SOME ARTICLE III JUDGES “JUST SAY NO” TO SESSIONS’S “ZERO TOLERANCE” ABUSES OF CRIMINAL JUSTICE SYSTEM!

https://www.washingtonpost.com/local/public-safety/us-judges-balk-at-ice-detention-of-defendants-granted-bail-under-trump-zero-tolerance-push/2018/10/10/ccd42830-c4f7-11e8-b2b5-79270f9cce17_story.html

Spencer Hsu reports for WashPost:

Judges in the nation’s federal criminal courts increasingly are balking at what they call unlawful efforts by U.S. immigration authorities to continue to detain people charged with entering the country illegally, even after they have been granted bail.

The rulings complicate the Trump administration’s “zero tolerance” crackdown on defendants who are charged with illegally crossing the border but whom judges have determined do not pose a flight or safety risk.

The decisions force prosecutors to make a choice — charge defendants with illegal entry or reentry and risk that a federal judge releases them pending trial, or keep suspects locked up in civil detention pending deportation proceedings and forgo criminal prosecution.

A recent ruling by a federal judge in Washington highlights the human and legal issues at stake, the case of a dishwasher from El Salvador who has a wife and two children in the District, where he returned after two deportations.

The surge in such criminal cases stems from an April 2017 announcement by U.S. Attorney General Jeff Sessions prioritizing Justice Department prosecutions of entry and reentry crimes. More than 60,000 people have faced such criminal charges since then, with twice as many new prosecutions this July, the most recent month for which data is available, compared with the same month in 2017, according to Syracuse University’s Transactional Records Access Clearinghouse, which monitors cases.

Individuals caught without documents on a first offense can be charged with a misdemeanor, but anyone caught in the United States after a prior deportation can be charged with a felony and face more than a year in prison. Immigration-related prosecutions are now the majority of all federal criminal cases, stretching far beyond states bordering Mexico.

Attorney General Jeff Sessions early this month in Ohio. (Adam Cairns/Columbus Dispatch/AP)

Advocates for immigrants say the recent court rulings may limit the use of the criminal charges to pressure defendants to abandon efforts to stay in the United States. The impact on overall removal efforts remains to be seen, but courts appear to be pushing back at an expansion of authority by prosecutors and Immigration and Customs Enforcement.

In the District, one rejection of the tougher tactics came from U.S. District Judge Royce C. Lamberth, a 1987 appointee of President Ronald Reagan. On Sept. 26. Lamberth said the government cannot have it both ways — asking federal courts to deny bail to defendants awaiting criminal trial and then, if a judge disagrees, holding them anyway in the immigration system.

The decision came in the case of Jaime Omar Vasquez-Benitez, 38, who court papers say was picking food up at a restaurant in July when D.C. police stopped him for suspected gang activity and turned him over to ICE. Federal public defenders say Vasquez-Benitez had quit a gang and fears for his life if he is deported.

He was charged in August with felony reentry despite deportation orders in 2008 and 2014.

A federal magistrate and district judge ruled Vasquez-Benitez should be released on bail, but U.S. marshals returned him to ICE custody. Defense attorneys moved to enforce the release order, and the case ended up in front of Lamberth after Vasquez-Benitez was indicted.

Lamberth ruled that a landmark 1966 U.S. bail statute specifically covers migrants and must “trump” more-general immigration laws, releasing Vasquez-Benitez into a high-intensity supervision program. He wrote that courts have long “upheld as sacrosanct” the principle that no one can act as prosecutor and judge at the same time, and that the Justice Department cannot ignore bail rulings any more than it can shrug off a defendant’s right to a speedy trial.

The judge said prosecutors can pursue both criminal charges and civil removal cases against defendants but must abide by a judge’s decision to grant bail. Or they can forgo charges and keep defendants locked up in civil detention while pursuing deportation.

People detained without valid immigration documents may well be worse off if uncharged, “languishing” indefinitely without speedy trial or access to bail in ICE detention camps far from families or counsel, the judge noted.

“Nevertheless, the government can do that” under immigration law, Lamberth wrote. “But so long as the government invokes the jurisdiction of a federal court, the government must consent to the Court’s custodial dominion over the criminal defendants before it.”

A decision on whether to appeal is pending. Bill Miller, a spokesman for the U.S. attorney’s office for the District, said the office was reviewing the ruling.

In a July 2017 Justice Department bulletin to 94 U.S. attorney offices nationwide, Oregon federal prosecutor Gregory R. Nyhus said that federal criminal statutes and civil immigration laws “are reconcilable” and that “courts should be encouraged to harmonize these statutes rather than focusing on [one] to the complete exclusion of the other.”

The government’s position — that it can hold Vasquez-Benitez strictly for deportation on a reinstated removal order, unrelated to his prosecution — has yet to be decided by an appeals court.

Rulings by trial judges in similar cases have varied.

Since July 2017, federal judges in Washington, Manhattan, Brooklyn, Detroit, Cleveland and Austin have rejected the government’s approach, drawing on a 2012 district court opinion in Oregon and a similar 2015 ruling by the U.S. Court of Appeals for the 9th Circuit that “the executive branch has a choice to make” between holding an undocumented person for deportation or prosecuting that person under criminal law and the Constitution.

Federal judges in Buffalo and Philadelphia have come down on the other side, saying that criminal and immigration laws can “coexist” on “parallel” tracks. Before the Trump administration, prosecutors would typically drop criminal charges to pursue civil removal if a previously deported defendant won bail.

Yihong “Julie” Mao, staff attorney with the National Immigration Project of the National Lawyers Guild, said the group was “heartened” by court rulings upholding undocumented immigrants’ right to bail and pretrial release based on family and community ties. She added: “This is fundamentally a separation-of-powers issue. The Department of Justice cannot be both judge and prosecutor.”

Mary Petras, an assistant federal public defender who is representing Vasquez-Benitez in the District, declined to comment.

[Trump’s ‘zero tolerance’ at the border is causing child shelters to fill up fast]

In court filings, Assistant U.S. Attorney Kenneth Clair Kohl argued that the defendant’s case is not covered by the 2012 ruling, because ICE is holding him solely to deport him, not to prosecute him.

The Salvadoran man was first arrested in 1997, falsely claimed Mexican citizenship and was allowed to go to Mexico, according to court papers. He was deported in 2008 after serving a three-year sentence for felony obstruction of justice in the District and again in 2014, before he was caught for a fourth time this July.

Prosecutors would have prosecuted Vasquez-Benitez even in past years because of what they said in court papers was his “threatening, violent behavior” and felony criminal conviction. Vasquez-Benitez was convicted of obstruction of justice for telling a woman in 2005 she would “pay the consequences” if she called the police, and a 2014 arrest warrant in El Salvador said he has been charged with extortion, prosecutors said.

“There may come a time . . . [when] immigration proceedings have concluded . . . forcing the United States to choose between physical removal and continuation of this criminal case. That time, however, has not yet come,” wrote Kohl and Assistant U.S. Attorney Elizabeth Dewar in an unsuccessful effort to detain the man.

Petras told the court the man is a longtime restaurant worker, and his wife works part time as a hotel housekeeper. Both have family nearby, and the couple’s 3-year-old daughter and 9-year-old son attended a recent court hearing.

Petras argued the man posed no flight risk, because he is seeking to halt his deportation after gang members in El Salvador sent him a message warning that he had “signed his death warrant” by quitting the gang and removing gang tattoos.

The lawyer said the fact that her client has lived in the Washington area for years and returned shows that he “wants to be here and that he has no intent or incentive to flee.”

Read more:

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

Compare what is happening in DC and some other jurisdictions with the “go along to get along” approach by some U.S. District Judges and U.S. Magistrate Judges along the border whom I have criticized in prior posts. The latter have allowed Sessions, Nielsen, and co. to turn their courts into “assembly line justice” — the kind that Session is implementing in his “wholly owned” U.S. Immigration Courts.

It’s pretty clear from the published reports that almost none of those being railroaded through that system actually understand the full immigration implications of their guilty pleas, nor do they understand how they can apply for asylum and what other rights they might have under the “civil immigration system.” Indeed, accepting guilty pleas without insuring that those entering the pleas fully understand the civil immigration situation and implications, including the likelihood of indefinite civil immigration detention and possible denial of a chance for a full hearing before an Immigration Judge, is arguably a violation of the U.S. Supreme Court’s decision in Padilla v. Kentucky.

I also have a “personal recollection” of Judge Royce Lamberth from decades ago when he was the Chief of the Civil Division at the U.S. Attorneys Office for DC and I was the Deputy General Counsel/Acting General Counsel at the “Legacy INS.” On several occasions I had to trek over from the “Central Office” in the “Chester Arthur Building” at 4th and Eye St., NW to the U.S. Courthouse complex on 5th Street to explain and justify the INS position to Royce.

He was known as a formidable individual, even in those days — a chief litigator who brooked no-nonsense from USG Agencies and who was concerned with maintaining the Government’s reputation for integrity and legal excellence before the U.S. Courts. That probably has much to do with how he got nominated and confirmed to be a U.S. District Judge and why he still brooks no-nonsense from the “Masters of Nonsense” in the Trump Administration.

PWS

10-13-18

MILLER & TRUMP ADMINISTRATION HATCHING ANOTHER ILLEGAL CHILD SEPARATION PROGRAM AS THEIR CRUEL & COUNTERPRODUCTIVE WHITE NATIONALIST ENFORCEMENT CONTINUES TO FAIL!

https://www.washingtonpost.com/local/immigration/trump-administration-weighs-new-family-separation-effort-at-border/2018/10/12/45895cce-cd7b-11e8-920f-dd52e1ae4570_story.html?utm_term=.e82d531c008e

Nick Miroff, Josh Dawsey, & Maria Sacchetti report for WashPost:

The White House is actively considering plans that could again separate parents and children at the U.S.-Mexico border, hoping to reverse soaring numbers of families attempting to cross illegally into the United States, according to several administration officials with direct knowledge of the effort.

One option under consideration is for the government to detain asylum-seeking families together for up to 20 days, then give parents a choice — stay in family detention with their child for months or years as their immigration case proceeds, or allow children to be taken to a government shelter so other relatives or guardians can seek custody.

That option — called “binary choice” — is one of several under consideration amid the president’s frustration over border security. Trump has been unable to fulfill key promises to build a border wall and end what he calls “catch and release,” a process that began under past administrations in which most detained families are quickly freed to await immigration hearings. The number of migrant family members arrested and charged with illegally crossing the border jumped 38 percent in August and is now at a record level, according to Department of Homeland Security officials.

Senior administration officials say they are not planning to revive the chaotic forced separations carried out by the Trump administration in May and June that spawned an enormous political backlash and led to a court order to reunite families.

But they feel compelled to do something, and officials say senior White House adviser Stephen Miller is advocating for tougher measures because he believes the springtime separations worked as an effective deterrent to illegal crossings.

At least 2,500 children were taken from their parents over a period of six weeks. Crossings by families declined slightly in May, June and July before surging again in August. September numbers are expected to be even higher.

While some migrants worried about separations, others felt seeking asylum was worth the risk

For some seeking asylum, family separations were worth the risk: ‘Whatever it took, we had to get to this country’ (Zoeann Murphy, Jorge Ribas/The Washington Post)

While some inside the White House and DHS are concerned about the “optics” and political blowback of renewed separations, Miller and others are determined to act, according to officials briefed on the deliberations. There have been several high-level meetings in the White House in recent weeks about the issue. The “binary choice” option is seen as one that could be tried out fairly quickly.

“Career law enforcement professionals in the U.S. government are working to analyze and evaluate options that would protect the American people, prevent the horrific actions of child smuggling, and stop drug cartels from pouring into our communities,” deputy White House press secretary Hogan Gidley said in an emailed statement.

Any effort to expand family detentions and resume separations would face multiple logistical and legal hurdles.

It would require overcoming the communication and data management failures that plagued the first effort, when Border Patrol agents, Immigration and Customs Enforcement officials and Department of Health and Human Services caseworkers struggled to keep track of separated parents and children.

The Trump administration believes it is on solid legal ground, according to two officials, in part because U.S. District Judge Dana M. Sabraw, who ordered the government to reunite separated families in June, approved the binary-choice approach in one of his rulings. But a Congressional Research Service report last month said “practical and legal barriers” remain to using that approach in the future and said releasing families together in the United States is “the only clearly viable option under current law.”

‘Administration officials said the CRS report cited earlier legal rulings. But the American Civil Liberties Union, which launched the separations lawsuit, disputed that interpretation and said it would oppose any attempt at expanded family detentions or separations.

“The government need not, and legally may not, indiscriminately detain families who present no flight risk or danger,” ACLU attorney Lee Gelernt said in an email. “It is deeply troubling that this Administration continues to look for ways to cause harm to small children.”

Another hurdle is that the government does not have detention space for a large number of additional families. ICE has three “family residential centers” with a combined capacity of roughly 3,000 parents and children. With more than four times that many arriving each month, it is unclear where the government would hold all the parents who would opt to remain with their children.

But Trump said in his June 20 executive order halting family separations that the administration’s policy is to keep parents and children together, “including by detaining” them. In recent weeks, federal officials have taken steps to expand their ability to do that.

In addition to considering “binary choice” and other options, officials have proposed new rules that would allow them to withdraw from a 1997 federal court agreement that bars ICE from keeping children in custody for more than 20 days.

The rules would give ICE greater flexibility to expand family detention centers and potentially hold parents and children longer, though lawyers say this would be likely to end up in court.

Officials have also imposed production quotas on immigration judges and are searching for more ways to speed up the calendar in its courts to adjudicate cases more quickly.

Federal officials arguing for the tougher measures say the rising number of family crossings is a sign of asylum fraud. DHS Secretary Kirstjen Nielsen has blasted smugglers for charging migrants thousands of dollars to ferry them into the United States, knowing that “legal loopholes” will force the administration to release them pending a court hearing. Federal officials say released families are rarely deported.

Advocates for immigrants counter that asylum seekers are fleeing violence and acute poverty, mainly in Central America, and deserve to have a full hearing before an immigration judge.

“There is currently a crisis at our southern border,” DHS spokeswoman Katie Waldman said in a statement, adding, “DHS will continue to enforce the law humanely, and will continue to examine a range of options to secure our nation’s borders.”

In southern Arizona, so many families have crossed in the past 10 days that the government has been releasing them en masse to shelters and charities. A lack of available bus tickets has stranded hundreds of parents and children in Tucson, where they sleep on Red Cross cots in a church gymnasium.

At a Senate hearing Wednesday, Sen. John Kyl (R-Ariz.) told Nielsen that migrants were “flooding into the community” and that authorities there had “no ability to do anything about it.”

Nielsen said lawmakers needs to give DHS more latitude to hold families with children in detention until their cases can be fully adjudicated — a process that can take months or years because of huge court backlogs.

DHS officials have seen the biggest increase this year in families arriving from Guatemala, where smugglers called “coyotes” tell migrants they can avoid detention and deportation by bringing a child, according to some community leaders in that country.

On Friday, Nielsen called for a regional effort to combat smuggling and violence in the region and to “heighten our penalties for traffickers.”

“I think there’s more that we can do to hold them responsible, particularly those who traffic in children,” she said in a speech in Washington at the second Conference on Prosperity and Security in Central America.

More than 90,000 adults with children were caught at the southwest border in the first 11 months of fiscal 2018. The previous high for a single year was 77,600 in 2016

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

My recollection is that 1) the DOJ conceded in court that a policy of intentionally separating families is unconstitutional; and 2) Federal Courts have held that detention of individuals who are neither security risks nor likely to abscond for the primary purpose of “deterrence” is illegal.

So, if this facially illegal program is put into action, why shouldn’t Stephen Miller go to jail and be held personally liable for all the damages he causes with his scofflaw racist policies? Why shouldn’t Nielsen, Sessions, and others who are part of the Miller White Nationalist scheme also be held personally liable?

More cruelty, more wasting of taxpayer resources, more abuse of the judicial process by the Trump Administration.

Oh, and by the way. although today’s out of control U.S. Immigration Court backlogs began with “Aimless Docket Reshuffling” during the Bush II and Obama Administrations, Sessions and the Trump Administration have pushed them to astounding new levels with their incompetence and anti-asylum bias. Don’t blame the victims for the Government’s irresponsible actions!

If folks who believe in human decency and the rule of law don’t get out and vote, these abuses and degradations of our national values will continue.

PWS

10-12-18

BIASED COURTS: EL PASO’S “HANGING JUDGES” ARE DEATH TO ASYLUM CLAIMS, EVEN THOSE THAT ARE BEING GRANTED IN MANY OTHER IMMIGRATION COURTS – The Due Process Problems In The U.S. Immigration Courts Go Much Deeper Than Jeff Sessions’s Outrageous White Nationalist Policies! — Author Justine van der Leun Presents A Meticulously Researched, Moving Report Of Unfairness That “Scotches” All Of The DOJ/EOIR “Bogus Excuses” & Exposes The Deep, Unacceptable Bias That Makes Our Immigration Courts A National Disgrace!

https://www.vqronline.org/reporting-articles/2018/10/culture-no

Here’s an excerpt from Justine van der Luen’s much longer article “A Culture of No,” published in the Fall 2018 issue of VQR (quoting me, among many others).

. . . .

“Here in the US, there is democracy, but we still have fear,” he said. “I got asylum but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment—and from there, between life and death.

To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?

As Isaac started over in America, other asylum seekers I had been tracking were less fortunate. Jesus Rodriguez Mendoza, the Venezuelan, had been transferred to a notorious detention center in Miami, which his legal team believed was punishment for his public protests; he remained on the El Paso docket, but now was physically separated from his lawyers, his fourth parole request denied. Berta Arias, the Honduran grandmother whose relief Judge Abbott had granted and then quickly rescinded, lost her appeal and was deported without the granddaughter she had raised. The Central American man whose brother, with an identical case, had won protection in New York City, remained in the Camp. It wasn’t only those from the Americas who were out of luck. Cambodians, Cameroonians, Guineans, and Kenyans I’d followed all had their claims denied; they had since been deported or were waiting on appeals.

One young Central American woman who had been repeatedly raped had managed to win relief, but only after her lawyer, unable to bear the thought of her client being sent home to be violated yet again, paid over $2,000 from her own pocket to fly two expert witnesses into Texas to clinch the case.

“I think in El Paso, they want to see that people died,” a young Salvadoran asylum seeker told me. He was an Evangelical Christian, who preached to local kids. Members of MS-13 had shot at him with a machine gun, killing a pedestrian who happened to be standing nearby, and kidnapped and murdered his fifteen-year-old friend who had joined him in proselytizing. The young man, his mother, and his brother made their way to the US. Despite having a devoted pro bono lawyer, he lost his asylum case, as well as his appeal, on the grounds of credibility (the judge believed he was simply an economic migrant who had invented the threats); his mother also struggled to find legal relief in El Paso.

“Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”

Justine van der Leun

Justine van der Leun is the author of several books, including We Are Not Such Things (Random House, 2016), a New York Times Editors’ Choice and Spectator Book of the Year. Her work has appeared in theNew York Times, Harper’s, the Guardian, and Oprah Magazine. She is an International Women’s Media Foundation reporting fellow and a grantee of the Investigative Fund at the Nation Institute.

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

I encourage you to read the full article at the above link, which is accompanied by some great original illustrations by Alan Vest!

Justine highlights the real role of attorneys in our asylum system. Many of them are working on a pro bono or low fee basis or actually paying out of their own pockets! They persist under horrible working conditions and often rude, insensitive, and unprofessional treatment from judges and other government officials that would persuade most other professionals to take up another line of work. The cases are complicated and (unnecessarily) fact intensive, often requiring not only extensive research and legal knowledge, but also skilled use of expert testimony and sources translated from foreign languages.

In courts like El Paso, getting a fair result in an asylum case too often depends on making the record below and then taking an appeal — the latter itself a time-consuming “hit or miss” proposition depending on the BIA “panel” (it could be a single judge) or the Circuit in which the case arose (sadly, the 5th Circuit is notorious for taking a cavalier and tone-deaf attitude toward the law and fundamental fairness in immigration matters).

Indeed, conscientious, dedicated attorneys are far more interested in making the system function in a fair and efficient manner consistent with our Constitution than the DOJ politicos who run today’s broken court system.

Compare the reality with the intentionally false and totally disingenuous picture painted by our White Nationalist Attorney General Jeff Sessions. He refers to “dirty lawyers” who are “gaming” the system.

Apparently, Sessions’s view of “gaming” means providing vigorous and effective representation and forcing him and some of the anti-asylum judges working for him to comply with asylum law!

It’s also painfully clear that no unrepresented asylum applicant would have any chance whatsoever of receiving fairness and Due Process in El Paso.

But, instead of working with the private bar to facilitate representation and repair the damage to the Immigration Courts, Sessions has gone to great lengths to prevent effective representation of asylum seekers. He has arranged for the detention of asylum seekers in horrible conditions in obscure places where there are no lawyers; he has “speeded up” the system to make it more difficult for lawyers to effectively represent their clients; he has used unconstitutional intentional family separation to duress individuals with valid claims into abandoning them; he has made pejorative remarks about asylum seekers and their lawyers in front of Immigration Judges; and he has manipulated the substantive law against bona fide asylum seekers.

Yes, many, many Immigration Judges “buck the odds” to honor their oaths of office and guarantee fairness and Due Process for asylum seekers and other respondents. Justine points out how results differ dramatically in Immigration Courts where judges apply the law and treat respondents and their lawyers in a fair and impartial manner.

So, how can I be such a strong advocate for independence of a system that I know is badly flawed? Those of us who have actually worked in the system know that it can’t be fixed overnight.

But, getting the system out of the hands of Sessions and the DOJ politicos is an absolutely essential first step. With the advent of a true merit judicial hiring system, such as that recommended by Professor Andy Schoenholtz and others, and the establishment of a more diverse and representative Appellate Division that acts like an independent Federal Court to rein in those judges who are unfairly treating asylum applicants and force them to correctly and fairly apply the law, there will be a return of meaningful judicial dialogue and deliberation which leads to progress over time.

Notably, in Isaac’s case, the system actually worked! After many months of expensive, wasteful, and unnecessary detention and an incorrect decision below, the BIA summarily corrected the Immigration Judge’s clearly erroneous denial of Isaac’s asylum case. But corrective action by the BIA to bring anti-asylum judicial “outliers” under control is exactly what Sessions has disabled in his decision in Matter of A-B-. He basically encourages “worst practices” and enables biased Immigration Judges while criticizing the BIA’s modest attempts to bring legality and order to an out of control system. What an outrageous perversion of justice and Due Process by someone who constantly makes bogus claims to be “enforcing the rule of law!”

Additionally, by returning control over dockets and court administration to sitting judges, rather than non-judicial DOJ politicos and their agency subordinates, an independent Immigration Court can make progress toward reducing backlogs while promoting, rather than “demoting,” Due Process.

The current Immigration Court System is a farce that should outrage and disgust every fair-minded American! It will continue to malfunction and deny Due Process until we have an independent Immigration Court where all judges are required to respect the Constitution and the individual rights of those coming before them.

Join the “New Due Process Army” and force the Immigration Courts and the Article IIIs to live up to their unfilled promise of “guaranteeing fairness and Due Process for all!”

PWS

10-09-18

GONZO’S WORLD: DHS IG REPORT SLAMS GONZO’S “KIDDIE GULAG” WHILE CRITICISM OF INTENTIONAL CHILD ABUSE BY HIM AND OTHERS IN THE ADMINISTRATION CONTINUES TO MOUNT — Will The Article IIIs Eventually Draw The Line Between Incompetence & Intentional, Malicious Violations Of Constitutional Rights & Hold Gonzo & His Collaborators in DHS & ORR Personally Liable Under “Bivens?”

https://www.washingtonpost.com/world/national-security/trumps-family-separation-policy-was-flawed-from-the-start-watchdog-review-says/2018/10/01/c7134d86-c5ba-11e8-9b1c-a90f1daae309_story.html

By Nick Miroff , Maria Sacchetti and Seung Min Kim

October 1 at 7:44 PM

The Trump administration’s “zero tolerance” crackdown at the border this spring was troubled from the outset by planning shortfalls, widespread communication failures and administrative indifference to the separation of small children from their parents, according to an unpublished report by the Department of Homeland Security’s internal watchdog.

The report, a copy of which was obtained by The Washington Post, is the government’s first attempt to autopsy the chaos produced between May 5 and June 20, when President Trump abruptly halted the separations under mounting pressure from his party and members of his family.

The DHS Office of Inspector General’s review found at least 860 migrant children were left in Border Patrol holding cells longer than the 72-hour limit mandated by U.S. courts, with one minor confined for 12 days and another for 25.

Many of those children were put in chain-link holding pens in the Rio Grande Valley of southern Texas. The facilities were designed as short-term way stations, lacking beds and showers, while the children awaited transfer to shelters run by the Department of Health and Human Services.

U.S. border officials in the Rio Grande Valley sector, the busiest for illegal crossings along the nearly 2,000-mile U.S.-Mexico border, held at least 564 children longer than they were supposed to, according to the report. Officials in the El Paso sector held 297 children over the legal limit.

The investigators describe a poorly coordinated interagency process that left distraught parents with little or no knowledge of their children’s whereabouts. In other instances, U.S. officials were forced to share minors’ files on Microsoft Word documents sent as email attachments because the government’s internal systems couldn’t communicate.

“Each step of this manual process is vulnerable to human error, increasing the risk that a child could become lost in the system,” the report found.

Based on observations conducted by DHS inspectors at multiple facilities along the border in late June, agents separated children too young to talk from their parents in a way that courted disaster, the report says.

“Border Patrol does not provide pre-verbal children with wrist bracelets or other means of identification, nor does Border Patrol fingerprint or photograph most children during processing to ensure that they can be easily linked with the proper file,” the report said.

“It is a priority of our agency to process and transfer all individuals in our custody to the appropriate longer-term detention agency as soon as possible,” U.S. Customs and Border Protection, which includes Border Patrol, said in a statement. “The safety and well-being of unaccompanied alien children . . . is our highest responsibility, and we work closely with the Department of Health and Human Services (HHS) Office of Refugee Resettlement to ensure the timely and secure transfer of all unaccompanied minors in our custody as soon as placement is available from HHS.”

In its Sept. 14 response to the inspector general’s report, DHS acknowledged the “lack of information technology integration” across the key immigration systems and “sometimes” holding children beyond the 72-hour limit.

Jim Crumpacker, the DHS official who responded to the report, said the agency held children longer mainly because HHS shelter space was unavailable. But he said transferring children to less-restrictive settings is a priority.

[‘Deleted families: What went wrong with Trump’s family separation effort]

On June 23, three days after the executive order halting the separations, DHS announced it had developed a “central database” with HHS containing location information for separated parents and minors that both departments could access to reunite families. The inspector general found no evidence of such a database, the report said.

“The OIG team asked several [Immigration and Customs Enforcement] employees, including those involved with DHS’ reunification efforts at ICE Headquarters, if they knew of such a database, and they did not,” it states. “DHS has since acknowledged to the OIG that there is no ‘direct electronic interface’ between DHS and HHS tracking systems.”

Inspectors said they continue to have doubts about the accuracy and reliability of information provided by DHS about the scope of the family separations.

In late June, a federal judge ordered the government to reunite more than 2,500 children taken from their parents, but three months later, more than 100 of those minors remain in federal custody.

The inspector general’s report also found that U.S. Customs and Border Protection (CBP) restricted the flow of asylum seekers at legal ports of entry and may have inadvertently prompted them to cross illegally. One woman said an officer had turned her away three times, so she crossed illegally.

At one border crossing, the inspection team saw CBP attempt to increase its detention space by “converting former offices into makeshift hold rooms.”

The observations were made by teams of lawyers, inspectors and criminal investigators sent to the border amid concerns raised by members of Congress and the public. They made unannounced visits to CBP and ICE facilities in the border cities of El Paso and McAllen, Tex.

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

Meanwhile, over at Vanity Fair, Isobel Thompson give us the “skinny” on how the self-created “Kiddie Gulag” that Sessions, Stevie Miller, and Nielsen love so much has turned into total chaos, with the most vulnerable kids among us as its victims. We’ll be feeling the effects of these cruel, inhuman, and unconstitutional policies for generations!

https://www.vanityfair.com/news/2018/10/donald-trump-child-detention-crisis-is-getting-worse

Three months after Donald Trump gave in to global opprobrium and discontinued his administration’s policy of separating children from their parents at the Mexican border, the stark impact of his zero-tolerance directive continues to unfold, with reports emerging that, in the space of a year, the number of migrant children detained by the U.S. government has spiked from 2,400 to over 13,000—despite the number of monthly border crossings remaining relatively unchanged. The increase, along with the fact that the average detainment period has jumped from 34 to 59 days, has resulted in an accommodation crisis. As a result, hundreds of children—some wearing belts inscribed with their emergency-contact information—have been packed onto buses, transported for hours, and deposited at a tented city in a stretch of desert in Tornillo, West Texas. According to The New York Times, these journeys typically occur in the middle of the night and on short notice, to prevent children from fleeing.

The optics of the child-separation crisis have been some of the worst in history for the Trump administration, and the tent city in Tornillo is no exception. The facility is reportedly run according to “guidelines” provided by the Department of Health and Human Services, but access to legal aid is limited, and children—who sleep in bunks divided by gender into blocks of 20—are given academic workbooks, but no formal teaching. In theory, the hundreds of children being sent to Tornillo every week should be held for just a short period of time; the center first opened in June as a temporary space for about 400. Since then, however, it has been expanded to accommodate 3,800 occupants for an indefinite period.

Again, the lag time is largely thanks to the White House. Typically, children labeled “unaccompanied minors” are held in federal custody until they can be paired with sponsors, who house them as their immigration case filters through the courts. But thanks to the harsh rhetoric embraced by the White House, such sponsors are now in short supply. They’re often undocumented immigrants themselves, which means that in this environment, claiming a child would put them at risk for deportation. In June, that risk became even more acute when authorities announced that potential sponsors would have to submit their fingerprints, as well as those of any adults living in their household: data that would then be passed to immigration authorities. Matthew Albence, who works for Immigration and Customs Enforcement, unwittingly illustrated the problem when he testified before Congress last week that I.C.E. had arrested multiple people who had applied to sponsor unaccompanied minors. Almost three-quarters had no criminal record.

Over time, the number of detained children is only expected to increase. According to The Washington Post, the flood of Central American immigrants moving north, driven by “hunger, joblessness, and the gravitational pull of the American economy,” shows no sign of abating. The number of men who cross the border with children has reportedly risen from 7,896 in 2016 to 16,667 this year, while instances of migrants falsely claiming children as their own have reportedly increased “threefold.” “Economic opportunity and governance play much larger roles in affecting the decision for migrants to take the trip north to the United States,” Kevin McAleenan, a border-security official, told the Post, adding that “a sustained campaign that addresses both push and pull factors” is “the only solution to this crisis.”

Given the attitude of the current administration, such a campaign seems unlikely to materialize. With Congress poorly positioned to pass comprehensive immigration reform, and a suddenly swamped detention system draining money and resources and damaging the mental health of thousands of children, the escalating crisis seems poised to become an ever more serious self-inflicted thorn in the president’s side. Although the White House is confident that, as hard-liner Stephen Miller boasts, it can’t lose on immigration, it will at some point be forced to acknowledge that its draconian strategy has morphed into chaos.

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

Wonder if any of these evil dudes who along with Sessions helped plan and implement the “Kiddie Gulag” knowing that it was likely in violation of the Constitution (in Federal court, DOJ lawyers didn’t even contest that a policy of intentional child separation would be unconstitutional) took out the “Bivens Insurance” offered to USG employees at relatively low-cost (I sure did!).

The only good news is that they are likely to be tied up in law suits seeking damages against them in their personal capacities for the rest of their lives!

So, perhaps there will eventually be some justice! But, that’s still won’t help traumatized kids whose lives have been screwed up forever as an illegal, immoral, and bogus, “deterrent” by a racist White Nationalist regime.

PWS

10-02-18

IMMIGRATION COURTS: MISSION FAILURE! – PROPOSED SETTLEMENT AGREEMENT GIVES A GLIMPSE OF HOW SOME U.S. IMMIGRATION JUDGES ABANDONED THEIR OATH TO UPHOLD CONSTITUTIONAL DUE PROCESS & “RUBBER STAMPED” DENIALS FOLLOWING SHOCKINGLY UNFAIR “REVIEW” PROCESS – “Exhibit A” In Why The Current Bogus Credible Fear Process As Manipulated By Sessions Needs Meaningful Review By Article III Judges! – A “Dependent Judiciary” Just Can’t Be Trusted To Do The Job In The “Age of Trump & Sessions!”

https://www.nytimes.com/2018/09/13/us/family-separation-asylum-settlement.html?action=click&module=Top%20Stories&pgtype=Homepage

Caitlin Dickerson reports for the NY Times:

. . . .

Mr. Sandoval-Moshenberg, who represented the plaintiffs, said that many parents were evaluated for “credible fear” after having their children removed, but before they were told where the children had been taken. He said his team submitted evidence showing that, during the interviews, the parents were “out of their minds with trauma, focused solely on the well-being and the whereabouts of their kids.”

In one piece of evidence included in the case, a recording of an immigration judge questioning a mother about her asylum claim, the mother can be heard crying too hard to answer the judge’s questions and says that she feels sick, Mr. Sandoval-Moshenberg said. After a few minutes, he said, the judge affirms an asylum officer’s finding that the woman’s fear of returning to her home country is not credible and asks that she be taken to see a doctor.

. . . .

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

Read Caitlin’s full article concerning the recent proposed settlement at the above link.

Obvious question: Why would somebody like Jeff Sessions be given authority over a “court system” that is supposed to insure Due Process for asylum applicants? That’s even worse than having the fox guard the henhouse! The results are as horrible and unlawful as they are predictable.

PWS

09-14-18

BREAKING: WHAT DID I TELL YOU? – HASTE MAKES WASTE! – TRUMP SCOFFLAWS FORCED TO AGREE TO REHEAR ASYLUM CASES OF THOSE DENIED DUE PROCCESS THROUGH FAMILY SEPARATION!!!!

https://www.vox.com/2018/9/13/17853770/children-separated-news-update-parents-trump

Dara Lind reports for Vox News:

As many as 1,000 parents separated from their children are getting a second chance to stay in the US

In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.

By Dara Lind dara@vox.com Sep 13, 2018, 12:41am EDT

SHARE

A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.
Mario Tama/Getty Images

The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.

The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.

If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.

And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.

The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.

If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.

Separating families made it much harder for parents to seek asylum

Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.

If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.

Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.

“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”

By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.

So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)

None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.

The government is agreeing to give reunited families the same chance they’d had if they’d never been separated

Here is what the agreement proposed by the government would actually do, if approved:

Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.

Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.

Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.

Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.

Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)

If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.

It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.

The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.

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

I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?

Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.

Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:

Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
- to establish a viable overseas refugee screening program in the Northern Triangle;
- working with other countries to share resettlement responsibilities;
- and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.

Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).

Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.

Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.

Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!

Haste Makes Waste! Told ya so!

PWS

09-13-18

GONZO’S WORLD: WHITE NATIONALIST AG MAKES VICIOUS UNFOUNDED ATTACK ON REFUGEES & THEIR ATTORNEYS THE CENTERPIECE OF HIS SPEECH TO LARGEST CLASS OF INCOMING U.S. IMMIGRATION JUDGES — “Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests.”

Sessions to immigration judges: Immigrants’ attorneys like ‘water seeping’ around law

By Tal Kopan, CNN

Attorney General Jeff Sessions told a new group of immigration judges Monday that it is their job to “restore the rule of law” to the immigration system over the contrary efforts of the lawyers who represent immigrants.

The remarks at the training of the largest-ever class of new immigration judges implied that the judges were on the same team as the Trump administration, and that immigrants and their attorneys were trying to undermine their efforts.

“Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests,” Sessions said, adding the same happens in criminal courts. “And we understand that. Their duty, however, is not uphold the integrity of the act. That’s our duty.”

Sessions noted that “of course” the system “must always respect the rights of aliens” in the courts. But he also warned the judges of “fake claims.”

“Just as we defend immigrant legal rights, we reject unjustified and sometimes fake claims,” Sessions said. “The law is never serviced when deceit is rewarded so that the fundamental principles of the law are defeated.”

The comments came in the context of Sessions’ repeated moves to exert his unique authority over the immigration courts, a separate legal system for immigrants that is entirely run by the Justice Department.

Sessions approves every judge hired and can instruct them on how to interpret law, and thus decide cases, as well as how to manage cases. He has used that authority multiple times in the past year, including issuing a sweeping ruling that will substantially narrow the types of cases that qualify for asylum protections in the US. Those decisions overrode the evolution of years of immigration judges’ and the immigration appellate board’s decisions.

Sessions reminded the new judges of that authority and those decisions in his remarks, saying he believes they are “correct” and “prudent” interpretations of the law that “restores” them to the original intent.

More: http://www.cnn.com/2018/09/10/politics/sessions-immigration-judges/index.html

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

Another totally inappropriate and unethical effort by Sessions to insure that migrants, particularly asylum seekers, receive neither fair consideration nor Due Process from U.S. Immigration Judges in connection with their, in many instances, very compelling cases for protection.

Let’s shine a little light of truth on the Sessions’s dark myth-spinning:

As recently as 2012, the majority of asylum applicants who received decisions on the merits of their claims in Immigration Court were granted protection;
Conditions in most “sending countries” — particularly those in the Northern Triangle — have gotten worse rather than better;
There is no reasonable explanation for the large drop in approvals in recent years other than bias against asylum seekers;
Even after Sessions took over, 30% of those who get merits determinations won their cases;
The success rate is higher for those released from detention and given fair access to counsel;
Most detained migrants, particularly those intentionally detained in substandard conditions in obscure locations, do not have reasonable access to counsel;
Most attorneys representing detained asylum seekers serve pro bono or for minimal compensation (particularly in relation to the amount of time and effort required to prepare and present an asylum case in detention);
Detention of asylum seekers simply to deter them from coming is illegal;
Separation of families is a deterrent is also illegal;
Neither detention nor “zero tolerance” prosecutions have been shown to have a material impact on the flow of refugees to our Southern Border;
Sessions has provided no evidence of any widespread fraud in asylum applications by refugees from the Northern Triangle;
The UN High Commissioner for Refugees (“UNHCR”), the leading interpreter of refugee and asylum protections, has consistently criticized the US’s overly restrictive approach to asylum adjudication;
Article III U.S. Courts continue to be critical of both the unlawful policies being promoted by Sessions and the fundamental errors still being made by the BIA and some Immigration Judges in analyzing asylum cases and claims under the Convention Against Torture;
According to the US Supreme Court, a chance of harm as low as 10% can satisfy the generous legal standard for asylum;
According to the UNHCR, asylum applicants should be given the “benefit of the doubt;”
Most of those who fail to get asylum, like the abused woman denied protection by Sessions in Matter of A-B-, face life threatening situations in their home countries — we have merely made a conscious choice not to offer them asylum or some alternative form of life-saving protection.

As Sessions sees that his time as Attorney General will likely come to an end before the end of this year, he is doubling down on his White Nationalist, xenophobic, racist, restrictionist, lawless agenda. He wants to inflict as much damage on migrants, refugees, women, and people of color as he can before being relegated to his former role as a rightist wing-nut. He also seeks to convince the Immigration Judges that they are not independent juridical officials but mere highly paid enforcement agents with an obligation to deport as many folks as possible in support of the President’s agenda.

I do agree with Sessions, however, that the newly-minted Immigration Judges have a tremendously difficult job. If they adopt his philosophy, they are likely to violate their oaths to uphold the Constitution and laws of the US and to wrongly return individuals to death-threatening situations. On the other hand, if they carefully and fairly follow the law and give full consideration to the facts, they will be compelled to grant protection in many cases, thus potentially putting them on EOIR’s “hit list.” (Basically, new US Immigration Judges, even those with many years of civil service, can be “fired at will” by EOIR during their first two years of “probation” as judges.)

The only solution is an independent Article I Immigration Court that will guarantee that someone as totally unqualified as Sessions can never again impose his personal will and bigoted, anti-Due-Process views on what is supposed to be a fair and impartial court system.

PWS

09-10-18

GONZO’S WORLD: THIS IS WHY HE STAYS: UNDERNEATH ALL THE “TRUMP NOISE” SESSIONS IS METHODICALLY ERADICATING DUE PROCESS, PERVERTING THE LAW, & TURNING ONE OF THE LARGEST FEDERAL COURT SYSTEMS INTO A “KILLING FLOOR” TARGETING OUR MOST VULNERABLE & DESERVING REFUGEES! — “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

https://www.motherjones.com/politics/2018/09/jeff-sessions-is-executing-trumps-immigration-plans-with-a-quiet-efficient-brutality/

Sophie Murguia and Kanyakrit Vongkiatkajorn report for Mother Jones:

Jeff Sessions Is Executing Trump’s Immigration Plans With a Quiet, Efficient Brutality

The attorney general’s systematic gutting of immigration courts is the latest example.

Sophie Murguia and Kanyakrit VongkiatkajornSep. 7, 2018 6:00 AM

Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.

Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.

The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.

This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.

Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.

“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.

Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”

Here are the biggest ways Sessions is attacking the immigration courts:

It’s now much more difficult to apply for asylum

In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.

Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.

In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, told Mother Jones when the decision was first announced.

A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.

Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”

Judges have less control over their case loads …

This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.

Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.

The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.

… and will have to move through them more quickly

In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.

The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.

“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

It’s harder for them to reschedule cases

On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.

Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.

And as more judges retire, Sessions gets to staff up

Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”

Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.

What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”

Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.

Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.

Under Sessions, he says, the immigration court “has become a deportation railway.”

Sent from my iPad

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

Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.

For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.

Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.

Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.

He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.

That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.

Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.

Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!

PWS

09-08-18

TAL @ CNN: BREAKING: SCOFFLAW ADMINISTRATION PROPOSES DEFYING COURT DECREE ON KIDDIE DETENTION – MONUMENTAL CONSTITUTIONAL SHOWDOWN IN FEDERAL COURT COMING!

Trump admin seeks to keep immigrant families in detention indefinitely

By Tal Kopan, CNN

The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.

The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.

The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.

One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.

The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.

“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”

More: http://www.cnn.com/2018/09/06/politics/trump-administration-immigrant-families-children-detention/index.html

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

Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.

I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.

These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).

Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!

PWS

09-06-18

BIA MAKES TONS OF FUNDAMENTAL MISTAKES IN ATTEMPTING TO DENY GUERRILLA/GANG-RELATED CASE, SAYS 9TH CIR. – QUIROZ PARADA V. SESSIONS — A Dramatic Case Study In The Abuse & Mismanagement Of Our Immigration Court & Asylum Systems By The U.S. Government!

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/13-73967.pdf

Quiroz Parada v. Sessions, 9th Cir., 08-29-18, Published

COURT STAFF SUMMARY:

The panel granted Moris Alfredo Quiroz Parada’s petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.

The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother’s assassination, the murder of his neighbor as a result of Quiroz Parada’s own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.

Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family’s government and military service. The panel noted that it was immaterial that the

FMLN’s attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.

The panel held that substantial evidence did not support the agency’s determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN’s rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.

The panel concluded that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief because it ignored pertinent evidence in the record and erred by construing the “government acquiescence” standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.

The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada’s removal.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,* District Judge.

* The Honorable Timothy J. Savage, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

OPINION BY: Judge Paez

KEY QUOTES FROM OPINION:

Quiroz Parada applied for asylum5 and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s “leftist wing” form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if “they murder people, or behave badly.”6

5 Because Quiroz Parada applied for asylum prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the one-year bar for asylum applications does not apply.See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).

6 Regrettably, as with many critical pieces of his testimony, Quiroz Parada’s explanation for why he does not believe in the Salvadoran government’s ability or willingness to prosecute former FMLN members who murder or otherwise attack their former enemies is transcribed as “[indiscernible] and [indiscernible].”

Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.

The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.

Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the “police do[] not help, and they even get killed,” and warned that if he were to come back to the country, “history would repeat itself.” Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she “snitched on the barrio” and warned her that if she failed to leave the area by a particular date, her “daughters will suffer the consequences.” His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s home region, and how the rampant violence has forced many families to flee.

The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada’s asylum claim “may be a lost cause.” Nonetheless, despite the IJ’s significant skepticism, he allowed Quiroz Parada’s attorney to present Quiroz Parada’s case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada’s requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.7 The IJ then determined that Quiroz Parada had not shown past persecution, but further concluded that even if he had, DHS had rebutted the presumption with evidence of changed country conditions. The IJ also found that Quiroz Parada had not shown an independent well-founded fear of future persecution. Because the IJ determined that Quiroz Parada had not established eligibility for asylum through either past persecution or a well-founded fear of future persecution, Quiroz Parada necessarily failed to meet the higher bar required to obtain withholding of removal. The IJ also rejected Quiroz Parada’s claim for CAT relief.

7 Although the REAL ID Act governs Quiroz Parada’s claim for cancellation of removal, it does not govern his claims currently on appeal, which were filed prior to May 11, 2005. See Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010).

Quiroz Parada appealed the IJ’s decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ’s determinations on Quiroz Parada’s asylum, withholding, and CAT claims, including the IJ’s alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.

. . . .

As an initial matter, we reject the government’s contention that we lack jurisdiction to consider Quiroz Parada’s CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we have jurisdiction to review the claim.

The agency’s first error was its failure to consider all relevant evidence. CAT’s implementing regulations require the agency to consider “all evidence relevant to the possibility of future torture,” and we have repeatedly reversed where the agency has failed to do so.See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase [that the agency has considered all of the evidence] does not suffice, and the decision cannot stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to consider [relevant evidence] constitutes reversible error.”). Relevant evidence includes the petitioner’s testimony and country conditions evidence. See Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible testimony “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).

Here, the relevant evidence included Quiroz Parada’s credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada’s CAT claim, stating:

Based on the respondent’s testimony and the evidence in the record, the Court finds that the respondent has not shown that he is “more likely than not” to be tortured if he is removed to El Salvador. In addition, to be eligible for CAT relief, the respondent must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306, 1311 (BIA 2000), disagreed with on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003). “Article 3 of the Convention Against Torture does not

extend protection to persons fearing entities that a government is unable to control.” Id.at 1312. The respondent has not alleged that he fears torture inflicted by any governmental entities in El Salvador, nor by any other entity with the acquiescence of any government official. Thus, he has not established eligibility for CAT relief.

This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government “acquiescence[d]” in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis—as the IJ himself found in a section of his decision summarizing the country conditions evidence:

[P]rotection of human rights was undermined by widespread violent crime, rampant judicial and police corruption, intimidation by the ubiquitous violent street gangs, and violence against witnesses. Criminal gangs are a serious, widespread, and pervasive socio-economic challenge to the security, stability, and welfare of El Salvador. Indeed, gangs are blamed for the bulk of crimes and murders in El Salvador. While the government’s fight against the gangs has met with some success in areas, El Salvador remains an exceptionally violent country because of the pervasive gang violence.

Although arbitrary arrest, prolonged detention, and torture are prohibited in El Salvador, Salvadoran security forces apparently continue to participate in such practices on a regular basis. Conditions in detention are degrading and extremely dangerous. Many officials throughout all levels of government engage in corruption with impunity despite a recent increased emphasis on enforcement.

Thus, while the IJ did “consider” the country conditions reports, the significant and material disconnect between the IJ’s quoted observations and his conclusions regarding Quiroz Parada’s CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him.See Cole, 659 F.3d at 771–72 (explaining that indications of the agency’s failure to properly consider all of the relevant evidence “include misstating the record and failing to mention highly probative or potentially dispositive evidence”).

The agency’s second error was its overly narrow construction of the “acquiescence” standard. In a similar case, we reversed and remanded where the agency “erred by construing ‘government acquiescence’ too narrowly,” noting that “acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003)). In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.

Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771.

Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA’s determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.

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

The BIA’s and IJ’s fundamental errors included:
- Failing to follow their regulations requiring them to consider all the evidence;
- Incorrectly finding no “past persecution;”
- Incorrectly applying the regulatory presumption of future persecution;
- Incorrectly denying asylum and withholding of removal;
- Applying an incorrect standard for CAT protection;
- Incorrectly analyzing country conditions for CAT.

Wow, what did the BIA and the IJ get right here other than the name and “A#?”

Contrary to the “Sessions myth” about “dirty attorneys” and respondents “gaming the system,” this case presents the perhaps extreme, but certainly not atypical, example where “the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so.”

The respondent, “by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims.”

Moreover, once the hearing finally took place, it was fairly obvious from the IJ’s negative pre-hearing comments that he had already “prejudged’ the case against the respondent.

The court also notes how the phenomenon I call “Aimless Docket Reshuffling” (“ADR”) by the Government, which Sessions has shoved into overdrive, fuels “our previously-expressed concern that ‘constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a “Zeno’s Paradox” where final resolution of the case would never be reached.’”Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration omitted).”

The grossly under-studied phenomenon of “ADR” by the DHS and EOIR/DOJ also requires the respondent and his or her often pro bono attorney to constantly update the record and the evidence to deal with changing conditions, while the DHS often takes the lackadaisical approach they did here, apparently counting on the IJ or the BIA to “fill in the gaps” necessary to “get to a denial of the facially grantable claim.”

Here’s the court’s accurate statement of both the CAT standard for acquiescence and the current conditions in El Salvador:

“In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.

Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771″

Compare the above with Sessions’s completely disingenuous description of both the standard for “unwilling or unable to protect” — certainly “acquiescence” would meet or exceed “unwilling or unable to protect” — and the beyond deplorable country conditions in El Salvador in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

This case also illustrates how in the “haste makes waste” world of EOIR, transcripts are often missing or garble testimony critical to the respondent’s case.

Unfortunately, this case is but an example of the deep, ugly hidden truth about our Immigration Courts. Even before Session’s White Nationalist restrictionist moves against asylum seekers, the Immigration Courts were mistreating too many asylum seekers, particularly those from the Northern Triangle fleeing life-threatening violence. Well prepared claims were often shunted to the end of the docket by ADR at both the courts and the DHS Asylum offices. They are often replaced by “prioritized” claims in detention settings or in other unnecessarily rushed situations where individuals have not had adequate time to obtain competent counsel and to prepare the necessary documentation to win a claim.

That’s compounded by the fact that even in the past, statements of politicos within Administrations of both parties and the generally negative tenor of BIA precedents on asylum for the Northern Triangle have encouraged some willing Immigration Judges to either prejudge the cases or give them “short shrift” to discourage such claims in the future and to act as a “deterrent,” as well as to jack up the number of “case completions” by cutting corners. This was happening in some Immigration Courts and on some BIA panels even before Sessions took over.

Certainly, the message from Sessions has been overtly anti-asylum, anti-Hispanic, anti-female, anti-family, anti-Due-Process, anti-scholarship, and anti-deliberation. In essence: “Just rubber stamp ’em, deny ’em, and move ’em out as fast as you can if you want to keep your job. And, don’t forget that your job involves ‘partnership’ with the DHS prosecutors.”

Obviously, our Immigration Court systems had some deep-seated Due Process problems with anti-asylum, anti-Northern Triangle attitudes, as well as fundamentally incorrect views of the asylum law and regulations, by some Immigration Judges and BIA Appellate Immigration judges even prior to Sessions’s advent. That’s one of the key reasons why gross discrepancies in approval-denial rates in similar cases among Immigration Judges and among BIA “panels” (which often can be nothing more than a single Appellate Judge) had no reasonable explanation even during the Obama Administration.

Sessions has made all of this immeasurably worse! Rather than fostering an attitude of judicial independence, courtesy, fairness, respect for both parties, Due Process, and the generous consideration of asylum claims mandated by the Supremes in Cardoza-Fonseca and at least mouthed by the BIA in Matter of Mogharrabi, Sessions has come up with ways of forcing the already broken Immigration Court system to take on even more cases, cut even more corners, and spew forth even more incorrect and unfair decisions, particularly in the area of asylum.

He has shown a simply horrible, outright hostility to working cooperatively with the individual Immigration Judges, the NAIJ, the private bar, the pro bono community, the NGO’s, and the academic community, along with the DHS, to develop methods of improving Due Process, fairness, and timeliness in the asylum adjudication system. Perhaps even worse, by reducing the status of judges to “denial officers,” and upping the stress levels to incredible heights, he’s also made the U.S. Immigration Judge and the BIA Appellate Immigration Judge jobs far less appealing to well-qualified individuals who would fairly, efficiently, correctly, and professionally adjudicate asylum claims. Such individuals also likely would have some of the “creative, yet practical” “think outside the box” approaches necessary to deal with the backlog in a timely manner without compromising Due Process. It’s painfully obvious that the Sessions and the other politicos now futilely trying to micromanage the Immigration Court system are devoid of any such insights.

Frankly, this is the type of case that probably could have been granted back in 1994 when it was first filed. Even by the time it finally got to Immigration Court, it appears to be the type of well-documented, clearly grantable case that could have been set for a “short block hearing” with the understanding that if certain aspects of the respondent’s background and experiences were verified under oath, the DHS would not oppose a grant of asylum.

Instead, this case has been “hanging around” the system for more than 24 years, and still hasn’t been finally resolved! More seriously, after taking five years on the docket to get to the merits hearing, both the IJ and the BIA clearly got it wrong!

The mess that currently exists in the Immigration Court and asylum systems is primarily the product of years of such abuse and mismanagement by a politically-driven adjudication system, aided and abetted by Congressional inaction and failure to provide adequate funding. Cutting more corners, pushing overwhelmed judges to turn out more cases in less time, and punishing asylum applicants by taking away their children, detaining them in substandard conditions, denying them reasonable access to counsel, denying them fairness, Due Process, and the life-saving protection to which many of them are entitled clearly isn’t the answer.

We need regime change (along with an attitude and culture change among some Immigration Judges and among some BIA panels)!

PWS

09-05-18

EXPOSING SESSIONS’S DEADLY DUE PROCESS SCAM: JUDGE SULLIVAN BLOCKS ANOTHER POTENTIAL DEPORTATION TO DEATH AS SESSIONS-LED DOJ ARGUES THAT THE KILLING LINE NOT SUBJECT TO REVIEW — Pro Bono Counsel Jones Day Saves The Day, At Least For Now — “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”

https://www.law.com/nationallawjournal/2018/08/23/judge-who-forced-feds-to-turn-that-plane-around-blocks-another-deportation/?kw=Judge%20Who%20Forced%20Feds%20to%20%27Turn%20That%20Plane%20Around%27%20Blocks%20Another%20Deportation&et=editorial&bu=NationalLawJournal&cn=20180823&src=EMC-Email&pt=NewsroomUpdates&utm_source=newsletter

C. Ryan Barber reports for the National Law Journal:

Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation

U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.

By C. Ryan Barber August 23, 2018 at 03:08 PM

Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.

A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.

U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.

In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.

“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.

At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”

U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.

After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.

“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”

Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.

“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.

“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.

Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.

The government, after the fact, said it was reviewing removal proceduresin the San Antonio immigration office “to identify gaps in oversight.”

Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”

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

When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.

No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”

Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!

(Full Disclosure: I am a former partner at Jones Day. I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!)

PWS

08-24-18

INSIDE THE TRUMP-SESSIONS “NEW AMERICAN GULAG” — “It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’”

https://www.huffingtonpost.com/entry/family-detention-center-border_us_5b7c2673e4b0a5b1febf3abf

Catherine Powers writes in HuffPost:

In July, I left my wife and two little girls and traveled from Denver to Dilley, Texas, to join a group of volunteers helping migrant women in detention file claims for asylum. I am not a lawyer, but I speak Spanish and have a background in social work. Our task was to help the women prepare for interviews with asylum officers or to prepare requests for new interviews.

The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. Although the separations have stopped because of the resulting public outcry, hundreds of families have not been reunited (including more than 20 children under 5), families continue to be detained at higher rates than adults crossing the border alone, and the trauma inflicted on the women and children by our government will have lifelong consequences.

To be clear, this is a policy of deliberately tormenting women and children so that other women and children won’t try to escape life-threatening conditions by coming to the United States for asylum. I joined this effort because I felt compelled to do something to respond to the humanitarian crisis created by unjust policies that serve no purpose other than to punish people for being poor and female ― for having the audacity to be born in a “shithole country” and not stay there.

I traveled with a group of amazing women gathered by Carolina, a powerhouse immigration lawyer and artist from Brooklyn. My fellow volunteers were mostly Latinas or women whose histories connected them deeply to this work. Through this experience, we became a tight-knit community, gathering each night to process our experiences and try to steel ourselves for the next day. Working 12-hour shifts alongside us were two nuns in their late 70s, and it was one of them who best summed up the experience as we entered the facility one morning. “What is happening here,” she said, “makes me question the existence of God.”

It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’

I am still in awe of the resilience I witnessed. Many of the women I met had gone for more than two weeks without even knowing where their children were. Most had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala). They came here seeking refuge from unspeakable horrors, following the internationally recognized process for seeking asylum. For their “crime,” they were incarcerated with hundreds of other women and children in la hielera (“the freezer,” cold concrete cells with no privacy where families sleep on the floor with nothing more than sheets of Mylar to cover them) or la perrera (“the dog kennel,” where people live in chain link cages). Their children were ripped from their arms, they were taunted, kicked, sprayed with water, fed frozen food and denied medical care. Yet the women I encountered were the lucky ones, because they had survived their first test of will in this country.

Woman after woman described the same scene: During their separation from their children ― before they learned of their whereabouts or even whether they were safe ― the women were herded into a room where Immigration and Customs Enforcement officials handed them papers. “Sign this,” they were told, “and you can see your children again.” The papers were legal documents with which the women would be renouncing their claims to asylum and agreeing to self-deport. Those who signed were deported immediately, often without their children. Those who refused to sign were given sham credible-fear interviews (the first step in the asylum process), for which they were not prepared or even informed of asylum criteria.

The women were distraught, not knowing what ICE had done with their children or whether they would see them again. Their interviews were conducted over the phone, with an interpreter also on the line. The asylum officer would ask a series of canned questions, and often the women could reply only, “Where is my child? What have you done with my child?” or would begin to give an answer, only to be cut off midsentence. Not surprisingly, almost all of them got negative results — exactly the outcome this policy was designed to produce. Still, these women persisted.

After a court battle, my clients were reunited with their children and were fortunate enough to have access to free legal representation (many do not) through the CARA Pro Bono Project. The women arrived looking shell-shocked, tired, determined. Some of their children clung to them, afraid to be apart even for a few minutes, making it very hard for the women to recount their experiences, which often included sexual violence, death threats and domestic abuse. Other children stared into space or slept on plastic chairs, exhausted from sleepless nights and nightmares. Still others ran manically around the legal visitation trailer. But some of the children showed incredible resilience, smiling up at us, showing off the few English words they knew, drawing pictures of mountains, rivers, neat little houses. They requested stickers or coloring pages, made bracelets out of paper clips. We were not allowed to give them anything ― no treats or toys or books. We were not allowed to hug the children or their mothers ― not even when they sobbed uncontrollably after sharing the details of their ordeals.

In the midst of this sadness and chaos, the humanity of these women shined through. One of my clients and her son, who had traveled here from Guatemala, took great pleasure in teaching me words in their indigenous language, Mam. She taught me to say “courageous” ― hao-tuitz ― and whenever our work got difficult, we would return to this exhortation. These lessons were a welcome break from reviewing the outline of the experiences that drove them to leave, fleshing it out with details for their interview. They wearied of my pressing them to remember facts I knew the asylum officer would ask about. They wanted only to say that life is very hard for indigenous people, that their knowledge of basic Spanish was not enough to make them equal members of society. Mam is not taught in schools, and almost everyone in Guatemala looks down on those who speak it. They were so happy to have a licenciada (college graduate) interested in learning about their culture. We spent almost an hour finding their rural village on Google Earth, zooming in until we could see pictures of the landscape and the people. As we scrolled through the pictures on the screen, they called out the people by name. “That’s my aunt!” and “There’s my cousin!” There were tears of loss but mostly joy at recognizing and feeling recognized ― seen by the world and not just dismissed as faceless criminals.

A diabetic woman who had not had insulin in over a week dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement.

There were stories of the astonishing generosity of people who have so little themselves. One colleague had a client who had been kidnapped with her daughter and another man by a gang while traveling north from Guatemala. The kidnappers told the three to call their families, demanding $2,000 per person to secure their release. The woman was certain she and her daughter were going to die. Her family had sold, mortgaged and borrowed everything they could to pay for their trip. They had never met the man who was kidnapped with them. She watched as he called his family. “They’re asking for $6,000 for my release,” she said he told them. He saved three lives with that phone call. When they got to the U.S.-Mexico border, they went separate ways, and she never saw him again, never knew his last name.

Another client I worked with was a different kind of hero. After confronting gangs trying to extort her in her country, she fled north with her son and was caught at the U.S.-Mexico border. She and her son were forcibly separated, and she was pressured to sign papers waiving her legal rights. Not only did she resist doing so, but she also took great personal risks to confront the ICE officials. “You didn’t need my signature to take my son away from me. Why do you need my signature to bring him back?” Then she loudly urged all the women in the room not to sign. “It’s a trick!” she told them. She made sure to write down the names and contact numbers of the women she was detained with. When I worked with her, she would often ask if she could call the relatives of one of the women to notify the family or see if she had made it safely to her destination. Every day I was at Dilley, this client took other women with her to the legal visitation trailer, trying to ensure that everyone had access to representation. She is a budding community organizer, a true example of the kind of concern, compassion and courage that our country needs.

Not everything I heard was so positive. Without exception, the women described cruel and degrading treatment at the hands of ICE officials at the Port Isabel immigrant processing center, near Brownsville, Texas. There was the diabetic woman who had not had insulin in over a week and dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement. Women reported being kicked, screamed at, shackled at wrists and ankles and told to run. They described the cold and the humiliation of not having any privacy to use the bathroom for the weeks that they were confined. The children were also kicked, yelled at and sprayed with water by guards, then awoken several times a night, ostensibly so they could be counted.

Worse than the physical conditions were the emotional cruelties inflicted on the families. The separation of women from small children was accomplished by force (pulling the children out of their mothers’ arms) or by deceit (telling the women that their children were being taken to bathe or get medical care). Women were told repeatedly that they would never see their children again, and children were told to stop crying because they would never see their mothers again. After the children were flown secretively across the country, many faced more cruelty. “You’re going to be adopted by an American family,” one girl was told. Some were forced to clean the shelters they were staying in and faced solitary confinement (el poso) if they did not comply. Children were given psychotropic drugs to ameliorate the anxiety and depression they exhibited, without parental permission. One child underwent surgery for appendicitis; he was alone, his cries for his mother were disregarded, and she was not notified until afterward.

The months of limbo in which these women wait to learn their fate borders on psychological torture. Decisions seem arbitrary, and great pains are taken to keep the women, their lawyers and especially the press in the dark about the government’s actions and rationales for decisions. One woman I worked with had been given an ankle bracelet after receiving a positive finding at her credible fear interview. Her asylum officer had determined that she had reason to fear returning to her country and granted her freedom while she pursues legal asylum status. Having cleared this hurdle, she boarded a bus with others to be released, but at the last moment, she was told her ankle bracelet needed a new battery. It was removed, and she was sent instead to a new detention center without explanation. A reporter trying to cover the stories of separated families told me about her attempt to follow a van full of prisoners on their way to be reunited with their children so that she could interview them. First ICE sent two empty decoy vans in different directions, and then it sent a van with the detainees speeding down a highway, running red lights to try to outrun her. Every effort is being made to ensure that the public does not know what is happening.

The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped.

The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped. The sexual assaults the women described often involved multiple perpetrators, the use of objects for penetration and repeated threats, taunting and harassment after the rape. A Mormon woman I worked with could barely choke out the word “rape,” much less tell anyone in her family or community what had happened. Her sweet, quiet daughter knew nothing of the attack or the men who stalked the woman on her way to the store, promising to return. None of the women I spoke with had any faith that the gang-ridden police would or could provide protection, and police reports were met with shaming and threats. Overwhelmingly, the women traveled with their daughters, despite the increased danger for girls on the trip, because the women know what awaits their little girls if they stay behind. Sometimes the rapes and abuse were at the hands of their husbands or partners and to return home would mean certain death. But under the new directives issued by Attorney General Jeff Sessions, domestic violence is no longer a qualifying criterion for asylum.

Two things I experienced during my time in Dilley made the purpose of the detention center crystal clear. The first was an interaction with an employee waiting in line with me Monday morning to pass through the metal detector. I asked if his job was stressful, and he assured me it was not. He traveled 80 minutes each day because this was the best-paid job he could get, and he felt good about what he was doing. “These people are lucky,” he told me, “They get free clothes, free food, free cable TV. I can’t even afford cable TV.” I did not have the presence of mind to ask him if he would give up his freedom for cable. But his answers made clear to me how the economy of this rural part of Texas depends on prisons. The second thing that clarified the role of the detention center was a sign in the legal visitation trailer, next to the desk where a guard sat monitoring the door. The sign read, “Our stock price today,” with a space for someone to post the number each day. The prison is run by a for-profit corporation, earning money for its stockholders from the incarceration of women and children. It is important to note the exorbitant cost of this cruel internment project. ICE puts incarceration costs at $133 per person per night, while the government could monitor them with an ankle bracelet for $10 to $15 a day. We have essentially made a massive transfer of money from taxpayers to holders of stock in private prisons, and the women and children I met are merely collateral damage.

I have been back home for almost a month now. I am finally able to sleep without seeing the faces of my clients in my dreams, reliving their stories in my nightmares. I have never held my family so tight as I did the afternoon I arrived home, standing on the sidewalk in tears with my 7-year-old in my arms. I am in constant contact with the women I volunteered with, sharing news stories about family detention along with highlights of our personal lives. But I am still waiting for the first phone call from a client. I gave each of the women I worked with my number and made them promise to call when they get released. I even told the Mormon woman that I would pray with her. No one has called.

I comb the details of the Dilley Dispatch email, which updates the community of lawyers and volunteers about the tireless work of the on-the-ground team at Dilley. This week the team did 379 intakes with new clients and six with reunified families. There were three deportations ― two that were illegal and one that was reversed by an ACLU lawsuit. Were the deported families ones I worked with? What has become of the Mam-speaking woman and her spunky son, the Mormon woman and her soft-spoken daughter, the budding community organizer who joked about visiting me? Are they safely with relatives in California, North Carolina and Ohio? In each case, I cannot bear to imagine the alternative, the violence and poverty that await them. I have to continue to hope that with the right advocates, some people can still find refuge here, can make a new life ― that our country might live up to its promises.

Catherine Powers is a middle school social studies teacher. She lives in Colorado with her wife and two daughters.

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

Yes, every Administration has used and misused immigration detention to some extent. I’ll have to admit to spending some of my past career defending the Government’s right to detain migrants.

But, no past Administration has used civil immigration detention with such evil, racist intent to penalize brown-skinned refugees, primarily abused women and children from the Northern Triangle, so that that will not be able to assert their legal and Constitutional rights in America and will never darken our doors again with their pleas for life-saving refuge. And, as Catherine Powers points out, under Trump and Sessions the “credible fear” process has become a total sham.

Let’s face it! Under the current White Nationalist Administration we indeed are in the process of “re-creating 1939” right here in the USA. If you haven’t already done so, you should check out my recent speech to the International Association of Refugee and Migration Judges entitled “JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS” http://immigrationcourtside.com/just-say-no-to-1939-how-judges-can-save-lives-uphold-the-convention-and-maintain-integrity-in-the-age-of-overt-governmental-bias-toward-refugees-and-asylum-seekers/

Even in the “Age of Trump & Sessions,’ we still have (at least for now) a Constitution and a democratic process for removing these grotesquely unqualified shams of public officials from office. It starts with removing their GOP enablers in the House and Senate.

Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!

Due Process Forever!

PWS

08-24-18

LA TIMES: SESSIONS PERSECUTES BROWN SKINNED FEMALE REFUGEES — THERE IS NOTHING “EASY” ABOUT BEING AN ABUSED WOMAN OR AN ASYLUM APPLICANT!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7d04de4c-1e76-4711-9b90-dac191234d79

Jazmine Ulloa reports for the LA Times:

WASHINGTON — Xiomara started dating him when she was 17. He was different then, not yet the man who pushed drugs and ran with a gang. Not the man who she says berated and raped her, who roused her out of bed some mornings only to beat her.

Not the man who choked her with an electrical cord, or put a gun to her head while she screamed, then begged, “Please, please don’t kill me — I love you.”

Fleeing El Salvador with their daughter, then 4, the 23-year-old mother pleaded for help at a port of entry in El Paso on a chilly day in December 2016.

After nearly two years, her petition for asylum remains caught in a backlog of more than 310,000 other claims. But while she has waited for a ruling, her chance of success has plunged.

Atty. Gen. Jeff Sessions in June issued a decision meant to block most victims of domestic abuse and gang violence from winning asylum, saying that “private criminal acts” generally are not grounds to seek refuge in the U.S. Already, that ruling has narrowed the path for legal refuge for tens of thousands of people attempting to flee strife and poverty in El Salvador, Honduras and Guatemala.

“You can tell there is something happening,” said longtime immigration attorney Carlos A. Garcia, who in mid-July spoke to more than 70 women in one cell block at a family detention center in Texas. Most had received denials of their claims that they have what the law deems a “credible fear of persecution.”

“More than I’ve ever seen before,” he said.

In North Carolina, where federal immigration agents sparked criticism last month when they arrested two domestic-violence survivors at a courthouse, some immigration judges are refusing to hear any asylum claims based on allegations of domestic abuse. Other immigration judges are asking for more detailed evidence of abuse at the outset of a case, a problem for victims who often leave their homes with few written records.

Under the Refugee Act of 1980, judges can grant asylum, which allows a person to stay in the U.S. legally, only to people escaping persecution based on religion, race, nationality, political opinion or membership in “a particular social group.”

As drug war violence escalated over the last two decades in Mexico and Central America, fueled by a U.S. demand for drugs and waged by gangs partly grown on American streets, human rights lawyers pushed to have victims of domestic violence or gang crime considered part of such a social group when their governments don’t protect them.

After years of argument, they won a major victory in 2014 when the highest U.S. immigration court, the Board of Immigration Appeals, ruled in favor of a woman from Guatemala who fled a husband who had beaten and raped her with impunity.

Sessions, in June, used his legal authority over the immigration system to reverse that decision, deciding a case brought by a woman identified in court as A.B.

“Asylum was never meant to alleviate all problems — even all serious problems — that people face every day all over the world,” he said, ruling that in most cases asylum should be limited to those who can show they were directly persecuted by the government, not victims of “private violence.”

Immigration advocates reacted with outrage.

Karen Musalo, a co-counsel for A.B. and a professor at the UC Hastings College of Law, called the decision “a return to the dark ages of refugee law,” a move inconsistent with a steadily evolving principle “that women’s rights are human rights.”

Neither the government, nor the police, could help Xiomara in her rural town, where gangs were deeply embedded.

“Are you kidding?” she said, asking to be identified by only her first name out of concern about possible retaliation. “I would go to the police department and wouldn’t come back alive — if I came back at all.”

Within a year of when they started dating, she said, her boyfriend began drinking and doing drugs, making friends with the wrong crowd. He grew meaner, more violent.

One day he put a gun to her head, her asylum claim says. On another evening, on the roof of his home after another fight, she had been weeping in the dark, when she felt a cord tighten around her neck.

“He would have killed me if his family hadn’t appeared,” she said.

Other women offer similar stories.

Candelaria, 49, who also asked that her last name not be used, said she left an abusive husband of 20 years in Honduras after his drinking became more severe. And always the criminal bands of men roamed.

“My children sent me a photo of me in those days, and I look so old, so sad,” said Candelaria, whose asylum case has been pending for four years.

For more than two decades, United Nations officials and human rights lawyers have argued that women victimized by domestic violence in societies where police refuse to help are being persecuted because of their gender and should be treated as refugees entitled to asylum.

But Sessions and other administration officials have a different view, and they have made a broad effort to curb the path to asylum. The number of people entering the U.S. by claiming asylum has risen sharply in recent years, and administration officials have portrayed the process as a “loophole” in the nation’s immigration laws.

In October, Sessions labeled asylum an “easy ticket to illegal entry into the United States” and called on immigration judges to elevate “the threshold standard of proof in credible fear interviews.” In March, he restricted who could be entitled to full hearings. From May to June, federal officials limited asylum seekers from gaining access through ports of entry, with people waiting for weeks at some of the busiest crossings in Southern California.

The government does not keep precise data on how many domestic-violence survivors claim asylum, but figures released last month give a glimpse of the effect that Sessions’ decision has begun to have at one of the earliest stages of the asylum process.

The American Civil Liberties Union on Wednesday filed a lawsuit on behalf of 12 parents and children it says were wrongly found not to have a credible fear of return. U.S. District Judge Emmet G. Sullivan on Thursday stopped the deportation of a mother and her daughter in the case, threatening to hold Sessions in contempt.

For domestic-abuse survivors waiting for hearings, the uncertainty has been excruciating.

Candelaria wants to go home, but her older children back in Honduras tell her to have hope.

“ ‘You’ve endured enough,’ they tell me,” she said.

Xiomara, now 25, won’t have her asylum hearing for another year.

For months, she scraped by on meager wages, baby-sitting and waiting on tables. She was relieved to find a job at a factory that pays $10 an hour.

The American dream is “one big lie,” she now says.

But at least here, she said, she and her daughter are alive.

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

People like Xiomara are wonderful folks, genuine refugees, deserving of protection, who will contribute to our country. As my friend and legal scholar Professor Karen Musalo cogently said, Sessions is leading “a return to the dark ages of refugee law,” a move inconsistent with a steadily evolving principle “that women’s rights are human rights.” But, the “New Due Process Army” (Karen is one of the “Commanding Generals”) isn’t going to let him get away with this outrageous attack on human rights, women’s rights, and human decency.

Due Process Forever, Jeff Sessions Never!

PWS

08-13-18

KATY TUR LIVE, 08-10-19: MSNBC Correspondent Jacob Soboroff & I Discuss Jeff Sessions’s Contemptuous Behavior Toward Courts & Migrants With Katy!

Here’s the link to Katy’s entire show for August 10, 2018. My segment begins at 35:25:

https://m.youtube.com/watch?v=9NoDoSiFtII

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

Thanks Katy and Jacob. It was an honor to be on with you.

Glad that the Sessions’s war on deserving asylum seekers and Due Process as well as his disrespectful treatment of asylum seekers, the judiciary, and our justice system is finally getting notice. One way or another, he will eventually be held accountable for the damage he is doing to humanity and to our country.

PWS

08-10-18

MORE FROM WASHPOST ON SESSIONS’S ATTACKS ON INDEPENDENCE OF US IMMIGRATION JUDGES!

https://www.washingtonpost.com/local/social-issues/immigration-judges-worried-trump-is-seeking-to-cut-them-out-fight-back/2018/08/09/3d7e915a-9bd7-11e8-8d5e-c6c594024954_story.html?utm_term=.6b3ca4d6ec23

Antonio Olivo reports for WashPost:

The union for the nation’s immigration judges is fighting a government decision to strip a Philadelphia judge of his authority over 87 cases, arguing that the move sidelines judicial independence as President Trump seeks to ramp up deportations.

Immigration judges work under the Justice Department’s Executive Office for Immigration Review, though they have independent authority to determine whether the thousands of undocumented immigrants who come before them every year can remain in the United States through asylum or some other form of relief.

In a labor grievance filed this week, the National Association of Immigration Judges says the office undercut that authority when it removed Judge Steven A. Morley from overseeing juvenile cases that he had either continued or placed on temporary hold amid questions over whether federal prosecutors had adequately notified the subjects to appear in court.

The Justice Department said in a statement Thursday that “there is reason to believe” Morley violated federal law and department policy in those cases, but it did not offer any specifics. The statement said an investigation is ongoing.

[Judge halts deportation in progress, threatens to hold Sessions in contempt]

Trump alarmed immigration judges in June by tweeting that anyone caught at the border, presumably including those seeking asylum, should be deported without a trial.

“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” the president wrote.

In its grievance, the judges’ union focused on a case involving Reynaldo Castro-Tum, a Guatemalan national who arrived in 2014 as a 17-year-old unaccompanied minor.

Castro-Tum’s current whereabouts are unknown, and he had not responded to recent court summonses. Morley temporarily closed his case in 2016, ordering the Justice Department to ensure that Castro-Tum was receiving the notices. He did the same with other similar cases.

Prosecutors appealed Morley’s decision, and the case eventually came to the attention of Attorney General Jeff Sessions, who chose to review it in January.

Sessions concluded that Morley was wrong to close Castro-Tum’s case and ordered it resolved within two weeks.

Amiena Khan, a New York-based immigration judge who is the union’s vice president, said the intervention further raised suspicions that the administration is looking to circumvent the judicial process and move to deport people faster amid a backlog of some 600,000 cases.

“This is another transparent way, surprisingly transparent in this instance, for the agency to come in and re-create the ideology of this whole process more towards a law enforcement ideology,” Khan said.

[Ahead of midterms, Trump hits a wall in efforts to curb illegal immigration]

The system “is based on our ability to look at the facts and adjudicate the claim before us to our best ability and then render a decision,” Khan said. “Not being told by someone else how to rule.”

The union, which represents 350 judges, argues that Morely should get his caseload back. It is asking the Justice Department to assure all immigration judges that their independent authority won’t be undermined.

Immigrant advocates say the dispute highlights a fundamental flaw in immigration courts, where the judges work under the same department that is tasked with prosecuting cases. Several legal groups have renewed a push for federal legislation to overhaul the system so judges can operate more independently, either through a different branch of the Justice Department or as a separate tribunal court.

“We’re very concerned the immigration judges are simply being turned into law enforcement officers,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, which launched a national campaign this month to lobby members of Congress to support such legislation.

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

When he isn’t busy praising hate groups, covering for police violence against the African-American community, disenfranchising minority voters, promoting the establishment of religion, using bogus stats to fabricate a connection between immigrants and violent crime, abusing brown-skinned children, forcing transgender kids to pee in their pants, thumbing his nose at Federal Judges and their orders, briefing his attorneys on how to mislead courts, mounting unconstitutional attacks on cities, ignoring environmental laws, dissing Dreamers, shilling for racist legislation, deconstructing our refugee, asylum, and legal immigration systems, filling court dockets with minor misdemeanants to the exclusion of felons, imposing deportation quotas, shafting brown-skinned refugee victims of domestic violence, huddling with fellow neo-Nazi Stephen Miller, blocking migrants from getting abortions, or hiding under his desk from Trump, one of Jeff “Gonzo Apocalypto” Sessions’s favorite pastimes is interfering with the independence of U.S. Immigration Judges while purposely jacking up the backlog in the U.S. Immigration Courts.

It remains to be seen whether our country can survive this one-man Constitutional wrecking crew and his reign of indecency and intellectual dishonesty.

PWS

08-09-18

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

As many as 1,000 parents separated from their children are getting a second chance to stay in the US

In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.

Separating families made it much harder for parents to seek asylum

The government is agreeing to give reunited families the same chance they’d had if they’d never been separated

Related posts:

Related posts:

Jeff Sessions Is Executing Trump’s Immigration Plans With a Quiet, Efficient Brutality

The attorney general’s systematic gutting of immigration courts is the latest example.

Sophie Murguia and Kanyakrit VongkiatkajornSep. 7, 2018 6:00 AM

It’s now much more difficult to apply for asylum

Judges have less control over their case loads …

… and will have to move through them more quickly

It’s harder for them to reschedule cases

And as more judges retire, Sessions gets to staff up

Related posts:

Related posts:

Related posts:

Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation

U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.

Related posts:

Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!

Due Process Forever!

Related posts:

Due Process Forever, Jeff Sessions Never!

Related posts:

Related posts:

Related posts: