VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/sessions-likely-to-end-asylum-eligibility-for-victims-of-domestic-violence-how-courts-can-resist.aspx?Redirected=true

Sophia writes at LexisNexis Immigration Communities:

“Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

. . . .

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

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

Go on over to LexisNexis at the above link for Sophia’s much longer full article.

More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.

Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

 

PWS

03-21-18

Michelle Brané in WASHPOST: “Separating refugee children from their parents is cruel”

https://www.washingtonpost.com/opinions/separating-refugee-children-from-their-parents-is-cruel/2018/03/18/d3e6b286-293f-11e8-a227-fd2b009466bc_story.html

March 18
I was glad to see the March 12 editorial “Torn asunder seeking asylum,” which called attention to the horrific practice of separating families seeking asylum. I can offer broader context to the issue of family separation. The Women’s Refugee Commission’s Migrant Rights and Justice Program has been monitoring this issue for many years.Primarily, the mother and child in the editorial should never have been separated. The increasingly common practice of separating asylum-seeker children from their parents is often done for no reason other than to deter the family from seeking protection. The Department of Homeland Security has publicly stated deterrence as the intended outcome, and its suggestion now that it is doing so to protect children is misleading and shameful.This is outrageous, as well as cruel, costly and illegal. What’s more, this practice is increasing. My organization is aware of hundreds of similar cases. We hope that Homeland Security’s decision to release the mother, and reunite her with her child, represents a move away from this practice and back toward respect for parents’ and children’s right to seek asylum.

Michelle Brané, Washington

The writer is director of the
Migrant Rights and Justice Program at the Women’s Refugee Commission

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

Well said, Michelle!

Compare the intelligence, humanity, and comprehensive knowledge of a “True American Hero” like Michelle with some of the ignorant, biased, immoral, and mean-spirited rantings of those who pass for “leaders” of our country these days. We have put the wrong people in power; but, there’s still time to correct the mistake before it’s too late!

PWS

03-21-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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

A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

WASHPOST: MICHAEL E. MILLER & JON GERBERG REPORT — Nation Of Shame — How The Trump Administration Stomps On The Human Rights Of The Most Vulnerable Refugees Every Day!

https://www.washingtonpost.com/local/wheres-mommy-a-family-fled-death-threats-only-to-face-separation-at-the-border/2018/03/18/94e227ea-2675-11e8-874b-d517e912f125_story.html

Miller & Gerberg report:

They had come so far together, almost 3,000 miles across three countries and three borders: a mother with three children, fleeing a gang in El Salvador that had tried to kill her teenage son.

But now, in a frigid Border Patrol facility in Arizona where they were seeking asylum, Silvana Bermudez was told she had to say goodbye.

Her kids were being taken from her.

She handed her sleeping preschooler to her oldest, a 16-year-old with a whisper of a mustache whose life had been baseball and anime until a gun was pointed at his head.

“My love, take care of your little brother,” she told him on Dec. 17.

“Bye, Mommy,” said her 11-year-old daughter, sobbing.

And then her children were gone.

Once a rarity, family separations at the border have soared under President Trump, according to advocacy groups and immigration lawyers.

The administration first put forth the idea a year ago, when John F. Kelly, then secretary of the Department of Homeland Security, said he was considering separating parents from their children as a deterrent to illegal immigration.

Kelly, now the White House chief of staff, quickly walked back his comments after they triggered public outrage, and the controversy ebbed as illegal immigration plunged to historic lows.

But when border apprehensions began to rise again late last year, so, too, did reports of children being stripped from their parents by Border Patrol or Immigration and Customs Enforcement agents.

“Separating children from their parents is unconscionable and contradicts the most basic of American family values,” 71 Democratic lawmakers said in a letter to DHS in February.

The separation of a Congolese mother from her 7-year-old daughter generated headlines and spurred a class-action lawsuit by the American Civil Liberties Union this month.

“We are hearing about hundreds of families,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

“DHS does not currently have a policy of separating women and children,” according to an agency statement released this month, but retains the authority to do so in certain circumstances, “particularly to protect a child from potential smuggling and trafficking activities.”

“The truth is that whether they call it a policy or not, they are doing it,” Gelernt said.

For Silvana’s children, the separation was bewildering and frightening.

They had no idea where their mother was. Did their father, who had fled to the United States months earlier, know where they were? They were told they’d join their family in a few days, but days turned into weeks.

Surrounded by strangers in a strange place, they wondered: Would they ever see their parents again?

‘My soul left me’

The family’s crisis began a year ago, when Silvana’s husband, Yulio Bermudez, refused to help MS-13 members in San Salvador escape from police in his taxi. The gang beat him and threatened to kill him.


Silvana Bermudez weeps on March 16 as she watches a video of her children during their separation. (Michael Stravato/For The Washington Post)

Yulio fled north and crossed illegally into Texas, where the 34-year-old claimed asylum and eventually joined relatives.

Then one night in November, Silvana sent her oldest son — Yulio’s stepson — to a pupuseria down the block. As he was walking, the teenager saw a car pull up. A member of MS-13’s rival, the 18th Street gang, peppered the restaurant with gunfire.

The gang member then turned his gun on the teen, who was frozen with fear. But when he pulled the trigger, there was only the click of an empty chamber.

“Must be your lucky day,” the gangster said and sped off.

Silvana, 33, and her son reported the incident to police, also describing Yulio’s run-in with MS-13. Within days, MS-13 members showed up to their door to tell Silvana she’d pay for snitching, she would later tell U.S. immigration officials. And when the 18th Street member saw her in the street, he pointed his finger at her like a gun.

“It was a clear sign that he was on to us and he wanted to hurt me and my child,” she said in immigration court filings.

Relatives drove Silvana and her kids to the border with Guatemala, where they caught the first of many buses on their way to America.

When they arrived at the U.S.-Mexico border several days later, Silvana and her children followed a group of migrants through the night to a tall brick wall.

“When I saw they were jumping a wall, I said, ‘Oh my God, where do I go from here?’ ” Silvana recalled in an interview. But it was too late to turn back, so she ushered her daughter forward and watched as the 11-year-old disappeared over the wall. Then she handed up her 3-year-old.

“My soul left me, because the wall was very high,” she recalled. Out of sight on the other side of the wall, migrants caught the boy using a blanket.

They had been walking through the desert for a few minutes when they were caught and taken to a “hielera,” or ice box, the nickname for the cold, barren Border Patrol facilities along the frontier where detained migrants sleep dozens to a room.

There, Silvana was told she was being separated from her kids because she had tried to enter the country illegally a decade earlier. Border Patrol agents said she would be charged with “illegal reentry” — a felony punishable by up to 20 years in prison — and that her children could not join her in court, she recalled later. (The Washington Post is not naming the children because of the family’s fears about their safety.)

Instead, the kids were loaded onto a van and driven for four hours. As his baby brother slept in his arms, the 16-year-old could hear his sister crying out for their mom. He tried to comfort her, but a metal divider stood between them.

The desert gave way to neighborhoods, and the 11-year-old said she began to believe they were being taken to their dad’s house. When the van finally stopped in front of a large building on the outskirts of Phoenix, she thought: My dad lives in a hotel?

But the building wasn’t a hotel. It was La Hacienda del Sol, one of dozens of shelters around the country for unaccompanied minors. And it was surrounded by a six-foot fence.

Silvana’s sons were given bunk beds in a room with several other boys. The windows were equipped with alarms, which often went off during the night. Each evening, the 16-year-old would lie awake worrying about their fate.

And each morning, the 3-year-old would wake up and ask the same question.

“Where’s Mommy?”

“She had to go to work,” his older brother would say. “She had to go shopping.”


Silvana’s Bermudez’s 3-year-old son kept asking, “Where’s Mommy?” during their long separation. (Michael E Miller/The Washington Post)

The boys had each other, but their sister was by herself in a wing for girls. They only saw her at meals and for a few hours in the evening, when they would play Battleship or Connect 4.

Silvana had given her oldest son a scrap of paper with his stepdad’s phone number on it. But he’d lost it. There was no Internet at the shelter, and when the teen asked to access Facebook to contact Yulio, he said he was told he’d have to make an official request.

Days passed as the children waited for Yulio or Silvana to find them. They took classes, spoke to therapists and received vaccinations. All the while, there was a constant churn of children around them. They would make new friends, only to lose them a few days later, writing their names in notebooks in the hopes of one day re-connecting.

At one point, the 11-year-old’s only roommate was a 4-year-old. Shelter employees asked her to help care for the girl by warming up her bottle and putting her to sleep.

“She was alone,” Silvana’s daughter said. “Without her mom. Without anyone.”

Christmas arrived without word from their parents. Instead of dinner with family and fireworks in the streets of San Salvador, there was pizza and a shelter employee dressed as Santa Claus dispensing winter hats and plastic yo-yos. When Silvana’s daughter began shimmying to Latin music like she had in her dance troupe in El Salvador, she was told to tone it down. And a no-touching rule meant she wasn’t allowed to hug her older brother, even when the clock struck midnight on New Year’s Eve.

The 11-year-old began to despair.

“At first I thought it’d only be a few days before I saw my dad,” she recalled. “But after a month there, I was going crazy, thinking, When? When? When?”

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

Go to the link to read the rest of the article.

This story should be appalling to every American on two levels. First, the unnecessarily cruel policy of separating families, which has frequently been in the news lately.

But, additionally, these folks are refugees who should be granted protection under U.S laws. However, because of unrealistically restrictive politically influenced decisions by the “captive” Board of Immigration Appeals (“BIA”) in the U.S. Department of Justice, and undue deference given to BIA by the Federal Courts under the so-called “Chevron doctrine,” individuals like this basically face a “crap shoot” as to whether protection will in fact be granted.

With a good lawyer, time to prepare and document their case, the right U.S. Immigration Judge, the right BIA “appellate panel,” and the right Court of Appeals panel, protection can be granted under the law in these cases. But, because there are no appointed counsel in Immigration Court cases, most families like this don’t get the top flight legal help that they need to understand the unduly and intentionally overcomplicated law and prepare a winning case. Moreover, too many Immigration Judges at both the trial and appellate levels are biased against or unreceptive to asylum cases from the so-called “Northern Triangle” involving gang violence. Some Circuit Court of Appeals panels care and take the time to carefully review BIA findings; others view their “Ivory Tower Sinecures” as an excuse to merely “rubber stamp” the BIA result without giving it much, if any, apparent thought. And this was happening before the Trump Administration took over.

Now, with the biased, White Nationalist, anti-asylum, restrictionist Jeff Sessions actually in charge of our Immigration Courts it’s basically “open season” on the most vulnerable asylum seekers. Sessions rapidly is moving to make the entire U.S. asylum process basically a “Death Train” with the Immigration Courts and the BIA as mere “whistle stops on the deportation railway.”

Outrageously and shamelessly, Sessions has moved to make it difficult or impossible for individuals to obtain counsel by detaining them in out-of-the-way locations specifically selected for lack of availability of legal services and harsh conditions; separated families to demoralize, punish, and terrorize applicants; cranked up the pressure on already overburdened U.S. Immigration Judges in a system already collapsing under 670,000 pending cases to turn out more mindless removal orders; limited the rights of asylum applicants to full hearings — for all practical purposes a “death sentence” for the majority of those who are unrepresented; and indicated an intention to strip particularly vulnerable women, children, gays, and other asylum applicants similar to this family of the bulk of the already merger substantive legal protections they now possess.

Yes, Sessions’s evil and idiotic plan — which reverses decades of settled administrative precedents — is likely to tie up the Federal Courts for years if not generations. But, not everyone in the position of these families has the time, resources, and know how to navigate the Courts of Appeals to obtain justice. That’s particularly true when folks are held in detention in deliberately substandard conditions.

Because Congressional Republicans have long since abandoned any pretensions to human decency or to care about the Constitutional and statutory rights of migrants, Sessions is running roughshod over the laws, the Constitution, and human rights, and wasting taxpayer money by grossly mismanaging the Immigration Courts, without any meaningful oversight whatsoever.

No, folks like the Bermudez family aren’t “fraudsters,” “terrorists,” “frivolous filers,” “economic refugees,” “job stealers,” “system abusers,” “dangerous criminals,” “gangsters” or any of the other litany of false and derogatory terms that Sessions and his ilk intentionally and disingenuously use to describe refugees and asylum seekers. They are frightened, yet courageous, human beings fighting for their legal rights and their very lives in a system already intentionally and unfairly stacked against them. 

Through articles like this and court cases, we are making a record of the human rights abuses of Sessions and the rest of the Trump Administration. The “New Due Process Army” will continue to fight injustice throughout our country! For those supporting, enabling, or consciously ignoring this Administration’s human rights atrocities, history will be the judge. Harm to the most vulnerable among us is harm to all!

Due Process Forever!

PWS

03-20-19

 

ROBIN UREVICH TAKES US INSIDE THE DEADLY “NEW AMERICAN GULAG” OPERATED BY THE DHS — “Civil Detainees” Are Dying At A Rate Of About One Per Month In The Hands Of Our Government — Many Think Some Of These Deaths Were Preventable!

The fabulous investigative reporter Robin Urevich with continuing coverage from Capitol & Main’s “Deadly Detention Series:”

https://capitalandmain.com/deadly-detention-self-portrait-of-a-tragedy-0314

“Deadly Detention: Self-Portrait of a Tragedy

Co-published by International Business Times
The missteps and errors of ICE and its contractors have led to concerns about the safety of immigrant detainees with mental health issues.

Print Friendly, PDF & Email
Robin Urevich

Published

on

Photo: Robin Urevich


A suicidal detainee never got the mental health care he needed and was placed in a cell that contained a known suicide hazard,
a ceiling sprinkler head.


Co-published by International Business Times

Sometime after midnight in mid-May of 2017, 27-year old JeanCarlo Jimenez Joseph fashioned a noose from a bed sheet and hanged himself in his solitary confinement cell at the Stewart Detention Center, located in the pine woods of southwest Georgia. Stewart’s low-slung complex lies behind two tall chain-linked fences, each crowned with huge spirals of glinting barbed wire. Beginning in 2006, the facility began to house undocumented immigrants detained by U.S. Immigration and Customs Enforcement.

Jimenez’s fall sounded like a sledgehammer blow, said 20-year-old Abel Ramirez Blanco, who was also in segregation at Stewart that night. Another detainee, Miguel Montilla, had peered through the metal grate on his door and saw guard Freddy Wims frantically knocking at Jimenez’s cell door. “He got on the walkie-talkie and started screaming,” Montilla said.

“I looked in the door and I didn’t see him,” Wims would later remember. Wims scanned the small cell until, he said, “I looked over in the corner by the commode and he was hanging there by the sheet.”

Within hours, Georgia Bureau of Investigation agents descended on Stewart, about 140 miles south of Atlanta, to find out if foul play had been involved in Jimenez’s death. It wasn’t. But the investigation, which generated audio interviews of Stewart staff and detainees, along with recordings of Jimenez’s personal phone calls and official documents, revealed that CoreCivic, the for-profit prison company that operates Stewart for ICE, and ICE Health Services Corps, which provides health care at Stewart, cut corners and skirted federal detention rules. The organizations’ missteps and errors have led to concerns about the safety of immigrant detainees with mental health issues.

Also Read: “Hell in the Middle of a Pine Forest”

The probe disclosed that Jimenez repeatedly displayed suicidal behavior, but never got the mental health care he needed. He was also placed in a cell that contained a known suicide hazard, a ceiling sprinkler head, upon which he affixed his makeshift noose. Freddy Wims was assigned to check Jimenez’s cell every half hour, but didn’t do so. Instead, he falsified his logs to make it appear he had, and he was later fired. Stewart’s warden, Bill Spivey, retired after Jimenez’s death; a CoreCivic spokesman told The Atlanta Journal-Constitution that the two events were unrelated. Spivey couldn’t be reached for comment for this article.


Psychiatrist: Placing a suicidal prisoner in solitary confinement is like placing someone with bad asthma in a burning building.


CoreCivic’s spokesman, Jonathan Burns, didn’t respond to questions about Jimenez’s death and detention. Instead, he wrote in an email, “CoreCivic is deeply committed to providing a safe, humane and appropriate environment for those entrusted to our care, while also delivering cost-effective solutions to the challenges our government partners face.” ICE spokeswoman Tamara Spicer wrote in an email that she couldn’t answer questions about the case because it is “still undergoing a comprehensive review that has not been released.”

Jimenez had been in solitary for 19 days at the time of his death — punishment for what his sister would tell investigators was an earlier suicide attempt. He had leapt from a second-floor walkway in his dormitory, and later repeatedly told detention center personnel, “I am Julius Caesar for real.” He was physically unhurt, but Stewart staff were aware he was suffering from mental illness and had a history of suicide attempts, documents show. Still, after his jump, Jimenez saw a nurse who quickly cleared him for placement in a 13-by-7-foot segregation cell alone for 23 hours a day. After that, his suffering seemed to intensify.

“Placing a suicidal prisoner in segregation is like placing someone with bad asthma in a burning building,” Terry Kupers, a Bay Area psychiatrist who has studied solitary confinement and who reviewed some of the documents in Jimenez’s case, noted in an email. He added that half of successful prison suicides occur among the three to eight percent of prisoners in solitary confinement.

Jimenez wasn’t put on suicide watch, or even ordered monitored more frequently than the normal half-hour checks. He continued to display alarming behavior. Montilla told the GBI that he and a guard had heard Jimenez screaming and banging on his cell wall two weeks before his death. “Man, I’m suffering from psychosis and I hear voices talking to me and they’re bothering the shit out of me,” Montilla recalled Jimenez saying.

Registered Nurse Shuntelle Anderson told a GBI agent that some five days before his death, she saw Jimenez banging the metal mirror in his cell. He told her, “These fucking voices, they won’t leave me the fuck alone …They’re telling me to commit suicide…but I don’t want to harm myself.”


See Interactive Map of U.S. Detention Deaths


Jimenez asked Anderson for a higher dose of the anti-psychotic drug Risperidone, which he’d previously been prescribed at a North Carolina mental health facility. It was at least the second such request he’d made at Stewart — where he received only a fourth of his normal dosage.

Anderson told investigators she left a note for the facility’s behavioral health counselor, Kimberly Calvery, saying that Jimenez wanted more medication. Calvery arranged for him to speak with the detention center’s psychiatrist but Jimenez didn’t live long enough to keep the appointment, which was scheduled later in the morning he died. Calvery later told investigators that Jimenez “never showed any suicidal tendencies at the Stewart Detention Center.”


Homeland Security reported that at the Stewart Detention Center solitary confinement, which  isn’t supposed to be punitive, appeared to be sometimes used to punish trivial offenses.

 


“He was such a good kid,” Anderson told investigators in the hours after Jimenez’s death. Earlier that night, she’d given him medication and he’d shared a self-portrait he’d been working on. “It was very nice, very detailed and last night, when I went down there, he said, ‘Look, I finished it.’” Anderson said. Guards and detainees also described Jimenez as mostly lucid and friendly, despite his occasional outbursts, quirky comments and a propensity to call himself Julius Caesar.

In a December 2017 report, “Concerns about ICE Detainee Treatment and Care at Detention Facilities,” the Homeland Security inspector general wrote that at Stewart and three other facilities (which are operated by county governments), “We identified problems that undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.” The IG’s staff wrote that immigration detention isn’t supposed to be punitive, and noted that at three of the facilities, including Stewart, segregation or solitary confinement appeared to be sometimes used to punish trivial offenses. At Stewart, the inspectors also found that showers were moldy and lacked cold water in some cases, and some bathrooms had no hot water, and that medical care, even for painful conditions, had been delayed for detainees.


Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal.


Additionally, despite Jimenez’s nonviolent crimes, he was classified as a high-risk detainee. He had been convicted of marijuana possession, petty theft and an assault charge that arose from an unwanted hug he gave a woman in Raleigh, North Carolina. He was issued a red jumpsuit to signal his danger level and housed with others who were similarly classified. The inspector general’s report flagged misclassification of detainees as a problem at Stewart. While there, Jimenez wavered between wanting to wage a court battle to stay in the U.S., and paying for his own return to Panama through a process called voluntary departure. But, before he could take the first steps to fight his case, he ran into roadblocks, including the failure of the detention center to send a set of documents that Jimenez’s attorney had requested.

 Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal. Human rights groups point to dozens of others who endure painful medical conditions and must wait for care or never receive it at all.

Like Jimenez, they’ve been dropped into a ballooning system whose rapid growth and diffuse nature would make it hard for the government to closely monitor, even if it attempted to do so.

ICE had fewer than 7,500 detention beds in 1995. Now the system is 500 percent bigger, with nearly 40,000 beds nationwide in 200 facilities that operate under three different sets of government standards. The Trump administration plans to add 12,000 more beds this year alone even as vulnerable detainees currently fall through the cracks.


JeanCarlo Jimenez completed his self-portrait and tied knots in a white bed sheet to shorten it. A guard  observed him jumping rope with it.


Federal officials largely maintain a hands-off approach, leaving it to private prison companies like CoreCivic and the GEO Group to run day-to-day affairs. The companies tend to run them like prisons and not as the civil detention facilities that the law says they are.

Photo: Robin Urevich

“Contractors operating facilities for ICE typically have backgrounds in corrections, and this shapes how they administer their ICE detention facilities,” said Kevin Landy, who led the Obama administration’s immigration detention reform efforts as the head of ICE’s Office of Detention Policy and Planning.

“Problems such as medical care, the way disciplinary proceedings are administered, the lack of sensitivity to detainee needs, and conditions generally reflect the problems writ large in our correctional system,” Landy said.

At Stewart, these problems have been particularly acute, said attorney Azadeh Shahshahani, whose group, Project South, monitors conditions at Stewart. “The facility needs to be shut down. It’s beyond redemption.”

Jimenez had come to the United States from Panama when he was 10, graduated from high school in Kansas, and considered himself American, even though he lived in the U.S. without documents most of his life. Public records show he even registered to vote in North Carolina — as a Republican.

“When I heard what happened, it blew my mind,” said Matt Schott, who was about four years older than Jean Jimenez and now works for an oil and gas exploration company in Kansas. Jimenez was 19 when he and his sister, Karina Kelly, came to Matt’s church, and they became friends 12 years ago. “He brought a lot of laughter to everybody,” Schott said, recalling Jean’s huge open smile. In photos, he’s beaming, showing a mouthful of teeth and wearing a big afro.

“Jean would just show up at the house. We’d play Christian worship music, and be up till 3 or 4 in the morning. We would get a bunch of food and go to a park,” Schott remembered. A video on Jean’s Facebook page shows him executing expert dance moves as friends play instruments outdoors.

Schott said when they began to share more of their lives, Jean tearfully told Matt he was undocumented and had to hide in plain sight. “He had big dreams. He wanted to start an architecture firm and had already named it — Eyes Design.”

Except for a few Facebook messages they exchanged, Schott lost track of Jimenez after the latter moved to North Carolina with his mother and stepfather about eight years ago. While there, Jimenez had obtained protection from deportation through the Obama administration’s DACA or Deferred Action for Childhood Arrivals program.

But, in the six months before he was detained, his mental health declined. He was hospitalized twice for psychotic episodes and lost his DACA status. Jimenez also had the misfortune of being arrested just as President Trump took office. The new administration had declared that anyone in the country illegally was fair game for immigration enforcement, even if they’d committed no crime or if their crimes were as minor as Jimenez’s. He was transferred to ICE custody.

For Jimenez the prospect of deportation to Panama, a country he had left behind as a child, was scary, his sister Karina wrote in a chronology of conversations with her brother that she sent to the family’s attorney. “Game is over,” Kelly recalled Jimenez saying. But before being shipped to Panama, he would be held at Stewart, arguably one of the most troubled detention centers in the country.

About six weeks into his detention a fellow detainee punched Jimenez in the groin and busted his lip. Jimenez was punished with his first stint in solitary — even though he was the victim in the attack and the detention center’s camera shows he didn’t fight back.

“I’m tired of this life,” Jimenez told his stepfather Gilberto Rodriguez in a recorded phone call soon after, his voice sounding uncharacteristically weary.

“Don’t give up, you can start over,” Rodriguez counseled. “In God’s name you’re getting out…we have to do this together.”

Just two days before his death, Jimenez’s mother, Nerina Joseph, and Rodriguez made the trip from Raleigh, North Carolina, to visit him. “She reported that he was so happy to see them, and they had the best 60 minutes a mother in her shoes could ever ask for,” Karina Kelly wrote.

Still, Jimenez’s mother was concerned about his well-being, and stopped by El Refugio, a hospitality center in Lumpkin, Georgia, where detention center visitors can find a meal and place to sleep. El Refugio volunteers also visit detainees, and Joseph requested that someone check on Jimenez. A volunteer attempted to see him the next day, but was turned away because Stewart personnel mistakenly said Jimenez couldn’t receive visitors. Records show there were no such restrictions on Jimenez’s visits.

Later that night, Jimenez completed his self-portrait, and tied knots in a white bed sheet to shorten it. A guard even observed him jumping rope with the sheet a few hours before he died and asked him about it. Jimenez replied he was staying in shape and the guard took no further action.

Ten days after Jimenez’s suicide, a fellow detainee, Abel Ramirez Blanco, told GBI investigator Justin Lowthorpe that he had listened in his cell as guards, nurses and finally paramedics labored over Jimenez’s lifeless body, and an automatic defibrillator blared robotic CPR instructions.

A videotape of the scene inside Jimenez’s cell shows nurses Shuntelle Anderson and Davis English desperately trying to resuscitate Jimenez. Anderson yells for guards to call 911. “I’m calling an ambulance,” a voice answers. Records from a regional 911 center show paramedics were called six minutes after Wims radioed a medical emergency, and arrived in Jimenez’s cell some seven minutes after they were called.

ICE inspectors haven’t yet weighed in on Jimenez’s case. But in studying a 2013 suicide, ICE reviewers criticized staff at a Pennsylvania facility for waiting four minutes to call 911, writing that the Mayo Clinic and the American Heart Association recommend calling 911 before beginning CPR.

Jimenez was eventually taken to a hospital where he was pronounced dead less than 15 minutes after his arrival.

Red caution tape was placed in the shape of a large X on Jimenez’s cell door. Inside the cell, steel shelves held his art supplies, his artwork and a plastic instant-noodle soup bowl with some of the broth still in it. On his wall Jimenez had written, “The grave cometh. Halleluyah.”

A death like Jimenez’s “could have happened to me,” Ramirez told GBI agent Lowthorpe, because of his own anxiety and depression. Ramirez said Stewart staff didn’t help him when he reported those symptoms. Instead, he was thrown in segregation where he witnessed Jimenez’s suicide, and began to feel even more desperate.

Matt Schott struggled to reconcile his friend’s death with his Christian faith. “People believe you commit suicide and you go to hell,” Schott said. “I can’t believe that about Jean because I knew who he really was. I love the guy and I believe one day I’ll see him again.”

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

https://capitalandmain.com/deadly-detention-hell-middle-pine-forest-0314

“DEADLY DETENTION

Deadly Detention: Hell in the Middle of a Pine Forest

Immigrant detainees represent more than $38 million a year for CoreCivic, a for-profit prison company that is the largest employer in one of Georgia’s poorest counties.

Print Friendly, PDF & Email
Robin Urevich

Published

on

Photo: Robin Urevich


Former ICE Guard: “They’re always putting them in the hole — in segregation. And they manhandle people.”


Deep in a Georgia pine forest, two hours south of Atlanta, early morning mist rises in wisps over the Stewart Detention Center, a facility run by CoreCivic, one of the nation’s largest for-profit prison companies. The bucolic scene clashes with the tall, barbed wire-topped chain-link fences surrounding the center, and the echoing shouts, crackling radios and slamming doors inside the walls. Technically, the roughly 1,700 men here aren’t prisoners, but civil detainees being held for U.S. Immigration and Customs Enforcement as they plead their cases to remain in the United States, or as the government prepares their deportations.

Also Read: “Self-Portrait of a Tragedy”

The detainees represent more than $38 million a year for CoreCivic — the government pays the company nearly $62 a day per man. It is the largest employer in Stewart County, one of Georgia’s poorest.

Immigrant rights groups have charged that the conditions here are not only indistinguishable from those in prison, they are downright abusive. In fact, a December 2017 Homeland Security Inspector General’s report expressed concerns about human rights abuses and, last month, Joseph Romero, a retired ICE officer who served as a guard, told Capital & Main that he resigned a supervisor job at Stewart in 2016 because he didn’t like the way people were treated.


Guatemalan Asylum Seeker: “It is hell in here. I wouldn’t even recommend it to a person I hate.”


“They’re always putting them in the hole — in segregation,” Romero said. “And they manhandle people. They think they can take care of their problems like that.” Romero noted that few officers speak Spanish, so there is little understanding or communication between guards and detainees.

JeanCarlo Jimenez Joseph’s suicide by hanging while in solitary confinement last May and 33-year-old Cuban national Yulio Castro Garrido’s death from pneumonia last December have brought these concerns to the fore.

Jimenez was mentally ill and had been in solitary for 19 days when he died — four days longer than the United Nations Rapporteur on Torture considers torture.


See Interactive Map of U.S. Detention Deaths


“It is hell in here. I wouldn’t even recommend it to a person I hate,” said Wilhen Hill Barrientos, a 23-year-old Guatemalan asylum seeker who has been in detention — at Stewart, the Atlanta Detention Center and at the Irwin Detention Center in Ocilla, Georgia — since 2015.

In addition to many other abuses that he alleges — rotten food, forced work and abuse by guards — Hill has also served 60 days in isolation. He said it was retaliation for a grievance he’d filed. He was placed in solitary, ostensibly because he’d been exposed to chickenpox; however, other detainees who, like Hill, reported they’d had the disease as children were released.


CoreCivic documents show that detainees were in isolation for such offenses as “horse playing.”


ICE detention standards specify that isolation is to be used only to punish the three most serious categories of rule violations, and only “when alternative dispositions may inadequately regulate the detainee’s behavior.”

But CoreCivic documents released after Jimenez’s suicide show that on the day that he died, detainees were in isolation for such offenses as “horse playing,” “refusal to obey staff” or “conduct that disrupts.” Four men had been in solitary for more than 60 days. One of them, Sylvester Smith, who was deported to Sierra Leone at the end of 2017, served at least four months in isolation. His charges were variously listed as “being found guilty of a combination of th…” (the word is cut off on CoreCivic’s restricted housing roster) and “failure to obey.”

After Jimenez died, however, then-warden Bill Spivey held weekly meetings aimed at reducing the number of people in solitary. By October 2017, documents show, there were just 10 people in isolation, but when Spivey retired and an assistant warden took over, the census more than doubled. CoreCivic spokesman Jonathan Burns didn’t respond to emailed questions about the current number of men in segregation.

Joseph Romero, the former ICE officer who worked at Stewart, is tall and graying with a full mustache and beard. He is proud of his ICE career but thinks the for-profit detention model the government has adopted has to go.

“They should go back and have these detention centers run by Immigration, not by private contractors,” Romero said. ICE officers treat people better, because they value their careers, Romero said. “You’re making a lot more money, you have retirement and better benefits. After 20 years, you can retire. At CCA [now known as CoreCivic], you have nothing.”


A detainee says guards call detainees “wetbacks” and “dogs,” and have greeted each other with Nazi salutes.


What’s more, Romero said, Stewart was understaffed: It wasn’t uncommon for officers to work double shifts and return to work eight hours later. “That’s why they’re so irritated,” he said. Equipment was also substandard, Romero claimed. He describes gun holsters that lack the safety snap that prevents a gun from being snatched by a thief or would-be attacker.

Romero said he wanted to try to change conditions for the better at Stewart, but found resistance from a tight, insular group that ran the place, and realized he could do little. Then he witnessed an incident that convinced him it was time to leave.

He saw two guards walking a handcuffed detainee to segregation. One of them “got in the guy’s face,” Romero recalled, and the detainee head-butted the guard. “The next thing you know the guard starting punching on the guy,” Romero said. He later watched a video of the beating with his co-workers, and Romero was taken aback by their reaction. “They said he asked for it, and I’m like wait a sec… If you’re in handcuffs why would I hit you? I have total control of you.”

The guard who threw the punch got fired, and a training session followed. But Romero doesn’t know if it had any effect because he left shortly thereafter.

Hill Barrientos said from his vantage point as a detainee, Stewart is worse than it was in 2016 when Romero was there. He believes Trump’s election signaled to detention officers that they could disrespect detainees with impunity.

Guards call detainees “wetbacks” and “dogs,” Hill Barrientos charged. He said that he’s even seen white detention officers greet each other with a Nazi salute. Health care is hard for detainees to obtain, Hill Barrientos said. He worked in the kitchen with Castro Garrido, who, he said, grew increasingly sicker because he was required to work instead of being allowed time to seek medical attention. ICE initially reported in its news release about Castro’s death that he had refused medical attention, an account that was widely reported. But the agency later corrected its news release to say that Castro’s case “was resistant to some forms of medical intervention.”

Hill’s lawyer, Glenn Fogle, thinks poor detention conditions are part of the government’s aggressive deportation strategy. “That’s the whole idea — to hold people in those horrible places to make them give up,” Fogle said.

Hill said he cannot give up — he would be killed by gang members who had threatened and extorted him if he is returned to Guatemala. His case is virtually identical to that of his two brothers and a sister, all of whom have already been granted asylum, Fogle said. Still, his case has been denied. Judges at Stewart grant asylum in few cases, so Hill Barrientos now pins his hopes on the Bureau of Immigration Appeals, which is currently considering his case.

“The people that give me strength are my mother and my daughter,” Hill Barrientos said. “So I keep fighting.”

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

Please hit the above links to get the great graphics accompanying Robin’s articles at Capital & Main! Many thanks, Robin, for your courageous and timely reporting!

This is the “New American Gulag” (“NAG”)!

It certainly had its antecedents in prior Administrations of both political parties. But, the Trump/Sessions/Miller/Kelly/Nielsen/Homan crew have taken it to new depths!

What kind of country does this to individuals whose only “crime” is to want to exercise their statutory and constitutional rights to a fair hearing and a fair adjudication of claims that their lives and safety will be endangered if returned to their native countries?

Is the NAG really how we want to be remembered by our children and grandchildren? If not, get out there and vote for politicians who have the backbone and moral courage to end this kind of Neo-Nazi, Neo-Stalinist approach to human rights! And, send those who have helped fund and promote these affronts to American values into permanent retirement. 

Also, don’t forget this, in part, is the disgraceful result of the Supreme Court majority’s failure to step up and defend our Constitution in Jennings v. Rodriguez. What if it were their relatives dying in the NAG? Time for judges at all levels of our justice system to get out of the “Ivory Tower” and start applying the law in the enlightened HUMAN terms that the Founding Fathers might have envisioned. 

PWS

03-16-18

PRACTICAL SCHOLARSHIP — PROFESSOR LAILA HLASS @ TULANE LAW TAKES ON “GUILT BY ASSOCIATION” AND “IMPLICIT BIAS “ IN IMMIGRATION ADJUDICATIONS INVOLVING GANG ALLEGATIONS!

HERE’S PROFESSOR HLASS:

 

HERE’S THE “ABSTRACT:”

The School to Deportation Pipeline

60 Pages Posted: 8 Mar 2018

Laila Hlass

Tulane University – Law School

Date Written: 2018

Abstract

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.”

Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.

Keywords: Immigration, Children, Deportation, Immigration Representation, migrant youth, school-to-deportation-pipeline, race, gangs

Hlass, Laila, The School to Deportation Pipeline (2018). Georgia State University Law Review, Vol. 34, No. 3, 2018; Tulane Public Law Research Paper No. 18-1. Available at SSRN: https://ssrn.com/abstract=3132754
HERE ARE SOME “KEY QUOTES:”
“To be sure, the problem of gang violence in this country is a serious one. It is a problem that requires sustained attention to the complex (and diverse) sociological and neurological reasons that young people decide to associate with gangs or, as the case may be, disengage from them.27 Those concerns, however important, are beyond the scope of this Article. Instead, the goal of this Article is to shed light on the practical realities faced by immigrant youth caught in the school to deportation pipeline, where entrenched biases and insufficient procedural safeguards virtually guarantee their removal based on gang affiliation, no matter how flimsy the evidence supporting that label.28”
. . . .
“Gang allegations in immigration proceedings are part of the immigration regime’s long and ignoble history of explicit and implicit racism. Immigrant children, particularly youth of color, increasingly find themselves in the crosshairs of a punitive immigration system and subject to over-policing within schools and by law enforcement. These factors converge with existing racial biases and a lack of special protections for youth in the immigration regime, creating a perfect storm. To address this problem, gang allegations and related evidence should be excluded from immigration adjudications due to their unreliability and prejudicial nature. Furthermore, safeguards must be implemented to address this phenomenon, particularly as gang allegations appear to be on the rise. The immigration agency should attempt to interrupt adjudicator bias through education, improved decision-making conditions, and data collection. Secondly, youth should explicitly be a positive factor in discretion and bond decisions. Finally, to stall the school to deportation pipeline, children should have access to representation in immigration adjudications.”
AND, HERE’S A LINK TO THE FULL ARTICLE IN THE GEORGIA STATE UNIVERSITY LAW REVIEW:
***************************************
Laila was my colleague at Georgetown Law when she was a Fellow at the CALS Asylum Clinic. In fact, she was a “Guest Lecturer” in my Immigration Law & Policy class.
Although Laila takes the much  more scholarly approach, I have been saying consistently that this Administration’s harsh rhetoric and strictly law enforcement approach to diminishing the power of gangs is not only likely to fail, but is almost guaranteed to make the problems worse.  Indeed, it’s basically an “on rhetorical steroids” version of the gang enforcement policies that have consistently been failing since the Reagan Administration.
But, we now have folks in charge who glory in their ignorance and bias. Consequently, they refuse to learn from past mistakes and will not embrace more effective community-based strategies that over time would deal with the causes of gang membership and help reduce gang violence.
PWS
03-14-18

BACK ON THE KILLING FLOOR: BATTERED WOMEN STRUGGLED FOR 15 YEARS TO GET LIFE-SAVING LEGAL PROTECTION UNDER ASYLUM LAWS – – Now, Jeff Sessions Appears Poised To Sentence Them To Death Or A Lifetime Of Unremitting Abuse With A Mere Stroke Of His Poison Pen!

FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION  IN THE MAIL ON FRIDAY)

Here it is:

A-B- BIA Decision (12-08-2016) (redacted) (1)

It’s bad news for Due Process, justice in American, and particularly vulnerable asylum seekers who are battered women. Sessions appears to be taking direct aim at the landmark BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) which, following a 15 year legal battle, recognized that battered women could be a “particular social group” and thereby qualify for asylum and withholding of opinion.

Make no mistake, the BIA decision in Matter of A-B- is correct in every respect — a virtual textbook on how U.S. Immigration Judges should be handling and granting these well-documented claims. It’s also a classic example of poor quality work and feeble, biased anti-asylum, anti-female reasoning by an Immigration Judge that plagues too much of our asylum system.

The Immigration Judge’s decision denying asylum which was reversed by the BIA in Matter of A-B- contained numerous egregious errors, including:

  • An incorrect adverse credibility ruling which failed to consider and properly weigh “the totality of the circumstances, and all relevant factors,” as required by the REAL ID Act;
  • Failure to recognize a “particular social group” (“PSG”) substantially similar to that approved by the BIA in Matter of A-R-C-G-;
  • A “clearly erroneous” finding that the abused respondent was free to leave her ex-husband;
  • A “clearly erroneous” finding that the valid PSG was not “at least once central reason” for the persecution;
  • An erroneous finding, bordering on the absurd, that the Government of El Salvador was not “unable or unwilling” to protect the respondent.

Overall, the Immigration Judge’s handling of this case has all the earmarks of a jurist who is biased against asylum applicants and has predetermined to deny most claims giving a litany of specious, basically “pre-judged” reasons.

The Attorney General compounds the problem by apparently questioning the long-established principle that persecution takes place when “non-state actors” are not reasonably controlled by their national government. See, e.g., Matter of O-Z-&I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).

Rather than reinforcing the BIA’s long-overdue “reining in” of a wayward Immigration Judge, the Attorney General appears to be aiming to upend well-settled asylum law and empower those Immigration Judges who already treat asylum applicants unfairly. That’s likely to result in a monumental battle in the Article III Courts — specifically the U.S. Courts of Appeals. Hopefully, those courts eventually will recognize that the U.S. Immigration Courts are being manipulated to reflect the anti-asylum, xenophobic biases and prejudices of Jeff Sessions.

That will require them to stand up to Sessions’s bullying and insist that asylum seekers rights to fair hearings before impartial decision makers and to receive legal  protection under U.S. and international standards be recognized.

Advocates also question the procedures by which this case was handled by the Immigraton Judge following the BIA remand. The BIA order instructed the Judge to schedule the case for a routine update of the fingerprints and background checks and to issue a final order; in my experience, that’s usually a “30 second process” that can be completed on a Master Calendar or by joint written motion “in chambers.”

However, according to sources, this Immigration Judge allegedly “held up” AB’s case for eight months for no particular reason, and then “recertified” it to the BIA raising a facially bogus legal issue concerning a later-issued, unrelated Fourth Circuit case. Mysteriously, the case then was “certified” by Sessions taking it out of the BIA’s jurisdiction.

This scenario raises speculation that this Immigration Judge — perhaps recognizing from the Attorney General’s public statements that Sessions was also biased against asylum seekers — may have manipulated the process to do an “end run” around the BIA to the Attorney General. All pretty unseemly stuff when “lives are on the line.” Yet more “anecdotal evidence” of a system out of control and biased against Due Process and fairness for asylum seekers and other migrants.

Stay tuned. The battle is just “revving up,” and the New Due Process Army is ready to defend our justice system against each and every debilitating attack on the rule of law by our biased and lawless Attorney General.

PWS

03-13-18

TAL @ CNN: ADVOCATES FEAR SESSIONS’S ACTIONS THREATEN ENTIRE U.S. ASYLUM SYSTEM!

http://www.cnn.com/2018/03/12/politics/sessions-immigrant-domestic-violence-victims/index.html

 

Sessions reviewing immigrant abuse victims’ protections

By Tal Kopan, CNN

Attorney General Jeff Sessions’ recent move to re-open a court decision protecting domestic violence victims has advocates concerned that women and children fleeing abuse in their home countries could no longer seek shelter in the US.

Sessions last week announced he was reviewing the immigration court decision without making public what the case was about. In a quirk of immigration court law, decisions by the appellate court, the Board of Immigration Appeals, are reviewable by the attorney general.

The previously unpublished decision has been obtained by CNN and advocacy groups, and the facts of the case has human rights advocates concerned Sessions could be moving to undercut domestic violence victims’ claims for protections in the US.

The issue is mired in the legal details of asylum — a type of protection for immigrants who come to the US fleeing persecution back home. There are a few categories that have to be proven in order to be granted asylum, including being part of a “particular social group” that has a reason to fear persecution and whose government can’t or won’t adequately protect them.

Sessions has asked for arguments on the case, known as the “Matter of AB-” based on the redacted name of the individual bringing the case, on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.”

Without knowing the underlying case, many experts had believed the issue related to gang violence — a major issue in Central America that pushes immigrants to try to enter the US illegally.

But though the case deals with a woman from gang violence-plagued El Salvador, the issue is instead her rape and physical and emotional abuse by her ex-husband. The Board of Immigration Appeals found in the case that the woman does qualify for asylum, as women in El Salvador with children in common are often unable to leave their relationships and the government has been found “minimally” able to stop domestic violence.

“We’re very concerned about what this could mean for the women who flee their homes, leaving everything behind — their community, parents, and children — in order to get to safety,” said Archi Pyati, chief of policy and programs for the Tahirih Justice Center, which protects and advocates for immigrant women and girls fleeing violence. “In some countries, the government will do nothing to stop a man from abusing a woman. …Right now, the attorney general is signaling that he may reconsider whether we as a nation are willing to stand up for what is right and offer a beacon of hope to those women with nowhere else to go.”

The Justice Department declined to comment on the case now that its details were released. Before it was obtained, a department official would only say that Sessions had referred the case to himself due to a “lack of clarity” in the court system on the subject of the Board of Immigration Appeals decision.

In 2014, the agency issued a similar decision for Guatemalan women in a case that set precedent for lower immigration courts.

Sessions’ decision to wade into the case has potentially far-reaching implications. As attorney general, he has the legal authority to single-handedly overturn the decision of the Board of Immigration Appeals. Once he does, the only authority who can overrule him are the federal appellate courts and Supreme Court, if an immigrant appeals their case to them.

If Sessions decides that victims of crime cannot qualify as a “particular social group,” hypothetically, it could mean foreign domestic violence victims are not able to seek protections from their abusive spouses in the US.

Sessions has alarmed advocates by referring himself two asylum cases in the past week. While he didn’t make a decision on the Matter of AB-, in the other case, he overruled the Board of Immigration Appeals on a decision that had determined all asylum cases are entitled to a hearing before their bid for protections is rejected. Sessions’ move means that asylum cases could now be rejected without those immigrants getting an opportunity to argue their case in court; judges can make decisions based on briefs.

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

With each Sessions anti-immigrant, anti-asylum, anti-due-process action, the farce and charade of due process for migrants in the Sessions-controlled U.S. Immigration System becomes more pronounced. And, with the GOP in control of all three political branches of the Government, responsible oversight of Executive Branch actions and overreaching has simply ceased to exist. Yeah, the Article III courts are still out there. But, you can bet that Trump, Sessions, and the GOP Senators are doing their very best to co-opt the Federal Courts with appointees committed to an extreme right-wing agenda.

PWS

03-13-18

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said  Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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

The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

HATS OFF (ONCE AGAIN) TO THE “GOOD GUYS” — GW Law Clinic Saves More Lives In Gang-Related Case! — This Is What US Asylum Law Could & Should Be!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Dana Florkowski and her client, S-M, from El Salvador. This morning, after a three-hour hearing, immigration judge (IJ) Quynh Vu Bain granted the asylum application of S-M and her eighteen year-young daughter. The ICE trial attorney waived appeal so the grant is final. This was the fourth asylum grant won by the student-attorneys this semester. Fifteen lives have been saved.

S-M and her abuser met and lived together in the USA. After repeated beatings, rapes, and verbal abuse, S-M called the police, which lead to the abuser’s removal to El Salvador. After his return to El Salvador, the abuser and his brother, who have connections with the Mara 18 gang, threatened to kill S-M’s mother and daughter, who remained there, unless S-M rejoined him. Despite her concerns, S-M decided to return to El Salvador because, as she testified, “I would rather put my life at risk than my daughter’s.” S-M’s US citizen son, the son of her abuser, accompanied her to El Salvador. After her return, the beatings, rapes, and verbal abuse continued. S-M decided to flee El Salvador after the abuser threatened to kill her and turn her daughter over to the Mara 18 gang to be raped. Sadly, S-M and her daughter fled so quickly she had to leave behind her son. During this morning’s hearing, the IJ said she was troubled by S-M’s voluntary return to El Salvador. Dana explained that the return was not voluntary, and she cited the psychological evidence of the abuser’s control over S-M. The IJ concluded that S-M’s return to El Salvador was under duress. Now that S-M and her daughter are safe, the student-attorneys will work to reunite her son, now nine, with her.

Congratulations also to Alyssa Currier, Karoline Núñez, and Jonathan Bialosky, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…

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

Lots of good things at work here!

Great representation. Scholarly judging from Judge Bain (certainly how I remember her from Arlington). And, kudos to the DHS Assistant Chief Counsel in Arlington for waiving appeal when justice has been done. This is the way I remember the ICE OCC in Arlington  — skilled litigators who properly required critical examination of all claims but also had an overall commitment to fairness, justice, and making the system work!

This is actually a “casebook study” of  how the asylum system in Immigration Court is supposed to work. It still could work this way in many, perhaps eventually most, cases if Sessions and the politicos at DOJ would just get out of the way and let the Immigration Judges, respondents’ Counsel, and the DHS Assistant Chief Counsel do their jobs!

Thanks again to Professor Benitez and his team at GW and to all the other clinical, pro bono, “low bono,” and other counsel out there striving every day to see that our justice system actually delivers justice.

PWS

03-08-18

US DISTRICT JUDGE ROGER W. TITUS IN MD REJECTS DACA CHALLENGE — Basically Finds Rescission Dumb But Legal, While Barring DHS From Using DACA Info In Removal Proceedings — Casa de Maryland v. DHS

Casa de Maryland v. DHS, D. MD., 03-05-18, Judge Roger W. Titus

While the Administration and right-leaning media are touting this as a  “smashing victory” here’s what District Judge Titus really said:

  • The original Obama Administration DACA program was an exercise of prosecutorial discretion on which reasonable minds can differ as to its legality.
  • The Trump Administration had discretion either to continue the DACA program or not as an exercise of prosecutorial discretion.
  • The decision by the Administration to phase out DACA was subject to judicial review and the plaintiffs had standing to challenge it.
  • The DHS’s decision to phase out DACA upon receiving an opinion from Attorney General Sessions that it might well be held illegal in a threatened court action was reasonable.
  • The sometimes ill-advised and inflammatory statements by President Trump were not relevant to the basis for termination of DACA.
  • Although Judge Titus personally would have chosen a different policy approach from that of the Administration, under Constitutional separation of powers that policy decision was vested in the Executive and Congress, not the Courts, and the Administration had acted reasonably in this case.
  • The DHS is estopped from using information gathered during the DACA application process against individuals in Removal Proceedings except if “the Government needs to make use of an individual Dreamer’s information for national security or some purpose implicating public safety or public interest, the Government may petition the Court for permission to do so on a case-by-case basis with in camera review.”

Judge Titus’s decision actually more or less undermines the Administration’s frequent claims that DACA was “illegal” and that the Administration had “no choice” but to terminate it. Rather, the court held that legitimate unresolved questions had been raised about the DACA program’s legality and that in the face of those questions the Administration’s choice to proceed with a phased termination rather than trying to defend DACA in court was reasonable.

Additionally, as I had predicted, the court was unwilling to allow DHS to use DACA information against the individuals in Removal Proceedings. While this aspect of the case was :”under the radar” in most reports, it could well be another major practical/legal roadblock to the Administration’s actually removing many DACA recipients even if the injunctions against DACA termination eventually are lifted.

Here’s a “KEY QUOTE” from Judge Titus’s decision:

“The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for “Dreamers,” yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, “a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.”

In other words, the decision to rescind DACA was “dumb but legal.” Hardly the ringing endorsement that the Trumpsters claim. What this case actually did is to vindicate their right to make bad policy decisions. Ultimately, the remedy for that type of poor governance is at the ballot box.

Here’s the full decision in Casa de Maryland v. DHS so you can judge for yourself:

JudgeTitusDACAOp

PWS

03-06-18

 

TED HESSON @ POLITICO: Court Rulings Might Not Keep Dreamers From Losing Work Authorization

https://www.politico.com/story/2018/03/05/dreamers-disruption-immigration-court-orders-385096?cid=apn

Ted Hesson writes at Politico:

“Thousands of undocumented immigrants brought to the U.S. as children could face disruptions in their ability to work, even though the Trump administration has for months been under a federal court order to renew protections under the Deferred Action for Childhood Arrivals program.

The problem arises chiefly from the Department of Homeland Security’s refusal to prioritize those DACA renewals due to expire soonest. Instead, the applications are being processed in the order in which they were filed. Consequently, many so-called Dreamers who’ve applied to renew will see their DACA protections expire before DHS acts, increasing their risk of being fired from their jobs or, possibly, being arrested and deported.

“You can’t just say, ‘Don’t show up to work and we’ll kind of keep paying you,’ or ‘wink wink, nod nod,’” said Todd Schulte, president of the pro-immigration FWD.us. “I just think we should assume that a ton of these people are going to lose their jobs.”

DHS did not respond to a request to clarify its enforcement policy for people with recently expired DACA grants.

U.S. Citizenship and Immigration Services estimates 13,090 people have grants that will expire in March. Of those, 4,470 had a renewal pending as of Jan. 31. USCIS, the division of DHS that administers DACA, makes an effort to process DACA renewals within 120 days, but it doesn’t always move that fast, according to Leon Rodriguez, director of USCIS from 2014 to 2017.

The need to process DACA renewals quickly was unforeseen last September, when President Donald Trump announced that he would sunset the Obama-era program. Trump halted DACA renewals in early October and set March 5 — Monday — as a deadline for Congress to take action to protect Dreamers. After that date, Dreamers would start losing DACA protections in large numbers.

But Congress didn’t act, at least partly because San Francisco-based U.S. District Court Judge William Alsup largely mooted the March 5 deadline in early January when he ordered DHS to resume DACA renewals. A Brooklyn-based federal judge issued a similar ruling in mid-February. The Trump administration urged the Supreme Court to intervene, but the high court declined, choosing instead to allow the matter proceed through the lower courts.

USCIS resumed DACA renewals in January, but that unplanned resumption has not proceeded smoothly. “When you have a lot of stopping and starting of activity,” said Rodriguez, “that poses some risk that something might be set up the wrong way and some group of people not be handled as expeditiously as they should,” he said.

“I think it is going to keep getting more chaotic,” Rodriguez said of the weeks ahead.

The agency’s refusal to pull out of the queue renewals that are due to expire soonest (as, for instance, airlines do at the check-in line for passengers whose planes will take off soonest) poses an enormous problem for those Dreamers who filed for renewal after Judge Alsup’s Jan. 9 order.

But another difficulty is that not many Dreamers took advantage of the court ruling, possibly because uncertainty over whether Alsup’s order would be overruled by the Supreme Court left them reluctant to pay the $495 renewal fee. The Supreme Court didn’t announce that it would let Alsup’s order stand until Feb. 26.

. . . .

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

Please go on over to Politico at the above link to read Ted’s complete analysis.

I suspect that there might be more legal challenges in the offing, from both the Dreamers and their employers. To date, the Government has pretty much “lost ’em all” when it comes to DACA, a trend that I see continuing at least in the lower Federal Courts where the litigation is likely to be confined for the foreseeable future.

In my view, the Administration’s unwise, callous, and legally questionable treatment of Dreamers to date is providing advocates for Dreamers with some “golden opportunities” to make some “good law” in the Dreamers’ behalf that hopefully can carry over into blocking some of the Administration’s other anti-immigrant initiatives. A good chance for the New Due Process Army to capture some valuable territory in the fight for truth, justice, Due Process, and the American way!

PWS

03-06-18

TAL SAYS THE DREAM SEEMS TO HAVE PASSED – “Dreamers” Are Waking Up To The Reality That They Are Back In “Limboland” With No End In Sight!

http://www.cnn.com/2018/03/05/politics/daca-deadline-march-5-passing-immigration-courts/index.html

DACA’s March 5 ‘deadline’ marks only inaction

By Tal Kopan, CNN

It’s been six months since President Donald Trump moved to end a program that protected young undocumented immigrants from deportation, and Washington seems to be no closer to a resolution on the day everything was supposed to be solved by.

March 5 was originally conceived to be a deadline of sorts for action. When Trump ended the Deferred Action for Childhood Arrivals program in September, he created a six-month delay to give Congress time to come up with a legislative version of the policy, which protected young undocumented immigrants who had come to the US as children.

The Department of Homeland Security was going to renew two-year DACA permits that expired before March 5, and Monday was to be the day after which those permits began expiring for good.

But multiple federal judges ruled that the justification the Trump administration was using to terminate the program was shaky at best — and ordered DHS to resume renewing all existing DACA permits. And the Supreme Court declined the administration’s unusual request to leapfrog the appellate courts and consider immediately whether to overrule those decisions.

That court intervention effectively rendered the March 5 deadline meaningless — and, paired with a dramatic failure on the Senate floor to pass a legislative fix, the wind has been mostly taken out of the sails of any potential compromise.

Activists are still marking Monday with demonstrations and advocacy campaigns. Hundreds of DACA supporters were expected to descend on Washington to push for action.

But the calls for a fix stand in contrast with the lack of momentum for any progress in Washington, with little likelihood of that changing in the near future. Congress has a few options lingering on the back burner, but none are showing signs of imminent movement.

March 23 is the next government funding deadline, and some lawmakers have suggested they may try to use the must-pass package of funding bills as a point of leverage.

But sources close to the process say it’s more likely that efforts will be made to keep a bad deal out of the omnibus spending measure than to come up with a compromise to attach to it, as no solution has a clear path to passing either chamber and the House Republican leadership has opposed attaching any immigration matter to a spending deal.

“I have a feeling that anything that goes with the omnibus is going to be a punt, so I’m not excited about that. That’s not my goal,” Rep. Carlos Curbelo, a Florida Republican who has been one of the loudest voices pushing for a DACA fix on the GOP side, told reporters last week.

In the Senate, Jeff Flake, an Arizona Republican, and Heidi Heitkamp, a North Dakota Democrat, have introduced a bill that would give three-year extension to the DACA program along with three years of border security funding, though that legislation has yet to pick up any momentum and many lawmakers remain hesitant to give up on a more permanent fix. The Senate is also still feeling the residual effect of the failure of a bipartisan group to get 60 votes for a negotiated compromise bill, which suffered from a relentless opposition campaign from the administration. Trump’s preferred bill failed to get even 40 votes, far fewer than the bipartisan group’s.

On the House side of the Capitol, a more conservative bill than even Trump’s proposal has been taking up the focus. The legislation from Judiciary Chairman Bob Goodlatte, a Virginia Republican, and others contains a number of hardline positions and no pathway to citizenship for DACA recipients, and it fails to have enough Republican votes even to pass the House. It is considered dead on arrival in the Senate.

But conservatives in the House, buoyed by the President’s vocal support for the bill, have gotten leadership’s commitment to whip the measure, and leadership has been complying for now. According to lawmakers and sources familiar, House Speaker Paul Ryan, a Wisconsin Republican, talked about the bill in a GOP conference meeting during the House’s short workweek last week, and continued to discuss ways to get enough votes.

Lawmakers estimate that at this point, the measure had somewhere between 150 and 170 votes in its favor, far fewer than the 218 it would need. But the bill’s authors are working with leadership to see whether it can be changed enough to lock up more, even as moderates and Democrats remain skeptical it can get there.

“The vote count is looking better every day,” said Rep. Jim Jordan, a conservative Ohio Republican who has been a vocal advocate for the bill. “I think if leadership puts the full weight of leadership behind it, we can get there. … The most recent report I’ve heard is whip count is getting better.”

Moderate Republicans, however, are holding out hope that the party can move on from that bill and seek something that could survive the Senate and become law.

“Bring up the Goodlatte bill that went through Judiciary. If it does not have 218 votes, then let’s go to the next one that makes sense for DACA,” said Rep. Jeff Denham, a California Republican who has supported a compromise on DACA.

In the meantime, most think DACA recipients will continue in limbo, especially with the courts ensuring that renewals can continue for now.

“It’s good news for people in the DACA program, because they can continue renewing their permits. I have mixed feelings on what it means for us here, because we know this institution sometimes only works as deadlines approach, and now there isn’t a deadline,” Curbelo said.

 

 

 

(Published Sunday)

http://www.cnn.com/2018/03/04/politics/daca-advocacy-push-aclu-trump-immigration/index.html

Advocates target Trump in DACA push ahead of March 5

By: Tal Kopan, CNN

Immigration advocates are unveiling a fresh advocacy campaign on the Deferred Action for Childhood Arrivals program aimed directly at President Donald Trump — even as a March 5 deadline has been rendered toothless and Congress is retreating from action.

The American Civil Liberties Union is launching a six-figure campaign Sunday to keep the issue up front, using digital and TV advertising as well as local protests and targeted messaging.

The campaign is designed to get the President’s attention, using a mix of digital geo-targeting and physical presence.

The ACLU’s national political director, Faiz Shakir, described the theory behind the effort as getting the issue in front of Trump and sending the message that he uniquely can reach a solution if he commits to it.

“I think the one important thing that I feel like we all appreciated and learned about Donald Trump is that he is a person who reacts to headlines. He’s a person who reacts to PR, publicity and attention, and if you’re not in his face on headlines and press, then essentially you’re kind of outside of his scope,” Shakir said in an interview. “Whatever we can do to try to make it a front-and-center, in-front-of-his-face issue, that’s what we’re going to try to do.”

As of Sunday, the ACLU campaign will be on TV screens, in DC cabs, local political newspapers and other outlets, and streaming apps.

The civil liberties group also plans to buy ads on “Fox and Friends,” a show the President regularly watches, and Twitter ads designed to help supporters tweet directly at Trump and get into his Twitter feed, another presidential favorite.

The 30-second ad intersperses clips of Trump saying how much he supports DACA and its recipients with direct calls to action, saying in text directed at the President: “You killed DACA. … Fix what you broke before it’s too late.”

The group will also debut a banner with Trump’s face and a countdown clock to March 5 in front of the White House on Sunday, as well as work to have demonstrators in California when Trump travels to San Diego, perhaps later this month, to see his border wall prototypes.

The campaign demonstrates the long odds of achieving action on DACA in Washington, as well as the loss of meaning for the March 5 deadline. When Trump opted to terminate the program, which protects from deportation young undocumented immigrants who came to the US as children, he planned for the permits to begin expiring after March 5, giving Congress six months to act to make the program permanent.

But court decisions have required the administration to resume renewing the two-year DACA permits indefinitely, and after a failed attempt in the Senate to pass bipartisan legislation over objections from Trump, Congress has retreated from the issue with the deadline no longer offering urgency.

Shakir said the ACLU plans to continue the push in the coming weeks and into November’s elections, urging action however it can send the message.

“We’re trying to find a way to be positive and optimistic to keep the enthusiasm going,” Shakir said. “The court injunctions are helpful in that … we have some hopes that we’ll be able to have months of reprieve, but we don’t know how many months.”

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

I think it’s going to take “regime change.” And, “regime change” takes time and great effort. And, the outcome is always far from certain.

PWS

03-05-18

WASHPOST: ANOTHER DAY, ANOTHER ACT OF WANTON CRUELTY BY NIELSEN’S DHS — “Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that.”

https://www.washingtonpost.com/opinions/gratuitous-cruelty-by-homeland-security-separating-a-7-year-old-from-her-mother/2018/03/04/98fae4f0-1bff-11e8-ae5a-16e60e4605f3_story.html

Gratuitous cruelty by Homeland Security: Separating a 7-year-old from her mother

Homeland Security Secretary Kirstjen Nielsen in the White House on March 1. (Mandel Ngan/AFP/Getty Images)
By Editorial Board March 4 at 7:11 PM
WHAT, EXACTLY, did a 7-year-old Congolese girl do to the United States to deserve the trauma that has been visited upon her — including forcible separation from her mother — by Homeland Security Secretary Kirstjen Nielsen and her immigration agents?

There is no allegation that the little girl, known in court filings only as S.S., is a terrorist, nor is there any suggestion her mother is one. Neither was involved with smuggling, nor contraband, nor lawbreaking of any other variety. Rather, S.S.’s 39-year-old mother presented herself and her daughter to U.S. officials when they crossed the border from Mexico four months ago, explaining they had fled extreme violence in Congo, and requesting asylum.

A U.S. asylum officer interviewed Ms. L, as the mother is called in a lawsuit filed on her behalf by the American Civil Liberties Union, determined that she had a credible fear of harm if she were returned to Congo and stood a decent chance of ultimately being granted asylum. Despite that preliminary finding, officials decided that the right thing to do was to wrench S.S. from her mother, whereupon the mother “could hear her daughter in the next room frantically screaming that she wanted to remain with her mother,” the lawsuit states.

The Trump administration has said that it is considering separating parents from their children as a means of deterring other families, most of them Central American, from undertaking the perilous trip necessary to reach the United States and seek asylum. Now, without any formal announcement, that cruel practice, ruled out by previous administrations, has become increasingly common, immigrant advocacy groups say. In the nine months preceding February, government agents separated children from their parents 53 times, according to data compiled by the Lutheran Immigration and Refugee Service.

Make no mistake: Ms. L and S.S. could have been placed together in a family detention center. There has been no explanation of why the determination was made to separate them; nor is there any allegation that Ms. L. is an unfit parent. The only principle at work, if it can be called that, is the idea that future asylum seekers might be deterred if they are convinced that the United States is actually a crueler and more heartless place than their native country.

Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that. A Homeland Security spokesman would not comment on this case but said that the department does not “currently” have a policy regarding separating asylum-seeking parents and children who are detained.

Separating children from their parents while they await adjudication of asylum claims is of a piece with arresting and deporting upstanding, otherwise law-abiding unauthorized immigrants who have lived and worked for decades in the United States and are the parents of U.S.-born children. That practice, too, carried out by Homeland Security deportation agents, has become far more common under the Trump administration.

Since being torn away in early November, S.S., who is being held at a facility in Chicago, has been permitted to speak with her mother, who is in a detention center in San Diego, just half a dozen times by phone. The girl, who turned 7 in December, routinely cries on the phone, according to the ACLU lawsuit. Is this the kind of protection Americans want from their Department of Homeland Security?

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

It’s almost (but not quite) unfair to blame Nielsen for this garbage. After all, she was selected for the DHS position precisely because she is a gutless intellectual lightweight who will just do the foul bidding of Trump, Sessions, Kelly, and Miller no questions asked and no resistance tolerated. That’s what “government by sycophants” is all about.

In the meantime, the New Due Process Army and the rest of us who still believe in our Constitution and humane values have to redouble our resistance to the evil of the Trumpsters and their allies. In the end, it’s a fight for the heart and soul of America as nation!

PWS

03-05-18

 

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.