TRUMP’S ILLEGAL BEHAVIOR REBUKED: The 9th Joins Other Circuits Finding That Trump Administration Lacked Legal Authority To “Punish” Jurisdictions Choosing Not To Assist ICE!

Maura Dolan
Maura Dolan
Legal Reporter
LA Times

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a28c0bb6-7496-4bde-a4f5-5fa4a50a4a12

 

Maura Dolan reports for the LA Times:

 

Court rules against Trump

9th Circuit panel says White House can’t force L.A. to help deport immigrants in order to receive funds.

By Maura Dolan

SAN FRANCISCO — A federal appeals court decided unanimously Thursday that the Trump administration may not force Los Angeles to help the government deport immigrants as a condition of receiving a federal police grant.

A panel of two Republican appointees and one Democrat of the U.S. 9th Circuit Court of Appeals said federal law did not permit the Trump administration to impose the conditions.

The decision involved the Edward Byrne Memorial Justice Assistance Grant Program, the primary provider of federal aid to local and state law enforcement agencies.

Congress authorized the program in 2005 to help law enforcement pay for personnel, supplies and other services. It is administered by the U.S. Department of Justice.

In 2017, the Trump administration imposed two new requirements on the grant. One required recipients to notify immigration authorities before releasing immigrants from jail. The other said recipients had to give federal agents access to correctional facilities to meet with immigrants who might be in the country without authorization.

The city of Los Angeles sued, saying it did not cooperate with immigration agents because doing so would discourage immigrants from helping police in fighting crime.

A district judge blocked the requirements, and the Trump administration appealed to the 9th Circuit.

Judge Sandra S. Ikuta, writing for the panel, said the 9th Circuit agreed with two other circuit courts that the law authorizing the grants does not give the Justice Department “broad authority to impose any condition it chooses.”

Ikuta, appointed by President George W. Bush, was joined by Judge Jay S. Bybee, also appointed by Bush, and Judge Kim McLane Wardlaw, a Clinton appointee.

Wardlaw wrote separately, saying she agreed the conditions were unlawful but criticizing the majority’s analysis as “contrary to every other court to have addressed the issue in a reasoned opinion.”

Los Angeles City Atty. Mike Feuer called Thursday’s decision “a victory for public safety on our streets and for the Constitution.”

“We will continue to fight the Trump administration’s unlawful overreach and to stand up for the best interests of L.A. residents,” he said.

Los Angeles uses the federal grant to support local criminal law enforcement and drug treatment and enforcement programs.

The immigration conditions would have denied the grant to hundreds of sanctuary cities.

Last year, the U.S. 7th Circuit Court of Appeals upheld an injunction preventing the federal government from applying the immigration conditions. That ruling stemmed from a lawsuit by the city of Chicago.

In another decision this year, the 3rd Circuit also decided the conditions were not authorized by law. That case was brought by the city of Philadelphia.

The grants can be used for technical assistance, strategic planning, research and evaluation, data collection, training, personnel, equipment, forensic laboratories, supplies, contractual support and criminal justice information systems.

The law authorizes $1.1 billion in grants, but funding is generally significantly lower.

According to the National Criminal Justice Assn., Congress appropriated $830 million for fiscal year 2002, but in later years funding for the grants was about $500 million.

 

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A wiser, more professional, and less ideological future Administration likely could work out agreements with states and localities for mutually beneficial cooperation in the immigration area.

 

But, the Trump Administration’s intentionally toxic and inflammatory White Nationalist rhetoric and actions overtly intended to terrorize local ethnic communities have “poisoned the well.” They have also been bad for legitimate law enforcement; reporting of serious crimes, particularly domestic violence, as well as cooperation in anti-gang efforts, has gone down in localities mindlessly targeted by Trump’s totally politicized DHS.

It’s also significant that conservative Bush-appointed Judge Jay S. Bybee, often the target of liberals because of his involvement in Bush-era attempts to legally rationalize torture, has stood up against the Trump Administration’s lawlessness on several important occasions.

 

PWS

 

11-01-19

 

TRAC DOCUMENTS “MALICIOUIS INCOMPETENCE” IN EOIR‘S STATISTICS: “Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.”

 

Incomplete and Garbled Immigration Court Data Suggest Lack of Commitment to Accuracy

TRAC recently discovered gross irregularities in recent data releases from the Executive Office for Immigration Review (EOIR), the agency that oversees the US immigration court system. After attempting – unsuccessfully – to work with the EOIR to fix these problems, TRAC decided to make public our observations of the quality of the agency’s public data releases as well as express our concerns about the lack of commitment within the agency to responsible data management.

Policymakers and the public routinely put their faith in federal agencies to provide complete and accurate information about their work. The value of government transparency is even higher in the area of immigration law and the Immigration Courts, which have become topics of considerable concern for Americans from all walks of life and for all three branches of government. In the present context, TRAC views concerns about EOIR’s data inconsistencies – outlined below – as substantive, ongoing, and in need of prompt attention. Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.

“Significant Errors” in Past EOIR Data

This is not the first time the public has identified significant inaccuracies in EOIR’s reported data. For instance, the Supreme Court of the United States relied upon figures provided by the EOIR as the basis for a major ruling affecting ICE detention practices. After the Supreme Court decided the case, the public discovered that the figures provided by the EOIR were fundamentally wrong. The EOIR did not uncover the data irregularities on its own. The EOIR’s mistakes were only recognized because the public obtained the underlying data through a Freedom of Information Act (FOIA) request and identified the relevant discrepancies.

After the public alerted the government to its inaccuracies, in 2016 the U.S. Solicitor General was compelled to issue a formal letter to the Supreme Court apologizing for providing inaccurate data. The following excerpt of the Solicitor General’s letter on August 26, 2016 attests to this error:

“This letter is submitted in order to correct and clarify statements the government made in its submissions. … EOIR made several significant errors in calculating those figures. … This Court’s opinion cites figures that ‘EOIR ha[d] calculated,’ …, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. … The Court therefore may wish to amend its opinion…” (emphasis added)

This example illustrates the very real danger posed by the EOIR’s mishandling of data, as well as the value to society – and the government itself – of ongoing oversight through Freedom of Information Act (FOIA) requests. Despite the EOIR’s past data mistakes, however, the quality of the agency’s data releases has recently declined to unacceptable levels, as we discuss in the following section.

Recent Data Trouble at the EOIR

As a result of TRAC’s ongoing FOIA requests, the Executive Office for Immigration Review releases a large batch of anonymized data about Immigration Court cases every month. Statistics on the operation of the Immigration Courts largely rely on information kept in a massive database maintained by the EOIR. The EOIR records information on each matter filed with the court and tracks subsequent events as the Court processes each case. This data is central to the Court’s ability to efficiently and effectively manage its workload.

Although this data is highly valuable to policymakers and the public, the EOIR’s mishandling of the data undermines its accuracy and public value. These data problems have been occurring with increasing regularity. Severe irregularities with the September 2019 data release set a new low.

On October 9, 2019, the EOIR responded to TRAC’s FOIA request for updated case-by-case data through September 2019. TRAC promptly began processing the data in order to update TRAC’s online tools and reports, and discovered serious inconsistencies that made the data unusable. TRAC alerted the EOIR to the problems we uncovered. The chronology below summarizes the cycle of data mishandling for the September data release, and TRAC’s attempts to work with the EOIR to obtain complete and corrected data.

  1. Data Release, Batch 1. The initial release of the EOIR’s September data included 11 separate files of records on Immigration Court proceedings that were incorrectly formatted. The garbled data resulted in substantial confusion over the relationship between certain variables and values, with some values appearing to apply to the wrong variables in the file. If potential users were even able to read the garbled data, one could reach entirely erroneous conclusions about court events. As soon as TRAC discovered these issues, it alerted the EOIR directly. EOIR promised to look into the matter.
  2. Data Release, Batch 2. In response to TRAC’s notification, the EOIR replaced the first release with a second release and informed TRAC that the problems had been fixed. However, when TRAC processed the second release, it found that while the first set of problems had been fixed, an entirely new set of problems had occurred. In Batch 2, thousands of records of court proceedings and 2.8 million records on scheduled hearings – hearings and proceedings which were included in the first release – had entirely disappeared. TRAC alerted the EOIR directly to the new set of data inconsistencies. EOIR promised once again to look into the matter.
  3. Data Release, Batch 3. The EOIR informed TRAC that it had fixed these new problems, and that TRAC could trust Batch 3 of the EOIR’s data release. Note that EOIR doesn’t change the labels it uses for each release; the file name remains the same and hence on its face indistinguishable from any previous release. After processing millions of records contained in the series of separate tables that made up the new release, TRAC found that problems in batch three were identical to problems in batch two. We again notified EOIR that the problems remained. At first EOIR insisted that TRAC was wrong and that the problems had been fixed. It later emerged that while the General Counsel’s office of EOIR (TRAC’s point of contact) believed a third and corrected release was being supplied, the files had not been changed but were actually the same files that TRAC had received in Batch 2.
  4. Data Release, Batch 3 (cont.) TRAC was finally provided access to what was again billed as the corrected September release. TRAC again processed these files. This time, based on total record counts it appeared that the missing 2.8 million records on scheduled hearings had reappeared. However, some court proceedings that had been contained in Batch 1 were still missing. And there were still other puzzling omissions which we describe in more detail below.

After this series of mistakes, TRAC urged the agency to implement basic quality control procedures to ensure that the EOIR’s data releases to the public were not inadvertently garbled or incomplete. Moreover, TRAC expressed concern about the EOIR’s underlying data management practices which posed a risk to both the public and the government if left unaddressed. We conveyed these concerns to EOIR noting specifically:

“There are standard procedures that anyone in charge of maintaining databases use. The pattern of repeatedly releasing files which are either unreadable or incomplete demonstrates the agency’s standard operating procedures are woefully inadequate.

This really needs to be taken seriously. Without answers to our questions that get to the bottom of what occurred, identifying what went wrong, and implementing a plan to catch mistakes before the agency publicly distributes bad data, means that history will keep repeating itself.”

On Friday, October 25, 2019, while admitting mistakes had been made, the EOIR dug in its heels. The agency responded to TRAC’s entreaties by sidestepping the underlying issue and avoiding responsibility for its routine inaccuracies:

“[T]he FOIA [Freedom of Information Act] does not require the Agency to create records in response to your specific questions, nor to certify the accuracy of data contained in responsive documents.”

TRAC was forced to take note of the EOIR’s unwillingness to fully correct their mistakes and to work with the public to resolve the declining quality in their data releases.

The Case of the EOIR’s Disappearing Data

After recognizing the seeming inability of EOIR to produce a correct and complete data release for September 2019, TRAC began digging deeper into the problem.

Our concern about EOIR’s data was already heightened. We recently discovered that some months ago the EOIR had begun silently deleting swaths of records in their entirety from the data releases that we and other members of the public received. EOIR belatedly told us that withholding of entire records was necessary to protect immigrants’ privacy. This rationale was perplexing since these records were already anonymized and all identifying details deleted. Regardless of the EOIR’s justification for withholding the records, the agency had started making these deletions without alerting us that it was doing so, and failed to mark the data in any way to indicate the magnitude of the deletions or indicate in which files the deletions occurred.

TRAC is in a fairly unique position to examine this problem. For many years, TRAC has been regularly requesting snapshots of anonymized data from EOIR’s database as part of our mission to provide the public (and often other government agencies themselves) with access to reliable, accurate data about the Immigration Courts. Because we receive and retain these monthly snapshots, we are able to monitor changes in these releases over time and assess whether releases are incomplete or inaccurate in some other way.

Therefore, TRAC undertook a careful comparison by matching the records received in the September 2019 release against the EOIR’s release for the previous month, August 2019, and with the release we received a year ago for September 2018. This time we matched records based on unique identification numbers rather than simply comparing total record counts. This allowed us to identify records which the EOIR released in the past but were missing entirely from the current shipment.

The results of this comparison were sobering. Compared to the August 2019 release, the (allegedly-accurate) final September 2019 release was inexplicably missing more than 1,500 applications for relief that were present the previous month. We further found that 896,906 applications for relief which were present in the September 2018 release from a year ago were missing from the September 2019 files we received. This discrepancy of nearly a million records largely occurred because the EOIR appears to have started silently but systematically deleting records.

Compared to the data from August 2019, the EOIR’s files for September were also missing records on over 600 charges DHS had filed. Also missing were over 700 case and/or court proceeding records, and over 900 records on scheduled hearings. An additional 1,200 records flagging various specific types of cases were also missing. For context, this flagging system is used to identify juveniles, recently arrived families seeking asylum, and immigrants required to remain in Mexico under the Migration Protection Protocols, and other special cases.

When the records in the September 2019 release TRAC received were matched with those from the September 2018 release a year earlier, the problems we uncovered multiplied. It was clear that the problem of missing records grew by leaps and bounds with the passage of time.

EOIR Data Management: Problems and Solutions

Based on the investigation above, TRAC identified key gaps in the EOIR’s data verification procedures that lead to unreliable and inaccurate data releases.

  1. Unintentional data removal. The EOIR’s data is inconsistent because the agency apparently does not perform a simple yet essential data verification step: it does not compare the number of records in its source database and the number of records in its released files to ensure that no records have been lost along the way. This is not merely a best practice. It is an industry standard for agencies managing large databases, and it is a routine practice in many of the EOIR’s peer agencies that provide large data releases to TRAC.
  2. Intentional data removal. The EOIR also does not appear to be keeping track of intentionally deleted records. If the EOIR is screening out records for specific reasons, then the number withheld for each reason in a file should be counted and these counts provided. The number withheld plus the number released should match the total number of records read in to ensure reliability.
  3. Garbled data releases. The EOIR is paying insufficient attention to how data releases are produced and formatted. Columns and rows in each table need to properly line up; otherwise information becomes garbled. And since EOIR’s database consists of many closely interconnected tables, copying data in individual tables at widely separated points in time inherently means the information will be out of sync.
  4. Possible data deletion in master database. Deletions of the EOIR’s original source records need to be carefully tracked and procedures in place to prevent unauthorized deletions from occurring. If applied systematically, such a verification process would also pinpoint whether there were deletions made in EOIR’s original source records. Any suspicious deletions need to be investigated to ensure the integrity and completeness of this master database is maintained.

If the EOIR does not implement basic data verification procedures, the public cannot tell if records were intentionally withheld and why they were withheld, or if records were accidentally omitted during the data copying process. The failure to address these problems also means that the public has no way to test for potential problem areas in EOIR’s underlying master data files.

Accuracy, Reliability, Cooperation

Under any circumstance, maintaining a massive database of this nature is challenging. Clearly it requires the resources necessary for day-to-day operations. More fundamentally, however, it requires a commitment on behalf of the agency to provide the public with complete, accurate, and reliable data about the agency’s operations. When TRAC uncovered unexplained data issues in the past, we have brought them to the attention of the EOIR and generally found the agency to be fairly responsive and committed to ensuring accurate reporting. The recent change in posture is therefore concerning. Moreover, because EOIR’s data are relied upon as part of the official record of court filings and proceedings that have taken place, one should not expect official records to simply go missing without explanation.

It is deeply troubling that rather than working cooperatively with TRAC to clear up the reasons for these unexplained disappearances, the agency has decided to dig in its heels and insist the public is not entitled to have answers to why records are missing from the data EOIR releases to the public. TRAC urges the EOIR to take the basic steps necessary for managing any large database, especially a database of as inestimable value and relevance as the one EOIR maintains for the Immigration Courts.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

 

Report date: October 31, 2019

 

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Without accurate data, there can be no effective oversight, by Congress, the Judiciary, or the public (which contrary to their nasty attitude, is whom EOIR actually serves). TRAC’s experience with “malicious incompetence” is typical of the Trump Administration’s “stonewalling” and disregard of honesty and public service. They are too busy denying Due Process and evading the law to bother with facts.

Quality is simply not a factor, or even an objective, at the “New EOIR!” Unfortunately, that’s true not only in record keeping, but also in making life or death adjudications.

The only thing that makes any difference in this Administration is a preconceived White Nationalist agenda that has absolutely nothing to do with facts or public service and everything to do with racism, xenophobia, and political pandering. Obviously, because facts and data don’t support, and typically directly refute, this Administration’s draconian anti-immigrant initiatives, they have no interest in the truth or accuracy. Indeed, as in most things, facts and truth are quite damaging to the Trump Administration’s programs.

There is absolutely no excuse for EOIR’s continued existence. Much of the information that EOIR feeds to the Judiciary, through DOJ attorneys, is misleading, inaccurate, or perhaps even fabricated. By not putting a stop to EOIR’s nonsense and non-responsiveness, both Congress and the Article III Courts are demeaning themselves and shirking their Constitutional responsibilities.

PWS

11-01-19

 

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

 

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

 

Tanvi Misra reports for Roll Call:

 

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the borderDHS advances plan to get DNA samples from immigrant detaineesWhite House plans to cut refugee admittance to all-time low

 

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James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

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The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

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Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

 

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that  also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

 

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

 

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

 

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

 

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21st Century America?

 

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”  

We’re in a war for the survival of our democracy and the future of humanity.  There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

 

PWS

 

10-31-19

YOUR TAX DOLLARS AT WORK: Trump Looking For Ways To Skirt Constitution, Appointments Statute To Make Ineligible White Nationalist Racist “Cooch Cooch” Acting Head Of DHS!

Dominique Mosbergen
Domonique Mosbergen
Senior Reporter
HuffPost

https://www.huffpost.com/entry/dhs-secretary-job-loophole-trump_n_5db91056e4b066da5528c76a

Dominique Mosbergen reports for HuffPost:

The White House is reportedly exploring a legal loophole that would allow President Donald Trump to pick “whomever he wants” to fill the top job at the Department of Homeland Security, potentially paving the way for a hardliner who’s vigorously defended Trump’s immigration agenda to lead the department.

The president has been searching for someone to take the reins at DHS since the department’s Acting Secretary Kevin McAleenan announced his resignation earlier this month after just six months on the job.

Though McAleenan — the fourth DHS chief since Trump took office — implemented some of the president’s more extreme immigration policies and saw a drop in border crossings during his tenure, the official’s relationship with the White House was reportedly rocky from the get-go.

An “isolated” McAleenan admitted to The Washington Post in a recent interview that he’d struggled to control the department, which he viewed as a neutral law enforcement agency, and prevent it from being used as a partisan tool.

With McAleenan out, Trump was expected to tap a replacement whose views were more aligned with his own. The New York Times first reported on Tuesday that the White House was mulling a legal loophole so the president could potentially do just that. The Wall Street Journal corroborated the news.

Trump’s two favored picks for the top DHS job are reportedly Ken Cuccinelli, the acting director of the U.S. Citizenship and Immigration Services, and Mark Morgan, acting commissioner of U.S. Customs and Border Protection. Both officials, who were nominated to their roles by Trump earlier this year, have publicly defended and championed the president’s hardline immigration agenda.

But according to earlier reports by the Wall Street Journal and Politico, Trump was recently informed by his staff that neither Cuccinelli nor Morgan would be eligible for the role under a federal statute that dictates who can fill cabinet-level positions.

Under the federal Vacancies Act, acting officials taking on cabinet-level jobs must either be next in the line of succession, be confirmed by the Senate or have served for at least 90 days in the past year under the last Senate-confirmed homeland security chief, who in this case is Kirstjen Nielsen.

Nielsen resigned in April.

Neither Cuccinelli, who Politico reported was a favorite of immigration hawks inside the administration, nor Morgan would fulfill the requirements of the statute, Sean Doocey, head of the White House Presidential Personnel Office, reportedly told Trump.

It’s believed that both men would face a difficult path to Senate confirmation. Cuccinelli, for one, has made many enemies in the Senate, having repeatedly clashed with Majority Leader Mitch McConnell (R-Ky.) and other incumbent Republicans as president of the anti-establishment Senate Conservatives Fund.

McConnell has previously expressed his “lack of enthusiasm” at the prospect of Cuccinelli’s elevation to head the DHS.

According to the Times, however, the White House is considering a loophole that would allow Trump to bypass the Vacancies Act and potentially pick Cuccinelli or Morgan for the job anyway.

“Under this route, the White House would tap someone to be the assistant secretary of the Countering Weapons of Mass Destruction Office, which is vacant, and then elevate that person to be the acting secretary of homeland security,” the Times said, citing an administration official familiar with the deliberations.

“The chief of that office is known as an ‘inferior officer,’ and under an exception in the laws governing appointments, such officials can be appointed to acting positions with the sole approval of the president,” the paper continued.

The Journal elaborated on how this plan would work.

Under a 2017 law, the DHS secretary has the authority to change the department’s line of succession beyond its top three positions, which all require Senate confirmation, the paper said. Those top three posts, however, have been vacant for months.

The White House has therefore considered asking McAleenan to change the line of succession by elevating the assistant secretary of the obscure CWMD office to the number four position, the Journal reported. Since Trump can appoint anyone to the CWMD role without the need of Senate approval, whoever is tapped for the job could then be next in the line of succession for the top DHS role.

“And then the Asst Sec for CWMD can serve … indefinitely as acting DHS Sec,” said Anne Joseph O’Connell, a Stanford law professor who specializes in administrative law and federal bureaucracy, in a Tuesday night Twitter thread.

. . . .

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

Read the rest of Dominique’s story of massive Administration corruption, dishonesty, and clear abuse of public funds (we’re paying  Trump and his gang of scofflaw thugs to look for ways around our Constitution and the statutes enacted by Congress!) at the link.

    • Remember, folks, these are the are the same corrupt officials who keep falsely referring to legitimate asylum and refugee laws as “loopholes.”
    • So, given that Trump is thumbing his nose at Mitch McConnell, why doesn’t Congress step in and put an end to this illegal nonsense once and for all?
    • Note that “Big Mac With Lies” is being asked to perform yet one final act of sleazy subservience to knowingly undermine the rule of law on his way out. Will he go down for Trump one final time? He claims he has “no plans to do so.” But, remember, “Big Mac” lies! 
    • The real problem here actually is the Supremes, who in the “Travel Ban Case” signaled that at they had no intention of requiring Trump to operate within the Constitution. Trump has taken this statement of judicial task avoidance to heart and used it to run over the rights of all Americans (not just migrants and asylum seekers).
    • Think how things might be different if right off the bat the Supremes had unanimously applied the Constitution to stop Trump’s misdeeds and had also “just said no” to GOP gerrymandering which threatens our democracy. That’s what “profiles in judicial courage” might have looked like.

PWS

10-31-19

HOW TRUMP, COMPLICIT COURTS, FECKLESS CONGRESS, AND DHS ARE KILLING MORE CHILDREN AT THE SOUTHERN BORDER WHILE HELPING HUMAN SMUGGLERS STRIKE IT RICH – “Malicious Incompetence” Fueled By Judicial Dereliction Of Duty & Congressional Malpractice Is A Boon to The Bad Guys! – “Most of all, he sees no end to the ways he can make profits off the border crackdown. He makes a joke out of it.”

Nacha Cattan
Nacha Cattan
Deputy Mexico Bureau Chief
Bloomberg News

https://www.bloomberg.com/news/features/2019-10-19/a-smuggler-describes-how-children-die-and-he-gets-rich-on-border

 

Nacha Cattan reports for Bloomberg News:

 

Children Die at Record Speed on U.S. Border While Coyotes Get Rich

Deaths of women and children trying to cross into U.S. set record in first nine months of the year, UN research project finds

By

Nacha Cattan

October 19, 2019, 8:00 AM EDT

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Roberto the coyote can see a stretch of border fence from his ranch in Ciudad Juarez, Mexico, about a mile south of El Paso. Smuggling drugs and people to “el otro lado,” the other side, has been his life’s work.

There’s always a way, he says, no matter how hard U.S. President Donald Trump tries to stop the flow. But this year’s crackdown has made it a tougher proposition. A deadlier one, too—especially for women and children, who are increasingly dying in the attempt.

Not much surprises Roberto, who asks not to be identified by his surname because he engages in illegal activity. Sitting on a creaky metal chair, shaded by quince trees and speaking above the din from a gaggle of fighting roosters, the 65-year-old grabs a twig and scratches lines in the sand to show how he stays a step ahead of U.S. and Mexican security forces.

Here’s a gap in the fence that migrants can dash through—onto land owned by American ranchers in his pay. There’s a spot U.S. patrols often pass, so he’s hiring more people to keep watch and cover any footprints with leaf-blowers.

Coyote Roberto, on Aug. 28.

Photographer: Cesar Rodriguez/Bloomberg

Roberto says he was taken aback in July this year, when he was approached for the first time by parents with young children. For coyotes, as the people-smugglers are known in Mexico, that wasn’t the typical customer profile. Roberto asked around among his peers. “They were also receiving a lot of families,” he says. “Many, many families are crossing over.”

That helps explain one of the grimmer statistics to emerge from all the turmoil on the U.S.-Mexican border.

Even more than usual, the 2,000-mile frontier has turned into a kind of tectonic fault line this year. Poverty and violence—and the pull of the world’s richest economy—are driving people north. At the border, they’re met by a new regime of tightened security and laws, imposed by Trump in tandem with his Mexican counterpart, Andres Manuel Lopez Obrador, also known as AMLO.

Some give up and go home; some wait and hope—and some try evermore dangerous ways to get through.

Nineteen children died during attempted crossings in the first nine months of 2019, by drowning, dehydration or illness, according to the UN’s “Missing Migrants” research project. That’s up from four reported through September 2018 and by far the most since the project began gathering data in 2014, when two died that entire year. Women are dying in greater numbers, too—44 in the year through September, versus 14 last year.

A 9 month-old baby sleeps inside El Buen Pastor migrant shelter, on Aug. 29. The baby had been in and out of hospitals due to respiratory illnesses during his shelter stay.

Photographer: Cesar Rodriguez/Bloomberg

Many of those families are fleeing crime epidemics in Central America, as well as economic shocks. Prices of coffee—a key export—in the region plunged this year to the lowest in more than a decade, crushing farmers.

Making matters worse, climate change will produce more frequent crop failures for those growers that will, in turn, drive more migration, said Eleanor Paynter, a fellow at Ohio State University. “Asylum law does not currently recognize climate refugees,” she said, “but in the coming years we will see more and more.”

The demand side is equally fluid. When the Great Recession hit in 2007, a slumping U.S. economy led to a sharp drop in arrivals from Mexico and Central America. Today, the reverse is true: Record-low unemployment in the U.S. is attracting huge numbers from Central America.

Recession Factor

The U.S. economy’s slump a decade ago coincided with a sharp drop in migrant arrivals from Central America

Source: Estimates by Stephanie Leutert, director of Mexico Security Institute at University of Texas, based on model created for Lawfare blog

But none of those factors fully explains why so many families are now willing to take such great risks. To understand that, it’s necessary to go back to the birth of the “Remain in Mexico” policy in January, when new U.S. rules made it much harder to seek asylum on arrival—and its escalation in June, when Trump threatened to slap tariffs on Mexican goods, and AMLO agreed to deploy 26,000 National Guard troops to the border.

The crackdown was aimed at Central Americans—mostly from such poor, violent countries as El Salvador and Honduras—who’d been entering the U.S. through Mexico in growing numbers. Many would cross the border, turn themselves in and apply for asylum, then wait in the U.S. for a court hearing. That route was especially favored by migrants with young children, who were likely to be released from detention faster.

Under the new policy, they were sent back to Mexico by the tens of thousands and required to wait in dangerous border towns for a court date. They might wait in shelters for months for their number to be called, with only 10 or 20 families being interviewed each day. Word was getting back that applications weren’t being approved, anyway.

A white cross marks the death of a person near the border between Ciudad Juarez and El Paso.

Photographer: Cesar Rodriguez/Bloomberg

That pushed thousands of families into making a tough decision. Juan Fierro, who runs the El Buen Pastor shelter for migrants in Ciudad Juarez, reckons that about 10% of the Central Americans who’ve stayed with him ended up going back home. In Tijuana, a border town hundreds of miles west, Jose Maria Garcia Lara—who also runs a shelter—says some 30% of families instead headed for the mountains outside the city on their way to the U.S. “They’re trying to cross,” he says, “in order to disappear.”

The family that approached Roberto in Ciudad Juarez wanted to take a less physically dangerous route: across the bridge into El Paso.

Roberto has infrastructure in place for both options. He says his people can run a pole across the Rio Grande when the river’s too high, and they have cameras on the bridge to spot when a guard’s back is turned. He has a sliding price scale, charging $7,500 for children and an extra $1,000 for Central Americans—fresh proof of studies that have shown smugglers’ prices rise with tighter border controls. “They pay a bundle to get their kids across,” he says. “Why don’t they just open a small grocery with that money?”

Typically, migrants don’t come from the very poorest communities in their home countries, where people struggle to cover such coyote costs, or from the middle class. Rather, they represent a range from $5,000 to $10,000 per capita in 2009 dollars, according to Michael Clemens, an economist at the Center for Global Development in Washington. This happens to be the level that the economies of El Salvador, Honduras and Guatemala have reached.

A mother and her 5-month-old baby has lived in a migrant shelter since July, waiting for their November court date, on Aug. 29.

Photographer: Cesar Rodriguez

For the family going across the bridge into El Paso, Roberto wanted to send the parents and children separately, to attract less attention. Ideally, the kids would be asleep, making the guards less likely to stop the car and ask questions. But that raised another problem. He resolved it by arranging for a woman on his team to visit the family and spend three days playing with the children. That way, they’d be used to her and wouldn’t cry out if they woke up while she was taking them across.

Roberto says the family made it safely into the U.S. with their false IDs, a claim that couldn’t be confirmed. He earned about $35,000 from the family, and soon after had another three children with their parents seek passage. “They want to cross, no matter what,” he says. “I don’t know where the idea comes from that you can stop this.”

But people are being stopped and turned back, and the number of migrants caught crossing the U.S. border has plunged from its peak in May. That has allowed Trump to portray the new policy as a success. (Mexican officials tend to agree, though the Foreign Ministry didn’t respond to a request for comment.) Yet it’s not that simple. Andrew Selee, president of the Migration Policy Institute, said the flow northward initially surged because Trump threatened to close the border, setting off a wave of migrant caravans and smuggling activity. Arrests rose 90% through September from a year earlier, but they’re now at the same levels they were before the surge.

Enrique Garcia was one of those arrested. A 36-year-old from Suchitepequez in Guatemala, he was struggling to feed his three children on the $150 a month he earned as a janitor. So he pawned a $17,000 plot of land to a coyote in exchange for passage to the U.S. for him and his son.

They slipped into Mexico in August on a boarded-up cattle truck, with eight other adults and children, and drove the length of the country, to Juarez. The coyotes dropped them by car at the nearby crossing point called Palomas, where they literally ran for it.

After 45 minutes in the summer heat, Garcia was getting worried about his son, who was falling behind and calling out for water. But they made it past the Mexican National Guard and gave themselves up to a U.S. border patrol, pleading to be allowed to stay. Instead, they were sent back to Mexico and given a January court date.

Children play outside a migrant shelter while a women hand washes clothing in a sink.

Photographer: Cesar Rodriguez/Bloomberg

Garcia, who recounted the story from a bunk bed in a Juarez shelter, said he was devastated. He couldn’t figure out what to do for five months in Mexico, with no prospect of work. His coyotes had managed to reestablish contact with the group, and most of them—with children in tow—had decided to try again. This time, they wouldn’t be relying on the asylum process. They’d try to make it past the border patrols and vanish into the U.S.

But Garcia decided he’d already put his son’s life at risk once, and wouldn’t do it again. He scrounged $250 to take the boy home to Guatemala. Then, he said, he’d head back up to the border alone. He wouldn’t need to pay the coyotes again. They’d given him a special offer when he signed away his land rights—two crossing attempts for the price of one.

Researchers say there’s a more effective deterrent to such schemes: opening more lawful channels. Clemens, at the Center for Global Development, noted that illegal immigration from Mexico dropped in recent years after U.S. authorities increased the supply of H-2 visas for temporary work, almost all of them going to Mexicans—a trend that’s continued under Trump.

The current debate in Washington assumes that “hardcore enforcement and security assistance in Central America will be enough, without any kind of expansion of lawful channels,” Clemens said. “That flies in the face of the lessons of history.”

The Legal Route

Illegal crossings by Mexicans have plunged. They’re now much more likely to enter the U.S. with temporary H-2 work visas

Source: Calculations by Cato Institute’s David Bier based on DHS, State Dept data

A hard-security-only approach deters some migrants, while channeling others into riskier routes where they’re more likely to die. That’s what happened after Europe’s crackdown on migration from across the Mediterranean, according to Paynter at Ohio State, who’s studied data from the UN’s “Missing Migrants” project. In 2019, “even though the total number of attempted crossings is lower, the rate of death is three times what it was,” she said.

A child plays outside a migrant shelter in Ciudad Juarez.

Photographer: Cesar Rodriguez/Bloomberg

As for Roberto, he expresses sadness at the children who’ve died trying to cross the U.S.-Mexico border. He claims he would’ve tried to help them, even if they couldn’t pay.

Most of all, he sees no end to the ways he can make profits off the border crackdown. He makes a joke out of it.

“I’m hearing Trump wants to throw crocodiles in the river,” he says. “Guess what will happen? We’ll eat them.” And then: “Their skin is expensive. We’ll start a whole new business. It’ll bring in money, because we’ll make boots, belts and wallets. We’ll look real handsome.”

 

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

 

The “Trump Immigration Kakistocracy” is as evil and immoral as it is stupid and incompetent.

 

But, that shouldn’t lessen the responsibility of complicit Article III Appellate Judges (including the Supremes) and a sleazy and immoral GOP Senate who are failing to stand up for our Constitution, the rule of law, and human rights. They should not be allowed to escape accountability for their gross derelictions of duty which are killing kids with regularity and unconscionably abusing vulnerable asylum seekers on a daily basis.

 

America can’t afford to be governed by idiots abetted by the spineless. Join the “New Due Process Army” and fight to save our country, our Constitution, and humanity from evil, incompetence, and disgusting complicity.

 

PWS

 

10-31-19

 

 

THE RETAINER:  How Billy Barr Betrays America To Protect Trump!

Emily Bazelon
Emily Bazelon
Staff Writer
NY Times

https://www.nytimes.com/interactive/2019/10/26/opinion/william-barr-trump.html

By Emily Bazelon in the NYT:

William Barr had returned to private life after his first stint as attorney general when he sat down to write an article for The Catholic Lawyer. It was 1995, and Mr. Barr saw an urgent threat to religion generally and to Catholicism, his faith, specifically. The danger came from the rise of “moral relativism,” in Mr. Barr’s view. “There are no objective standards of right and wrong,” he wrote. “Everyone writes their own rule book.”

And so, at first, it seemed surprising that Mr. Barr, now 69, would return after 26 years to the job of attorney general, to serve Donald Trump, the moral relativist in chief, who writes and rewrites the rule book at whim.

But a close reading of his speeches and writings shows that, for decades, he has taken a maximalist, Trumpian view of presidential power that critics have called the “imperial executive.” He was a match, all along, for a president under siege. “He alone is the executive branch,” Mr. Barr wrote of whoever occupies the Oval Office, in a memo to the Justice Department in 2018, before he returned.

pastedGraphic.png

William Barr in Senator Mitch McConnell’s office in January before hearings on his nomination to be attorney general.

Erin Schaff for The New York Times

Now, with news reports that his review into the origins of the Russian investigation that so enraged Mr. Trump has turned into a full-blown criminal investigation, Mr. Barr is arousing fears that he is using the enormous power of the Justice Department to help the president politically, subverting the independence of the nation’s top law enforcement agency in the process.

Why is he giving the benefit of his reputation, earned over many years in Washington, to this president? His Catholic Lawyer article suggests an answer to that question. The threat of moral relativism he saw then came when “secularists used law as a weapon.” Mr. Barr cited rules that compel landlords to rent to unmarried couples or require universities to treat “homosexual activist groups like any other student group.” He reprised the theme in a speech at Notre Dame this month.

. . . .

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

Read the rest of Emily’s article at the link.

Like most bigoted theocrats, including his nominally Methodist predecessor Sessions, Barr “cherry picks” religious teachings. Barr’s White Nationalist cruelty and intolerance, particularly against migrants, the most vulnerable among us, flies directly in the face of Catholic social justice teachings.

Sessions planned to turn the DOJ into a “White Nationalist Law Firm,” targeting migrants, the LGBTQ community, African Americans, women, and lawyers, among others. Sure, he refused to violate ethics by quashing the investigation of Trump. But, that’s more a case of protecting himself than it is a courageous stand against Trump.

Barr has continued the assault on Due Process and the American justice system, while also adding the dimension of misrepresenting the Mueller investigation and ignoring ethics to protect Trump.

PWS

10-30-19

INSIDE TRUMP’S “NEW AMERICAN GULAG” THERE IS NEITHER DUE PROCESS NOR JUSTICE! – So, What Happened To The Legislative & Judicial Branches Who Are Supposed To Protect Against Such Outrageous Executive Overreach? — “Whatever we call them, America’s immigration prisons are antithetical to the free society we claim to be. We must do all we can to dismantle this system.”

Naureen Shah
Naureen Shah
Senior Advocacy & Policy Counsel
ACLU

 

 

https://apple.news/AsyQuZEMeR0mXWpvWd19-Mg

By Naureen Shah:

opinion

At detention facilities, legal rights ‘in name only’

Whether we call them ‘concentration camps’ or detention centers, the lack of justice for those seeking refuge must end.

7:42 pm EDT Oct. 25, 2019

As President Donald Trump prepares to pick a new secretary for the Department of Homeland Security, Rep. Alexandria Ocasio-Cortez, D-N.Y., is preparing to appear in a Brooklyn court. She is being sued for blocking a man on Twitter who criticized her for calling immigration detention sites “concentration camps.” Her opponents seized on the comment. One of their talking points: America’s hardworking immigration officers should not be equated with Nazis.

To some extent, I can understand their perspective.

I recently visited four Immigration and Customs Enforcement (ICE) detention sites across the country. I met many of their workers. They carried clear plastic backpacks and lunchboxes as they filed through security in the morning, looking weary and bored. As I left each site, some asked me whether I had had a “nice visit” and wished me safe travels.

These workers don’t bring to mind cinematic villains. Yet they are part of a system that, no matter its appearances, is inflicting the horror of trapping people inside.

I saw it in the eyes of the people I interviewed in detention. A 28-year-old Cuban woman told me about spending five days sleeping on the ground in an outdoor cage run by Border Patrol, the “perrera” — a place for dogs. That was followed by 17 days in the “hielera,” a frigid room. She had been denied a shower the entire time.

She recounted this months later, when I met her at an ICE detention site in Adams County, Mississippi. She had not seen or talked to her husband for months, since U.S. authorities separated and detained them. She said that last summer, an asylum officer interviewed her and determined that her fear of persecution if she returned to Cuba was credible — the first step in an asylum case. But she said she had never seen a judge, had no court date, no lawyer, no ICE officer assigned to her. She was alone and trapped: She had no idea of what would happen to her next, how to move her asylum case forward and whether she would ever be released.

COLUMN: In the hands of police, facial recognition software risks violating civil liberties

Adams County is part of the immigration detention boom. Detention levels have skyrocketed to a record high of about 50,000 people a day, at an annual cost of more than $2 billion. Counties are grabbing at detention contracts that provide jobs, although many will be filled by out-of-town residents. New detention sites are opening in the Deep South — hours from urban areas with networks of pro bono or low-cost attorneys. Even in big cities, the number of people detained far outpaces the number of attorneys available to help them. The result is that these immigration jails are effectively legal black holes, where legal rights often exist in name only.

“You come to this place and you can never win,” another woman told me. She had spent three months in an ICE detention center near Miami, separated from her then 5-month-old baby. Her husband, a U.S. citizen, was driving her to Walmart when local police questioned them during a random traffic stop. She was not accused of a crime, and she was in the process of petitioning for residency based on her marriage to a citizen. But police took her to a local jail and held her for ICE.

COLUMN: After terrifying ICE raid, Mississippi is still fighting back

“I haven’t seen my baby in three months,” she said, and asked me what would happen to her.

Without a lawyer, she is likely to remain in detention for months or years — and ultimately be deported away from her husband and child. Just 3% of detained individuals without a lawyer succeeded in their cases, compared with 74% of nondetained and represented individuals who won in theirs, according to a study that focused on New York immigration cases. For asylum-seekers, the stakes are often life or death.

Yet immigrants have been denied the right to a government-appointed lawyer in their deportation proceedings. I met many who didn’t have enough money to make a phone call from prison, let alone pay a lawyer. Even those who could afford it struggled to find one, since they are stuck on the inside without access to Google, email or a cellphone.

POLICING THE USA: A look at race, justice, media

Our immigration system is set up for them to fail, with Kafka-esque limits on their ability to apply for legal relief and appeal to federal courts. Navigating this complex and unforgiving set of legal rules is hard for lawyers, let alone for detained individuals. Some are offered release on bond, but in unaffordable amounts like $25,000.

Many people I met had never seen a judge, several months into their detention. They had no idea how or when they might ever be free. They were confused, scared and, in some cases, suicidal. A woman from Cameroon who fled its ongoing civil war after her father was murdered told me she prayed that God would provide her a way out.

We have an obligation to respond.

Local governments should end ICE detention contracts, if they exist, and prohibit new ones. Cities and states should robustly fund free legal service providers and bond funds. Major law firms should send their lawyers to the Deep South to work with local pro bono providers to address the drastic shortfalls in legal services. Community groups should lobby Congress to cut funding for detention and pass comprehensive reform legislation like the Dignity For Detained Immigrants Act.

Trump’s new Homeland Security secretary is likely to ramp up immigration detention to even higher levels, using the specter of prison to deter people from coming here and the reality of it to punish those who do. We cannot afford to be divided by semantics.

Whatever we call them, America’s immigration prisons are antithetical to the free society we claim to be. We must do all we can to dismantle this system.

Naureen Shah is the senior advocacy and policy counsel at the American Civil Liberties Union, working on immigrant rights.

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7:42 pm EDT Oct. 25, 2019

 

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DHS’s “New American Gulag” – the “brainchild” of Stephen Miller, Jeff Sessions, and Steve Bannon – is an affront to our Constitution, the rule of law, and human decency. Remember that the next time Trump’s “Gulag Enablers” like Kelly, Nielsen, Sessions, and Barr try to “reinvent themselves” as something other than the sleazy human rights violators they are and will always remain.

 

PWS

 

10-29-19

 

 

HON. JEFFREY CHASE: More Than Three Decades After The Supremes’ Decision On Well- Founded Fear In Cardoza-Fonseca, Immigration Judges and BIA Judges Continue To Get It Wrong — 2d Cir. Recognizes Problem, But Fails To Take Effective Corrective Action Through Publishing Its Important Decision!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://www.jeffreyschase.com/blog/2019/10/25/when-does-fear-become-well-founded

Oct 25 When Does Fear Become “Well-Founded?”

During a recent radio interview, the reporter interviewing me expressed surprise when I mentioned that an asylum applicant need only show a ten percent chance of being persecuted in order to succeed on her claim.  That standard was recognized 32 years ago by the U.S. Supreme Court in the case of INS v Cardoza-Fonseca, 480 U.S. 421 (1987).  The holding represented a dramatic shift in asylum eligibility, as prior to the decision, the BIA (and therefore, the immigration judges bound by its decisions) had interpreted “well-founded fear” to require a greater than fifty percent chance of persecution.  But what was the practical impact of this change on the adjudication of asylum claims?

Following the Supreme Court’s decision, the BIA and circuit courts set out to define what an asylum seeker must show to satisfy the lower standard.  The general test adopted by the circuit courts requires a finding that the asylum seeker possess a genuine subjective fear of persecution, and that there is some objective basis for such fear in the reality of the circumstances so as to make such fear reasonable.1  Prof. Deborah Anker in her treatise The Law of Asylum in the United States emphasizes the link between the subjective and objective standards, noting that while the objective element is meant to ensure “that protection is not provided to those with purely fanciful or neurotic fears,” it is “critical, however, that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.”  This is obviously quite different than the purely objective approach necessary under the prior “more likely than not” standard.

In Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019), the U.S. Court of Appeals for the Second Circuit, in an unpublished decision, once again considered the question of what is required for a fear of persecution to be “well-founded.”  Although the primary target of the government’s persecution was the petitioner’s husband, an activist with the opposition Democratic Party in their native Albania, police twice sprayed the restaurant jointly owned by the couple with bullets, pushed the petitioner herself to the ground during raids of their home, and at one point threatened to kidnap the petitioner and sell her into prostitution if her husband did not back the ruling Socialist Party candidate for parliament.  The local Socialist Party leader also threatened the petitioner that the restaurant would be burned to the ground with her family in it if they did not stop hosting Democratic Party meetings there.

The immigration judge found the petitioner to be completely credible and to have a genuine subjective fear of persecution.  However, the IJ denied asylum on the ground that the fear was not objectively reasonable, because the authorities had opportunities to harm her when they were persecuting her husband, but in the IJ’s opinion, did not do so.  The judge thus concluded that nothing suggests that the authorities would “suddenly” be inclined to harm the petitioner in the future if they had not done so in the past.

The Second Circuit rejected the above standard as “too exacting,” adding that the applicant’s fear can be objectively reasonable “even if it is improbable that he will be persecuted upon his return to his own country.”  The court added that there only need be “a slight, though discernible, chance of persecution,” noting that the standard is whether “a reasonable person in the same circumstances would have such a fear.”

At oral argument, the Chief Judge of the Second Circuit, Hon. Robert Katzmann, directly asked the government attorney if she would be afraid to return to Albania if she faced the same facts as the respondent, adding that he himself would be.

The question of whether one in the asylum seeker’s shoes would be afraid to return is the proper approach to determining if the subjective fear is reasonable.  Back in 1992, before either of us were appointed judges, my former colleague William Van Wyke, a brilliant legal mind, authored a much talked about article entitled “A New Perspective on ‘Well-Founded Fear.’”  Judge Van Wyke’s approach was to consider the asylum seeker the factfinder: having assessed all of the facts in the home country, the asylum seeker decided that the threat of persecution was enough to warrant fleeing the country.  In Judge Van Wyke’s perspective, the asylum adjudicator is placed in the position of an appeals court, reviewing the asylum seeker’s decision for reasonableness.  Although such approach sounds radical, it’s really just another way of applying the circuit court standard.

However, too many decisions deny asylum because they pose the wrong question.  If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident.  The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight?  Of course, the answer is yes.  The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane.  Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable.  Or as the Second Circuit held in Qosaj, “no reasonable factfinder could conclude that” the petitioner “did not show at least a ‘discernible [ ] chance of persecution,’” which the Second Circuit confirmed as enough “to render her subjective fear objectively reasonable.”

But how often is this standard applied correctly in asylum adjudication?  For example, case law allows an asylum adjudicator to conclude that an asylum applicant’s fear is not objectively reasonable based on the continued safety of family members who remain in the country of origin.  But if there is a sufficient ten percent risk of persecution, that means that there is 90 percent chance that nothing will happen.  Wouldn’t that mean that it is overwhelmingly likely that the remaining family would suffer no harm?  If so, why should their safety to present undermine the claim?  Or in assessing whether the government is unable or unwilling to control a non-state actor persecutor, shouldn’t the proper inquiry be whether there is a ten percent chance that the government would not afford such protection?2

It’s a shame that Qosaj wasn’t issued as a published decision.  Nevertheless, attorneys might find it useful to reference at least in the Second Circuit as a reminder of the proper application of the burden for determining well-founded fear.  And Congrats to attorney Michael DiRaimondo (who argued the case) and fellow attorneys Marialaina Masi and Stacy Huber of DiRaimondo & Masi on the brief (Note: I am of counsel to the firm, but had no involvement with this case).

Notes:

1. See, e.g., Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).

2. I thank attorney Joshua Lunsford for bringing this point to my attention.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

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Here’s a link to the full decision in 

Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019):

https://casetext.com/case/qosaj-v-barr

Jeffrey’s article raises two important points.

First, three decades after Cardoza-Fonseca, and nearly four decades after the enactment of the Refugee Act of 1980, EOIR Judges are still getting the fundamentals wrong: basics, like the correct legal standards to be used in evaluating asylum claims. 

Getting that asylum standard correct should be neither complex nor difficult. Just look at how relatively short, concise, and to the point the Second Circuit’s reversal in Qosaj was, particularly in comparison with the legal gibberish spouted by Barr and Sessions in attempting to rewrite the law intentionally to screw migrants in some of their unconstitutional and unethical precedents.

Improper adjudication by Immigration Judges is hardly surprising in a system that emphasizes law enforcement and speedy removals over quality and Due Process. Then, it’s compounded by politicos attempting to improperly and unethically influence the judges by spreading false narratives about asylum applicants being malafide and their attorneys dishonest. 

It’s really quite the opposite. There is substantial reason to believe that the system has been improperly, dishonestly,  and  politically “gamed” by the DOJ to deny valid claims (or even access to the system) to “discourage” legitimate asylum seekers and further to intentionally abuse those (often pro bono or low bono) lawyers courageously trying to help them.

Also, massive appointments of Immigration Judges at both the trial and appellate levels, some with questionable qualifications, and all with no meaningful training on how to recognize and grant asylum claims have compounded the problem. 

Does anyone seriously think that the “New Appellate Immigration Judges” on the BIA, some of whom denied asylum at rates upwards of 95%, were properly applying the generous legal standards of Cardoza-Fonseca to asylum seekers? Of course not! So why is this unconstitutional and dysfunctional system allowed to continue?

Which brings me to my second point. It’s nice that the Second Circuit actually took the time to correct the errors, unlike some of the “intentionally head in the sand Circuits” like the 5th and the 11th, who all too often compound the problem with their own complicity and poor judging. But, failing to publish important examples of DOJ/EOIR “malicious incompetence” like this is a disservice to both the country and the courts. 

It leaves the impression that the Second Circuit doesn’t really value the rights of asylum seekers or view them as important.  It also signals that the court doesn’t really intend to hold Barr and EOIR accountable for lack of quality control and fundamental fairness in the Immigration Court system. 

Furthermore, it deprives immigration practitioners of the favorable Article III precedents they need to fight the abuses of due process and fundamental fairness being inflicted on asylum seekers every day at the “retail level” — in Immigration Court. It also fails to document a public record of the widespread “malicious incompetence” of DOJ and EOIR under Trump’s White Nationalist restrictionist regime.

It’s also horrible for the court. You don’t have to be a judicial genius to see where this is going. Unqualified, untrained Immigration Judges are being pushed to cut corners and railroad asylum seekers out of the country. The BIA has been “dumbed down” and weaponized to “summarily affirm” this substandard work product. That means that the circuit courts are going to be flooded with garbage — sloppy, unprofessional work. As the work piles up or is sent back for quality reasons, the Administration will blast and blame the Article III courts for their backlogs and for delaying deportations.

So why wait for the coming disaster? Why not be proactive? 

The Second Circuit and the other Circuits should be publishing precedents putting the DOJ and EOIR on notice that Due Process, fair treatment, and quality work is required from the Immigration Courts. If it’s not forthcoming, why shouldn’t Barr and the officials at DOJ and EOIR responsible for creating this mess be held in contempt of court?

Two historical notes. First, our good friend and former colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, successfully represented the respondent before the Supremes in Cardoza-Fonseca (for the record, as DHS DGC. I was aligned with the SG on the “losing” side). Therefore, I sometimes call Judge Marks the “Founding Mother” of modern U.S. asylum law.

Second, immigration practitioner Michael DiRaimondo who successfully argued Qosaj before the Second Circuit began his career in the General Counsel’s Office of the “Legacy INS” during the “Inman-Schmidt Era.” He then went on to a distinguished career as the INS Special Assistant U.S. Attorney in the Eastern District of New York before entering private practice. Way to go, Michael D! 

PWS

10-27-19

FRESH CLAIMS OF CHILD ABUSE BY DHS IN YOUR “NEW AMERICAN GULAG” – Ever Wonder Why YOUR Tax Dollars Are Being Used To Fund What Medical Professionals Say Is An Inherently Abusive & Potentially Permanently Damaging “Kiddie Gulag?” – And, In Cases Like This, The Alleged Abuse Is Actually Individualized & Beyond the “Regular Damage” Intentionally Inflicted By The Trump DHS, Abetted By Complicit Courts!

Amanda Holpuch
Amanda Holpuch
Reporter
The Guardian

 

https://www.theguardian.com/us-news/2019/oct/25/texas-immigration-detention-guard-assault-child-claims?CMP=Share_iOSApp_Other

 

Amanda Holpuch reports for The Guardian:

 

A private prison guard physically assaulted a five-year-old boy at an immigration detention center in Texas, according to a complaint filed with the Department of Homeland Security (DHS).

She raised her niece like a daughter. Then the US government separated them at the border

 

Read more

Advocates for the boy and his mother expect the family to be deported on Friday and asked the US government to halt the deportation to investigate the alleged assault. The advocates also said the family, who are anonymous for safety reasons, face imminent harm or death in their home country of Honduras.

The alleged assault occurred in late September, when the boy was playing with a guard employed by the private prison company CoreCivic who had played with the boy before.

The five-year-old tried to give the guard a high-five, but accidentally hit him instead, angering the guard, according to a complaint seen by the Guardian. The guard then allegedly grabbed the boy’s wrist “very hard” and would not let go.

“The boy’s mother told the guard to let go and tried to pull her son’s hand away, but the guard kept holding on,” according to the complaint. “He finally released the boy and threatened to punish him if he hit him again.”

The complaint said the boy’s hand was swollen and bruised and he was treated with pain medication and ice at the South Texas family residential center in Dilley, in a remote part of the state about 100 miles from the US-Mexico border.

The Dilley detention center has been controversial since it opened in 2014. Dilley can hold 2,400 people, the most of any family detention center in the country, and in March 2019 held at least 15 babies under one year old.

“Since the assault, the boy is afraid of male officials at the jail, goes to the bathroom in his pants, bites his nails until they bleed, and does not want to play, sleep, eat, or bathe,” the complaint said.

The Guardian contacted US Immigration and Customs Enforcement (Ice), the homeland security agency which oversees immigration detention, and CoreCivic for comment, but they had not provided a response at the time of publication.

Katy Murdza, advocacy manager for the Dilley Pro Bono Project, which sends volunteers into the Dilley detention center to help families, met with the mother on Wednesday.

Murdza said the mother is fearful of her imminent deportation and is upset about what happened to her son because she had little power to protect him.

“She was unable to prevent someone from hurting her child and while she has tried to report it, she hasn’t received any information on what the results are, so she still does not have control of whether the detention center let that staff member back in,” Murdza said.

“When people are detained and it’s hidden from the public, these sorts of things happen and there are probably many other cases that we have never learned about that could be similar to this,” Murdza added.

The American Academy of Pediatrics said in March 2017 that no migrant child in the custody of their parent should ever be detained because the conditions could harm or retraumatize them.

The US government can release asylum-seeking families in the US while they wait for their cases to be heard in court, but Donald Trump’s administration favors expanding detention and has tried to extend how long children can be held in detention centers.

Katie Shepherd, national advocacy counsel with the American Immigration Council’s Immigration Justice Campaign, filed the complaint on Thursday with the DHS watchdog, the office of the inspector general, and with its office for civil rights and civil liberties.

“The government has a long history demonstrating it’s not capable of holding people in their custody responsibly and certainly not children who require special protections and safeguards,” Shepherd said. “They require a different environment, not one where guards are going to be physically abusing them.”

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Ever wonder how things might be different if Article III Judges’ children and grandchildren were being treated this way?

 

Please think about situations like this the next time you hear sleazy folks like Kelly, Nielsen, or “Big Mac With Lies,”and other former “Trump toadies” tout their “high-level executive experience” and how “proud” they were of their law enforcement initiatives at DHS and other parts of the Trump kakistocracy! What’s the relationship between abusing children and real law enforcement or protecting our national security? None!

 

Outrageously, these former Trump human rights abusers not only have escaped legal and moral accountability for their knowing and intentional human rights abuses, but they have the audacity to publicly attempt to “leverage” their experience as abusers into “big bucks gigs” in the private sector. How disgusting can it get.

 

Here’s Professor (and ImmigrationProf Blog guru) Bill O. Hing’s “spot on” description of the “despicable John Kelly:”

 

 

Despicable John Kelly – Profits from Detention of Children

By Immigration Prof

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I was recently reminded of how John Kelly, former DHS Secretary and former White House Chief of Staff, is now on the board of Caliburn International: the conglomerate that runs detention facilities for migrant children. He is despicable. This was reported in May:

Former White House Chief of Staff John Kelly can now count on a second line of income.

In addition to his attempt at scoring paid speaking gigs, Kelly has now joined the board of Caliburn International, the company has confirmed to CBS News. Caliburn is the parent company of Comprehensive Health Services, which operates four massive for-profit shelters that have government contracts to house unaccompanied migrant children.

Kelly’s new job first became apparent when protesters gathered outside Comprehensive Health Services’ Homestead, Florida facility last month — it’s the biggest unaccompanied migrant child detention center in the country. They, along with a local TV station, spotted Kelly enter the facility, and CBS News later confirmed his affiliation. Read more..

When Kelly was DHS secretary, he began the implementation of Trump’s anti-immigrant agenda in the early stages of the administration. Julianne Hing reported on Kelly’s record at DHS on the eve of becoming chief of staff for Trump.

Read here…

bh

October 20, 2019

 

Apparently, Kelly’s USG pension as a retired 4-star General wasn’t enough to support him in the style to which he aspired (perhaps after rubbing shoulders with the Trump family and its circle of grifters). So, he found it necessary to supplement his income off the misery of families and children in the “New American Gulag” he helped establish.

I had accurately predicted that Kelly wouldn’t leave his “service” to Trump with his reputation intact. Nobody does, except those with no reputation to start with.

 

Trump runs a kakistocracy. The private sector should treat the steady stream of spineless senior officials fleeing the Trump Circus accordingly.

Or compare the “achievements” of horrible frauds like these guys, who abused their time in the service of Trump by betraying our country’s most fundamental values, with that of a real American hero like the late Congressman Elijah Cummings (D-MD) who was eulogized today. As President Obama said, “he was ‘honorable’ long before he was elected!”

 

PWS

10-25-19

 

 

 

 

TRAC: TRUMP DOJ’S “MALICIOUSLY INCOMPETENT POLICIES” SIGNIFICANTLY CONTRIBUTED TO ASTOUNDING 1,346,302 BACKLOG AND 4+ YEAR WAITS FOR HEARINGS — Don’t Let The Villains Blame The Victims & Their Lawyers For This Largely Self-Created Mess!

Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times

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Transactional Records Access Clearinghouse

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FOR IMMEDIATE RELEASE

The current policies of the Trump Administration have been unsuccessful in stemming the rise in the Immigration Court’s backlog. Overcrowded dockets create lengthening wait times for hearings. At some locations, immigrants with pending cases now wait on average 1,450 days or more – over four years! – before their hearing is scheduled.

Despite promises to reduce the backlog, the latest case-by-case records show that the growth in the backlog has actually accelerated each year since President Trump assumed office. At the start of this administration, 542,411 cases were pending before immigration judges. By September 30, 2019, the backlog had grown to 1,023,767 “active” cases. This rises to 1,346,302 when cases that have not yet been calendared are added. Year-by-year the pace of increase has quickened. The active backlog grew 16.0 percent from January 2017 to the end of that fiscal year, climbed an additional 22.1 percent during FY 2018, and this past year jumped by a further 33.3 percent.

While many sources for this rise are outside the court’s control, policy decisions and practices by the Department of Justice which oversees the Immigration Court have significantly contributed to growing caseloads. For example, the decision to reopen previously closed cases has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.

Despite accelerated hiring of new judges and the imposed production quotas implemented last year, the average caseload Immigration Court judges face has continued to grow. On average each judge currently has an active pending caseload of over two thousand cases (2,316) and over three thousand cases when the additional un-calendared cases are added (3,046). Even if the Immigration Court stopped accepting any new cases, it would still take an estimated 4.4 years to work through this accumulated backlog.

In the New York City Immigration Court which has the largest backlog in the country, hearings are currently being scheduled five years out – all the way into December of 2024. Four other courts are scheduling hearings as far out as December 2023. These include courts in Chicago, Illinois; Houston, Texas; Philadelphia, Pennsylvania; and Arlington, Virginia.

For full details, including the average wait times and pending cases at each hearing location, go to:

https://trac.syr.edu/immigration/reports/579/

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Obviously, “Aimless Docket Reshuffling” (“ADR”), stripping Immigration Judges of all authority to manage their individual dockets, the war on Attorney representation, and the complete absence of the type of prosecutorial discretion that all other enforcement systems in America, save for the DHS, use to make reasonable use of the available judicial time are taking a big toll here! A court run by maliciously incompetent political clowns is inevitably going to become “Clown Court.”

Congress and the Article III Courts are heading for an existential crisis in our justice system if they don’t step in and force some Due Process, judicial independence, and normal professional unbiased judicial administration into this corrupt and intentionally broken system that spews out illegal and unconstitutional “removal orders” every day.

Whatever happened to accountability and the supposedly independent role of the Article III Federal Judiciary? Why is a national disgrace like the “Trumped-Up” Immigration Courts operating within the rogue DOJ allowed to continue its daily abuses? 

History will judge these failing institutions and those who ignored their sworn duties harshly!

PWS

10-25-19

U.S. IMMIGRATION JUDGE LEE O’CONNOR EXPOSES MASSIVE DHS ILLEGALITY & FRAUD IN IMPLEMENTATION OF SO-CALLED MIGRANT PROTECTION PROTOCOLS (“LET ‘EM DIE IN MEXICO”) – “Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.”

U.S. IMMIGRATION JUDGE LEE O’CONNOR EXPOSES MASSIVE DHS ILLEGALITY & FRAUD IN IMPLEMENTATION OF SO-CALLED MIGRANT PROTECTION PROTOCOLS (“LET ‘EM DIE IN MEXICO”) – “Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.”

Here’s Judge O’Connor’s decision, dated 09-17-19:

9-17-19 IJ termination MPP

Here’s key language from Judge O’Connor’s decision:

Respondents appeared for a hearing on September 9, 2019, with counsel and were granted a continuance for attorney preparation. The court reset the case to September 17, 2019. Respondents moved to terminate removal proceedings on the ground that they are not arriving aliens and were therefore not properly subjected to the MPP program. The court concludes thatDHS has not proven its fundamental allegation that respondents are arriving aliens and that DHS has not acted properly in subjecting aliens who were apprehended within the United States to the MPP program. Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.

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So this is the “legacy” of “Powerful Woman” Kirstjen Nielsen and her successor “Big Mac With Lies:” Massive violations of legal and human rights of asylum seekers!

And, don’t forget the complicit Article III Judges of the 9th Circuit in Innovation Law Lab v. McAleenan whose mindless “green-lighting” of this abusive and clearly illegal program is responsible for daily mockeries of the very U.S. laws they were sworn to uphold as well as continuing human misery.

It also shows:

  • The great potential of an independent Article I U.S. Immigration Court to stop DHS abuses in their tracks, at an early point in time (this would also save time and public money now being squandered on various illegal, ill-advised, and always inhumane “enforcement schemes and gimmicks”);
  • The potential of an independent Immigration Court with a true merit selection system for judges;
  • The value of effective representation of asylum seekers (which is either impeded or actively blocked by DHS and EOIR these days);
  • The corruption of leadership at DHS and DOJ and the lawyers representing them in court in defending the indefensible;
  • The dangers of abuses in a system run by a prejudiced Executive with no meaningful oversight and outside the public eye;
  • That while some Article III Judges have gone “belly up” in the face of massive illegality and abuses of our system, others like Judge O’Connor, even without the benefit of life tenure, have courageously continued to stand tall for Due Process and the legal rights of migrants to fair treatment under the law.

The current immigration system and those administering it in an unlawful and unconstitutional manner is a national disgrace! Something to remember when Kelly, Nielsen, “Big Mac With Lies,” and other senior officials of DHS and DOJ try to “reinvent” themselves in the private sector and disguise or disavow their truly disgusting record of subservience to Trump and the massive human rights violations for which they are morally responsible.

Due Process Forever; “Malicious Incompetence” Never!

 

PWS

 

10-25-19

 

 

SEN. CORNYN (R-TX) OK WITH ETHNIC CLEANSING OF KURDS AS LONG AS NO AMERICAN GETS HURT — Genocide (Particularly On Former Allies) Can Get Messy, So Best Get Out Of The Way So You Don’t Get Splattered With Blood On Your Way Out!

Hayley Miller
Hayley Miller
Breaking News Reporter
HuffPost

https://www.huffpost.com/entry/john-cornyn-defends-trump-kurds_n_5db1a0f3e4b0131fa99a9fba

 

Hayley Miller reports for HuffPost:

Sen. John Cornyn (R-Texas) defended President Donald Trump’s widely condemned decision to withdraw American troops from northern Syria, claiming it was an appropriate move if Turkey was “trying to ethnically cleanse” U.S.-allied Kurdish forces in the region.

“If Turkey was planning on coming into northern Syria and trying to ethnically cleanse the Kurds, and U.S. troops were caught in the middle, I am not completely convinced that it was a bad idea to get them out of harm’s way,” Cornyn told reporters Wednesday, reported The Dallas Morning News.

He added, however, that he wishes there had been “more consultation with Congress and others and our allies in the region.”

The Republican lawmaker’s comments came just hours after Trump announced he was lifting sanctions against Turkey, which agreed to a cease-fire against the Kurds in northeast Syria. Trump took credit for the deal, though Democrats and some Republicans say his decision to upend American foreign policy in the region enabled Turkey to launch a military offensive against the Kurds earlier this month.

Fighting between Turkey and the Kurdish-led Syrian Democratic Forces, the main U.S. ally in the fight against the self-declared Islamic State in Syria, has resulted in the deaths of dozens of people and the displacement of thousands more.

During the fighting, Turkish-backed Arab fighters killed Hevrin Khalaf, the head of a Kurdish political party. A militant group posted a gruesome video of her execution online.

Foreign policy experts warned Trump’s decision to essentially abandon the Kurds could lead to their genocide by Turkey, which considers them to be terrorist insurgents. The House overwhelmingly passed a resolution last week to condemn the president’s move.

But Trump patted himself on the back Wednesday, claiming the U.S. and “nobody else” was responsible for avoiding all-out war in northern Syria.

“We have done them a great service and we’ve done a great job for all of them,” Trump said of Turkey, Syria and the Kurds. “And now, we’re getting out. … Let someone else fight over this long-bloodstained sand.”

Cornyn told reporters Wednesday that things need to “play out a little bit” before he could say whether he felt Trump’s decision to lift sanctions was the right move.

Asked Thursday about his “ethnically cleanse” remark, Cornyn appeared to walk it back some.

“I wasn’t very clear,” he told HuffPost. “If the U.S. isn’t committed to stay in Syria, getting our troops out of harm’s way where they might be injured or killed during the inevitable conflict between the Turks and the Kurds was something I was concerned about.”

Igor Bobic contributed reporting.

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Start a war, abandon your allies, give away their homes in a cease fire, protect the oil fields, lend a hand to Erdogan, Putin, and Assad, three of the worst autocrats around (but not as inept as “autocrat wannabe” Trump). Now that’s a foreign policy that the GOP can be proud of. 

Also, since we have declared Syria to be of “no particular concern” to us, for just whom are we “protecting” the Syrian oil fields: Putin? Assad? Erdogan? Iran?

And from whom? An ISIS that was once largely beaten but that now has been rejuvenated by Trump’s treacherous policies? 

PWS

10-24-19

THEY’RE BACK: RETURN OF THE “BROOKS BROTHERS RIOTERS” — As Evidence Against “Supreme Leader” Mounts, Angry GOP White Guys Create Diversion By Attacking The Rule Of Law!

Aaron Blake
Aaron Blake
Senior Political Reporter
Washington Post

https://www.washingtonpost.com/politics/2019/10/23/banner-hours-gop-rule-law/

Aaron Blake writes in the WashPost:

It’s hardly breaking news that President Trump has an uneasy relationship with the rule of law. He campaigned on putting his unindicted opponent in jail. He has attacked judges individually and the judiciary as an institution. He allegedly asked his FBI director for loyalty and to lay off a top aide. He tried to get his first attorney general to launch politically expedient investigations. Robert S. Mueller III laid out five instances in which there was significant evidence that he obstructed justice. He’s declining to cooperate with his own impeachment inquiry. And he even criticized his Justice Department for indicting two Republican congressman.

What hasn’t been chewed over quite as thoroughly is how much this attitude has infected those around him — many of them in the Republican Party, which prides itself as the party of the rule of law.

And the past 24 hours have been full of activity on that front.

They began Tuesday night with Matthew G. Whitaker, Trump’s former acting attorney general, taking to the airwaves of Fox News to declare that a president abusing power not only isn’t a crime, but also isn’t even impeachable.

“Abuse of power is not a crime,” Whitaker said. “Let’s fundamentally boil it down. The Constitution’s very clear that this has to be some pretty egregious behavior.”

Even for a team of supporters accustomed to moving the goal posts for Trump, taking “abuse of power” and suggesting it would not clear the bar was something.

Then came Wednesday morning, when a throng of Republican congressmen, led by Rep. Matt Gaetz (Fla.), decided to storm the proceedings of the House impeachment inquiry to highlight concerns about its process. They effectively shut it down for five hours and caused the testimony of Defense Department aide Laura Cooper to be delayed.

The situation harked back to 2016, when House Democrats — who were then in the minority — staged a sit-in protest on the House floor over gun control. At the time, Rep. Tom McClintock (R-Calif.) declared that Democrats had “replaced rule of law with the rules of the mob.” Another House Republican shouted, “Rule of law means order!” Another stickler for the rules at the time was then-Rep. Mick Mulvaney (R-S.C.), who is now acting White House chief of staff. “When somebody violates all the rules that they, you know, said they would adhere to and sets bad precedent for the future,” Mulvaney said, “it simply shows that if you act badly, you can get what you want.”

Beyond the issue of the rules in this protest was the matter of security. The impeachment inquiry depositions are held in a secure room, but some Republicans brought in their cellphones, which is against the rules, raising concerns about whether the room had been compromised.

The last development on the rule-of-law front Wednesday was in an actual courtroom. While defending Trump from having to turn over his private financial records, his private attorney William S. Consovoy made an extremely broad assertion of presidential immunity. He said that basically no jurisdiction — whether local or federal — can investigate a sitting president.

And when a judge asked him whether that would also be the case if Trump, as he so famously intoned, shot someone on Fifth Avenue in New York City, Consovoy responded in the affirmative.

“Local authorities couldn’t investigate? They couldn’t do anything about it?” U.S. Appeals Court Judge Denny Chin asked. “Nothing could be done? That is your position?”

“That is correct,” Consovoy said, noting that any crimes could be handled once the president was out of office.

It is understood that a president can’t be indicted while in office; this is the policy of the Justice Department and has been dating to Richard Nixon. What is much more controversial is the idea that jurisdictions cannot even investigate Trump. U.S. District Judge Victor Marrero recently called the Trump team’s assertion of immunity “virtually limitless” and deemed the claim “repugnant to the nation’s fundamental structure and constitutional values.”

The claim is merely the latest bold one from the Trump legal team and from Consovoy. Earlier this year, both the White House counsel and Consovoy maintained that Congress also had no right to investigate the president for the sake of oversight.

U.S. District Judge Amit Mehta asked Consovoy that if “a president was involved in some corrupt enterprise, you mean to tell me, because he is the president of the United States, Congress would not have power to investigate?” Consovoy answered that was his argument, because it would not be “pursuant to its legislative agenda.”

Congress has since launched impeachment proceedings, which is a power expressly granted in the Constitution and would seem to mitigate questions about whether its members have the authority to do what they are doing. But Republicans are making all kinds of other process arguments to attack the legitimacy of the investigation and decline to cooperate — even as there is little in the law to guide what impeachment proceedings must look like. They are complaining about the lack of a due process, even though this isn’t a trial (yet). They cry foul over the lack of a vote to launch the inquiry, which has been held in the past but is not required by law.

And as that situation and Trump’s standing as president become more embattled, it looks as though the “rule of law” party is going to continue making arguments about why Trump holds a unique place in relation to that law — and why perhaps it’s worth breaking the rules on his behalf.

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

Remember, folks, an attempt to hold the Grifter-in-Chief and his White Nationalist regime accountable for abuses of authority is an attack on White privilege everywhere! 

No wonder the so-called “Freedom” Caucus and its privileged White guys (used in a generic sense, as there appear to be a couple of GOP women members who glory in and feel empowered by their male companions’ chauvinism, particularly when it comes to putting down smart, powerful women of color) are so upset. Like their Grifter, they love the concept of America as it was in the “good old days,” before MLK, Jr., and the nasty “Civil Rights Era,” when the law was largely a tool to oppress African Americans, Hispanic Americans, Catholic Americans, Jewish Americans, immigrants, and a host of “others.” They are righteously upset that their overprivileged, unqualified, unscrupulous Supreme Leader, a living example of where “White privilege” will get you, could be held accountable for some of his myriad of misdeeds and outright mockeries of our Constitution and the rule of law.

The good news for the BBRs and their fellow GOP enablers (incidentally, the GOP has had full rights under Congressional rules to participate in the ongoing investigation — just not to control it from their minority position): the impeachment investigation will soon be “taken public” as they (disingenuously) claim to desire. 

The bad news: they will have to come up with different forms of diversion and disruption, because on the publicly disclosed facts, there is no defense for either their continuing White privilege or the lawless actions and continuing abuses of authority by their “Supreme Leader.”

PWS

10-24-19

 

TRUMP’S CHUMPS @ DHS UNQUALIFIED, IN MORE WAYS THAN ONE: White Nationalist Restrictionists “Cooch Cooch” and Morgan Aren’t Legally Eligible For “Acting” Appointments – Will That Actually Stop the Scofflaw-in-Chief?

 

https://apple.news/Aak3uZr8uS5GOKZLIhHEVHQ

Michelle Hackman
Michelle Hackman
Immigration Reporter
Wall Street Journal
Andrew Restuccia
Andrew Restuccia
White House Reporter
WSJ

 

By Michelle Hackman and Andrew Restuccia in the WSJ:

 

WASHINGTON—The White House personnel office chief has told President Trump that his top two picks to fill the Homeland Security secretary job aren’t eligible under a federal law dictating who can fill the role without Senate confirmation, people familiar with the matter said.

During a meeting Friday at the White House, Sean Doocey, head of the White House Presidential Personnel Office, informed the president that neither Ken Cuccinelli nor Mark Morgan, who head two prominent immigration agencies at the Department of Homeland Security, were legally eligible to lead the department on an acting basis.

Mr. Trump and many of his top immigration advisers favored Messrs. Cuccinelli and Morgan, who have worked at DHS for only the past few months but are ardent defenders of the president’s immigration policies on television. The previous acting secretary, Kevin McAleenan, submitted his resignation this month but will remain on the job through the end of the month.

The two men were installed in the spring after the White House pushed out several officials, including former DHS Secretary Kirstjen Nielsen, whom they felt were standing in the way of tougher immigration enforcement.

Mr. Cuccinelli heads the U.S. Citizenship and Immigration Services, the agency overseeing legal immigration and asylum applications, while Mr. Morgan leads Customs and Border Protection. Both men are serving on an acting basis, and neither has been nominated by Mr. Trump for permanent roles, which would require Senate confirmation.

Although he is popular with conservative immigration activists, Mr. Cuccinelli in particular isn’t a likely candidate to lead the department on a permanent basis. He made powerful enemies in the Senate, including Senate Majority Leader Mitch McConnell (R., Ky.), when he ran the Senate Conservatives Fund, an outside group that challenged incumbent Republicans. Mr. McConnell has said his nomination would inspire a “lack of enthusiasm.”

The federal statute that governs vacancies states that acting officials in cabinet-level positions must either be next in line for a position or hold a Senate-confirmed position.

Under a third option, the official being elevated must have served for at least 90 days in the past year under the previous secretary.

 

During the meeting Friday, Mr. Doocey briefed Mr. Trump on an opinion from the Justice Department’s Office of Legal Counsel that the past secretary was Ms. Nielsen, not Mr. McAleenan, the people familiar with the matter said. Under that interpretation, Messrs. Cuccinelli and Morgan wouldn’t qualify, as they joined the agency after Ms. Nielsen departed.

The meeting with Mr. Trump on Friday included Stephen Miller, a top adviser to the president, and Emma Doyle, deputy chief of staff, the people said.

An administration official said the president hopes to announce his next acting DHS secretary in the next few days. Another White House official said the administration doesn’t intend for that person to serve for as long as Mr. McAleenan did.

The White House didn’t respond to a request for comment.

White House officials are instead considering Chad Wolf, Ms. Nielsen’s former chief of staff, as acting secretary, administration officials said, a move supported by Mr. Miller. In February, Mr. Wolf was nominated to serve as the department’s undersecretary for policy.

The White House is also considering David Pekoske, the Transportation Security Administration head who is serving as acting deputy DHS secretary, and Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, according to administration officials. Mr. Pekoske has already indicated to DHS colleagues that he doesn’t want the top job, though, and would prefer to return to the TSA full-time, according to a person familiar with the matter.

As Mr. Wolf’s possible appointment began to circulate on Monday, it drew public criticism from outside groups pushing a more restrictive immigration policy.

RJ Hauman, government relations director at the Federation for American Immigration Reform, pointed to Mr. Wolf’s past work for the National Association of Software and Services Companies, which lobbies for the U.S. government to issue more green cards to foreign workers each year. Advocates also said Mr. Wolf’s close relationship with Ms. Nielsen meant he likely wouldn’t steer the department in a more hard-line direction.

The legal ineligibility of Messrs. Morgan and Cuccinelli for the acting DHS post isn’t likely to have a big impact on Mr. Trump’s immigration agenda. The two men will continue at their respective agencies, where they have been given wide latitude to set policy and shape the administration’s immigration messaging—sometimes to the chagrin of Mr. McAleenan, the department’s top official.

A White House official said that if the next secretary formally nominated to lead the department doesn’t have a strong immigration background, the president may revive an idea to appoint a “border czar” to oversee the Department’s immigration policy and enforcement. That position wouldn’t require Senate confirmation.

Vivian Salama contributed to this article.

Write to Michelle Hackman at Michelle.Hackman@wsj.com and Andrew Restuccia at Andrew.Restuccia@wsj.com

 

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

Not hard to see the corruption here. DHS is actually supposed to protect our national security and fairly administer our immigration laws, which includes insuring that applicants for various benefits including asylum and legal immigration are promptly approved when eligible. It’s not supposed to be a repository for White Nationalist, racist, restrictionist, xenophobes and their extralegal policies. Enforcement is supposed to be professional, humane, even-handed, nonpartisan, and include reasonable exercises of prosecutorial discretion.

 

But, given the DHS’s well-deserved reputation as the least trusted and most despised agency of the Federal Government, I’m sure that whomever gets the next “acting” role will serve up a steady diet of cruel, illegal, and counterproductive xenophobia.

 

PWS

10-22-19

 

 

 

 

RACE TO THE BOTTOM: Trump’s Cowardly, Racist War On The Most Vulnerable Humans Could Collapse International Refugee Protection System, Putting Millions Of Lives In Jeopardy!

https://slate.com/news-and-politics/2019/10/refugees-trump-third-country-refoulement.html

Stephanie Schwartz
Stephanie Schwartz
Assistant Professor of Political
Science & International Relations
USC

Stephanie Schwartz @ Slate:

Last month, the Trump administration announced the latest in a trio of bilateral agreements  effectively barring refugees coming through Central America from seeking asylum in the United Sates. These agreements with Guatemala, El Salvador, and now Honduras, known as “safe third country” agreements, allow the U.S. to send back asylum-seekers who pass these countries on their way to the U.S. but do not apply for asylum there first. At first glance, this may seem like just one more way that the Trump administration is trying to keep refugees out—a diplomatic version of the president’s tactical snake fantasy. Nor do the agreements seem that different from how the EU tries to prevent refugees from seeking asylum. Indeed, a year ago I wrote about how Donald Trump sending troops to the Southern broader was consistent with a broader global trend of hollowing out asylum norms.

But this is different. These new agreements flout global asylum norms in a way others have not dared: They send refugees directly back into the danger they were fleeing in the first place.

A safe third country agreement is meant to be just that: safe. It provides a way for states to send refugees to an alternative (third) destination without sending them home, a practice that is prohibited under international law. While they have yet to be implemented, in the past three months, the United States has strong-armed Central America’s Northern Triangle countries into signing third-country agreements. Under the terms of these agreements asylum-seekers who pass through Guatemala, El Salvador, or Honduras on their way to the U.S. (which anyone traveling by land has to do) could be sent back from the U.S. border to one of those countries, so long as they are not a citizen of that country. So, while Honduran asylum-seekers would not be sent back to Honduras, they could be sent to Guatemala or El Salvador. Mexico has refused to sign a similar agreement, however the Trump administration has already begun implementing a new set of rules with regard to Mexico called the Migrant Protection Protocols. One of the stipulations of the MPP requires asylum-seekers who make it to the U.S. Southern border to stay in Mexico while they wait for the U.S. to process their claims.

On the surface, these policies look rather similar to the EU’s approach to asylum. Like the agreements with Guatemala, El Salvador, and Honduras, the EU’s Dublin Regulation requires that all asylum-seekers entering the EU apply for asylum in the first country they reach in the union. The 2016 EU-Turkey deal also has a “safe third country” component, such that certain migrants passing through Turkey on their way to Greece can be sent back (though migrants are still allowed to apply for asylum when they reach the EU). Similar to the MPP, the EU has also said it is going to explore the use of “regional disembarkation platforms” such that refugees would have to wait in another country while their claims for asylum in Europe are evaluated.

The Trump approach, however, is much worse. First, the Dublin Regulation dictates which countries in the EU will provide asylum to those with valid claims; the new arrangements between the U.S. and the Northern Triangle countries dictate that U.S. will not provide asylum to certain individuals with valid claims. Put another way, in many ways the EU’s Schengen zone operates as a single governing body—there are common laws, a single currency, and freedom of mobility across states. Once you cross the border into one Schengen zone country, you are free to travel to the others without showing a passport. The Dublin Regulation, then, lets asylum-seekers into the European Union, but it cuts people off from arriving in one member state, for example Greece, and continuing on to apply for asylum in another, say Germany.

But there is no North American Union. The U.S. cedes its sovereignty to no one. And the administration is not saying refugees can enter the U.S., but they must stay in Arizona rather than go to New York. Instead, the agreements with Guatemala, El Salvador, and Honduras allow the U.S. to say that it will not provide asylum to certain people. If you can’t afford a plane ticket and show up at the Southern border, the United States does not have to hear your case. This is in direct contravention to the 1951 convention on refugees that requires states to provide asylum to those who qualify without discrimination. Refugee rights activists claim that the third safe country agreement between the U.S. and Canada is in breach of international asylum law for the same reason. The difference, though, is that asylum-seekers enjoy equally safe haven in the U.S. as the do in Canada (though some in Canada are questioning how safe the U.S. really is).

This brings us to the second, and most important issue, with the Trump administration’s policies.

Both the MPP and the agreements with Honduras, El Salvador, and Guatemala send asylum-seekers to places where their lives remain in danger. In some cases, it is precisely the same danger they were trying to flee. The violence from which people in Honduras, El Salvador, and Guatemala are fleeing stems from transnational criminal organizations, like MS-13 and MS-18. Per the United States’ own 2018 human rights report on Honduras, these transnational gangs “committed killings, extortion, kidnappings, human trafficking, and intimidation of police, prosecutors, journalists, women, and human rights defenders.” These organizations are not limited by borders. They operate throughout the Northern Triangle region. Gangs targeting someone in Honduras could easily get to that person if they were sent to Guatemala. Therefore, sending someone fleeing violence in Honduras to apply for asylum in Guatemala or El Salvador keeps them in harm’s way—the same harm.

While the MPP, which forces migrants to remain in Mexico, might not keep asylum-seekers from the Northern Triangle directly in the grasp of gangs like MS-13 and MS-18 that operate in the Northern Triangle, it does place them into a highly dangerous context. As has been extensively reported, gangs local to Mexico are targeting asylum-seekers with kidnapping, extortion, and violence. The U.S. knows how unsafe these places are, having issued its highest level of security warnings against travel to some of the cities in 

Mexico where migrants are being kept.

Sending refugees back into the line of fire attacks the foundation of the international asylum regime: the norm of non-refoulement. Non-refoulement is the prohibition against states sending individuals to any territory in which there is threat of persecution or torture—country of origin or otherwise. Per the 1951 Refugee Convention, non-refoulement prohibits states from expelling or returning a refugee “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The 1984 Convention Against Torture also prohibits refoulement, in some ways expanding its strength and application, stating that states cannot “expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Such grounds include a “consistent pattern of gross, flagrant or mass violations of human rights.”

pastedGraphic.png

pastedGraphic.png

Without non-refoulement, asylum is moot.

There are any number of things wrong with the Dublin Regulation and the EU-Turkey agreement, but the one line neither of these arrangements cross directly is defying non-refoulement. Requiring refugees to apply for asylum in Greece rather than proceeding on to Germany impinges on the spirit of refugee law and endangers refugees, but it doesn’t refoule them. With the EU-Turkey agreement, many observers have challenged the designation of Turkey as a safe third country given that the Turkish government has been accused of imprisoning migrants and sending refugees back to Syria. Turkey has outright stated that one of the goals of its military incursion into Syria is to send refugees back to recaptured territory. The veil of non-refoulement in this case is whisper thin. But at least in sending refugees to Turkey, the EU is not forcing Syrian refugees directly back into the line of fire from which they originally fled. Neither Syrian President Bashar al-Assad’s forces nor the myriad rebel groups active in Syria are equally active in Turkey.

The Trump administration’s new policies, on the other hand, outright deny that non-refoulement is a rule the U.S. needs to follow—at least for a particular class of people. There is no pretending that Mexico is safe when migrants are being attacked left and right. By flouting non-refoulement, the U.S. threatens the principle on which the entire asylum system rests.

And the world is watching. If the United States can send asylum-seekers back into danger, why can’t other countries do the same? While the Trump administration’s policies are likely illegal, and are currently being challenged in court, there is reason to fear the administration will be allowed to proceed unchecked. A recent order from the U.S. Supreme Court allows the administration to continue implementing these policies until a final decision on their legality is reached. In the meantime, many asylum-seekers are living in danger.

Finding a way to deal with displacement crises requires political leadership. For once, the U.S. is taking on this leadership role, setting a road map for how countries can respond to asylum claims. It just so happens that the proposal is to pull the one thread that could unravel the asylum system as we know it.

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

Someday, Trump and his toadies will be classified as the notorious human rights violators that they are. And, his racist, fascist reign will be remembered as one of the low-points in U.S. history.

But, we shouldn’t forget that “MPP” a/k/a “Remain in Mexico,” a/k/a “Let ‘Em Die In Mexico” is only in force because of a complicit Ninth Circuit. See Innovation Law Lab v. McAleenan (incoherent order vacating proper injunction against statutory and Constitutional abuses of “Remain in Mexico” policy). The judges responsible for this travesty and for continuing to “sit on” this clear case of illegal and unconstitutional policies should also be considered human rights violators.

PWS

10-22-19