"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
NYT: TRUMP IS A CHILD ABUSER — Here’s How to Stop Him: Speak, Educate, Donate, Vote!
The NY Times Editorial Board writes:
From his promise of a “beautiful wall” to his false alarms about caravans of alien marauders at the gate, President Trump has exploited immigration as his marquee issue. He is right, there is a crisis: Not of undocumented immigrants or thousands seeking refuge, as the president would have it, but a crisis of American values, a crisis of America’s premier tradition as a welcoming and humane haven. A crisis Mr. Trump has created, even as Congress has fueled it.
That is not to deny that comprehensive immigration reform is urgently needed, as is funding for the overstretched facilities where undocumented immigrants, and most horribly the children of undocumented immigrants, are held.
But, by his divisive, incoherent and barbaric policies, Mr. Trump has only made agreeing on an approach to immigration in the United States far more difficult. He has done so by systematically creating a false narrative of immigrants as job-stealing criminals, by insisting that there is a crisis of illegal immigration where there is none and, most maliciously, by dreaming up schemes to torment these people in the perverse notion that this would deter others from trying to reach the United States.
The most appalling of these has been the separation of children from their parents and detaining them in conditions no child anywhere should suffer, and certainly not children in the care of the American government. At a recent hearing before a federal appeals court in San Francisco, judges were stunned by the administration’s arguments that children sleeping on concrete floors in frigid, overcrowded cells, without soap or toothbrushes, were being kept in “safe and sanitary” facilities, as required by law. “You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?” asked one judge.
Mr. Trump’s latest display of cruel bluster was the announcement, and then the delay, of nationwide raids to deport undocumented families. In fact, deporting immigrants who have exhausted their legal claims is not uncommon — President Obama, remember, was often referred to by immigration groups as “deporter in chief” — and the targets of these raids are not random. But Mr. Trump sought to use the operation to strut before his base and extract concessions from Democrats, and spread panic through immigrant communities. His announcement delayed action by Congress and made the operation that much more difficult by warning those targeted for deportation. Then he tweeted that he was delaying the raids for two weeks.
The United States urgently needs an immigration policy that combines border security, justice and humanity. President Trump has promoted policies that undermine all these goals, and Congress has failed to agree on a coherent vision. You can help turn that around. Here’s how:
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Read the complete editorial for the “game plan.”
Amen!
Of course, we should never forget that the “Original National Child Abuser” is Jeff Sessions who developed the original “Family Separation” program for which he has escaped accountability to date.
Some of the lawyers interviewing immigrant children held in Border Patrol detention facilities were so disturbed by what they saw that they have decided to talk to the media.
Photograph by Cedar Attanasio / AP
Hundreds of immigrant children who have been separated from their parents or family members are being held in dirty, neglectful, and dangerous conditions at Border Patrol facilities in Texas. This week, a team of lawyers interviewed more than fifty children at one of those facilities, in Clint, Texas, in order to monitor government compliance with the Flores settlement, which mandates that children must be held in safe and sanitary conditions and moved out of Border Patrol custody without unnecessary delays. The conditions the lawyers found were shocking: flu and lice outbreaks were going untreated, and children were filthy, sleeping on cold floors, and taking care of each other because of the lack of attention from guards. Some of them had been in the facility for weeks.
To discuss what the attorneys saw and heard, I spoke by phone with one of them, Warren Binford, a law professor at Willamette University and the director of its clinical-law program. She told me that, although Flores is an active court case, some of the lawyers were so disturbed by what they saw that they decided to talk to the media. We discussed the daily lives of the children in custody, the role that the guards are playing at the facility, and what should be done to unite many of these kids with their parents. Our conversation has been edited for length and clarity.
How many lawyers were in your party? And can you describe what happened when you arrived?
We had approximately ten lawyers, doctors, and interpreters in El Paso this past week. We did not plan to go to the Clint Facility, because it’s not a facility that historically receives children. It wasn’t even on our radar. It was at a facility that historically only had a maximum occupancy of a hundred and four, and it was an adult facility. So we were not expecting to go there, and then we saw the report, last week, that it appeared that children were being sent to Clint, so we decided to put four teams over there. The teams are one to two attorneys, or an attorney and an interpreter. The idea is that we would be interviewing one child at a time or one sibling group at a time.
How many interviews do you do in a day?
We do a screening interview first to see if the child’s most basic needs are being met. Is it warm enough? Do they have a place to sleep? How long have they been there? Are they being fed? And if it sounds like the basic needs are being met, then we don’t need to interview them longer. If, when we start to interview the child, they start to tell us things like they’re sleeping on the floor, they’re sick, nobody’s taking care of them, they’re hungry, then we do a more in-depth interview. And those interviews can take two hours or even longer. So it depends on what the children tell us. So I’d say, with a team of four attorneys, if you’re interviewing several groups, which we sometimes try to do, or if you interview older children who are trying to take care of younger children, then you are interviewing, let’s say, anywhere from ten to twenty children per day.
How many kids are at the facility right now, and do you have some sense of a breakdown of where they’re from?
When we arrived, on Monday, there were approximately three hundred and fifty children there. They were constantly receiving children, and they’re constantly picking up children and transferring them over to an O.R.R. [Office of Refugee Resettlement] site. So the number is fluid. We were so shocked by the number of children who were there, because it’s a facility that only has capacity for a hundred and four. And we were told that they had recently expanded the facility, but they did not give us a tour of it, and we legally don’t have the right to tour the facility.
We drove around afterward, and we discovered that there was a giant warehouse that they had put on the site. And it appears that that one warehouse has allegedly increased their capacity by an additional five hundred kids. When we talked to Border Patrol agents later that week, they confirmed that is the alleged expansion, and when we talked to children, one of the children described as many as three hundred children being in that room, in that warehouse, basically, at one point when he first arrived. There were no windows.
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As Trump launches his latest “human hostages for outrageous ransom” scheme, it’s important for Democrats to hang tough against any reduction in rights for asylum seekers. The whole “loopholes” bogus claim is just another piece of this toxic White Nationalist racist narrative.
The only “change” needed would be to require the Trump Administration to comply with its domestic, international, and Constitutional duties to administer asylum laws fairly and generously for the protection of asylum seekers. An end of child abuse should be a prerequisite for any discussions.
The reality to keep in mind is that while ICE’s ability to inflict pain and suffering on ethnic communities as part of the racially-motivated “New Operation Wetback” is real, their capacity to actually remove undocumented residents is quite limited.
Contrary to the bogus narrative, several million of the 10 million so-called undocumented residents are actually here with permission and are therefore not currently subject to removal. Those include individuals with DACA, TPS, PD, Deferred Action, and in the EOIR Court System, or whose cases are pending in the Courts of Appeals.
Additionally, many, perhaps the majority, of those with so-called final “in absentia” orders of removal never received proper legal notice of their hearings and will be entitled to file a “motion to reopen” with an automatic stay while those motions are pending. Those who are not yet in the EOIR system will go to the end of a backlog that stretches out for many years.
Given their notoriously poor record keeping, it’s likely that many of ICE’s “last known addresses” are no good. Plus, the resistance that ICE’s racist fear-mongering tactics have engendered in many communities will hamper operations.
Additionally, ICE keeps claiming that is detention capacity is already “saturated.” Thus, most of those picked up, who will not be “immediately removable,” will have to be released.
In short, while we can expect some human tragedies and human rights abuses, the result of the Trump/DHS/ICE “saber rattling” will likely be another resounding operational failure that fuels the “Abolish ICE Movement” while energizing the vote to remove Trump and his GOP White Nationalist Cabal from office in 2020. Kind of an “everyone loses” outcome – but, despite all of his lies, boasting, and shamelessly false self-promotion, that’s all Trump has ever been about.
Four toddlers were so severely ill and neglected at a U.S. Border Patrol facility in McAllen, Texas, that lawyers forced the government to hospitalize them last week.
The children, all under age 3 with teenage mothers or guardians, were feverish, coughing, vomiting and had diarrhea, immigration attorneys told HuffPost on Friday. Some of the toddlers and infants were refusing to eat or drink. One 2-year-old’s eyes were rolled back in her head, and she was “completely unresponsive” and limp, according to Toby Gialluca, a Florida-based attorney.
She described seeing terror in the children’s eyes.
“It’s just a cold, fearful look that you should never see in a child of that age,” Gialluca said. “You look at them and you think, ‘What have you seen?’”
Another mother at the same facility had a premature baby, who was “listless” and wrapped in a dirty towel, as HuffPost previously reported.
The lawyers feared that if they had not shown up at the facility, the sick kids would have received zero medical attention and potentially died. The Trump administration has come under fire for its treatment ― and its alleged neglect ― of migrants who have been crossing the southern border in record numbers. The result is overcrowded facilities, slow medical care and in some instances, deaths.
Immigration authorities say they’re overwhelmed; activists say they’re not trying hard enough.
“It’s intentional disregard for the well-being of children,” Gialluca said. “The guards continue to dehumanize these people and treat them worse than we would treat animals.”
U.S. Customs and Border Protection declined to respond to HuffPost’s request for comment.
The Associated Press reported this week that children in border facilities don’t have adequate access to food, water, soap or showers. On Tuesday, a Justice Department attorney argued in court that the government should not have to provide detained children with soap, toothbrushes or beds.
The AP report is based on interviews a group of lawyers conducted with hundreds of children in three Texas-based Border Patrol stations last week as part of the Flores settlement ― an agreement that outlines conditions for detained children. The lawyers say children are also being held in these facilities for longer than the 72-hour limit the settlement specifies, and in some cases up to three weeks.
Lawyers are particularly concerned about the spread of illness inside Border Patrol facilities, which can sometimes turn fatal. Five children have died in Border Patrol custody since December, some of whom were initially diagnosed with a common cold or the flu. The processing center in McAllen, known as Ursula, recently quarantined three dozen migrants who were sick after a 16-year-old died of the flu at the same facility.
Children and their parents told lawyers that in some cases they didn’t have any access to medical treatment in Border Patrol facilities despite being visibly ill. Gialluca spoke with one 16-year-old mother whose toddler had the flu, but was told by a guard the child “wasn’t sick enough to see a doctor.” She said others also reported being denied medical attention despite having critically sick babies.
Medical experts say that because children have less developed immune and respiratory systems, their symptoms can escalate quickly if they aren’t properly treated.
Dr. Julie Linton, the co-chair of the American Academy of Pediatrics, previously told HuffPost that children can’t recover from illnesses in Border Patrol facilities. These centers are described as “hieleras” ― Spanish for iceboxes ― because of their freezing temperatures, and migrants describe sleeping on floors under bright lights that shine 24/7, with nothing but Mylar blankets to keep warm.
Gialluca met one 16-year-old mother whose 8-month-old baby was sick with the flu and forced to sleep outside for four days at the McAllen Border Patrol station. The mother said the guards took the clothing off the baby’s back, leaving her in a diaper, and forced them to sleep on concrete without a blanket.
A sick 2-year-old girl was shivering in a T-shirt and had shallow breathing, according to Mike Fassio, a Seattle-based immigration attorney who visited Ursula.
“I was very, very concerned,” he said, adding lawyers spoke with immigrants in a room outside of the facility. “When she left us, I knew she was going back to a place that was cold, crowded and unsanitary.” Fassio noted that guards referred to the children as “bodies.”
Some children were so exhausted they fell asleep during the interviews, said Clara Long, a senior researcher at Human Rights Watch who spoke with kids at a facility in Clint, Texas. Long met a 3-year-old boy who was dirty with matted hair and was being taken care of by his 11-year-old brother. She said that more than 10 sick children were being quarantined in cells.
While the group of roughly eight lawyers and interpreters at Ursula were supposed to be interviewing children about conditions in the facilities, they also ended up asking guards and government officials to bring kids to the hospital because they were so worried about their state. Gialluca added that she and her colleagues interviewed only a small portion of migrants in the facility, which is the largest processing center in the U.S. and can hold up to 1,000 people. She believes the number of migrants in need of hospitalization is likely much higher.
Government officials have blamed horrific conditions at detention facilities on the fact that Congress has not yet passed an emergency funding package that would include almost $3 billion to help care for unaccompanied migrant children. But Gialluca says border officials shouldn’t need more resources to treat immigrants like human beings.
“Money isn’t keeping guards from allowing people to access toilets,” she said. “Money isn’t causing guards to take clothing and medicine away from children.”
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Nicole Goodkind Political Reporter, Newsweek
Here’s Another report from Nicole Goodkind at Newsweek on the “malicious incompetence” and intentional misallocation of resources by Trump and his DHS sycophants that is willfully endangering kids’ lives as part of a cheap White Nationalist political stunt:
8-YEAR-OLD MIGRANTS BEING FORCED TO CARE FOR TODDLERS IN DETENTION CAMPS
A team of lawyers conducted 60 interviews with migrant children being held in an El Paso, Texas, detention camp and found conditions to be dismal.
Fifteen of those in the holding center had the flu and 10 more are quarantined with illness, according to the lawyers, who first gave the data to the Associated Press. Three infants are being detained alongside their teenage mothers, and many children are under the age of 12.
“A Border Patrol agent came in our room with a 2-year-old boy and asked us, ‘Who wants to take care of this little boy?’ Another girl said she would take care of him, but she lost interest after a few hours and so I started taking care of him yesterday,” one teenaged girl told the lawyers in an interview. The boy was not wearing a diaper and his shirt was covered in mucus, she said.
Law professor Warren Binford, who aided in the interviews, said she witnessed an 8-year-old girl caring for a 4-year-old child who was very dirty, the girl was unable to get the boy to take a shower. She also described the children she interviewed as sleep-deprived, often falling asleep while speaking with her.
“In my 22 years of doing visits with children in detention, I have never heard of this level of inhumanity,” said Holly Cooper, co-director of the University of California, Davis’ Immigration Law Clinic, to the AP.
The lawyers were inspecting the facility as part of the Flores agreement, which resulted from a landmark 1985 case that established that facilities where minor migrants are held must be kept “safe and sanitary.”
A representative of the Trump administration, the Justice Department’s Sarah Fabian, argued Tuesday that safe and sanitary conditions don’t necessarily have to include toothbrushes, soap or towels for children.
Nicole Goodkind is a political reporter at Newsweek. You can reach her on Twitter @NicoleGoodkind or by email, N.Goodkind@newsweek.com.
TRUMP ADMINISTRATION PLANS MAJOR ICE RAIDS FOR SUNDAY
U.S. immigration authorities plan to raid Miami, Houston, Chicago and Los Angeles and other cities. They intend to arrest up to 2,000 families, three U.S. officials with knowledge of the plans told The Washington Post. The orders reportedly come directly from President Donald Trump.
On Monday, the president tweeted: “Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in.”
Officials told The Washington Post that the Department of Homeland Security agency plans to hold families in hotel rooms until they are deported. Acting DHS Secretary Kevin McAleenan is allegedly targeting families that have completely dropped out of the court process, but has warned that the operation could lead to further cases of families being separated.
Los Angeles Police Department Chief Michel Moore confirmed the raids on Friday, saying that about 140 families in southern California will be targeted in pre-dawn raids early next week. The chief also made clear that the raids are done on a federal level and that the police department will not be involved.
On Thursday, Carla Provost, chief of the United States Border Patrol argued that the Department of Homeland Security was not receiving enough money to properly care for migrants on the southern border, and that was leading to terrible conditions in detention centers. On Wednesday, the Senate Appropriations Committee agreed to $4.6 billion in emergency funds for what the Trump administration has referred to as a “border crisis.”
Texas Congressman Joaquin Castro questioned how the agency could afford mass raids while asking for more money Friday. “The Trump Administration says it needs more money (supplemental bill) for the situation at the border yet they may be starting massive immigration raids next week. So how do you have the money for that if you’re running out of money ICE?” he tweeted.
“These potential raids are a disgusting political ploy to stoke fear and rile up Trump’s base for 2020,” wrote Sandra Cordero, Director of Families Belong Together, an immigration advocacy group, in a statement. “Past raids have left children alone and afraid in empty homes, praying they won’t be left to care for younger siblings by themselves, with no idea if they’ll see their parents again. This is yet another flagrant disregard for the welfare of children on behalf of a cruel administration bent on fomenting fear and creating chaos.”
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Come on, Carla, cut the BS and butt covering. The “mix” of arrivals at the Southern Border began to shift to refugee families from the Northern Triangle back in the summer of 2014. So, CBP and DHS have had five years to prepare for this “change” which is actually “old news.”
More “old news” is the increased flow of asylum seekers with kids which began back before Thanksgiving. Plenty of time for CBP and DHS to bring back retired asylum officers and adjudicators and reassign other adjudicative personnel to the border to insure prompt, orderly, safe, and efficient processing of asylum applicants at ports of entry, thus eliminating the incentive (or necessity) for folks to turn themselves in after crossing the border between ports.
Also, plenty of time to work with NGOs, pro bono groups, states, and communities to insure representation and proper placement of family groups in various locations throughout the country without panic or “dumping.”
Another bogus claim spread by Trump, Provost, and the rest of the sycophants: that the prevalence of kids among new asylum arrivals is somehow totally a response to the Flores settlement (which actually has been in effect for decades).
Undoubtedly, with the Trump Administration’s active assistance, unscrupulous smugglers and coyotes are encouraging some folks to bring children as the only way to have a shot at fair processing under the tilted U.S. asylum system promoted by Trump. Indeed, as I have observed before, the Trump Administrations has consistently been a “best friend” to gangs, smugglers, traffickers, cartels, and druggies seeking to “jack up” profits by further exploiting the human misery caused by the Trump Administration’s “maliciously incompetent “ approach to immigration, effective law enforcement, and humanity generally. https://apple.news/AFQw_eqcHSZCYxUznmP0wpQ
Undoubtedly, some of these unscrupulous individuals are telling families to travel with kids. But, the truth is that according to the UNHCR, over one-half of today’s refugees are children. https://www.unhcr.org/children-49c3646c1e8.html.
So, the prevalence of children among new arrivals should properly been seen as part of a sad worldwide trend that Trump and his cronies disgustingly have done everything possible to encourage, exploit, and aggravate. It most certainly is not primarily caused by the Flores settlement or by giving soap, toothbrushes, blankets, or medical care to children being abused in the “DHS Gulag” administered in part by disingenuous folks like Provost.
Any honest observer of what’s going on knows that the majority of the asylum applications that passed credible fear probably could have been granted (or given protection under the Convention Against Torture — “CAT”) by the Asylum Office without even going to Immigration Court under the proper generous interpretation of our asylum laws, an honest interpretation of CAT that reflects the true conditions in the Northern Triangle, and a very “doable” change in procedures.
Only dishonest fools in the Trump Administration (and a few from the Obama Administration) would maintain that gender isn’t a social group subject to widespread persecution in the Northern Triangle, deny that gangs have assumed the role of quasi-governmental entities thus making most of the harm they inflict on resisters “political persecution,” and make the beyond ludicrous claim that the corrupt failed states of the Northern Triangle have either the ability or much real interest in protecting those subject to persecution.
And, Carla, why aren’t you out there today registering a public protest of the waste of time and funds in ICE going after families with ridiculously inappropriate “raids” when everyresource could and should be focused instead on providing humanitarian assistance to asylum seekers arriving at the Southern Border?
This racist-inspired “Sunday Morning Reign of Terror” directed at U.S. ethnic communities is specifically designed to return helpless families to the very dangerous countries from which they originally fled! Thus, Trump and his phony DHS are intentionally feeding “fresh meat” to gangs and cartels and insuring that the cycle of northward migration, no matter how dangerous, will continue until everyone who needs to leave its either gone or dead (the latter apparently the “solution” favored by Provost, Trump, Morgan, McAleenan, Miller, and others).
Provost, McAleenan, Morgan, and their co-conspirators are all participants in a cynical scheme to intentionally “crash” the asylum system, rather than competently administering it. They are intentionally endangering the lives of children and other vulnerable asylum seekers, many entitled to legal protections, to promote, along with GOP restrictionists, totally bogus, dishonest, and completely unnecessary and unwarranted restrictions of the precious, life-saving right of refugees to seek asylum in the U.S.
It’s an unbelievably dishonest and cowardly scheme, and a complete breach of both oaths of office and public trust. It might be that those who long ago abandoned American values will lap up this insult to human values and human dignity.
But, there are plenty of us out here who know and understand exactly what you are doing. We will not only resist it, but will be historical witnesses to your cruel, inhuman, and unlawful schemes and gimmicks to “abuse and kill the innocent.” And, we’ll be keeping count.
Kirk Semple Reporter, NY TimesPaulina Villegas Reporter, NY Times
By Kirk Semple and Paulina Villegas
MEXICO CITY — The Mexican authorities are investigating the death of a teenage migrant from El Salvador who was shot and killed after the truck she was in ran a government checkpoint.
Witnesses have told investigators in the state of Veracruz, where the shooting happened last Friday, that a truck carrying the 19-year-old woman and other migrants bound for the United States border passed through a government checkpoint and that people wearing police uniforms gave chase in a police car and shot at the truck, said Jorge Winckler Ortiz, the attorney general of Veracruz.
Two other migrants in the truck were wounded in the shooting, officials said.
The incident occurred amid a Mexican government deployment of security forces to assert greater control of migration toward the United States, part of a dealthat President Andrés Manuel López Obrador struck with President Trump earlier this month to fend off a threat of tariffs.
The possibility that the Mexican police may have killed the teenager has reaffirmed the fears of migrants’ advocates and human rights experts, who worry that the security forces, being rushed into migration control, are ill-prepared for the task.
Justice Department Argues Against Providing Soap, Toothbrushes, Beds To Detained Kids
“I find it inconceivable that the government would say” current conditions are “safe and sanitary,” as required, said a stunned Judge William Fletcher.
A Justice Department attorney this week argued in court that the federal government should not be required to provide soap, toothbrushes or even beds to detained children apprehended at the U.S.-Mexico border.
Attorneys for the detained children are arguing that the government is not following the requirements of a 1997 settlement agreement in the case of Jenny Flores that established a framework for the humane treatment and release of detained migrant minors. Children must be housed in “safe and sanitary conditions” under the settlement. A district judge added the specific requirements that children be provided with soap and toothbrushes.
“Are you arguing seriously that you do not read the agreement as requiring you to do something other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” asked Judge William Fletcher. “I find it inconceivable that the government would say that that is safe and sanitary.”
Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?… You can’t be sanitary or safe as a human being if you can’t sleep.” (See the video below at 24:30.)
Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement. (In the video at 26:40.)
“One has to assume … parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian argued.
Fletcher responded: “Or it was relatively obvious — at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them, that doesn’t comply with the agreement.”
He added: “It may be they don’t get super-thread-count Egyptian linen, I get that. … I understand at some outer boundary, there may be some definitional difficulty. But no one would argue that this [current situation] is safe and sanitary.”
As for soap, it “wasn’t perfumed soap, it was soap. That sounds like it’s part of ‘safe and sanitary,’” he added. “Are you disagreeing with that?”
Judge A. Wallace Tashima said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?”
Fabian, who appeared to stumble throughout much of her presentation, responded: “Well … maybe.”
The attorney for the children argued that, although soap and toothbrushes weren’t specifically mentioned in the 1997 settlement, they must be provided because they would be “reasonably interpreted” as part of the agreement under contract law.
The “first thing you do is honor the plain meaning” of words like “safe and sanitary,” said Peter Schey. “Today we have a situation where once a month a child is dying in custody. Certainly the Border Patrol facilities are secure, but they’re not safe and they’re not sanitary.”
It’s not clear when the 9th Circuit, based in San Francisco, will issue a decision in the case.
Honestly, how does Sarah Fabian sleep at night? If she has kids, what does she tell them about what she does to other people’s kids for a living?
And, what can you say about 9th Circuit judges who accept frivolous, totally disingenuous arguments from Government counsel. A private attorney who wasted the court’s time and disrespected its integrity and functions in this matter would almost certainly be disciplined or disbarred in short order.
At one time, DOJ attorneys were expected to adhere to higher standards of ethics because of their role in protecting the public interest and aiding the courts in pursuit of justice. Why in the age of Trump, Sessions, Barr, and Solicitor General Noel Francisco are ethical standards no longer enforced against DOJ Attorneys? And that goes right up to the top, as both Barr and Sessions have clearly interfered with and participated in quasi-judicial immigration decisions after showing clear bias against migrants and in favor of DHS Enforcement, in violation of ethical standards.
Folks like Trump and his cronies always depend on complicit subordinates, as well as complicit courts, to carry out their vile and illegal programs.
Nicole Narea Reporter, Law360Hon. Jeffrey S. Chase Jeffrey S. Chase BlogProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Nicole Narea reports for Law360:
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Trump tweeted Monday night that Guatemala is “getting ready to sign” a socalled safe third country agreement with the U.S., and he lauded Mexico for “using their strong immigration laws” to stop migrants well before they reach the southern U.S. border. Mexico said Friday it would also weigh a safe third country agreement with the U.S. if its efforts to ramp up immigration enforcement as part of a trade deal do not succeed within 45 days.
The announcements came as the Trump administration moved to reduce its obligations to asylum seekers by expanding its “Remain in Mexico” policy, officially known as the Migrant Protection Protocols, by which migrants are sent back to Mexico while they await hearings in U.S. immigration court.
As for Guatemala, experts have protested that Mexico’s southern neighbor cannot offer asylum seekers the kind of security intended by a safe third country agreement.
But the Trump administration is not proposing such an agreement with Guatemala because it believes the country to be safe, said Jeffrey Chase, a former immigration judge and ex senior legal adviser to the Board of Immigration Appeals. Rather, the White House believes the accord will stop asylum seekers from countries farther south from entering the U.S., Chase said.
Migrants from El Salvador and Honduras have to travel through Guatemala en route to the U.S., and if Guatemala were subject to such an agreement, the Trump administration would have an “excuse to turn away those fleeing violence in those countries,” he said.
Karen Musalo, the founding director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, said that to call Guatemala safe is absurd.
“I don’t think that anyone familiar with the human rights situation in Guatemala — with its extremely high levels of homicides, femicides, gender violence, gang and organized crime violence, corruptions, etc. — could say with a straight face that asylum seekers would be safe there,” she said.
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Those with access to Law360 can read Nicole’s complete article at the above link.
It isn’t just that Trump (supported by some equally dishonest and nasty GOP legislators and flunkies like Mike Pence, Mike Pompeo, Ken “Cooch Cooch” Cuccinelli, and Kevin McAleenan) is blatantly lying about asylum seekers and Guatemala being “safe.” What he essentially proposes is the U.S.-sanctioned murder of innocent asylum seekers from the Northern Triangle.
Why is this outrage against the law and humanity “below the radar screen?” Seems like it’s actually the most clear “impeachable offense” that Trump has committed to date. And, it’s right out in plain view for all to see, with irrefutable proof that Guatemala is NOT a safe country for anyone, let alone asylum seekers. That’s exactly why folks are fleeing Guatemala for their lives every day.
Acting Secretary of Homeland Security Kevin McAleenan testified Tuesday that 90 percent of asylum-seekers tracked under a recently instituted program skipped the hearings in which their cases were to be adjudicated.
Testifying before the Senate Judiciary Committee, McAleenan explained that his department is hampered in its efforts to deter illegal immigration by U.S. laws that allow asylum-seekers to remain on U.S. soil under their own recognizance for months or even years while awaiting a hearing that the vast majority of them simply skip.
“Out of those 7,000 cases, 90 received final orders of removal in absentia, 90 percent,” McAleenan told Senator Lindsey Graham (R., S.C.), referring to the results of a recent DHS pilot program that tracks family units applying for asylum.
“90 percent did not show up?” Graham asked.
“Correct. That is a recent sample from families crossing the border,” McAleenan replied.
https://apple.news/A3pp8Hb9QSA2ZwNpyJnHmPQ
Here’s the truth as compiled by the nonpartisan TRAC on the basis of a case-by-case examination of actual court records:
Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
The latest case-by-case records from the Immigration Courts indicate that as of the end of May 2019 one or more removal hearings had already been held for nearly 47,000 newly arriving families seeking refuge in this country. Of these, almost six out of every seven families released from custody had shown up for their initial court hearing. For those who are represented, more than 99 percent had appeared at every hearing. Thus, court records directly contradict the widely quoted claim that “90 Percent of Recent Asylum Seekers Skipped Their Hearings.”
These findings were based upon a detailed analysis of court hearing records conducted by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. With rare exception virtually every family attended their court hearings when they had representation. Appearance rates at the initial hearing were 99.9 percent. One reason for these higher rates for represented families is that it is an attorney’s responsibility to keep on top of when and where their client’s hearing is scheduled, and communicate these details to them. Thus, even if the court’s notification system fails, the family still finds out where and when to appear for their hearing.
Under our current system, there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing. Given many problems in court records on attendance that TRAC found, and in the system for notifying families of the place and time of their hearings, these appearance rates were remarkably high. TRAC’s examination of court records also showed that there were nearly ten thousand “phantom” family cases on the court’s books. These were cases entered into the Immigration Court’s database system but with little information apart from a case sequence number. The date of the notice’s filing, charges alleged, and particulars on the family were all blank.
Most courts showed patterns very similar to national appearance rates — with represented families’ appearance rates close to 100 percent, and unrepresented families somewhat lower. Full details by nationality and court are available at:
In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through May 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu https://trac.syr.edu
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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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Obviously, if McAleenan and the Administration were serious about court appearances, rather than spreading lies and creating chaos, they would work with the pro bono bar and NGOs to establish a universal representation program for asylum seekers. That would achieve nearly 100% compliance with hearing notices while promoting the rule of law and Constitutional Due Process. Not to mention that they should be investing in “quality control” in the issuance of the hearing notices, which all too often are erroneously addressed or improperly served.
Lawyers and improved notice as well as more professional adjudications that actually comply with the generous legal standards for asylum established by Congress and the Supreme Court would be much smarter and better investments than detention, more enforcement officers, bogus in absentia hearings (most based on defective notices), attempting to force asylum seekers to apply or wait in dangerous third countries without functioning asylum systems, and smearing lawful asylum applicants in support of totally unwarranted changes in the law.
Additionally, with lawyers and fair, impartial, and properly trained independent judges, many more of these asylum cases could be granted in short order, thus helping eliminate largely self-created Immigration Court backlogs and unnecessary appeals that burden the system as a result of the Administration’s constant malfeasance (a/k/a “malicious incompetence” resulting in “Aimless Docket Reshuffling”).
In the meantime, McAleenan’s lies, distortions, and misrepresentations under oath should certainly be grounds for a Congressional investigation into why he retains his current position and why DHS is using taxpayer money to falsify data to support a bogus attack on lawful asylum seekers.
Also interesting, but not surprising, that EOIR has 10,000 “phantom family cases” in its system.
Nick Miroff Reporter, Washington PostMaria Sacchetti Reporter, Washington Post
Nick Miroff & Maria Sacchetti report in WashPost:
President Trump said in a tweet Monday night that U.S. immigration agents are planning to make mass arrests starting “next week,” an apparent reference to a plan in preparation for months that aims to round up thousands of migrant parents and children in a blitz operation across major U.S. cities.
“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” Trump wrote, referring to U.S. Immigration and Customs Enforcement. “They will be removed as fast as they come in.”
Large-scale ICE enforcement operations are typically kept secret to avoid tipping off targets. In 2018, Trump and other senior officials threatened the mayor of Oakland, Calif., with criminal prosecution for alerting city residents that immigration raids were in the works.
Trump and his senior immigration adviser, Stephen Miller, have been prodding Homeland Security officials to arrest and remove thousands of family members whose deportation orders were expedited by the Justice Department this year as part of a plan known as the “rocket docket.”
In April, acting ICE director Ronald Vitiello and Homeland Security Secretary Kirstjen Nielsen were ousted after they hesitated to go forward with the plan, expressing concerns about its preparation, effectiveness and the risk of public outrage from images of migrant children being taken into custody or separated from their families.
Vitiello was replaced at ICE by former FBI and Border Patrol official Mark Morgan, who had impressed the president with statements on cable television in favor of harsh immigration enforcement measures.In his first two weeks on the job at ICE, Morgan has said publicly that he plans to beef up interior enforcement and go after families with deportation orders, insisting that the rulings must be carried out to uphold the integrity of the country’s legal system.
“Our next challenge is going to be interior enforcement,” Morgan told reporters June 4 in Washington. “We will be going after individuals who have gone through due process and who have received final orders of deportation.
“That will include families,” he said, adding that ICE agents will treat the parents and children they arrest “with compassion and humanity.”
U.S. officials with knowledge of the preparations have said in recent days that the operation was not imminent, and ICE officials said late Monday night that they were not aware that the president planned to divulge their enforcement plans on Twitter.
Executing a large-scale operation of the type under discussion requires hundreds — and perhaps thousands — of U.S. agents and supporting law enforcement personnel, as well as weeks of intelligence gathering and planning to verify addresses and locations of individuals targeted for arrest.
The president’s claim that ICE would be deporting “millions” also was at odds with the reality of the agency’s staffing and budgetary challenges. ICE arrests in the U.S. interior have been declining in recent months because so many agents are busy managing the record surge of migrant families across the southern border with Mexico.
The family arrest plan has been considered even more sensitive than a typical operation because children are involved, and Homeland Security officials retain significant concerns that families will be inadvertently separated by the operation, especially because parents in some households have deportation orders but their children — some of whom are U.S. citizens — might not. Should adults be arrested without their children because they are at school, day care, summer camp or a friend’s house, it is possible parents could be deported while their children are left behind.
Supporters of the plan, including Miller, Morgan and ICE Deputy Director Matthew Albence, have argued forcefully that a dramatic and highly publicized operation of this type will send a message to families that are in defiance of deportation orders and could act as a deterrent.
In this file photo from 2015, a man is detained by Immigration and Customs Enforcement agents in Los Angeles. New raids could target a large number of immigrants in major cities. (John Moore/Getty Images)
According to Homeland Security officials, nearly all unauthorized migrants who came to the United States in 2017 in family groups remain present in the country. Some of those families are awaiting adjudication of asylum claims, but administration officials say a growing number are skipping out on court hearings while hoping to live and work in the United States as long as possible.
Publicizing a future law enforcement operation is unheard of at ICE. Trump administration officials blasted Oakland Mayor Libby Schaaf last year for warning immigrants about an impending raid, saying she endangered agents’ safety.
“The Oakland mayor’s decision to publicize her suspicions about ICE operations further increased that risk for my officers and alerted criminal aliens — making clear that this reckless decision was based on her political agenda with the very federal laws that ICE is sworn to uphold,” then-ICE Deputy Director Thomas D. Homan said at the time.
Homan later retired, but last week Trump said Homan would return to public service as his “border czar.” On Fox News, Homan later called that announcement “kind of premature” and said he had not decided whether to accept the job.
Schaaf responded late Monday to the president’s tweet teasing the looming ICE roundups.
“If you continue to threaten, target and terrorize families in my community . . . and if we receive credible information . . . you already know what our values are in Oakland — and we will unapologetically stand up for those values,” she wrote.
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The pain, terror, racism, and disregard for human rights is real. But, the ability to summarily remove the “millions” of our fellow humans Trump claims as his objective might be limited by both reality (lack of resources) and the law.
Many of those with so-called “final orders” were tried “in absentia.” Many of those never received legal notice of their hearings. (All reputable studies show that asylum applicants who actually understand the system, have fair access to pro bono lawyers, and receive legally sufficient hearing notices appear at rates close to 100% of the time, even if they lose their cases).
If that is the case, and they can get lawyers, they can file a “motion to reopen” for lack of legal notice and receive a statutory stay of removal while both the Immigration Judge, and if denied, the Board of Immigration Appeals rule on the motion. And, the Immigration Courts are totally screwed up and backlogged due to Trump’s and the DOJ’s “malicious incompetence.” So, good luck with that.
Large numbers of deportees would also further destabilize the already “failed states” of the Northern Triangle thus insuring a continuing outward flow. Indeed, some of those deported might well “head north” again — only this time they won’t be dumb enough to entrust themselves to the U.S. legal system.
They will just disappear into the interior where their chances of being found again are probably less than their chances of being harmed in the Northern Triangle. No amount of authoritarian militarization of our internal police force is going to locate and remove 10-11 million people, most of them residing quietly and productively in our communities throughout America.
But, Trump has never been about results. (Nor has DHS for that matter). He’s all about White Nationalist hatred, racism, and appealing to a “base” that long ago abandoned the rest of America (the majority of us) and human values.
And let’s not forget the responsibility of Congress and the Article III Courts who for years have mostly overlooked the glaring Constitutional defects and clear incompetence and bias evident in the Immigration Court system as administered by the Department of Justice. It has taken the Article IIIs’ complicity in a legally defective system to produce these so-called “final orders” in the first place.
Every dead kid, broken family, and new forced gang recruit should be on their collective consciences. And, the primary result of the “New Reign of Terror” will undoubtedly be fear of cooperating with local police in solving crimes, thus making ethnic Americans “perfect victims” who have been abandoned by those who are failing in their legal duties to insure “equal justice for all.”
2020 might be our last chance to save our country and humanity. Don’t blow it! Who knows, the life you save might be your own!
Sophia Menchu Reporter, ReutersEleanor Acer Senior Director for Refugee Protection, Human Rights First
Sophia Menchu reports for Reuters:
GUATEMALA CITY (Reuters) – A U.S. plan to make asylum seekers from Honduras and El Salvador seek refuge in Guatemala instead of the United States would endanger, not protect, refugees, a prominent rights group said on Friday as U.S. negotiators met Guatemalan officials.
U.S. rights group Human Rights First said it was “simply ludicrous” for the United States to assert that Guatemala was capable of protecting refugees, when its own citizens are fleeing violence.
“The Trump administration is doubling down on its efforts to block, bar and punish refugees for attempting to seek asylum in the United States,” said Eleanor Acer, senior director for refugee protection at Human Rights First.
“These policies put the lives of refugees in great danger.”
Guatemala, like its neighbors Honduras and El Salvador, suffers high levels of violence, driven largely by transnational street gangs including MS-13, which operate across borders in all three countries. Many asylum seekers cite gang threats as the reason they come to the United States for refuge.
Tens of thousands of people have left Guatemala to seek U.S. asylum this year. Nearly 150,000 undocumented Guatemalan families have reached the U.S. border since October, according to U.S. Customs and Border Protection, many of them citing fear of violence in their home country for seeking asylum.
U.S. Vice President Mike Pence said this week the two nations had a deal under which Guatemala would take asylum seekers from neighbors. “They ought to be willing to apply for asylum in the first safe country in which they arrive,” he said.
Details of the plan have not been made public, and Guatemala has not publicly confirmed talks that the U.S. State Department said were taking place in Guatemala on Friday.
The talks were about a range of initiatives aimed at reducing illegal immigration, including “improved asylum processing,” a State Department spokeswoman said on Friday in response to a Reuters question about the Guatemala asylum plan.
The emerging plans flow from a U.S.-Mexican deal struck to avert tariffs threatened by U.S. President Donald Trump to push Mexico to do more to stem immigration through its territory.
That deal included sending 6,000 members of Mexico’s National Guard to the border and expanding a separate asylum program under which U.S. asylum seekers are sent back to Mexico to await U.S. court hearings.
If those measures fail, Mexico has agreed to consider becoming a “safe third country” where all asylum seekers passing through the country would have to apply for refuge, instead of the United States
Mexico’s Foreign Minister Marcelo Ebrard said other countries should share the load, including Guatemala.
Guatemala, one of the poorest countries in the Americas, has little experience receiving large numbers of asylum seekers and a large wave of refugees would strain limited resources. Just 262 people applied for refugee status in Guatemala between January and November 2018, according to data from the U.N. rights agency UNHCR.
By comparison, nearly 155,000 families from El Salvador and Honduras have been apprehended at the U.S. border since October, with many of them requesting asylum.
Guatemala holds presidential elections on Sunday, after a campaign that has highlighted the lack of rule of law in the country, including the influence of drug traffickers on politics in the country.
Trade and immigration between Mexico and the United States – tmsnrt.rs/2Khd82D
As pointed out in the article, Guatemala is one of the most dangerous countries in the world for its own citizens. It doesn’t even have a functioning asylum system. So, how could it provide access to a “full and fair” asylum adjudications to non-citizens as required by our law. The answer is simple – it can’t, by any stretch of the imagination. After all, living long enough to apply, even if there were a functional asylum adjudication system, would be a prerequisite to a legitimate “Safe Third Country” process.
Seems like clear abuses of authority like this by Trump and Pence that should be enough to remove both of them from office forthwith in a functioning democracy. But, that’s not going to happen before 2021, if then.
In the meantime, Dems should make a note that when responsible Government returns at some point in the future, the law should be amended to require at least Senate ratification of any future “Safe Third Country Agreement” to prevent future Executive abuses like this. Indeed, the failure of this Congress to revoke Trump’s authority to enter into these clearly bogus and ill-intended “Safe Third Country” agreements is an indelible stain upon its reputation.
“Safe Third Country” was intended to be about refugee burden sharing among countries with substantially comparable due process systems for adjudicating claims under the Refugee Convention. It was never intended to allow the U.S. to “outsource” asylum adjudication to dangerous, major human rights violators with dysfunctional asylum adjudication systems. What Trump and Pence are proposing is little more than outright murder and human rights abuses inflicted on asylum seekers in violation of both international and U.S. laws.
Kate Morrissey reports for the San Diego Union-Tribune and LA Times:
Judge orders U.S. to hold asylum seeker
Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.
By Kate Morrissey
SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.
Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”
“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.
This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.
The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.
A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.
“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”
At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.
Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.
Each time, the government attorney responded that the man should continue in MPP.
Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.
“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.
Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.
The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.
Philabaum said that fact was significant.
“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.
“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”
DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.
Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.
He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.
“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”
“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”
“I cannot understand you,” the man responded.
In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.
ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.
Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.
Morrissey writes for the San Diego Union-Tribune.
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Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure!
Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.
Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?
PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.
OPINION BY: PAMELA HARRIS, Circuit Judge
KEY QUOTE:
Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.
Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.
We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.
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It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.
How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”
This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.
The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here! So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.
An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.
Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?
You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!
History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.
(Reuters) – Over two hours on June 1, a Honduran teenager named Tania pleaded with a U.S. official not to be returned to Mexico.
Immigration authorities had allowed her mother and younger sisters into the United States two months earlier to pursue claims for asylum in U.S. immigration court. But they sent Tania back to Tijuana on her own, with no money and no place to stay.
The 18-year-old said she told the U.S. official she had seen people on the streets of Tijuana linked to the Honduran gang that had terrorized her family. She explained that she did not feel safe there.
After the interview, meant to assess her fear of return to Mexico, she hoped to be reunited with her family in California, she said. Instead, she was sent back to Mexico under a Trump administration policy called the “Migrant Protection Protocols”(MPP), which has forced more than 11,000 asylum seekers to wait on the Mexican side of the border for their U.S. court cases to be completed. That process can take months.
Tania’s is not an unusual case. Once asylum seekers are ordered to wait in Mexico, their chances of getting that decision reversed on safety grounds – allowing them to wait out their proceedings in the United States – are exceedingly small, a Reuters analysis of U.S. immigration court data from the Executive Office for Immigration Review (EOIR) shows.
. . . .
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Read the full description of the Trump Administration’s judicially enabled all out assault on the legal, Constitutional, and human rights of vulnerable asylum seekers at the above link.
It’s worth noting that almost every “ameliorating exception” described in the first paragraph of the panel’s opinion is demonstrably untrue — children and those clearly in danger are being returned and the “discretionary parole” is largely a fraud that seldom is granted — according to the Government’s own data (which likely is also falsified or manipulated to some extent to mask or distort abuses). In other words, a “three-reporter panel” of Reuters is more interested and capable of getting to truth than a panel of life-tenured judges.
Oh, that it could be these judges’ kids or grandkids separated from family and sent to live on the mean streets of Tijuana while pursuing their legal rights under US law. Really, how do these child abusers and human rights scofflaws hiding in judicial robes sleep at night?
Guess the can’t hear the screams and moans of those whose rights they are failing to protect and whose human dignity they reject. I’ve heard eyewitness accounts and seen video evidence from the pro bono lawyers courageously (and sometimes at the risk of their own health and safety) trying to protect the lives and rights of asylum seekers at the Southern Border from these abuses of human rights that are enabled by “Remain in Mexico” (a/k/a the disingenuously named “Migrant Protection Protocols”). The truth is no secret for those who actually seek it rather than to ignore it.
Complicit Article III Judges and Government lawyers are keys to Trump’s “dehumanization” program. History must hold them accountable for their abuses of humanity.
WASHINGTON, DC – The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case review, according to a new report released today by Innovation Law Lab and the Southern Poverty Law Center, entitled The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.Download the press release here.The report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, links the current crisis of accountability to the Attorney General’s absolute control over the immigration court system.In conjunction with the report, the groups also announced the launch of an Immigration Court Watch app, which enables court observers to record and upload information on immigration judge conduct to create greater judicial accountability.
Under the Immigration and Nationality Act, the attorney general is required to create an immigration court system in which independent judges decide cases by applying law to the evidence on the record following a full and fair hearing. According to the report, however, today’s immigration courts are plagued by systemic bias and neglect.
“Despite the life-and-death stakes of many immigration cases within the current system, case outcomes have less to do with the rule of law than with the luck of the draw,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney. “Under the Trump administration, the attorneys general have gone even further by actively weaponizing the immigration court system against asylum-seekers.”
The report explains how the Office of Attorney General has created an immigration court system that is biased, inconsistent and driven by political whims. It also examines the conflict that arises when immigration judges, who are expected to be neutral arbiters, are supervised by the United States’ chief law enforcement officer who prioritizes deterrence and deportation of immigrants, instead of an impartial review process.
The report recommends removing the immigration courts from the attorney general’s control and recreating them as Article I courts. To ensure that immigration judges are insulated from political pressures, they must be selected based on merit, receive tenure and be removed only for good cause. The immigration courts must also include more effective mechanisms of internal and appellate accountability.
“One of the key factors driving the immigration court crisis is the failure of judicial accountability,” said Stephen Manning, executive director of Innovation Law Lab. “The new Immigration Court Watch app addresses that lack of accountability, ensures greater transparency and will be a valuable resource for collecting and storing usable data on the pervasive abuses in the immigration court system.”
The new tool will allow data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic patterns of bias and other unlawful court practices. This data can be used to bolster policy recommendations, advocacy and legal strategies.
Advocates, attorneys and other court watchers are encouraged to access the app available here.
“By establishing a presence in immigration courts within their communities and sharing their observations and information, advocates can help us leverage the power of technology, collaboration and strategic alignment to create the first interconnected information system which captures data about due process issues in U.S. immigration courts in real-time,” Manning said.
Marion Steinfels marionsteinfels@gmail.com / 202-557-0430
Ramon Valdez ramon@innovationlawlab.org / 971-238-1804
The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, DC, is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, visit www.splcenter.org.
Innovation Law Lab is a nonprofit organization dedicated to upholding the rights of immigrants and refugees. By bringing technology to the fight for justice, Law Lab builds power for lawyers, human rights advocates, and immigrants in hostile immigration court jurisdictions, remote immigration detention facilities, and along the U.S.-Mexico border. For more information, visit www.innovationlawlab.org.
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Maybe the “Article III Enablers In Robes” need to start envisioning their kids and grandkids in cages, their daughters and granddaughters being gang raped, and their close relatives and best friends unnecessarily suffering and dying from intentionally life threatening conditions in prison where they are sentenced to indefinite confinement without rights and without being convicted of a crime.
No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.
Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.
New York City—In response to reports that the Mexican government is planning to make a deal with the United States to avoid tariffs threatened by President Trump, Human Rights First’s Eleanor Acer issued the following statement:
President Trump is trying to bully another country into endangering the lives of vulnerable men, women, and children, who want nothing more than to live in freedom and safety. Mexico and Guatemala are not—in a legal or practical sense—safe countries for many refugees. In Mexico too many refugees face kidnapping, assault, and murder.
People seeking refuge are not required to seek asylum in the first country they set foot in. In fact, many face grave dangers in neighboring countries, as well as serious risks that they will be returned to their country of persecution.
Such a plan would not only makes a mockery of U.S. law and treaty commitments, but would also return refugees to places where their lives are in danger. It is yet another abdication of leadership, setting an abysmal example for other countries around the world.
Instead of more attempts to block and punish people seeking refuge, the United States needs real solutions that restore order and uphold America’s refugee laws and treaty commitments, including:
Tackle the root causes pushing people to flee the Northern Triangle countries through a targeted strategy that leverages both diplomacy and aid, focusing on effective programs that reduce violence, combat corruption, strengthen rule of law, protect vulnerable populations and promote sustainable economic development.
Launch a major initiative to enhance the capacity of Mexico and other countries—which are already hosting growing numbers of refugees—to provide asylum, host, protect, and integrate refugees, along with a robust regional resettlement initiative that provides orderly routes to the United States and other countries while safeguarding asylum.
Immediately end the dysfunction at the border, and instead launch a public-private humanitarian initiative and a long overdue case management system to actually manage asylum cases.
Fix the asylum and immigration court adjudication systems to provide fair, non-politicized and timely decisions.
As usual, Trump’s outrageously illegal and immoral proposal relies on:
Bullying weaker countries;
A gullible public;
A cowardly GOP Congress;
Complicit courts.
A simple perusal of the country condition materials publicly available on the EOIR and Department of State websites shows that the idea that either Mexico or Guatemala are “safe” countries where refugees “would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,” as required by U.S. law, is preposterous.
Mexico’s asylum adjudication system is plagued by bribery, corruption, and incompetence. It adjudicated only about 10, 000 cases in the last reported period, denying the overwhelming majority. Moreover, gangs and cartels operate freely throughout the Northern Triangle countries and Mexico. Our State Department Report acknowledges that the same organized gangs who force people to leave the Northern Triangle can also harm them in Mexico.
Guatemala is a highly corrupt country basically without a functioning asylum adjudication system. It is a major sender of asylum applicants to other countries. The Guatemalan Government is unable to maintain order and protect its own citizens, let alone refugees from nearby countries.
Also, we are encouraging Mexico and Guatemala to use troops and military force against asylum seekers — something our own laws do not permit.
Essentially, the Trump Administration seeks to “get away with murder.” In two years they have turned the U.S. from a leading defender of human rights to a major international human rights violator. So, why are we allowing our Government to get away with such dishonest, morally bankrupt, and illegal proposals?
Even if these corrupt proposals go into effect, it seems doubtful that they will stem the follow of refugees in the long run. While there might be a short term downturn, eventually smugglers will adjust to the new policies and desperate individuals will find different routes to the United States. They will be more dangerous, so more will die.
Perhaps we will see “Central American Boat People” and more deaths at sea. Maybe there will be more “Golden Ventures.” More deaths at the border will be inevitable as smugglers seek to evade the Border Patrol and get to the interior. Perhaps the human smuggling action will switch to the even longer U.S. Canada border. How about a “Northern Wall” from the Atlantic to the Pacific?
As long as the U.S. stubbornly refuses to acknowledge and address the causes of migration it will continue, in extralegal channels as necessary and as the market “push pull factors” determine. More focus on barring refugees means less focus on drug smugglers and others who present a real threat to our safety and security.
Also, smugglers will be able to change a premium — so those who are willing to take the risk and outsmart the new system will reap even higher profits than the increased ones Trump has already conferred upon them with his maliciously incompetent policies to date. Finally, walls, jails, cages, abuses, family separations, prosecutions, racist rhetoric, armed violence, tariffs, exploitation, massive violations of our Constitution and international laws, or whatever won’t stop desperate refugees from coming. But we will eventually convince refugees to give up on the U.S. legal system and just find ways to get beyond the border and lose themselves in the interior. No enforcement system, no matter how cruel, repressive, expensive, and lawless will be able to get rid of more than a fraction of those who don’t want to be found after reaching the interior.
Moreover, if Trump’s actions succeed in destabilizing Mexico, then Mexican migration, which has actually been a negative flow recently, will resume in large numbers, also adding to the pressure on our borders. The worse things get in Mexico, the less likely that the Mexican Government will stop their citizens from heading north. So, there is every reason to believe that Trump’s “malicious incompetence” will make things even worse for everyone — but particularly for those who are most vulnerable — desperate asylum seekers!
Another future possibility to ponder: Tired of being publicly bullied, humiliated, and dealing with a dishonest unreliable idiot and his incompetent sycophants, Mexico and Canada will “wise up” and cut a trade deal with China that really gives them leverage and puts the squeeze on the U.S. And, why wouldn’t China love a chance to establish factories just across our Northern and Southern borders that could also serve as “listening posts” and repositories for hijacked U.S. technology? Maybe the EU and India could also be cut into the deal.
We are diminishing ourselves as a nation, but it won’t stop human migration!
Former Border Patrol Agent and author Francisco Cantu writes in the NY Times:
Seeking Refuge, Legally, and Finding Prison
Power is condemning lawful asylum seekers to a system designed for criminals.
By Francisco Cantú
Mr. Cantú is a former Border Patrol agent and an author.
For more than seven months, Ysabel has been incarcerated without bond at an immigrant detention center in southern Arizona, part of a vast network of for-profit internment facilities administered by private companies under contract with the Department of Homeland Security.
I visit Ysabel (who has asked not to be identified by her real name for her protection) every two weeks as a volunteer with the Kino Border Initiative, one of ahandful of migrant advocacy groups running desperately needed visitation programs in Arizona, including Mariposas Sin Fronteras and Transcend. As volunteers, our primary role is to provide moral support; facilitate communication with family members and legal service providers; and serve as a sounding board for frustration, confusion and, often, raw despair.
Ysabel and the other asylum seekers we visit often ask for simple forms of support, such as small deposits into their commissary accounts to let them call relatives or purchase overpriced goods like dry ramen, tampons, shampoo or headphones for watching telenovelas. They often ask us to send them books in Spanish — one of the few things that they are permitted to receive through the mail without clearance from a property officer. Large-print Bibles are the most popular, along with books of song and prayer, bilingual dictionaries and English course books, romance novels, and other books that provide ways to pass the time — word puzzle collections, coloring books, books for learning how to draw and instruction manuals for making origami figurines.
Ysabel arrived at the United States border last October after leaving her home and two children in eastern Venezuela. The region she fled was plagued by disorder long before the more widely reported upheavals of recent months, suffering frequent power outages, widespread violence and unrest, and severe shortages of food, water and medication. In the years leading up to her flight from the country, Ysabel told me that she had been kidnapped, robbed at gunpoint multiple times and shot at during an attempted carjacking.
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Beneath all of the Trump Administration’s diversionary tactics and overt White Nationalist racism is an even more disturbing truth: our country is systematically denying due process, fundamental fairness, and humane treatment to those who, unlike Trump and his scofflaws, are actually following our laws and deserve a “fair shot” at receiving life-saving protection.
Folks like Yasabel pose no “threat” to the United States other than the color of their skin. But, Trump, Stephen Miller, Bill Barr, and the rest of the Trump sycophants, their supporters, and their GOP enablers, pose an existential threat to our continued existence as a nation.
Outrageously, the U.S. Immigration Courts, supposedly a courageous bastion of protection for the legal and constitutional rights of asylum applicants and others against Government overreach, have become “weaponized” under Barr and Sessions. Now, they function as tools of repression, not justice.
Nobody, and I mean nobody, in the United States will escape the eventual consequences of the systemic abuses of our legal system and human dignity being carried out under our noses by the Trump Administration through the seriously corrupted Immigration “Court” System.
Yes, 1939 can happen in America, and it’s coming closer all the time! Trump’s disgusting rhetoric is the same as fascists before him: hate, shame, blame, vilification and dehumanization of the innocent and most vulnerable.
Wake up, before it’s too late! Join the New Due Process Army and fight against this Administration’s vile White Nationalist Plan to destroy our country!
WASHINGTON, DC – The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case review, according to a new report released today by Innovation Law Lab and the Southern Poverty Law Center, entitled 