adult sponsor who can take custody of them.
The process takes about six weeks on average, HHS officials say. “It’s a little-known fact that over half of those who enter illegally are placed with a parent already in the United States,” ACF spokesman Kenneth Wolfe said.
The parents, or any other adult seeking to take custody of a child, must submit to an extensive background check that includes information about their immigration status. But administration officials say that information is neither checked against DHS biometric data nor shared with ICE for potential enforcement purposes. The new DHS proposals under consideration would change that.
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If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting “devastating” trauma on families fleeing Central America because they feel their lives are at risk.
“These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers,” said Greg Chen, director of government relations of the American Immigration Lawyers Association.
“These are families that have no other choice for their survival,” he said.”
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“Come on, man” clueless claim:
“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids.”
The hard truth:
“These are families that have no other choice for their survival.”
The Non-White Nationalist reality:
We could absorb all of the “good guys” fleeing from gang violence in the Northern Triangle without any long-term adverse effects; in fact, it would likely help us prosper as a nation, and would be far more “cost-effective” than the various failing “strategies” we now employ, and have employed in the past, in a vain and counterproductive attempt to prevent the inevitable.
I wouldn’t necessarily give everyone a “Green Card” right off the bat. But, we should have a vastly expanded TPS program for the Northern Triangle, keeping open the possibility of eventually issuing everyone who wants to stay and who has demonstrated payment of taxes (something that even native born GOP rich guys, and most notably the Trumpster himself, hate to do) and no serious crimes to eventually qualify for the Green Card.
Responding to several recent “hate speeches” by Attorney General Jeff “Gonzo Apocalypto” Sessions, EOIR issued a new memorandum basically telling U.S. immigration Judges to revise their thinking and look for any way possible to “shaft” unaccompanied minors fleeing for their lives and asserting claims for protection under U.S. laws.
The memorandum from Chief U.S. mmigration Judge Marybeth Keller, dated Dec. 21, 2017, is available in full at this link:
However, because it is drafted in dense bureaucratic doublespeak with a just a touch of “lip service” to the law, I will give you the “high points” as they would appear to most Immigration Judges:
The Attorney General hates UACS, and so should you if you want to keep your job.
While this Administration works on its announced plans to strip UACS of all statutory and Constitutional rights, you must always look for ways to effectively eliminate such “false rights” administratively in advance of any changes in the law.
Always look for ways to find that someone previously determined by DHS or the ORR to be a “UAC” is no longer, or never should have been, entitled to UAC benefits.
The “best interests of the child” should NOT be an important consideration in an Immigration Court proceeding involving a UAC.
Conversely, the “best interests of the Administration” should generally be given conclusive weight.
Never let considerations of human empathy, misplaced kindness, false compassion, common sense, decency, or any other human emotion lead you to give a break or the benefit of the doubt to a UAC.
Is is permissible, however, to create a false sense of informality and friendliness in your courtroom, so long as it doesn’t result in a grant of any type of protection or relief to the UAC. (Indeed, lulling a UAC into a false sense of comfort or security can be an effective strategy for insuring that he or she will not attempt to find a lawyer and will sign away or waive any rights.)
Remember that no matter how young, immature, discombobulated, confused, inarticulate, traumatized, or scared a UAC might be, he or she is NEVER entitled to appointed counsel or to any meaningful help from you in stating or supporting a claim for protection.
While all DHS requests should generally be treated as “priorities,” the only request from a UAC or his or her representative that should receive “priority” consideration is a request for immediate voluntary departure from the US. (You should never hesitate to grant such a request even if it appears to be the product of duress or against the UAC’s best interests.)
A good way to overcome the unfortunate tendency of some reviewing courts to find testimony of UACS “credible”” is to conclude that even if credible and facially sufficient to establish a claim for relief, the UAC’S testimony is “too generalized” or “not sufficiently detailed” (or any other kind of meaningless legal jargon you might come up with) to satisfy the “burden of proof” for protection.
Your main responsibility as an Immigration Judge, and the one for which you will be held accountable, is to ferret out and report fraud, not to insure fairness or due process for the UAC.
In discharging your duties as an Immigration Judge, you must always give primacy to the enforcement priorities of the Administration (including the overriding objective of deterrence and how it is advanced by REMOVAl orders, not relief) and the DHS over any legal claims advanced by a UAC.
You should presume that all UACS and particularly any with “dirty” attorneys representing them are “fraudsters” unless and until otherwise established beyond a reasonable doubt.
While it is permissible to present yourself to the public, and particularly to any reviewing courts Congressional, or media representatives as a “judge of a full due process court,” for all other purposes, you should always remember that you are a mere subordinate of the Attorney General, sworn to carry out his policies, and never, under any circumstances, should you consider yourself to be a “real judge” exercising independent judgement.
If you have any questions about this memorandum, please consult your ACIJ (who is specially trained to help you maximize final removals orders) rather than your conscience.
Remember: “When In Doubt, Kick ‘Em Out!”
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There was a time in the (seemingly now distant) past when children and other vulnerable individuals were considered appropriate for “special humanitarian consideration,” and treatment. Now, they are “special targets” for Gonzo and his White Nationalist storm troopers: “Fish in a barrel,” “easy numbers, “low hanging fruit,” “roadkill.”
I was particularly impressed (not necessarily favorably) by the straightforward exhortation for the Immigration Court to establish itself as perhaps the only court in the America where the widely accepted principle of “the best interests of the child” is specifically to be given short shrift.
On the other hand, you should think about the possibility that some day you’ll get the question “What did you do during Trump’s War on America, Mommy (or Daddy)?” Do you really want to say: “I stood by and watched Gonzo Apocalypto abuse, harm, and in some cases kill, helpless children?” We all have choices to make!
“Once again, the Attorney General cites flawed facts to castigate the immigration bar for the significant case backlog and inefficiencies in our immigration court system,” said Benjamin Johnson, AILA Executive Director. “He blames immigration attorneys for seeking case continuances, disregarding the fact that continuances are also routinely requested by counsel for the government, or are issued unilaterally by the court for administrative reasons. In fact, although the report cited by the Attorney General indicates an 18% increase in continuances requested by respondents, that same report found a 54% increase in continuances requested by the Department of Homeland Security (DHS), and a 33% increase in ‘Operational-related’ continuances. That said, continuances are often a necessary means to ensure due process is afforded in removal proceedings. The number one reason a continuance is requested by a respondent is to find counsel. Other reasons include securing and authenticating documentary evidence from foreign countries, or to locating critical witnesses. And when the government refuses to share information from a client’s immigration file and instead makes them go through the lengthy process of a Freedom of Information/Privacy Act request, a continuance is often a client’s only lifeline to justice. For the AG to blame immigration lawyers for imagined trespasses is both malicious and wrong. We will not let that misinformation pass without setting the record straight.
“The immigration court backlog is a function of years and years of government spending on enforcement without a commensurate investment in court resources. Our nation would be better served if the immigration courts were an independent judiciary, free from the auspices of the Department of Justice, where every immigrant has access to counsel. Immigration court is not small claims court or traffic court; each decision has the potential to tear apart families or keep them together, to destroy businesses or build our economy, to send someone back to certain death, or bring hope for a new and better life. Immigration judges should make those decisions with all information at hand, without any undue influence or arbitrary case completion requirements. That is a goal we can all work toward.”
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Sure matches my observations from the latter part of my career at the U.S. immigration Court in Arlington, VA!
Probably 75% of the cases on my “Non-Detained Docket” were there NOT at the request of a respondent or his or her attorney. No, they were “mass transferred and continued” to my docket unilaterally by EOIR to fulfill “Border Priorities” established by the DOJ during the Obama Administration as an adjunct to changing DHS Enforcement priorities.
And, these weren’t “short continuances” to find a lawyer or prepare an application as might be requested by a respondent or a private bar lawyer. NO, these were “Merits Hearing” cases that had often been set for late 2016 or 2017 hearings before one of my colleagues, only to be “continued” by EOIR to my docket for dates many additional years in the future. Indeed, many of these cases were unilaterally removed by EOIR from “Individual Dockets” and “orbited” to my “Master Calendars” (arraignments) years in the future — indeed years after I would be retired.That’s because my docket was already completely full for several years when this chapter of ADR started.
And the same was true for my colleague Judge Lawrence O. Burman. Indeed, at the time I retired, Judge Burman and I were the ONLY judges hearing “nonpriority, non-detained cases” — even though those cases were BY FAR the majority of cases on the Arlington Court Docket. And, to make things worse, my “replacement” retired at the end of 2016 thus resulting in a whole new “round” of ADR.
Talk about ADR driven by incompetent administration and improper political meddling from the DOJ. And, from everything “Gonzo” has said and I have heard about what’s happening at EOIR, such impropriety has become “normalized” under the Trump Administration.
No court system can run efficiently and fairly when the perceived interests of one of the parties are elevated over fairness, Due Process, equal justice, and reaching correct decisions under the law. No court system can run efficiently and fairly when control over day-to-day dockets is stripped from the local US Immigration Judges and Court Administrators and hijacked by officials in Washington and Falls Church driven by political performance objectives not by practical knowledge and day-to-day considerations of how to construct and run a docket for maximum fairness and efficiency under local conditions (the most important of which is the an adequate number of pro bono lawyers to represent respondents).
NO OTHER MAJOR COURT SYSTEM IN AMERICA OPERATES THE WAY EOIR DOES! THAT SHOULD TELL US SOMETHING!
So, why is “Gonzo Apocalypto” being allowed to get away with misrepresenting the facts and intentionally running the Immigration Court system for the perceived benefit of one of the parties and against the interests of the other? There is a simple term for such conduct: Ethical Misconduct. Usually, it results in the loss or suspension of the offender’s license to practice law. Why is Gonzo above accountability?
“As he awaits his fate in a remote Texas jail, Mr. Gutierrez, 54, remains convinced of the peril he faces if deported to his native country. “My life depends on this [appeal],” he said by telephone in a news conference organized Monday by the National Press Club. “I’m terrified to set foot in Mexico.”
The judge who denied asylum in the case, Robert S. Hough, pointed to an absence of documentary and testimonial corroboration of Mr. Gutierrez’s claim. The woman who relayed word of the alleged death threat did not come forward; neither did Mr. Gutierrez’s former boss at the newspaper for which he worked in Chihuahua. Much of Mr. Gutierrez’s case comes down to his word.
Nonetheless, the judge’s cut-and-dried application of the law fails to take into account conditions in Mexico generally and the peril faced there by journalists in particular. It’s not surprising that Mr. Gutierrez cannot recover copies of his articles, written more than a decade ago for a regional newspaper. Nor is it unusual that witnesses are reluctant to come forward, given the fear with which many Mexicans regard the security forces.
As a U.N. report published this month concluded, citing the deaths, disappearances and attacks on dozens of journalists tallied by Mexico’s Human Rights Commission, “The data . . . presents a picture for the situation of journalists in Mexico that cannot be described as other than catastrophic.” Against that background, it seems cavalier to dismiss the threat Mr. Gutierrez faces should he be deported to Mexico. He should be granted asylum.”
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Read the complete Editorial at the link.
Unfortunately, a “cut and dried application of the law” without proper regard to the facts or reality is a disturbingly accurate snapshot of what all too often happens daily in our Immigration Courts, a “wholly owned subsidiary” of the US Department of Justice and part of the “Trump Conglomerate” (formerly known as the US Government).
Our failing US Immigration Court system and its aggravation by AG “Gonzo Apocalypto’s” oft-expressed hostility to immigrants, asylum, the rule of law (except his 1950s “Jim Crow” views on the law and how it should be a tool for injustice and advancing White Nationalism), lawyers, Latinos, Mexicans, and the press has become an almost daily topic for major editorial boards. At least someone (other than me) is watching and documenting as this mockery of American justice unfolds before us.
In particular, too many U.S. Immigration Judges are tone-deaf to Mexican asylum claims, not wanting to be accused of “opening the floodgates” ( a concept that is nowhere to be found in the actual law) and knowing that “Gonzo” wants lots of “quick removals” rather than asylum grants. Additionally, the only administrative check on the Immigration Judges’ authority is a weak Appeals Board that never “calls out” overly restrictive Immigration Judges by name and seldom publishes precedents granting asylum. Truly, a prescription for a “Due Process Disaster!”
Judge Hough seems to have forgotten that under the law:
”Corroborating evidence” can only be required if it is “reasonably available;”
Testimony may be corroborated by country condition information describing the same abuses that the applicant claims;
The standard for granting asylum is a generous “well-founded fear” or “reasonable likelihood” of future harm which can be “significantly less than probable — as little as a 10% chance can suffice;
Asylum applicants are supposed to be given the “benefit of the doubt” in recognition of the evidentiary challenges of providing proof of persecution and the difficulties of relating traumatic events in the past.
It remain to be seen whether the Board of Immigration Appeals, EOIR’s “Appellate Court,” will correct Judge Hough’s life-threatening errors and, further, issue a strong precedent on asylum for foreign journalists (traditionally one of the most vulnerable and persecuted groups) to prevent further miscarriages of Justice such as this. Such a precedent would also discourage the DHS from continuing to abuse our system by pushing for removal (and needless detention) in cases such as this where a grant of asylum at the DHS Asylum Office or at the hearing following the testimony would be the correct result.
Or, will the next major editorial describe and decry Mr. Gutierrez’s death in Mexico!
In a well-functioning justice system, this case should have been a “Short-docket, No-brainer Grant.” But, Gonzo Apocalypto seeks to use the US Immigration Courts as an extension of DHS enforcement rather than, as they were intended, as Courts guaranteeing fairness, Due Process, and equal justice for all! We need change. Lots of it!
[NOTE: For those interested, Judge Hough apparently has not decided enough asylum cases on the merits in El Paso to be listed on the statistical profile of asylum outcomes maintained by TRAC Immigration.]
“A Mexican journalist who sought asylum in the United States in 2008 was arrested by U.S. immigration agents this week and told he would be deported, though an appeals board temporarily halted his removal Friday — sparing his life for now, he said.
Emilio Gutierrez, 54, who in October received a press freedom award from the National Press Club in Washington, said he and his 24-year-old son, Oscar, were taken into custody by Immigration and Customs Enforcement (ICE) on Thursday while trying to enter an appeal to their asylum claim.
“We can’t go back to Mexico. They’ll kill us,” Gutierrez said, using his attorney’s cellphone to speak from an ICE detention center in Sierra Blanca, Texas.
Gutierrez said he and his son fled northern Mexico’s Chihuahua state in 2008 after he published stories exposing the abuses committed by soldiers who robbed and extorted residents in his hometown, Ascención, a notorious drug trafficking hub.
After soldiers ransacked his home, Gutierrez said he learned his name appeared on a military “kill list,” so he fled across the border into Texas with his then-teeange son.
In July, after living nine years in the United States, Gutierrez’s asylum request was denied, and an appeal was rejected in early November. His attorney, Eduardo Beckett, said Gutierrez and his son were handcuffed and jailed Thursday when they presented themselves at an ICE processing center to enter an emergency appeal.
. . . .
With drug-related violence at record levels, Mexico has become one of the world’s most dangerous countries for the press, according to the New York-based Committee to Protect Journalists. More than 40 Mexican reporters have been murdered since 1992 for performing their jobs, including at least five this year. Only Iraq and Syria were more dangerous for the press in 2017, according to CPJ.
Journalists working in small towns plagued by drug cartel violence are especially vulnerable, but the dead have included staffers at some of Mexico’s leading publications.
Bill McCarren, the executive director of the National Press Club, said the organization gave Gutierrez this year’s press freedom award to draw attention to the plight of Mexico’s imperiled journalists. McCarren was alarmed to find out ICE agents were trying to send Gutierrez back to a place where his life would be in danger.
“This is a critical, existential issue for Emilio, but also a critical issue for all journalists in Mexico,” McCarren said in an interview. “It’s a concern for us that the United States, that stands for free press as a bedrock principle of our democracy, would not make a place for him here when he’s so clearly at risk.”
. . . .
But Hootsen said his organization cautions reporters against seeking asylum in the United States because the requests are likely to be denied. “The United States is obviously the place that first comes to mind for Mexican reporters who need to flee the country,” said Hootsen, “so it’s important for U.S. authorities to take their claims seriously and give them a fair hearing.”
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Read Miroff’s complete story at the link.
Jeff Sessions would have you believe that frivolous asylum cases and failure to crank denials off the Immigration Court assembly line more quickly are the biggest problems. Not true!
Those of us who have spent a lifetime working in the system and actually understand asylum law, the correct legal criteria, and the shortcomings of EOIR know that the real crisis here is that far too many meritorious claims for protection are being denied by stressed and rushed Immigration Judges who don’t correctly understand asylum and protection law, are unsympathetic to asylum seekers, are forced to deal with unrepresented or underrepresented asylum applicants, or are afraid to put their careers on the line to stand up to politicos in this and other Administrations who seek to artificially limit the number of asylum grants at the potential expense of individual’s lives and safety.
The Impact of Returning Children on Well-Founded Fear
I received a request to discuss the following hypothetical: an asylum-seeking couple has a U.S. citizen child. Because of the need for both parents to work, they send the child to their country of origin. The question is what impact the asylum seekers’ decision to send the child to the country of feared persecution has on their well-founded fear of persecution. If the asylum claim is based on past persecution, does the decision in any way rebut the presumption of a future fear of persecution? In claims based solely on prospective persecution, does the decision impact whether the parents have a genuine subjective fear of persecution?
Applicants who suffered past persecution
Where the parents suffered past persecution, the sending of the child to the parents’ country of origin does not rebut the presumption of future fear as a matter of law. 8 C.F.R. § 1208.16(b)(1)(i) provides two ways in which the presumption may be rebutted: through a showing (by a preponderance of evidence) of (1) “a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened,” or (2) the applicant’s ability to avoid the threat of future harm by relocating to another part of the country. I am not aware of binding case law addressing children sent to the country of origin. However, circuit case law has considered the return of the asylum seekers themselves. In Kone v. Holder, 596 F.3d 141 (2d Cir. 2010), an immigration judge had ruled that the asylum seeker’s own return to the country of origin rebutted the presumption of well-founded fear arising from the past persecution. The circuit court reversed, noting that the IJ’s “cursory analysis” failed to make a finding of either a fundamental change in circumstances or the possibility of internal relocation as required for a rebuttal finding by 8 C.F.R. §1208.16(b)(1)(i). The circuit court thus concluded that the IJ’s finding “suggests the erroneous belief that voluntary return trips are sufficient, as a matter of law, to rebut the presumption of future persecution to which [the asylum seeker] is entitled.” The court referenced the Ninth Circuit’s decision in Boer-Sedano v. Gonzales, 418 F.3d 1082. In that case, the Ninth Circuit held that “the existence of return trips standing alone” could not rebut the presumption; such return trips could be considered “as one factor, among others, to rebut the presumption.”
If the presumption of well-founded fear is not rebutted by the return of the asylum seeker, it certainly is not rebutted by the return of the child. The decision to send the child, and the manner in which the child was treated, could be considered as a possible factor in determining whether a fundamental change in circumstances occurred or the possibility of internal relocation exists. However, it is a factor that must be considered in the context of the feared harm. For example, where the feared persecution is specific to the asylum applicant alone, or of a type that could not be visited on the child (i.e. the return of a male child where the feared harm is female genital cutting or forcible abortion), the return is not likely to have much significance. But the factfinder may find greater meaning where the claimant fears widespread attacks on members of her race, tribe, or religion, yet sends a child possessing the same trait to stay with family members similarly at risk.
However, even then, the courts have looked at the specific circumstances involved. In Mukamusoni v. Ashcroft, 390 F.3d 125-26 (1st Cir. 2004), a rape victim returned to Rwanda to pursue the free education available to her in that country; after departing, she returned one more time to obtain her transcript to allow her to continue her studies in the U.S. The court concluded that under the circumstances, the returns did not undermine the applicant’s claimed fear of future persecution, noting that “[f]aced with no viable means of support otherwise, people take risks in the face of their fears.”
2. Applicants whose fear is prospective only
The USCIS Asylum Officer Training materials on “well-founded fear” do not mention the return of children. However, they do address two related topics: the impact of the return of the asylum seeker him/herself to the country of feared persecution; and the persecution (or lack thereof) of individuals closely related to the applicant. Regarding the former, the USCIS materials rely on circuit court decisions to conclude that whether the applicant’s own return indicates a lack of subjective fear of persecution or alternatively “does not necessarily defeat the claim” is circumstance-specific, and depends on why the applicant returned, and what occurred when they did. See USCIS, RAIO Combined Training Course, Well-Founded Fear Training Module (June 15, 2014) Section 9, pp.22-24. The USCIS training materials note that the Ninth Circuit has held that the return of an asylum seeker “did not undercut the genuineness of her fear” where the purpose of the return was to retrieve her child after the death of the child’s custodian, or, in another case, to aid his uncle and sister who had been arrested. Id. at 22. The USCIS materials also look to what happened upon the asylum seeker’s return. The materials reference yet another Ninth Circuit case, Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005), in which an asylum applicant returned once to his country to attend to his dying father, but cut his trip short because of his fear of persecution, leaving before the father’s funeral. The applicant returned a second time to attend to his dying mother, but had to delay the trip due to a fear of persecution so that he did not return until the mother had already passed away. The court concluded that these visits did not undermine the applicant’s fear.
Regarding the treatment of relatives, the USCIS training materials provide a hypothetical in which an asylum applicant’s sister is arrested based on her political opinion. The materials state that such arrest should be considered in determining the applicant’s own fear where, e.g. the sister lived in the same city and was active in the same political party as the applicant. However, the sister’s arrest need not be considered if the two were not close, lived in different regions, and were not members of the same party. See Id. section 6, pp. 18-19.
In transposing this approach to the example of children sent to the country of feared persecution, the inquiry would be into whether a connection exists between the child and the applicant’s reason for fearing persecution. When I was an immigration judge, ICE trial attorneys would sometimes comment in such cases that “no refugees sent their children back to Nazi Germany.” Of course, if the asylum applicant based his or her fear on a comparably extreme situation, i.e. that anyone who was a member of their race, nationality/ethnicity/tribe, or religion would be at grave risk, and that family remaining in the country were hiding in fear of discovery, then sending one’s child back to that country to stay with those relatives could open an inquiry into whether the applicant possessed a genuine subjective fear of persecution. However, where that is not the basis of the fear, the question would be what, if any, risk extends to the child? Furthermore, even if such risk was found to exist, as noted above, the reason for sending the child would be weighed against the risk. Whether the feared persecutors were aware of the children’s return, and if so, what their reaction was might also be considered, depending on the specific circumstances.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
Bermudez works all the time, so Cruz Mendez cares for Steve from afar. She calls the babysitter after school to make sure he arrived safely. She checks on his health insurance and his dental appointments.
Steve no longer asks when the family will be together.
In Falls Church, Cruz Mendez was an independent woman with a salary and dreams for the future. Now she sits inside the little gray house. Bermudez cannot afford to send her money for college, so she has set those plans aside.
Over the phone, he urges her to have faith that they will be together again.
She still wears her wedding ring, and he still wears his.
Bermudez works all the time, so Cruz Mendez cares for Steve from afar. She calls the babysitter after school to make sure he arrived safely. She checks on his health insurance and his dental appointments.
Steve no longer asks when the family will be together.
In Falls Church, Cruz Mendez was an independent woman with a salary and dreams for the future. Now she sits inside the little gray house. Bermudez cannot afford to send her money for college, so she has set those plans aside.
Over the phone, he urges her to have faith that they will be together again.
She still wears her wedding ring, and he still wears his.
Bermudez works all the time, so Cruz Mendez cares for Steve from afar. She calls the babysitter after school to make sure he arrived safely. She checks on his health insurance and his dental appointments.
Steve no longer asks when the family will be together.
In Falls Church, Cruz Mendez was an independent woman with a salary and dreams for the future. Now she sits inside the little gray house. Bermudez cannot afford to send her money for college, so she has set those plans aside.
Over the phone, he urges her to have faith that they will be together again.
She still wears her wedding ring, and he still wears his.
Maria Sacchetti reports in the Washington Post:
“Cruz Mendez, 30, made this trip in reverse when she was 18 years old, skipping her high school graduation to flee a neighborhood man who had harassed her in San Salvador. She was detained at the U.S.-Mexico border, released and allowed to join her brother in Virginia. Two months later, an immigration judge in Texas ordered her deported. Cruz Mendez says she never knew about the hearing.
In Fairfax, she was crowned beauty queen at a local Salvadoran festival and met Rene Bermudez, a hazel-eyed laborer who worked construction.
Steve was born in 2007, Danyca in 2012.
Late in 2013, police stopped Cruz Mendez for failing to turn on the lights on her minivan and charged her with driving without a license, an arrest that alerted federal agents to her old deportation order.
While President Barack Obama deported high numbers of undocumented immigrants during parts of his tenure, parents of American citizens with little to no criminal record were not priorities for expulsion. So officials released Cruz Mendez with orders to stay out of trouble and check in with them once a year.
But under President Trump, who campaigned on a promise to crack down on illegal immigration, anyone here without papers can be expelled.
Interior deportations — of people already living in the United States, as opposed to those caught crossing the border — have risen 37 percent since Trump took office. Deportation arrests of non-criminals such as Cruz Mendez — many, like her, with children who were born in this country and are U.S. citizens — surged past 31,000 from inauguration to the end of September, triple the same period last year.
On the May morning when she was scheduled for her yearly check-in, Cruz Mendez lingered in the apartment, which she’d decorated with family photographs, Danyca’s art projects and Steve’s citizen-of-the-month award from elementary school.
She considered the possibility of skipping the check-in, aware of other longtime immigrants who had been deported after similar appointments. But she could not fathom life as a fugitive. Worried, Bermudez warned her that she was going to be late.
“Why are you trying to turn me over so fast?” Cruz Mendez snapped in Spanish.
She eventually walked into the immigration agency’s Fairfax office, accompanied by advocates and loved ones. Agents took her into custody as her supporters shouted.
For a month, her husband and lawyers fought to free her. Steve tried, too, writing letters to Immigration and Customs Enforcement that were full of pleas and questions.
“Plz don’t deport my mom,” one of the letters said.
Who will take me to the doctor, the dentist? Who will take care of me and my sister? Who will I live with?
It didn’t work. On June 14, they sent her back. Bermudez and the kids filled a giant cardboard box with her dresses and shoes, pots and pans, and placed it by the front door, waiting for a courier to take it away.
Steve Bermudez, 10, wrote immigration officials in May to ask them not to deport his mother. For a month, Cruz Mendez’s husband and lawyers fought to free her and stop the deportation. (Sarah L. Voisin/The Washington Post)
Steve looks out the window of the bedroom he used in his mother’s childhood home in El Salvador. The sign advertises fruit and vegetables his family sells. (Sarah L. Voisin/The Washington Post)
‘How can I go?’
Deportations can shatter a family or a marriage. In one study of the aftermath of six immigration raids, family income dropped an average of 70 percent. Another study, of U.S.-born Latino children, found that those whose parents had been detained or deported experienced significantly higher post-traumatic stress disorder symptoms than their peers.
“That child’s more likely to be poor. They’re more likely to be depend on public benefits,” said Randy Capps, U.S. research director for the Migration Policy Institute. “And then psychologically, you just don’t know. There could be an immediate impact; it could be a long time before that psychological impact shows up.”
In the Falls Church apartment, Steve and Danyca cried all the time after Cruz Mendez was deported. No one wanted to eat.
. . . .
Bermudez works all the time, so Cruz Mendez cares for Steve from afar. She calls the babysitter after school to make sure he arrived safely. She checks on his health insurance and his dental appointments.
Steve no longer asks when the family will be together.
In Falls Church, Cruz Mendez was an independent woman with a salary and dreams for the future. Now she sits inside the little gray house. Bermudez cannot afford to send her money for college, so she has set those plans aside.
Over the phone, he urges her to have faith that they will be together again.
She still wears her wedding ring, and he still wears his.“
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Read Maria’s entire story of this grotesque failure of responsible government, common sense, and human decency at the link!
THE GHOST OF CHRISTMAS FUTURE
What kind of country abuses its youth — our hope for the future — this way? What kind of county wastes its human capital and potential in this manner? What kind of country empowers leaders who are intentionally cruel, immoral, dishonest, and stupid? What kind of country intentionally turns valued friends and positive contributors into potential disgruntled enemies?
This is the way that a once great nation transforms itself into an “overstuffed banana republic!”
But, it’s not yet too late to change the grim vision of “Christmas Future” being promoted by Trump, Sessions, Kelly, Homan, Bannon, Miller, and their cronies. We can resist the horrible policies of the Trump Administration in the courts of law and the courts of public opinion! Ultimately, totally unqualified officials like Trump, Sessions, and their White Nationalist cronies — who are plotting the end of America as we know it — can be defeated at the ballot box and removed from office.
But, there will come a “point of no return” when the damage done by these corrupt individuals and their enablers (both willing and unwitting) cannot be undone! Are we as smart, human, and capable of leaving behind selfishness and embracing decency and human kindness as Ebineezer Scrooge? Or will the Ghost prove to be the Prophet in this version of the Christmas Carol?
A new in-depth study by the National Immigrant Justice Center (“NIJC”) shows how the Administration is intentionally using detention to deny Constitutional Due Process of Law to some of the most vulnerable:
“Introduction
When Donald Trump was elected president, the immigration detention system was already mired in such dysfunction that it routinely threatened the lives of those trapped inside. More than a year later, the administration intentionally uses its broken network of hundreds of immigration jails to advance an agenda that prioritizes mass deportation above respect for basic rights. This report focuses on the Cibola County Correctional Center, a prison complex in rural New Mexico owned and operated by the private prison giant CoreCivic (formerly Corrections Corporation of America)1 with the capacity to jail 1,100 immigrants facing deportation. Located far from any major urban center in a state with no immigration court, the prison has become a black hole of due process rights.
The National Immigrant Justice Center (NIJC) is particularly alarmed by the lack of meaningful access to counsel at the Cibola prison. Federal immigration law allows immigrants the right to counsel in deportation proceedings, but immigrants must locate and pay for it themselves. Immigrants detained in Cibola and many other immigration jails nationally are unable to avail themselves of this right because the capacity of nearby legal service organizations to provide representation is dwarfed by the need. An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time — six percent of the jail’s population in April 2017. The due process violations occurring at Cibola and other Department of Homeland Security (DHS) prisons are the latest consequences of the Trump administration’s scheme to jail so many immigrants, and in such remote locations, that their right to representation is rendered meaningless.
An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time – six percent of the jail’s population in April 2017.
In light of DHS’s systematic and willful rights violations, NIJC calls on the agency to close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel, and demands that Congress immediately cut funding for DHS’s enforcement and detention operations. (See Recommendations.)
U.S. Immigration Detention National Average Daily Population From 1994 To 20172
. . . .
The Future Of Immigration Detention: Why Cibola Matters
DHS paid little heed to the dearth of affordable legal services near Cibola when it entered its agreement with Cibola County and CoreCivic. Such a lapse is by no means new or unique. DHS has grown and maintained the immigration detention system in a manner incompatible with civil rights and due process protections.
In many ways, the Trump administration inherited an immigration detention system already riddled with abuse and neglect. Detained individuals, advocacy organizations including NIJC, and DHS’s Office of Inspector General have reported for decades on the profoundly inhumane conditions pervasive throughout the detention system, including: the excessive and arbitrary use of solitary confinement;22 inadequate, unsafe and spoiled food service;23 abuse of force by officers;24 and deaths attributable to medical negligence.25 Rather than assess possible reforms to address these problems—as the non-partisan Homeland Security Advisory Council advised in late 201626—the Trump administration quickly implemented changes that exacerbated existing harms. Today, DHS jails approximately 40,000 immigrants daily —more than any administration in recent history27— and holds them longer.28 The administration has publicly embraced the use of prolonged detention for asylum seekers29 and moved to weaken the standards governing conditions of detention.30
The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.
Immigrants in detention centers throughout the country face the same frustrations as those jailed at Cibola when they try to find a lawyer. Nationally, fewer than one in every five immigrants in detention is able to find a lawyer.31 The Los Angeles Times recently reported that about 30 percent of detained immigrants are jailed more than 100 miles from the nearest government-listed legal service provider,32 with a median distance between the facility and the service provider of 56 miles.33
Access to counsel is important. Unrepresented, a detained immigrant, who often does not speak English, must develop her own legal arguments for relief eligibility, gather evidence that is often only available from within her country of origin (where she may fear for her own or her family’s safety), complete an application in English, and present a coherent presentation of her case to an immigration judge, all while a government-funded DHS prosecutor argues for her deportation.34 Faced with such a daunting task, immigrants enduring the isolation of detention are far less likely than those living in the community to defend against deportation and less likely to win their cases when they do so. The psychological harms caused by detention, especially for those with previous histories of torture or trauma,35 are so debilitating that even those with the strongest claims to legal protection in the United States often abandon the process and choose deportation instead.36 Detained immigrants with lawyers are 11 times more likely to pursue relief and are at least twice as likely to obtain relief as detained immigrants without counsel.37 A study analyzing the impact of appointed counsel for detained immigrants in New York City found a 1,100 percent increase in successful outcomes when universal representation became available..38
There is no doubt that DHS knows what it is doing. NIJC’s 2010 report Isolated in Detention documented the due process crisis already unfolding in the immigration detention system. At that time, NIJC found that 80 percent of detained immigrants were held in facilities that were severely underserved by legal aid organizations, with more than 100 immigrants for every full-time nonprofit attorney providing legal services.”40 The report presented eight recommendations to DHS and the Department of Justice to improve access to legal counsel for detained immigrants.41 Not one of the recommendations has been adopted or implemented by either agency.
Recently, DHS announced its interest in building new prisons in or near southern Texas; Chicago, Illinois; Detroit, Michigan; St. Paul, Minnesota; and Salt Lake City, Utah. The agency stated its goal was to increase the system’s capacity by up to 4,000 more beds.42Legal aid organizations in these regions sent a letter to DHS explaining that they would have little or no capacity to provide meaningful access to counsel if the government carries out this expansion.43 As of publication of this report, DHS has not responded to this letter nor contacted any of the organizations to assess access to legal counsel.
The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.
When the administration flaunts its record rates of deportations, it is telling a story of what happens to immigrants like Christopher and hundreds of others at Cibola who face insurmountable barriers to justice, not describing a legitimate outcome of enforcement of United States law. Jailing immigrants during their deportation proceedings makes it significantly more likely they will be deported, regardless of the merits or strength of their defense to deportation. At Cibola and prisons like it throughout the United States, incarceration has become another weapon in the administration’s arsenal, intended to facilitate mass removals no matter the cost to due process or civil rights.
Recommendations
DHS must close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel.
Congress must cut appropriated funds for immigration detention, in light of the civil rights and due process crisis within the system.
Specifically, Congress must:
Cease funding to detain individuals where there is no evidence of flight or security risk.
Engage in robust oversight to ensure that when DHS does utilize detention, funding is only available for facilities where there is sufficient access to legal counsel (an established immigration bar) and adequate health care for individuals in detention.
A Note On Methodology
For the survey cited in this report, the National Immigrant Justice Center (NIJC) undertook a census of all the attorneys we could identify who regularly practice immigration law in New Mexico and Texas. The intent was to determine 1) the number of attorneys available to take immigration cases out of the Cibola County Correctional Center and 2) the maximum number of cases each attorney could take at a given time. NIJC staff identified all attorneys in New Mexico who, as of July 2017, were members of the American Immigration Lawyers Association (AILA), the primary membership association for immigration attorneys in the United States (identified using the membership directory at http://www.aila.org/member-directory). Through informal conversations with AILA members and legal aid organizations, NIJC staff added other New Mexico- and Texas-based attorneys to the list who were identified as providing even minimal legal representation at Cibola. NIJC staff and interns reached out to each of these attorneys via email and telephone. NIJC communicated directly via phone or email with an attorney or authorized staff person at all but nine of the 60 offices on the final list. Each attorney was asked whether they were able and willing to provide legal representation to individuals detained at Cibola, for a fee or on a low-cost or pro bono basis, and if so approximately how many cases they could take at maximum capacity. The detailed results of this census are on record with NIJC.
In addition to these census questions, NIJC staff held more extensive interviews with staff members at the following nonprofit legal service providers: Catholic Charities of Southern New Mexico (Las Cruces, NM); Diocesan Migrant and Refugee Services (El Paso, TX); Instituto Legal (Albuquerque, NM); Las Americas Immigrant Advocacy Center (El Paso, TX); the New Mexico Immigrant Law Center (Albuquerque, NM); and Santa Fe Dreamers Project (Santa Fe, NM). Additionally, in June 2017 NIJC staff members visited the Cibola prison, where they spoke with 12 individuals detained at the facility whose insights inspired and contributed to this report. Notes from these conversations are on record with NIJC. Notes from all of these conversations are on record with NIJC.
Acknowledgements
The principal authors of this report are NIJC Director of Policy Heidi Altman and NIJC Director of Communications Tara Tidwell Cullen, with research and editing contributions from NIJC colleagues Keren Zwick, Diane Eikenberry, Mary Meg McCarthy, Claudia Valenzuela, Julia Toepfer, and Isabel Dieppa. NIJC interns Linda Song and Anya Martin also contributed to this report. Sincere thanks for insights and support from Jessica Martin and Rebekah Wolf of the New Mexico Immigrant Law Center, Allegra Love of the Santa Fe Dreamers Project, Yazmin Ruiz of United We Dream, and the detained immigrants whose experiences are described in this report.
All photos credit the National Immigrant Justice Center.”
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Read the complete report at the link.
NIJC confirms what most of us involved in the immigration justice system already know — that the Trump Administration has “doubled down” on the Obama Administration’s misguided detention policies to create an “American Gulag.” A key feature of the Gulag is using captive so-called “U.S. Immigration Courts” in prisons. Such “captive prison courts” actually are parodies of real independent courts empowered to require Due Process for migrants and adherence to the rule of law. Immigration detention is a national disgrace for which all of us should be ashamed.
But, don’t expect any improvement from the Trump Administration unless the Article III Courts require it or we get a different Congress at some point. (I note that a few Democrats have honed in on this issue and introduced the “Dignity for Detained Immigrants Act” which unfortunately is DOA in this Congress.) Given the performance of the Article IIIs to date in this area, and the Trump Administration’s “quietly successful” program to stock the Article IIIs with right-wing ideologues, I wouldn’t count on that either. On the other hand, I’ve seen even very committed conservative jurists reach their “breaking point” on Government immigration abuses once they become life-tenured Federal Judges and are no longer directly accountable to their right-wing “political rabbis.” Denial of statutory, Constitutional, and Human Rights sometimes crosses over ideological fault lines.
Kudos to my good friends and dedicated defenders of Due Process and Human Rights Heidi Altman and Diane Eikenberry of the DC Office of the of the NIJC/Heartland Alliance for their leadership role in exposing these continuing abuses and making a record for future generations to understand and hopefully act on our current failure to make “equal justice for all” a reality in America and the related failure of our U.S. Immigration Courts to live up to their commitment to use “best practices” to “guarantee fairness and due process for all.”
THE TRUMP administration likes to justify its multi-front crusade against immigration and immigrants as a revival of the rule of law, or a recalibration of the rules to favor disadvantaged American workers. In fact, it is largely a resurrection of xenophobia that coincides with a spike, nearly 50 years in the making, in the number of foreign-born residents living in the United States.
“For decades,” Attorney General Jeff Sessions said in a speech in October, “the American people have been begging and pleading . . . for an immigration system that’s lawful and serves the national interest. Now we have a president who supports that.”
Mr. Sessions’s claims are specious. An embrace of legality is not the driving force behind the president’s decision to slash the admission of refugees to levels unseen in nearly 40 years. It is not what compelled Mr. Trump to endorse Republican legislation that would cut the annual allotment of green cards by a half-million, mainly by barring relatives of existing legal permanent residents of the United States. It is not why the Pentagon has considered ending a recruitment program that put skilled foreigners on a fast track for citizenship if they served in this country’s armed forces. And it is not why the administration favors ending the so-called diversity visa lottery program, under which immigrants are admitted from nations underrepresented in other programs.
Those programs were all legally enacted and, by and large, carried out in compliance with the law. The animating force in targeting them, as the administration is now doing, is an effort to turn back the tide of foreigners in our midst and exorcise what the president evidently sees as the demon of diversity.
The administration’s goal is not to reshape America’s immigration policy but to prune immigration itself. While Mr. Trump backs a GOP plan that would give preference to immigrants with skills rather than family connections in the United States, the effect would be not simply to shift the mix while maintaining the current level of legal immigration but to drastically reduce overall numbers of admissions.”
. . . .
Unfortunately, Mr. Trump has poisoned the debate on immigration so thoroughly that he has twisted the frame through which many Americans see the issue. His slurs — labeling Mexican immigrants as rapists and Muslim immigrants as terrorists — form the context from which the administration’s policies arise. They are affronts to U.S. tradition and values.
They’re also an assault on what Mr. Sessions refers to as “the national interest” and specifically the United States’ economic well-being. Legions of employers dependent on immigrant workers, especially to fill low-skilled jobs for which native-born Americans are too well educated and in short supply, will be harmed by choking off the flow of immigrant labor. With unemployment at a 16-year low and approaching levels unseen in a half-century, the Trump policies threaten to sap the economy by depriving it of the energy of striving newcomers who have fueled this nation’s ambitions since its founding.
It is within the president’s discretion to intensify efforts at deportation, though the humanitarian price — in shattered communities and families, including those whose children, born in this country, are Americans — is high. It is reasonable to take steps to tighten border security, though with illegal crossings already at a 40-year low and the Border Patrol’s staffing having already been doubled since the George W. Bush administration, a significant new investment along those lines faces the risk of diminishing returns. The administration may arguably have had a valid legal basis for ending the Obama-era program granting deportation protection for “dreamers” — undocumented immigrants who entered the country as children, often brought by their parents — though only a smallish minority of Americans believes they should be removed from this country.
But what value, other than sheer bigotry, is served by reducing the resettlement of refugees in the United States at a time when the number of displaced people worldwide has soared to staggering levels? In a country founded and in many respects shaped by refugees — a country that has resettled some 3 million refugees since 1980, more than any other nation — why does the Trump administration insist on turning its back on them now, when some 17 million people have been displaced from their homes across international borders around the world due to conflict or persecution, the highest number in a quarter-century?
It is clearly jarring to some Americans that the foreign-born portion of the overall population has nearly tripled since 1970. Many communities, towns and cities have been transformed culturally and socially by that surge, about a third of which was driven by illegal immigrants.
In some places, local government budgets have strained to provide services for immigrants, particularly public education, and the economic dislocation felt by many working-class Americans is a fact. But that dislocation is not mostly caused by immigrants. The United States is a more prosperous place today than it was before the surge in immigration, and immigrants have fed that prosperity — by helping to harvest America’s crops, build its cities, care for its young and elderly, and found some of its most buoyant companies.
. . . .The Trump administration’s crusade against immigration and immigrants is not just a quest to diminish the influence of the “other”; it is an assault on the nation’s future and prospects.”
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Read the complete editorial at the link.
This is largely (not entirely — I believe that there is a sound legal basis for continuing DACA, for example) what I’ve been saying all along:
Jeff Sessions is a bigoted, xenophobic, anti-American scofflaw whose disingenuous, self-righteous claims to be restoring the “Rule of Law” (that would be the “Jim Crow laws” of Sessions’s Alabama past) are totally outrageous;
The real purpose of the Administration’s xenophobic program is to divide and weaken America by stirring up racial, religious, and ethnic animosities;
The “Gonzo,” arbitrary interior enforcement program serves no useful purpose other than playing to the “biases of the base” and the wishes of some (not all) disgruntled immigration enforcement agents for unbridled authority;
Our xenophobic anti-immigrant rhetoric and policies are costing us leadership and respect on the world scene (just this weekend, the Administration withdrew from the UN Global Migration Pact);
Our past strength as a nation and our future success and prosperity is based on immigration (and, the US clearly has benefitted from BOTH legal and “extra-legal” migration);
The Trump Administrations’s rhetoric and actions are preventing us from having the serious discussion we need: how we can better regulate (not cut off, diminish, or eliminate) future legal migration of all types to serve our national interest (and to be more “in tune” with “market realities” that drive much immigration), reflect our humanitarian values and the legitimate needs of current and future migrants, and encourage use of our legal immigration system, thereby diminishing the incentives for extra-legal migration.
As long as U.S. immigration policy remains in the hands of White Nationalist xenophobes like Trump, Sessions, Miller, and Bannon (yes, Stevie “Vlad the Lenin” has vacated his perch in the West Wing, but he continues to pull strings through his White Nationalist disciples Sessions and Miller and to stir the pot through his alt-right “news” apparatus Breitbart News) we won’t get the constructive dialogue and the humane, realistic “immigration reform” that we really need. In other words, under current leadership, the real “Rule of Law” will continue to be diminished.
The threat of honor killing may form the basis of an asylum claim. While men may be targeted as well,1 honor killings are a gender-based form of persecution, as the underlying basis is the view in certain societies that a woman’s failure to strictly adhere to a rigid moral code imposed upon her brings such dishonor on her family in the eyes of the community that nothing short of her murder (at the hands of her own family) can restore the family’s “honor.” The BIA has issued no precedent decisions relating to these types of claims; there are not many published circuit court decisions. In a recent published decision, Kamar v. Sessions, the U.S. Court of Appeals for the Sixth Circuit reversed the BIA’s incorrect determination that a woman from Jordan who credibly fears an honor killing was not genuinely at risk, and did not show that the government of Jordan was unwilling or unable to protect her. However, I would like to focus in this article on the particular social group aspects of such claims.
As I have stated in other posts, the BIA established a requirement in its 1985 precedent decision Matter of Acosta that members of a particular social group must share an immutable characteristic. In a series of later decisions beginning with it’s 2006 precedent Matter of C-A-, the BIA additionally required cognizable social groups to satisfy its particularity and social distinction requirements. The former requires that there be a clear benchmark of who is and is not included in the group. The latter requires that the society in question (i.e. not the persecutors alone) view the members as forming a distinct group. It is not easy for a group to meet all three of these requirements.
However, I believe that women (and sometimes men) targeted for honor killings must be found to meet all three of these requirements, as they are inextricably built into the social code which gives rise to such horrific actions. First, being targeted for an honor killing is clearly an immutable characteristic. The entire reason the society in question requires an act as drastic as murder is that nothing short of eliminating the individual will undo the perceived shame on the family. There is no lesser form of rehabilitation or restitution available. Nor will the passage of time or the target’s departure from the society suffice. USCIS itself states in its own training materials for asylum officers on gender-based persecution that “the family may go to great lengths to pursue women (and men) accused of violating the family’s honor. Families employ bounty hunters, private detectives and social networks to pursue victims and searches may persist over years. In cultures with extended family networks over a large geographic area, relocation may offer no real protection.”2 This is the definition of an immutable characteristic.
Additionally, the group satisfies the particularity requirement. The code giving rise to honor killings (a term which the U.S. Court of Appeals for the Seventh Circuit has called “an oxymoron if we’ve ever heard one”)3 specifies who must be targeted. In societies in which such killings take place, if a family that adheres to a rigid moral code believes that a female member of the family has behaved in a way that tarnished its reputation to the point that an honor killing is required, the family cannot decide to kill, e.g., the third person that walks down the street, or a more distant relative, or the gardener to achieve the goal of restoring honor. The code governing such killings is specific as to who must be targeted.
Furthermore, social distinction is a given in such cases, as it is the perception of the society in question itself that is entirely responsible for both the family’s perceived loss of honor and for the “need” to carry out the murder. It is the society’s moral code that has been violated by the group member’s behavior; it is the society that has distinguished the violator in a manner that brings shame on her family; and it is the society’s perception that the honor killing is intended to appease. Therefore, while the asylum officer, immigration judge, or BIA may deny asylum for another reason, if credible, an asylum applicant who fears an honor killing should not be denied based on a failure to meet her burden of establishing membership in a cognizable particular social group.
In order to avoid the Board’s prohibition against the group being defined in a circular manner, it is best not to include the term “honor killing” in the definition of the proposed group itself. The membership in the group is the reason the person fears persecution. The definition should therefore generally not include the actual harm feared, because a person is not targeted for an honor killing because they are targeted for an honor killing- this is what the Board terms a circular argument. However, a person may be targeted for persecution because they are a member of the group consisting of, for example, “women from country X whose behavior is perceived to have brought dishonor on their family by flouting repressive moral norms.” The honor killing is the type of persecution that the applicant fears as a result of their membership in the group.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
Notes:
1. On the topic of males targeted for honor killings, see Caitlin Steinke, Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for Gender Equality, 17 CUNY L.Rev. 233,(2013).
