"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Judge Roger Harris, Me, Judge Thomas Snow, & Judge John Milo Bryant (“The Non-Conformist”) head out to lunch on my last day at the Arlington Immigration Court, June 30, 2016
‘Just be a kid, OK?’: Inside children’s immigration hearings
By: Tal Kopan, CNN
As each immigrant child took their seat in his courtroom for their hearing, Judge John M. Bryant started the same way.
“How are you doing today?” he’d ask.
“Muy bien,” most would answer.
In a span of about 45 minutes, Bryant — an immigration judge in Arlington, Virginia — checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.
The day was known as a “master calendar hearing” — a swift introduction in court and the beginning of court proceedings for immigrants facing deportation.
The children had largely been in the country for some time, each fighting in court for the right to stay.
But though the immigration courts have long dealt with immigrant children, even those barely school age or younger, their turn through the unique, stand-alone immigration courts is getting new attention as the government’s “zero tolerance” border policy has sent thousands more children into the system without their parents.
The hearings were observed by six Democratic members of Congress: Whip Steny Hoyer of Maryland; Rep. Don Beyer, whose Virginia district includes the court; Congressional Hispanic Caucus Chairwoman Rep. Michelle Lujan Grisham of New Mexico; and Reps. Pete Aguilar, Nanette Diaz Barragán and Norma Torres, all of California.
At a news conference afterward, Beyer called the session “One of the best-case scenarios of a master calendar hearing, a sympathetic judge with kids with lawyers.”
The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.
“We know that in vast numbers of cases, there is not proper representation,” Hoyer said, adding that some kids are “not old enough to spell their own names, let alone represent themselves in court.”
In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in. One, a boy named José who had just finished ninth grade, was there for his second check-in and for his full asylum hearing received a court date of May 11, 2021 — likely to be just as he is finishing high school in the US.
The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and father, though Rodolfo’s case was being heard by itself. As he did with most of the children, Bryant asked Rodolfo if he was in school, translated by an interpreter via headphones provided to every immigrant facing the court.
“Hoy?” Rodolfo asked, confused — “Today?”
Bryant cheerfully prompted Rodolfo about what grade he had finished — kindergarten — and his teacher’s name — Ms. Dani. Bryant said he still remembered his own kindergarten teacher, Ms. Sweeney, from many years prior. “Hasta luego,” Bryant told Rodolfo, giving him a next court date of May 30, 2019.
While all the children in Bryant’s courtroom on this afternoon had attorneys, the Arlington Immigration Court is not typical of the country, where closer to 1-in-3 children are represented in court. Bryant was also generous with the continuances requested by attorneys as they waited to hear from the government on applications for other visas for the children, despite uniform opposition by the government attorney in court.
“Mr. Wagner, your turn,” Bryant joked at one point to the government attorney present, who dutifully recited the government’s opposition to granting continuances solely on the basis of waiting to hear back on a visa application. Bryant than immediately picked a day on his calendar for the immigrant and attorney to return.
One attorney for a 12-year-old girl, Rosemary, who was there with her mother, said they had applied for a Special Immigrant Juvenile visa, which is for minors who have been abused, abandoned or neglected by a parent. Bryant asked the attorney if the application was before a “sweet or sour judge.”
“I think it’s going to be a problem. It may have to be appealed,” the attorney replied.
The judge granted them a court date on February 28 of next year.
“Have a nice summer,” he said to the girl. “Just be a kid, OK?”
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“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!
No trace of the Jeff Sessions’s paranoia, xenophobia, bias, child abuse, and de-humanization of migrants here. It’s like one would expect a “real” U.S. Court to be run! Sadly, that’s not what’s happening in the rest of the country. Just ask folks in Charlotte, Atlanta, Stewart, Ga., or Houston how they are treated by Immigration Judges. It’s ugly, abusive, well documented, highly inappropriate, and needs to end!
Even more outrageously, rather than building on and replicating successful judicial models like Arlington, Sessions has actually adopted some of the worst imaginable “judicial” practices, encouraged bias, and has actually endorsed and empowered the actions of some of the most clearly biased and anti-immigrant, anti-asylum Immigraton Judges in the system. It’s a simply unacceptable waste of taxpayer money and abuse of our legal system by someone incapable of fulfilling his oath of office.
Imagine, with judges actually in control, lawyers for the respondents, time to prepare and file applications, empathy, courtesy, knowledge, kindness, concern for fairness, efficiency, and giving ICE’s obstructionist “rote objections” and other dilatory tactics encouraged and enabled by this Administration exactly the short shrift they so richly deserve, the U.S. Immigration Courts could potentially fulfill their original vision of “becoming the world’s best tribunals, guaranteeing fairness and due process for all.”
And, ICE could be once again required to function in the same highly-professional, courteous, collegial, respectful, and helpful manner that they did in Arlington during the last Administration. It’s disgraceful that rudeness and unfairness have become the norm under Trump. Things like that used to get even Government lawyers fired, disbarred, or disciplined. Now they appear to win kudos.
And, having dockets run by experienced judicial professionals like Judge Bryant with the help of professional staff responsible to him and his colleagues would promote fairness, quality, and efficiency over the “Amateur Night at the Bijou” atmosphere created by a biased, politicized, and totally incompetent Department of Justice and carried out by agency bureaucrats who aren’t judges themselves and are not qualified to administer a major court system.
Why not design a system “built for success” rather one that is built for failure and constant crisis? A well-functioning court system where “Due Process and Quality Are Job One” and which serves as a “level playing field” would actually help DHS Enforcement as well as the immigrants whose lives depend upon it.Fairness and Due Process are good for everyone. It’s also what our Constitution requires! Play the game fairly and professionally and let the chips fall where they may, rather than trying to “game the system” to tilt everything toward enforcement.
But, it’s not going to happen until either 1) Congress creates an independent U.S. Immigration Court, or 2) the Article III Courts finally step up to the plate, put an end to this travesty, remove the DOJ from its totally improper and unethical supervisory role, and place the Immigration Courts under a court-appointed “Special Master” to manage them with the goal of Due Process and judicial efficiency until Congress reorganizes them outside of the Executive Branch! Otherwise, the Article IIIs will have to do the job that Sessions won’t let the Immigration Courts perform!
Compare Judge Bryant’s professional performance with the “judicial meat processing plant/Due Process Denial Factory” being operated by U.S. Magistrate Judge Peter Ormsby on the Southern Border as described by Karen Tumulty of the Washington Post in my post from yesterday:
Who is the “real” judge here? It doesn’t take a “rocket scientist” to answer that one! Just some judges with the backbone, courage, and integrity not to “go along to get along” with Sessions’s assault on the integrity and independence of our justice system.
When Magistrate Judge Peter E. Ormsby stepped into the federal courtroom here Tuesday morning, 75 defendants rose to their feet.
Their ankles were shackled, and they wore headsets through which the proceedings would be translated into Spanish. In the hallway, just beyond the door, was a pile of handcuffs that had been removed before they entered the courtroom.
Most of the defendants appeared dressed in the same filthy, sweat-saturated clothes they had been wearing two days before, when they were apprehended crossing the Rio Grande aboard rafts.
In all but 11 of their cases, this criminal misdemeanor was the first time they had ever been found to have violated U.S. law.
Ormsby informed them his was not an immigration court. Many had already signed away their rights to further proceedings and had orders for what is known as “expedited removal.” They had done that before the 17 lawyers of the public defender’s office had met with any of them for the first time, just hours before.
The next two hours would see each one of them plead guilty and be sentenced, most to time already served.
With few exceptions, each case would be dealt with in under 75 seconds.
This was just the morning docket. It is what President Trump’s “zero tolerance” policy looks like here, where busloads of recently detained migrants roll up to the federal courthouse several times a day. Ormsby invited me and a handful of other observers there to sit in the jury box, because there was no room anywhere else.
The president contends that even this assembly-line version of justice is more than what those caught entering the country illegally should get.
“We cannot allow all of these people to invade our Country,” Trump tweeted Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
On that latter point, the president is correct — but it is for the reverse of the reasoning he offers. His zero-tolerance policy is putting even more stress on a legal system that already gives migrants far less than their day in court.
The outcome for many might be different if they had fuller access to the legal system, to which they are entitled in theory if not practice, and given an opportunity to make their case to stay in this country.
Trump has mocked proposals for adding to the number of immigration judges, who handle separate proceedings for those who want to remain.
“We have thousands of judges already,” he has claimed. That is incorrect. The number actually stands at fewer than 350 across the country. They are facing a backlog of more than 700,000 cases.
Just as critical as the scarcity of judges is the fact that so few migrants ever have a chance to consult an attorney.
Only about 14 percent of those who are detained have access to counsel, says American Bar Association President Hilarie Bass, who was here from Miami. She added that migrant adults with lawyers win slightly more than half their cases and get to stay in this country, while 9 out of 10 of those without representation lose and are deported.
For unaccompanied children, the disparity in outcomes is even greater. As Bass noted: “How can you ask a 12-year-old to walk into court and make a case for themselves?”
Under Trump’s zero-tolerance policy, more migrants are being prosecuted and deported on the border, rather than being sent to other parts of the country where they can await trial while staying with relatives or others who can take them in. That has compounded the challenge, because it adds to the backlog in this region and makes it more difficult for migrants to find lawyers.
In the current crisis, platoons of lawyers are arriving weekly to volunteer their services, but there are not nearly enough, says Kimi Jackson, director of the South Texas Pro Bono Asylum Representation Project. “What we need most here are Spanish-speaking immigration attorneys, particularly ones who can stay a little longer.” The need will remain for the foreseeable future, long after the journalists and cameras have moved on to the next story.
And even if help comes, it will be too late for most of those who appeared before Ormsby. As he worked his way through their cases, he expressed sympathy for the circumstances of poverty and violence that brought them from dangerous places in Honduras and El Salvador and Mexico to his courtroom. He wished them and their families well and urged them to go through the process of coming to the United States legally.
“Seeing the type of people you appear to be,” the magistrate added, “I hope that you will be successful with that.”
But everyone there knew that was a wish, and one unlikely to come true.
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Mostly first offenders who didn’t belong in criminal court anyway.
Why would nonviolent first offenders be shackled in court?
Anybody understand what they are pleading guilty to?
Everybody understand that they have a right to a full trial at which the Government would have to prove guilt?
Anybody understand what a port of entry is?
Anybody just looking for an officer to apply for asylum?
Anybody realize there are strong legal arguments that criminal sanctions can’t be invoked against good faith asylum seekers under international treaties to which the U.S. is party?
Anybody know the name of their court-appointed lawyer?
Anybody have a chance to speak with their lawyer in private in Spanish?
Anybody have a “know your rights” presentation about the immigration system?
Anybody know what a “credible fear” interview is, how to request one from the DHS, and how to get review of a denial?
Anybody know that asylum applicants who pass credible fear can request bond?
Anybody understand the consequences of a conviction?
Anybody pressured to plead guilty to get their kids back or get out of detention?
Anybody know how the asylum process works and how to apply?
Anybody know how important lawyers are for asylum seekers and how to get in touch with local pro bono lawyers?
Anybody separated from kids?
Anybody know that the Government has been ordered by a more conscientious Federal Judge to reunite families?
We’ll probably never know the answers, because that might have exceeded Judge Ormsby’s 75 second attention span and cut into his productivity stats.
I’ve commented before on the Judge Ormsby’s judicial performance (or lack thereof).
Judge Ormsby should be in line for a Jeff Sessions “Volume Is Everything — Due Process Is Nothing” award! He appears to be just the type of subservient judicial toady Trump & McConnell would love to have on the Supremes. And, I wouldn’t let the U.S. District Judges who are in charge of this judicial farce off the hook either.
Someday, the true history of the abuses of human values, human rights, and our Constitution now going on at our border under a White Nationalist regime will be written. And the “go along to get along” crowd will be held accountable for their conduct; by the judgment of history, if not by the law.
BALTIMORE, Md. ― Aracely Martinez Yanez, 33, knows she’s one of the lucky ones. A deep scar that carves a line through her scalp, from crown to cheek, is proof of that fortune.
She got lucky when her abusive partner shot her point-blank in the head, and she survived.
She got lucky when she escaped her tiny village in Honduras. Local villagers blamed her for her partner’s death; he killed himself and their two young sons after he shot her.
She got lucky when she wasn’t harmed as she made the treacherous 2,000-mile journey to America.
And she got luckiest of all when she was granted asylum after she got here.
If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.
Domestic abuse of the kind experienced by Martinez Yanez is endemic in Central America. In Honduras, few services for victims exist, and perpetrators are almost never held criminally responsible. One woman is killed every 16 hours there, according to Honduras’ Center for Women’s Rights.
For many victims, the United States is their best shot at staying alive.
While the exact numbers are not available, immigration lawyers have estimated that the Trump administration’s decision could invalidate tens of thousands of pending asylum claims from women fleeing domestic violence. Advocates warn it will be used to turn women away at the border, even if they have credible asylum claims.
“This administration is trying to close the door to refugees,” said Archi Pyati, chief of policy at Tahirih Justice Center, a nonprofit organization that works with immigrant women and girls who have survived gender-based violence. They represented Martinez Yanez in her asylum case. Travel bans, increased detention and family separation are all being used as tools to deter individuals from coming here, Pyati said.
Still, that will not stop women from coming. Because there are thousands of women just like Martinez Yanez, and their stories are just as harrowing.
CHERYL DIAZ MEYER FOR HUFFPOST
Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photograph of her murdered sons: Daniel, 4, and Juancito, 6.
A Violent Start
Martinez Yanez grew up in a tiny village in Honduras with her parents and seven siblings. Her family made a living by selling homemade horchata, a sweet drink made from milky rice, and jugo de marañon, cashew juice. They also sold fresh tortillas out of their house. Her childhood was simple and happy.
But after she turned 15, a man in her village named Sorto became obsessed with her. At her cousin’s wedding, he tried to dance with her. She pushed him off: He was 15 years her senior, and gave her the creeps. A few days later, Martinez Yanez said, he waited outside her house with a gun and kidnapped her. He took her to a mountain and raped her repeatedly.
“I wanted to die,” she told HuffPost through an interpreter at her home in Baltimore on Tuesday. “I felt dirty. He said that I was his woman, and that I would not belong to anyone else.” As she told her story, she rubbed her legs up and down, physically uncomfortable as she recalled the terrible things that had happened to her.
Over the next six years, she said, Sorto went on to rape and beat her whenever he pleased. In the eyes of the village, she was his woman, just like he said. She got pregnant immediately, giving birth to her first son, Juancito, at 16, and her second son, Daniel, at 18. Sorto would come and go from the village, as he had a wife and children in El Salvador. But when he wasn’t there, she said she was watched by his family.
As for help, there were no police in her village, she said. She had seen what happened to other women who traveled to the closest city to report abuse: It made things worse. The police did nothing, and the abuser would inevitably find out.
“I felt like I was worthless, like I had no value,” she said.
A few years after her sons were born, she became friends with a local barber who cut her children’s hair. He was sweet and respectful, nothing like Sorto, she said. They began a secret relationship. Sorto had been gone from the village for a few years, and Martinez Yanez hoped she was free of him. Then she got pregnant. Scared that Sorto would find out, she fled to San Pedro Sula, a city in the north of the country. She didn’t tell anyone where she had gone.
But Sorto found her anyway. He called her on the phone and told her if she did not come back to the village within the next 24 hours, he would kill her family, she said. Martinez Yanez got on the next bus back.
A few days after she returned, she said, Sorto told her that he was taking her and their two boys to the river. He brought a hunting rifle with him. The family walked through the mountainside. Martinez Yanez recalled handing her children some sticks to play with, and crouching on the ground with them. Then she felt the rifle pressing into her head. The rest is a blank.
Sorto shot her in the back of the head, and killed her two sons, before shooting himself. Juancito was 6, Daniel was 4. Somehow, Martinez Yanez, five months pregnant, survived. She was hospitalized for months and had to relearn to walk and talk. She is still deaf in one ear, and has numbness down one side of her body.
When she returned home to the village, she said, people threw rocks at her and called her names. Someone fired a gun into her house. Someone else tried to run her over with a bicycle. The community blamed her for the killings because she had tried to leave Sorto, she explained. His family wanted to avenge his death.
“The whole village was against me,” she said. “Children, adults. I couldn’t go anywhere by myself.”
A few months later she gave birth to a girl, Emely, but she was overwhelmed with stress. On top of grieving the death of her two sons, learning to live with a traumatic brain injury, and caring for her newborn, she was constantly worried about being killed by people in her village.
It was too much. She eventually fled to Tegucigalpa, the capital of Honduras, but Sorto’s family found her there too, she said. In a last-ditch effort to save Martinez Yanez’s life, her family paid over $7,000, an enormous sum for the family, to a coyote, a person who helps smuggle people across the border to the U.S. Emely, who was now 2, had to stay behind. They couldn’t afford to send her, too.
Martinez Yanez made the heartbreaking decision to go alone.
The Journey To Freedom
She left in the middle of the night, traveling with a group of four or five people. They were transported in a van for part of the trip, and then in taxis.
There was very little to eat or drink, she said, and she barely slept. Her stomach was upset and she suffered from debilitating headaches. In Mexico, she almost turned back.
“I missed my parents and my daughter so much,” she said. “But the threats and the conditions that I knew were waiting for me in my village gave me the motivation to continue to the U.S. to be safe.”
It took them two weeks to get to the U.S. border. Then they waited two days before attempting to cross, she said. She was terrified that she would be caught by immigration officials and sent back. She crossed the border illegally in February 2009, and went to her uncle’s house in Houston, Texas, before traveling on to Annapolis, Maryland, where her brother lived.
Women like Aracely are saving their own lives.Kristen Strain, a lawyer who worked on Martinez Yanez’s asylum case.
Martinez Yanez didn’t know that she could apply for asylum as a domestic violence victim until a few years later, when she sought medical care for her head injury in Maryland. There, she was referred to Tahirih Justice Center.
Kristen Strain, an attorney who worked on her case, wrote the legal brief arguing that Martinez Yanez should be granted asylum.
Generally, applicants must show that the persecution they have suffered is on account of one of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. Strain successfully argued that being a female victim of severe gender-based violence in Honduras counted as a particular social group for purposes of obtaining asylum.
“There simply aren’t laws in place that protect women like Aracely,” she said. “They have no recourse. It is accepted in their communities that women can be treated like men’s property.”
She said it took over a year to gather all the evidence for Martinez Yanez’s claim, which included a neurological evaluation, medical documents, news stories from Honduran papers about the shooting, dozens of interviews, and statements from friends and family in Honduras to corroborate her story.
“It is not as if it’s easy,” Strain said. “In addition to having to physically get here, which is harrowing and dangerous, women have to navigate a complex legal system that is difficult to understand, especially when they don’t speak the language. It’s hard for them to even know what their rights are, let alone find an attorney who can advocate for them.”
“Women like Aracely are saving their own lives,” she went on.
Martinez Yanez was granted asylum in 2013. Her daughter, Emely, was allowed to join her in 2014. While they talked on the phone regularly, the mother and daughter had not seen each other for five years.
CHERYL DIAZ MEYER FOR HUFFPOST
Martinez Yanez watches her daughters play outside the family’s Baltimore apartment.
A New Life
In her Baltimore home, more than 3,000 miles from the tiny village in Honduras where she was raised, Martinez Yanez likes to be surrounded by photos. They remind her of those she had to leave behind.
There’s one of her sister graduating college. Another of her parents beaming happily.
And then, hanging in the entrance to the kitchen, is a photograph of her with her two deceased sons. It is the only picture she owns of them. She brought it with her when she fled Honduras. When she spoke to HuffPost about her sons, she cried. She still doesn’t understand why they were killed.
Since she’s been in the U.S., Martinez Yanez has expanded her family. Emely, who is 11, now has two sisters: Gabriela, 7, and Alyson, 4.
“I’m very fortunate to be able to have my daughters with me,” she said. “I can’t ask for anything better to happen. I am so happy with my life.”
Martinez Yanez still struggles with the repercussions of being shot in the head. She is forgetful and can get confused easily. She said she has to put every appointment she has in her phone with an alarm, otherwise she’ll miss it.
She said she was grateful that she was granted asylum, and heartbroken for other women who may not have the same opportunity she did.
“I just feel so sad that other women in my situation, or even in worse situations than mine will not be allowed in the country anymore,” she said. “Here, I don’t have to hide or run away from anyone.”
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In my years at the Arlington Immigration Court, I had many well-documented, deserving cases like this. In those days, the ICE Office of Chief Counsel in Arlington followed the so-called “Martin Brief” in which DHS urged the BIA to recognize domestic violence as a proper basis for asylum under certain circumstances long before the BIA actually got around to deciding A-R-C-G-. Because the applicants were almost never held in detention, they were able to get top–flight pro bono representation from NGOs, Law School Clinics, Human Rights First, and “Big Law” Firms serving pro bono.
The cases were so well documented that they often could be “pre-tried” between counsel before the individual hearing date. The parties then often jointly asked me to set an earlier “short block hearing” (one hour or less) where the evidence could be introduced, discussed, and abbreviated testimony taken. At the end of those hearings, the parties jointly moved me for a grant of asylum.
So, without the interference of the DOJ politicos, here was an actual working system that helped get deserving cases granted and off the docket, conserved judicial resources, saved time, saved lives, and complied completely with Due Process. In other words, a smashing Immigration Court and U.S. system of justice “success story” by any rational measure!
That has all been disgracefully dismantled by Sessions. Now, following his perversion of the law in Matter of A-B-, He’s encouraging DHS and Immigration Judges to deny such cases without even hearing the testimony (even though every one of these individuals easily should qualify for the lesser relief of protection under the Convention Against Torture). That’s almost certain to result in appeals, prolonged litigation in the Courts of Appeals, and ultimately return of most cases to the Immigration Courts for full hearings and fair consideration.
At some point, not only is A-R-C-G- likely to be reinstated, but it is likely to be expanded to what is really the fundamental basis for these claims — gender as a qualifying “Particular Social Group.” It’s undeniably immutable/fundamental, particularized, socially distinct and clearly the basis for much of the persecution in today’s world!
In the meantime, however, those who don’t have the luxury of great pro bono representation, lack an attentive Circuit Court of Appeals, or who can’t get through the “credible fear interview” as it has now been “rigged for denial” by Sessions will likely be unlawfully returned to their home countries to suffer abuse, torture, and a lifetime of torment or death, along with those cute little kids in the pictures we’re seeing.
The White Nationalist, neo-Nazi regime of Trump, Sessions, and their enablers will be one of the most horrible and disgusting periods in our history. History will neither forget nor treat kindly those who failed to stand up to the racists and child abusers running and ruining our Government, and destroying many innocent lives in the process.
Elise Foley & Jennifer Bendery report for HuffPost:
The way the Trump administration talks about it, you’d think there are only two ways to respond to families crossing into the U.S. illegally: either separate kids from their parents while the adults are tried as criminals or put entire families into indefinite detention.
But there’s an alternative approach that’s cheaper, more humane and incredibly effective. The Trump administration just doesn’t want to use it.
The Family Case Management Program, which President Donald Trump ended several months after taking office, was meant to keep track of immigrant parents and kids in removal proceedings without having to keep them locked up. It was relatively small ― about 950 families in five locations. But it was hugely successful: More than 99 percent of families in the program showed up for their court dates, and 97 percent participated in required check-ins with their case managers, according to a report from Geo Care, the private prison company that operated the program. And it reportedly cost the government just $36 per family each day, versus $319 per bed per day in a family detention center.
Now, as the Trump administration and Republicans in Congress seek to expand the government’s ability to lock up immigrant families long term, Democrats and immigrant rights advocates are asking why they don’t bring back the alternative program in an expanded version.
“In both bills the plan is to incarcerate families,” Rep. Zoe Lofgren (D-Calif.) told HuffPost. “To put mothers in cages with toddlers, as if that’s the only alternative, which clearly it is not. Unless your intention is to be punitive and harsh and punish people before seeking asylum.”
The FCMP was meant for people deemed too vulnerable for detention, such as pregnant or nursing women or families with special needs children. It required families to be briefed on their responsibilities in the immigration court process, which can be complicated, and to check in regularly with Immigration and Customs Enforcement and their case manager. Case managers referred families to services — such as lawyers and children’s school enrollment — and, if they received a deportation order in court, helped them prepare to return to their native country.
It was a success story for alternatives to detention, according to experts who served on an advisory committee for the program.
“The message is if you do this kind of frequent and fairly intensive case management, you can get almost 100 percent compliance,” said Randy Capps, the director of research for U.S. programs at the nonpartisan Migration Policy Institute. “You don’t have to detain people.”
ICE abruptly shut down the program last June with little explanation for advisory committee members, some of them said. They were simply told at a meeting that it would be their last.
Agency spokeswoman Sarah Rodriguez said in a statement that ICE discontinued the program after determining that other alternatives to detention “proved to be a much better use of limited resources” with similar rates of compliance. She added that “removals of individuals on [alternatives to detention] occur at a much higher rate” than the FCMP.
“There are no plans to reinstate the FCMP at this time,” she said.
That method for assessing the program doesn’t make sense, said another former member of the FCMP advisory committee, Michelle Brané, the director of the migrant rights and justice program at the Women’s Refugee Commission. The FCMP wasn’t in effect long enough for many of the participants to complete their removal proceedings, she said. She added that the program’s purpose was to ensure immigrants went to their removal hearings and that whether those hearings resulted in relief or deportation was irrelevant.
“The program’s efficacy shouldn’t be assessed by removals because if people are getting legal help and qualify [for relief], then that’s not a removal, but it is full compliance,” she said. “That means their system works.”
Another ICE spokesman, Matthew Bourke, said in an email that removals were “a relevant way to determine the program’s effectiveness” because a key reason ICE created the program “was to promote participant compliance with immigration obligations which included final orders of removal.”
He said that immigrants monitored under other alternatives to detention comply with court hearings more than 99 percent of the time and with check-ins almost 98 percent of the time.
But it’s unclear whether expanding alternatives to detention is part of Trump’s plan to address the issue of families arriving at the U.S.-Mexico border. It’s certainly not one he has boosted. His executive order this week, which he said would stop routine family separations for unauthorized immigrant families, presented only detention as an option.
Immigrant rights advocates are pushing for policymakers to remember that detention isn’t the only option.
“ICE has a whole range of alternatives to detention,” said Ashley Feasley, a former advisory committee member and the director of policy at the U.S. Conference of Catholic Bishops’ migration and refugee services. “These are existing programs that could be implemented now in lieu of building large-scale family-child detention facilities.”
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Elise & Jennifer’s article ties in nicely with my essay yesterday “SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change.”
As long as we treat refugees as a law enforcement issue and a political football that can be solved by “bogus deterrence,” rather than as a humanitarian crisis that requires empathy and a thoughtful effort to address the causes by working with the international community, our policies will continue to fail miserably, do more harm than good, and diminish us as a nation and as human beings.
We need better political and moral leadership from our nation’s leaders. That’s unlikely to happen with the current morally twisted, functionally incompetent, and tone-deaf White Nationalist Kakistocracy.
MAJORITY OPINION: Justice Sotomayor for herself and seven others.
CONCURRING OPINION: Justice Kennedy
DISSENTING OPINION: Justice Alito
KEY QUOTE FROM MAJORITY:
Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v.United States, 571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “adminis- trative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respond- ent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbi- trary dates and times that are likely to confuse and con- found all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30– 31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before send- ing notices to appear.
Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” nonciti- zens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any poten- tial confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens,post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta- tion, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Re- spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS Opinion of the Court
purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal pro- ceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence.Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and- place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
KEY QUOTE FROM JUSTICE KENNEDY’S CONCURRING OPINION:
In according Chevron deference to the BIA’s interpreta- tion, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be dis- cerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v.Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. See Arlington v. FCC, 569 U. S. 290, 327 (2013) (ROBERTS, C. J., dissenting) (“We do not leave it to the agency to decide when it is in charge”). Given the con- cerns raised by some Members of this Court, see, e.g., id.,at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
Cite as: 585 U. S. ____ (2018) 3
KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur- ring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevronand how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. See, e.g.,Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
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I filed an Amicus Brief, with the assistance of Eric Citron, Goldstein & Russell, of in behalf of Mr. Pereira.
In invalidates hundreds of thousands of defective Notices to Appear, thus potentially requiring massive “restarts” in an already out of control system.
Even with a more or less hand-picked Supreme Court, immigration reactionaries continue to lose case after case. So, it isn’t “liberal judges.” It’s inane, biased policies and lousy lawyering at the DOJ and DHS which goes back through the Obama and Bush II Administrations. It’s just reached its lowest conceivable level under Sessions. But, I’ll admit that every time I think Sessions can’t sink any lower on the legal and moral scale, he surprises me.
It makes tens of thousands of additional individuals who have now been here for 10 or more years eligible to apply for “Non-LPR Cancellation of Removal” because the “stop time rule” was not properly invoked by the service of the defective NTA in their cases. This could pour tens of thousands of Motions to Reopen and/or Reconsider into an already overwhelmed system.
Virtually every individual from El Salvador, Haiti, and Honduras whose TPS is going to be (bone-headedly) terminated by the Trumpsters will now be able to demand full hearings on Cancellation of Removal in U.S. Immigration Court. Thus, they aren’t going anywhere any time soon.
It illustrates the problems of giving improper “Chevron Deference” to a BIA that no longer functions as an expert tribunal and does not exercise independent judgement. Ever since the “Ashcroft Purge” the BIA has been an “inbred body” specifically structured and staffed to be a “shill” for DHS and the Administration’s enforcement policies. And, under Sessions, the BIA has been completely co-opted by his unethical and highly improper interference in what little was left of its independent decision-making function. “Justice” in today’s Immigration Courts is a total sham!
Chevron, as I have stated many times to my law school class, is a cowardly exercise of “judicial task avoidance” by the Supremes. Congress should eliminate it if the Supremes don’t. Article III Judges should be required to do their Constitutional duties, earn their pay, and decide legal issues de novo, even when that might be controversial, unpopular, or require more critical, analytical thinking than they care to do.
The Pereira debacle is entirely the fault of a totally screwed up and incompetent Executive Immigration function stretching back for nearly two decades. Fixing this problem properly should have been a “no brainer.” The “technology” (which probably could have been developed by a middle schooler sitting in her basement) was there more than a decade ago. But “haste makes waste” corner cutting combined with the assurance that the emasculated and enfeebled BIA would intentionally misread the plain meaning of the statute to screw the respondent and help the DHS produced a totally avoidable administrative nightmare.
“You ain’t seen nothin’ yet.” With White Nationalist xenophobe Sessions demanding that Immigration Judges deny, deny, deny, without hearings if necessary, to achieve their quota of removals without the inconvenience of Due Process and impartiality, cases are going to come rocketing back from the Courts of Appeals by the truckload. The whole system is going to collapse. And don’t anyone let the corrupt and biased Sessions get away with fobbing the blame off on others, as he and the rest of the Trump Regime are wont to do.
Sessions, Trump, Miller, Nielsen, Kelly, Homan and the rest of the scofflaw, White Nationalist, anti-Constitutional crowd might think that the Constitution doesn’t mean what it says. But, foreign nationals in the United States are entitled to fairness and due process. No matter how many corners the Trumpsters cut and how much bias they institutionalize into the already compromised Immigration Courts, they aren’t going to be able to eliminate Due Process.
We need a legitimate, independent, impartial, unbiased, Sessions-free, Due Process focused U.S. Immigration Court. Until that happens, the entire immigration justice system will continue to spiral downward under the immorality and toxic incompetence of Sessions and his cronies.
Throwing kids behind bars with their parents isn’t a whole lot better than separating them.
The nation should be thankful that President Trump finally came to his senses and ended the inhumane and traumatizing practice of separating children from their immigrant parents who illegally enter the United States. Facing an extraordinary backlash not just from Democrats but from some Republicans, every living former first lady (and, amazingly, the current one), United Nations human rights officials, Willie Nelson, Pope Francis and many, many others who reacted in dismay to scenes of children corralled in metal cages, Trump probably had little choice.
But his solution — detaining entire families together while the adults face, in most cases, misdemeanor charges of illegal entry — raises enormously troubling problems of its own. Innocent children do not belong in jails or detention centers, as a 20-year-old federal consent decree acknowledges.
The congressional Republicans and Christian conservatives who spoke out against separating children from parents — more than 2,300 have been separated — deserve acknowledgment for finally drawing a line, though it is disheartening that it took a policy as cruel and damaging as ripping children from their parents’ arms to finally get them to stand up to the administration.
Of course, the president’s change of heart also put the lie to his assertions, echoed by underlings such as Homeland Security Secretary Kirstjen Nielsen and Atty. Gen. Jeff Sessions, that loopholes in immigration laws and court decisions made the separations necessary. They did not. It was Sessions’ “zero tolerance” policydecision to charge all suspected illegal border crossers with crimes and detain them pending court action. Though entering the U.S. without permission is a misdemeanor, no law requires the government to prosecute every violation. Nor does the government have to detain the border crossers, which is what led to the family separations. The administration chose to do that.
Under Trump’s new policy, the zero-tolerance arrests will continue, but the government apparently will keep the families together in detention — in direct violation of the 1997 Flores consent decree that says the government cannot hold undocumented children in detention centers for more than 20 days, with or without their parents. In fact, during the surge of unaccompanied minors and families fleeing violence in Central America, the Obama administration detained entire families to try to deter others from making the dangerous trip from El Salvador, Honduras and Guatemala, where violent gangs have terrorized neighborhoods. The administration ended the policy in the face of political backlash and court orders. The 9th Circuit Court of Appeals eventually ruled that while the Flores agreement does not require parents to be released, it does bar the government from keeping the children in detention.
In his order, Trump said he intends to ask the court to revise the Flores settlement to allow for longer family detentions. The court should rebuff that. The goal here is to keep the families together — but not by violating a rule that was designed to set ra-tional and compassionate immigration detention standards for children. The better solution is to stop the over-reliance on incarceration. Unless there is a valid belief that the parents pose a threat, they should be released along with their children, with steps taken to ensure they will return for their court dates. Those steps can include electronic monitoring through ankle bracelets and other techniques.
It’s notable that the president, who repeatedly said it would be up to Congress to change laws to end the family separations, ultimately decided for his own political expediency to issue his executive order even as bills barring family separations were being introduced. We’re glad the president didn’t wait forthe glacially slow Congress to act, which would have repeated the error he made in ending Obama-era protections for “Dreamers” and then telling Congress to save the program legislatively. Trump can undo that executive decision, too.
But the president is right that Congress should — really, must — address its two-decade impasse over how to fix the nation’s dysfunctional immigration laws and enforcement system. In fact, some efforts to push reform legislation are currently underway, but Congress should be wary of using the crisis of family separations as blackmail to force through the kinds of draconian policies pushed by hard-liners like Trump advisor Stephen Miller, who seek to severely reduce legal immigration. What the U.S. needs is a fair and humane bipartisan immigration overhaul that addresses the complicated but solvable issues that have divided the country for too long.
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And, we haven’t even gotten to the pictures of headless, mutilated corpses that will certainly be the result of Jeff Sessions’s twisted White Nationalist reinterpretation of refugee protection law. Sessions’s lawless (and, naturally intentionally cruel and inhumane) actions will enable the Administration to return legitimate refugees, primarily women and children, to death and torture at the hands of gangs and cartels that exercise quasi-governmental authority in the Northern Triangle.
Or, perversely, the Administration is effectively telling refugees to stop resisting the gangs and join up or cooperate in abusing others as the only way to save their lives. Because, under the White Nationalist Trump Regime, “brown lives” don’t matter either.
The stain of the Trump Regime and its human rights abuses are on the hands of all of us.
Bottom line: “Sessions made it clear that we at ICE control the Immigration Judges, their dockets, and their priorities. If they get out of line, report ’em. We’ll all working on the “Trump/Sessions Deportation Express.” And we at ICE are the Conductors. The “Judges” are just porters to carry our baggage.
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Talk about feckless!
I think that it’s critical that advocates work documents like this into their Article III briefs and arguments. It’s important to let “real” judges know that notwithstanding fancy titles and outward appearances, the “Immigration Court” is not a real independent court system that can be expected to provide Due Process, or even care about it on a systemic basis, for that matter.
It’s a “captive” of Chief Child Abuser Jeff Sessions who has directed it to carry out his prosecutorial (and overall racist) program of dehumanization and bias against the most vulnerable and defenseless among us. In no way, shape, or form, can a court system selected, directed, and evaluated by Jeff Sessions and his biased minions be considered to provide the “fair and impartial adjudication” required by the Due Process Clause. Article III Judges must be (politely) confronted with their own complicity when they approve any removal order entered by this inherently corrupt, unethical, and unfair system.
Yes, there are many dedicated and conscientious Immigration Judges out there. But, they have been ordered to carry out Sessions’s enforcement vendetta, stripped of all meaningful authority to control their dockets, and told they are being watched to make sure they are “with the program” — which in Sessions’s own words is all about “volume” – not fairness, not quality, not scholarship, not empathy, not human understanding, not respect — nope “volume” which has nothing whatsoever to do with individual justice. How would you like to trust your life to a judge working under those conditions.
Almost every day, Jeff Sessions provides clear public evidence of his bias and total unsuitability for any public office, let along one purporting to run a “court system.”
“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:
Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.
Sec. 2. Definitions. For purposes of this order, the following definitions apply: (a) “Alien family” means
(i) any person not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and
(ii) that person’s alien child or alien children.
(b) “Alien child” means any person not a citizen or national of the United States who
(i) has not been admitted into, or is not authorized to enter or remain in, the United States;
(ii) is under the age of 18; and
(iii) has a legal parent-child relationship to an alien who entered the United States with the alien child at or between designated ports of entry and who was detained.
Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally. (a) The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.
(b) The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.
(c) The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(d) Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(e) The Attorney General shall promptly file a request with the U.S. District Court for the
Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.
Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP”
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Section 1 maintains the abusive policy of prosecuting every misdemeanor illegal entry case (“zero-tolerance,” a/k/a “zero common sense,” a/k/a “zero humanity”). Most of those duressed into pleading guilty in assembly line Federal criminal courts are sentenced to “time served,” thus illustrating the absurd wastefulness of this policy and how it detracts from real law enforcement. Trump also throws in a gratuitous and totally disingenuous jab at Congress and the courts for causing the problem that he & Sessions actually created.
Section 3(a) directs the detention of families throughout criminal proceedings and until the end of Immigration Court proceedings (which often takes many months or even years), an abominable, costly, inhumane, unnecessary, and unsustainable policy originally developed during the Obama Administration. The Government lacks adequate family detention facilities, which are supposed to be non-secure facilities licensed by a child welfare agency. Additionally, asylum applicants in Removal Proceedings generally have a right to bond. In most cases, there would be no legitimate reason to deny bond. Contrary to the Administration’s bogus suggestions and intentionally misleading statistics, studies show that those who are represented by counsel and understand the asylum process show up for their hearings more than 90% of the time. I found it was close to 100%. This suggests that a “saner” policy would be to help individuals find lawyers and then release them.
Section 3(c) makes the Secretary of Defense, an official without any qualifications whatsoever, responsible for providing family jails on military bases. It shouldn’t take the courts too long to find these facilities unsuitable for family immigration detention.
Section 3(e) recognizes that this order is largely illegal in that it contravenes the order of the U.S. District Court in Flores v. Sessions which was affirmed by the Ninth Circuit. Flores orders the release of juveniles from immigration detention within 20 days unless they present a significant public safety risk or are likely to abscond. Where juveniles don’t meet the release criteria, they must be held in the least restrictive setting appropriate to age and special needs. While Trump orders the Attorney General to seek a modification of Flores, there is no legal rationale for that action. In fact, the abusive “fake emergency” situation that Trump & Sessions have created, shows exactly why Flores is needed, now more than ever. It also makes a compelling case for Congress to enact Flores protections into law, thereby making them permanent and avoiding future abuses by the Executive.
Section 4 basically orders the Attorney General to engage in more “Aimless Docket Reshuffling” (“ADR”) in the U.S. Immigration Courts by prioritizing cases of recently arrived families, many of whom have not had a chance to obtain lawyers and document applications, at the expense of cases that are already on the docket and ready for final hearings. That’s why the Immigration Court backlog is 720,000 cases and continuing to grow. It also shows why the Immigration Courts are a facade of Due Process, totally mismanaged by politicos, and must be removed from the DOJ and become a truly independent court system that establishes court priorities and procedures without Executive interference.
The order is silent on whether it applies to those families who have already been separated and how those families might be reunited.
In summary, this “Temporary Executive Order” is not a credible attempt to solve the problem of family separation. Rather, it is another “designed to fail” charade intended to provoke litigation so that the predictable mess can be blamed on the courts, Congress, the asylum applicants and their families (“blaming the victims”), and their courageous lawyers. In other words, anyone except Trump and his cronies who are responsible for the problem.
It’s a prime example of what life in a Kakistocracy is and will continue to be until there is “regime change.”
What would a “real solution” to this issue look like. Well, I’ve said it before:
The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.
Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.
Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks really want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.
My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.
Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.
Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.
Don’t hold your breath! But, eventually the New Due Process Army will win the war and enough elections to finally bring sanity, humanity, and reality to the U.S. immigration system.
You can call it a “policy” (Jeff Sessions) or you can call it a not-policy (Kirstjen Nielsen) or you can call it a “law” (Sarah Huckabee Sanders). You can say that yes it’s a policy but nobody likes it (Kellyanne Conway) or you can say it’s a “zero-tolerance” enforcement of a Democratic law (Donald Trump) or a zero-tolerance enforcement of an amalgam of various congressional laws (Nielsen) or a zero-tolerance enforcement of the Department of Justice’s own preferences with respect to enforcing prior laws (Sessions).
You can say the purpose of the Justice Department’s family separation policy is deterrence (Stephen Miller, John Kelly) or you can claim that asking if the purpose of the policy is deterrence is “offensive” (Nielsen). You can claim in your legal pleadings that the family separation policy is wholly “discretionary” and thus unreviewable by any court, meaning that only the president can change it (Justice Department in Ms. L v. ICE). Or you can claim that only Congress can “fix loopholes” (Nielsen) or you can say that Congress as a whole can’t fix anything because congressional Democrats are entirely to blame (Trump, Mike Huckabee).
You can blame all this newfound “loophole” action on a consent decree from 1997 in a case called Flores (Sessions, Paul Ryan, Chuck Grassley) or on a 9th U.S. Circuit Court of Appeals decision that interpreted Flores (Nielsen) or on a 2008 law called the Trafficking Victims Protection Reauthorization Act (Nielsen). Better yet, you can fault some magical mashup of “the law” that forces you to defend every statute to its most absurd extreme (Sanders). By this logic, you can also claim that Korematsu—the case authorizing the removal and detention of Japanese Americans during World War II—is still on the books and thus needs to be enforced because it’s also “the law,” but that would be insane. Oh, but wait. Trump proxies made that very claim during the campaign (Carl Higbie).
You can pretend that by turning every adult who crosses the border into a presumptive criminal your hands are tied, so you need to jail children to avoid jailing children (Nielsen). You can insist that the vast majority of children who cross the border are being smuggled in by gang members (Nielsen) or that all asylum-seekers are per se criminals (which they are not) or that lawful asylum-seekers should just come back at a better time (Nielsen). You can claim you never intended your policy (if it is in fact a policy) to have any impact on asylum-seekers at all (Nielsen) but of course it would turn out you were lying and this has been the plan all along (John Lafferty, Department of Homeland Security asylum division chief).
You can pretend that your hands are tied so you need to jail children to avoid jailingchildren.
You can say the Bible wants you to separate children from parents (Sessions). You can say again, incredibly, that the Bible wants you to separate children from parents (Sanders). But that would be pathetic (Stephen Colbert).
You can blame the press for the photographs they take (Nielsen) and for the photographs they don’t take (Nielsen). You can suggest that the children in cages are not real children (not linking to Ann Coulter) or that the cages are not in fact cages (Steve Doocy) even though government officials admit that they are cages. You can claim that the detention facilities are “summer camps” or “boarding schools” (Laura Ingraham). You can take umbrage that the good people of DHS and CBP and ICE are being maligned (Nielsen).
You can say that separating children from their parents is a strategic move to force an agreement on Trump’s wall, which would make the children purely instrumental (Trump). Or you could say that this is a way to protect children by deterring their parents, which would also make the children purely instrumental (Kelly). Or you can instead say you are protecting the children from all the harm that happens to children transported over borders by doing untold permanent damage to them as they scream in trauma (Nielsen). Because the best way to deter child abuse is through child abuse.
You can fight to the death about comparisons to Nazis or you can celebrate a candidate (Corey Stewart) who is a hero to Nazis or you can merely show a staggering lack of comprehension about what Nazis actually did (Sessions).
You can fact check and fact check and fact check these claims and it won’t matter that they are false. And the fact that nobody in this administration even bothers to coordinate their cover stories at this point reflects just how pointless it is to fact check them anyhow. It’s an interactive game of choose your own logic, law, facts, and victims, but every single version of this story ends with screaming children in cages, sleeping under foil blankets as strangers change their diapers. The trick is twisting and dodging and weaving until you get to that final page.
It is very sad (Melania Trump). Something should be done (Ted Cruz). If only there were some mechanism to stop torturing children. If only there were some way to stop litigating why we’re doing it and who is doing it and just stop doing it.
Washington (CNN)President Donald Trump on Tuesday delivered a stream-of-consciousness-style speech on immigration as furor over his administration’s separation of families at the border reaches a fever pitch.
But his speech at a small business event in Washington contained several factual inaccuracies.
White House says family separations at the border are a ‘binary choice,’ but stats say otherwise
Here is what Trump said, and what the reality is.
False claim: Family separations are Democrats’ fault
Trump said the family separations at the border are “a result of Democrat-supported loopholes in our federal laws” that he said could be easily changed.
“These are crippling loopholes that cause family separation, which we don’t want,” Trump said.
The reality: Trump’s administration made a decision to prosecute 100% of adults caught crossing the border illegally even if they came with children, and thus are separating parents from their kids at the border with no clear plan to reunite them after the parents return from jail and court proceedings.
The administration has long wanted to roll back a law unanimously passed under President George W. Bush and a court settlement dating back decades but most recently affirmed under the Obama administration — citing those two provisions as “loopholes.” Both were designed to protect immigrant children from dangers like human trafficking and to provide minimum standards for their care, including turning them over to the Department of Health and Human Services for resettlement within three days of arrest, as opposed to being held in lengthy detention, and dictating that children with their families also cannot be held in detention or jail-like conditions longer than three weeks.
The administration has complained the laws make it harder to immediately deport or reject immigrants at the border, and that they are not able to detain families indefinitely.
False claim: Thousands of judges
Trump said his administration was hiring “thousands and thousands” of immigration judges, that the US already has “thousands” of immigration judges and that other countries don’t have immigration judges.
Trump to huddle with Republicans during crucial week on immigration
In reality, there the Justice Department’s immigration courts division has 335 judges nationwide, with more than 100 more judges budgeted for, according to a DOJ spokesman.
Because of a massive backlog in the immigration courts, it can take years for those cases to work their way to completion, and many immigrants are allowed to work and live in the US in the meantime, putting down roots. The funding for immigration courts and judges has increased only modestly over the years as funding and resources for enforcement have increased dramatically. A proposal from Sen. Ted Cruz, R-Texas, to address the family separation issue would double the number of judges to 750.
Trump’s comments Tuesday echoed remarks he made last month. In a May Fox News interview, he claimed the United States was “essentially the only country that has judges” to handle immigration cases. But that is incorrect.
A number of other countries have immigration court systems or a part of the judiciary reserved for immigration and asylum cases, including Sweden, the United Kingdom and Canada.
False claim: Virtually all immigrants disappear
Trump also claimed falsely that when immigrants are let into the country to have their cases heard by a court, they virtually all go into hiding.
“And by the way, when we release the people, they never come back to the judge, anyway. They’re gone,” Trump said. “Do you know if a person comes in and puts one foot on our ground, it’s essentially, ‘Welcome to America, welcome to our country.’ You never get them out because they take their name, they bring the name down, they file it, then they let the person go. … Like 3% come back.”
In reality, the number of immigrants who don’t show up to court proceedings is far lower. And many of the immigrants released from detention are given monitoring devices such as ankle bracelets to ensure they return.
Republicans craft bill to keep detained families together
According to the annual Justice Department yearbook of immigration statistics from fiscal year 2016, the most recent year for which data is available, 25% of immigration court cases were decided “in absentia” — meaning the immigrant wasn’t present in court. In that year, there were 137,875 cases. The number of cases decided “in absentia” between fiscal year 2012 and fiscal year 2016 was between 11% and 28%.
When White House legislative chief Marc Short made a similarly inaccurate claim on Monday, the White House pointed to a statistic about the high percentage of deportation orders for undocumented children that were delivered in absentia, but amid total case completions for minors, the number of in absentia orders has ranged from 40% to 50% in recent years.
Advocates for immigrants attribute some of the missed hearings to often not receiving a court notice mailed to an old address or not having an attorney who can adequately explain the process to the child. Studies have shown that with legal advice and guidance, immigrants are far more likely to show up for hearings and have their claims ultimately be successful.
False claim: Countries are sending bad eggs to the US
Trump said that countries deserve to be punished for illegal immigration, and that they “send” bad eggs to the US.
“They send these people up, and they’re not sending their finest,” Trump said.
He continued: ‘When countries abuse us by sending people up — not their best — we’re not going to give any more aid to those countries.”
In fact, there is no evidence that countries “send” anyone in particular to the US — rather analyses of recent immigration flows have shown that in recent years, a much higher number of Central Americans have come to the US fleeing rampant gang violence and instability in especially the countries of El Salvador, Honduras and Guatemala. Experts who study the countries agree that cutting aid would only further destabilize the region, likely making illegal immigration worse, not better.
Though gang members do cross the border illegally alongside those fleeing violence, the administration has never been able to provide numbers showing that those are a large percentage of the cases. Only a handful of such prosecutions occur a year, while more than 300,000 people were apprehended trying to cross the border illegally last fiscal year. Nearly 120,000 defensive asylum applications were filed last year, according to government data, meaning those individuals believed they were fleeing violent situations back home.
False Claim: Mexico isn’t helping the US
Mexico, Trump said, “does nothing for us.”
As for Mexico’s contribution, experts say the country’s crackdown on immigrants within its borders has been a major help to the US in recent years. According to statistics from the US and Mexican governments compiled by the nonpartisan Migration Policy Institute and shared with CNN, over the past three years, Mexico has deported tens of thousands more migrants back to the primary countries in Central America that drive immigration north. Each of the last three years, Mexican removals exceeded US removals to those countries.
Mexico is also apprehending tens of thousands of Central Americans before they reach the US. According to the data, Mexico intercepted 173,000 Central Americans in fiscal year 2015, 151,000 in fiscal year 2016 and just under 100,000 in fiscal year 2017.
In the past two years, Mexico has lagged behind the US in apprehensions, but Migration Policy Institute President Andrew Selee, an expert on Mexican policy, said that could be due to a number of factors including smugglers successfully changing their routes to avoid detection or relations with Trump.
CNN’s Catherine Shoichet and Kevin Liptak contributed to this report.
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Join the New Due Process Army today!
Free the children.
Require Due Process and real justice for refugees.
Hold the lying child abusers in the kakistocracy accountable for their indefensible actions.
Remove the abusers and their enablers from office and political power.
Welcome more immigrants and refugees.
End racism masquerading as “government policy” or the “rule of law.”
Time for the decent, tolerant, majority to take back our country from the forces of darkness, evil, and dishonesty.
The events occurring now on our border with Mexico, where children are being removed from the arms of their mothers and fathers and sent to foster families or “shelters”, make me weep and gnash my teeth with sadness and rage. I know what they are going through. When we were children, my two siblings and I were also taken from our parents. And the problems we’ve experienced since then portend the terrible things that many of these children are bound to suffer.
My family was Jewish, living in 1942 in the Netherlands when the country was occupied by the Nazis. We children were sent into hiding, with foster families who risked arrest and death by taking us in. They protected us, they loved us, and we were extremely lucky to have survived the war and been well cared for.
Yet the lasting damage inflicted by that separation reverberates to this day, decades hence.
Have you heard the screams and seen the panic of a three-year-old when it has lost sight of its mother in a supermarket? That scream subsides when mother reappears around the end of the aisle.
This is my brother writing in recent years. He tries to deal with his lasting pain through memoir. It’s been 76 years, yet he revisits the separation obsessively. He still writes about it in the present tense:
In the first home I scream for six weeks. Then I am moved to another family, and I stop screaming. I give up. Nothing around me is known to me. All those around me are strangers. I have no past. I have no future. I have no identity. I am nowhere. I am frozen in fear. It is the only emotion I possess now. As a three-year-old child, I believe that I must have made some terrible mistake to have caused my known world to disappear. I spend the rest of my life trying desperately not to make another mistake.
My brother’s second foster family cared deeply about him and has kept in touch with him all these years. Even so, he is almost 80 years old now and is still trying to understand what made him the anxious and dysfunctional person he turned into as a child and has remained for the rest of his life: a man with charm and intelligence, yet who could never keep a job because of his inability to complete tasks. After all, if he persisted he might make a mistake again, and that would bring his world to another end.
My younger sister was separated from our parents at five. She had no understanding of what was going on and why she suddenly had to live with a strange set of adults. She suffered thereafter from lifelong, profound depression.
I was older: seven. I was more able than my siblings to understand what was happening and why. I spent most of the war with Dick and Ella Rijnders. Dick was mayor of a small, rural village, and he and Ella lived in a beautiful house next to a wide waterway. Ella had a warm smile and Dick referred to me as his “oldest daughter”. I was able to go to school normally, make friends, and became part of village life. I was extraordinarily lucky, but I was not with my own parents, sister, and brother. And, eventually, I also had to leave the Rijnders, my loving second “family”. I was returning to my own family, but this meant another separation.
In later life, I was never able to really settle down. I lived in different countries and was successful in work, but never able to form lasting relationships with partners. I never married. I almost forgot to mention my own anxiety and depression, and my many years in psychotherapy.
My grief and anger about today’s southern border come not just from my personal life. As a retired psychotherapist who has worked extensively with victims of childhood trauma, I know all too well what awaits many of the thousands of children, taken by our government at the border, who are now in “processing centers” and foster homes – no matter how decent and caring those places might be. We can expect thousands of lives to be damaged, for many years or for ever, by “zero tolerance”. We can expect old men and women, decades from now, still suffering, still remembering, still writing in the present tense.
What is happening in our own backyard today is as evil and criminal as what happened to me and my siblings as children in Nazi Europe. It needs to be stopped immediately.
This about race. It is no accident that virtually all of the separated parents and kids are Hispanic and the few others affected are almost all “of color.” We wouldn’t be having all this ruckus if the arrivals were White. Trump, Sessions, and Miller are White Nationalists in the “Bannon Mode.” Kelly and Nielsen have decided to come out of the closet and reveal their racist sympathies.
The harm is permanent. All experts say that the harm intentionally inflicted in these kids will be permanently disabling. More blogging on that later.
We’re sending these families to concentration camps masquerading as countries. Make no mistake about it, most of these folks are refugees fleeing persecution and torture at the hands of gangs and cartels that basically are the government in much of the Northern Triangle. Sessions & Trump have intentionally misconstrued the law, misrepresented facts, and violated Constitutional Due Process to artificially deny most of these individuals legal protections they deserve. Their return is likely to mean death, torture, a lifetime of abuse, extortion, rape, sexual enslavement, forced drug trafficking, or prostitution. Others will be forcibly impressed into a life of serving the gangs because we have turned our collective backs on them. Inhumanity is inhumanity; it’s only a matter of degree. And, that the Nazis were even worse in no way makes any difference to those we are sentencing to death, torture, or a lifetime of abuse. Dead is dead. Tortured is tortured. Decapitated is functionally the same as shot or gassed.
Sessions keeps parroting that misdemeanor unlawful entry “isn’t a victimless crime.” Perhaps he’s right. The “victims” here are the migrants and their families seeking to exercise legal rights to apply for asylum. The “criminals” are Sessions, Trump, Nielsen, Miller, Kelly and other Administration hard liners who engage in child abuse rather than protection. And, they lie about what and why they are doing it. Who will eventually bring the real criminals to justice?
This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.
The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.
And second, that she has not established that her husband abused her because he perceived her to be a member of this group.
Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.
The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.
In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.
Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.
Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.
Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.
He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:
Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;
That membership in that group is a central reason for the alleged persecution; and
That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.
The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.
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Read Nolan’s complete article over at The Hill at the above link.
I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.
I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.
Those looking for legal analysis should read no further. The following is a cry from the heart.
The respondent’s personal nightmare began the year after her marriage. For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.
It is most apt that Donald Trump became president by beating a woman. His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.
“The violence inflicted on [her] took many forms. Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant. He raped her on countless occasions.”
On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.
Sessions’ action was shockingly tone deaf. As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern. Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.” The year after Solnit wrote those words, our Department of Justice took a step in the right direction. In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.
“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.” The above were supported by sworn statements provided by the respondents’ neighbors.
It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women. #MeToo is a true civil rights movement, one that is so very long overdue. In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace. It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group. When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law. No one has appealed or challenged that determination in the four years since. Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?
The respondent’s “husband controlled, humiliated, and isolated her from others. He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’ He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’ When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”
Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come. As with Wallace and the Civil Rights Movement, justice will eventually prevail. But now as then, people deserving of his protection will die in the interim.
“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals. He also beat their children in front of her, causing her serious psychological damage.”
The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference. There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations. Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people. But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”
Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?
The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her. She does not believe there is anywhere” in her country “she could find safety.
Victims of domestic violence will continue to file applications for asylum. They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision. Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.
The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Criticism is heating up over the Trump administration’s decision to separate children from parents who cross the border into the US illegally. Rallies against it were held yesterday across the country. Attorney General Jeff Sessions and White House press secretary Sarah Sanders tried to use the Bible to justify the policy, but that only seemed to tick people off more. CNN’s Bob Ortega went inside the largest facility where children are being held. It’s in a former Walmart superstore in Brownsville, Texas, and holds almost 1,500 kids. Religious groups have spoken out against the policy, and now medical organizations — like the American Academy of Pediatrics, the American College of Physicians and the American Psychiatric Association — are sounding the alarm as well.
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Wow! What a great, concise, clearly written report! Doug says a lot in five sentences with helpful links to help us understand how evil Sessions actually is. Compare real writing like this with the 30 or so pages of turgid legal prose and gobbledygook that Sessions spewed forth in Matter of A-B- in an attempt to mask his evil intent and unlawful actions!
Time for folks to stand up fight this horrible individual who is abusing his office and power and attacking America’s and the world’s future!
Evil is evil! Call Sessions out, and demand that the Article III Courts and Congress put an end to this disgusting abuse!
DUE PROCESS FOREVER! JEFF SESSIONS NEVER! JOIN THE NEW DUE PROCESS ARMY TODAY AND FIGHT EVIL AND INJUSTICE FROM BORDER TO BORDER, SEA TO SEA, UNTIL IT IS BANISHED FROM OUR LAND FOREVER! END THE KAKISTOCRACY THAT IS RUINING AMERICA!
“Group Leader” Hon. Jeffrey Chase forwards these items:
Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:
Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
. . . .
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”
The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
. . . .
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)
Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”
Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!
Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.
An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.
In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune. Different views are one thing; overt bias and lack of empathy is another.
Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.
A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”
Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”
But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.
US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.
Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.
“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”
To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”
That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.
Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges
Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.
The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.
Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.
“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”
Therefore, she adds, they should be structured “like a traditional court.”
Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.
Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.
Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.
“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.
Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.
“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”
Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.
Sessions’ decision will make it even harder.
In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”
The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court. At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.
Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.
According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.
Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”
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Here’s another one from Bea Bischoff at Slate:
How the attorney general is abusing a rarely used provision to rewrite legal precedent.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.
On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.
During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.
Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.
Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.
A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.
During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.
Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.
Sessions trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerablewomen.
After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.
The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.
Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.
Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.
On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.
The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.
In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.
As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.
The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.
While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.
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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.
I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.
A few problems, though:
Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!
There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.
