"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!
By Paul Wickham Schmidt
United States Immigration Judges (Retired)
In short, families are coming to ports of entry and crossing the border to turn themselves in to be screened for credible fear and apply for asylum under our existing laws. That’s not a “border crisis;” it’s a humanitarian tragedy. It won’t be solved by more law enforcement or harsher measures; we’re actually quite fortunate that folks still believe in the system enough to voluntarily subject themselves to it.
Most don’t present any particular “danger” to the U.S. They are just trying to apply for legal protection under our laws. That’s something that has been denied them abroad because we don’t have a refugee program for the Northern Triangle. This Administration actually eliminated the already inadequate one we had under Obama.
Certainly, we have enough intelligence to know that these flows were coming. They aren’t secret. There was plenty of time to plan.
What could and should have been done is to increase the number of Asylum Officers and POE Inspectors by hiring retired Asylum Officers, Inspectors, adjudicators, and temps from the NGO sector who worked in the refugee field, but no longer have anything to do overseas since this Administration has basically dismantled the overseas refugee program.
A more competent DOJ could also have developed a corps of retired Immigration Judges (and perhaps other types of retired judges who could do bond setting and other functions common to many judicial systems) who already “know the ropes” and could have volunteered to go to the border and other places with overloads.
Also, working closely with and coordinating with the NGOs and the pro bono bar would have helped the credible fear process to go faster, be fairer, the Immigration Courts to function more fairly and efficiently, and would have screened out some of the “non viable” cases.
For some, staying in Mexico is probably a better and safer option, but folks don’t understand. Pro bono counsel can, and do, explain that.
By treating it as a humanitarian tragedy, which it is, rather than a “fake law enforcement crisis,” the Administration could have united the private sector, border states, communities, and Congress in supporting the effort; instead they sowed division, opposition, and unnecessary litigation. I’m actually sure that most of the teams of brilliant “Big Law” lawyers helping “Our Gang of Retired Judges” and other to file amicus briefs pro bono would just as soon be working on helping individuals through the system.
A timely, orderly, and fair system for screening, adjudicating, and recognizing refugee rights under our existing laws would have allowed the Administration to channel arrivals to various ports of entry.
I think that the result of such a system would have been that most families would have passed credible fear and the majority of those would have been granted asylum, withholding, or CAT.
Certainly, others think the result would have been mostly rejections (But, I note even in the “Trump Era” merits approval rates for Northern Triangle countries are in the 18-23% range — by no means an insignificant success rate). But, assuming “the rejectionists” are right, then they have the “timely rejection deterrent” that they so desire without stomping on anyone’s rights. (Although my experience over decades has been that rejections, detention, prosecutions, and harsh rhetoric are ineffective as deterrents).
No matter who is right about the ultimate results of fair asylum adjudication, under my system the Border Patrol could go back to their job of tracking down smugglers, drug traffickers, criminals, and the few suspected terrorists who seek to cross the border. While this might not satisfy anyone’s political agenda, it would be an effective and efficient use of law enforcement resources and sound administration of migrant protection and immigration laws. That’s certainly not what’s happening now.
When a problem is misdiagnosed, it is no surprise that it gets worse. The current “crisis at the border” is real, but one that results from flawed policy analysis and inappropriate policy responses.
The Department of Homeland Security (DHS) officials overseeing Customs and Border Protection (CBP) project that they will have over 100,000 migrants in their custody for the month of March, the highest monthly total since 2008. CBP reported that over 1,000 migrants reached El Paso on one day alone last week. As many border security experts have noted, these numbers are not unprecedented. Border apprehensions of all irregular migrants (including asylum seekers) remain lower than the peak of 1.6 million in fiscal year 2000.
The policy crisis we face is not one of the volume of migrants but the demographic mix of the migrants and the factors that are propelling their flight to the United States. Stuart Anderson, executive director of the National Foundation for American Policy and former senior official in the Immigration and Naturalization Service (INS) during the George W. Bush administration, makes a compelling case that the current apprehension statistics are not comparable to those of the past: “In the past, nearly everyone entering the United States unlawfully attempted to evade authorities, whereas today’s border crossers are mostly turning themselves in to Border Patrol agents and seeking asylum.”
Making matters worse, DHS uses dated policy tools that were crafted in response to young men attempting to enter the United States to work. The threat of detention was considered a deterrent for economic migrants. At that time, they most often were from Mexico and thus could just be turned around at the border because they came from a contiguous country.
Today, the migrants are families with children from the northern triangle countries. Rather than being pulled by the dream of better jobs, these families are being pushed by the breakdown of civil society in their home countries. As the Pew Research Center reports, El Salvador had the world’s highest murder rate (82.8 homicides per 10,000 people) in 2016, followed by Honduras (at a rate of 56.5). Guatemala was 10th (at 27.3). Many of them have compelling stories that likely meet the “credible fear” threshold in the Immigration and Nationality Act.
It is abundantly clear that policies aimed at deterring single men are inappropriate and that CBP is unequipped to deal with families seeking asylum. Journalist Dara Lind maintains that these policy inadequacies have contributed to death of multiple children in DHS custody. Former DHS Secretary Jeh Johnson recently stated that the Trump administration strategy at the border is not working because it does not address the underlying factors.
It is becoming clear that the harsh, capricious policies of the Trump administration are exacerbating the influx of asylum seekers from Central America. The Migration Policy Institute’s Doris Meissner, who served as the commissioner of the Immigration and Naturalization Service during the Clinton administration, understands these underlying migration patterns and policies. She recently responded to a question posed by NPR’s Steve Inskeep: “If you can explain, how would the administration’s actions to try to stop this flow actually make the flow worse?”
Meissner replied: “Because people are uncertain about what’s going to happen. They see the policies changing every several months. They hear from the smugglers that help them, and from the communities in the United States that they know about, that the circumstances are continually hardening. And so with the push factors that exist in Central America — lots of violence, lots of gang activity — they’re trying to get here as soon as they can.”
Fortunately, the United States has an array of policy options that would more effectively respond to the surge of families seeking asylum from Central America than the erratic and ill-conceived policies of the Trump administration.
Aid to Central America to stimulate economic growth, improve security and foster governance is a critical policy response to address the factors propelling migrants. Congress appropriated $627 million for these purposes, but reportedly the distribution of the funds is stalled because President Trump wants to cut the aid countries because they failed to stop the flight of their people. This is another misguided policy reaction — if these countries would crack down on people trying to leave, it would escalate people’s panic to flee.
As is often said, the most important step is to beef up the asylum corps in DHS’s Citizenship and Immigration Services and to fully staff the immigration judges in the Department of Justice’s Executive Office for Immigration Review. This action would enable expeditious processing of asylum claims in a fair and judicious manner — key to reversing the bottleneck of asylum seekers at the border.
Current law enables asylum seekers arriving without immigration documents to have a credible fear hearing and be released from detention pending their court dates. Those who establish that they have well-founded fear of returning home would be permitted to stay in the United States and those who do not would be deported. If DHS implemented our asylum laws to the fullest effect, it would increase the likelihood that migrants understood our laws.
Absolutely, Ruth! Basically what others and I who have spent years working in and studying this system have been saying all along.
The current law provides the necessary tools for addressing the only real border crisis: the humanitarian tragedy. But, this Administration has neither the competence nor the interest to address that problem in a constructive, effective, and humane manner. It wouldn’t fit their bogus White Nationalist false narratives and agenda.
That’s why we need “regime change” in 2020. Until then, we’ll have to rely on private groups, some states, and the New Due Process Army to keep the country functioning until we get better, wiser, and more competent leaders.
Ted Hesson, Immigration, Pro — Staff mugshots photographed Feb. 20, 2018. (M. Scott Mahaskey/Politico)
Ted Hesson reports for Politico:
The border crisis that President Donald Trump used to justify declaring a national emergency was never real, but a different crisis at the border is now starting to escalate as immigration officials hold hundreds of parents and children in makeshift facilities, including a parking lot.
During a press conference in El Paso, Texas, Customs and Border Protection Commissioner Kevin McAleenan argued Wednesday that a surge of incoming Central American migrants has pushed the U.S. immigration system to a “breaking point” and that all available resources should be devoted to manage it.
But Democrats and advocates contend that the Trump administration’s response is exacerbating the problems.
Rep. Veronica Escobar (D-Texas), a freshman lawmaker who represents El Paso, fumed Thursday over the border situation — which she also described as a crisis — during an interview after leaving the House floor.
“They knew that the numbers would increase,” she said. “Why were they not planning?”
Here’s what’s really happening now at the border:
The president’s frequent claims that unprecedented numbers of undocumented migrants are streaming into the country remain untrue. (Twice as many came during the 1990s and early 2000s.) And President Trump’s caricature of border-crossers as violent criminals is still belied by study after study showing that immigrants in general, and undocumented immigrants in particular, commit fewer crimes than the native-born.
“We have a capacity crisis, if you want to think of it that way,” Rep. David Schweikert (R-Ariz.) told POLITICO. “We don’t have capacity to deal with the populations that they’re getting at the border right now.”
Border Patrol anticipates that it will apprehend more than 55,000 family members in March, by far the highest monthly total since such record-keeping began in fiscal year 2012. The warmer spring and summer months ahead will likely bring even higher numbers.
The adult men from Mexico who a decade ago constituted most border migrants were able to be returned more swiftly, often simply by walking them across the border. While they were detained, the men required comparatively little in the way of social or medical services.
Furthermore, a 2008 federal law and related bilateral agreement allowed the U.S. to repatriate Mexican unaccompanied minors rapidly. The law, called the Trafficking Victims Protection Reauthorization Act, does not similarly authorize quick deportation for children from Central America.
By contrast, the greater volume of children among the new Central American migrants imposes on immigration agencies a need for more psychologists, nutritionists, educators and a host of others. Border officials contend that with the rise in families and children, more migrants have health issues than in the past.
“We are doing everything we can to simply avoid a tragedy,” McAleenan said at the border Wednesday. “But with these numbers, with the types of illnesses we’re seeing at the border, I fear that it’s just a matter of time.”
Federal court orders in recent years have limited to 20 days the time children can be kept in detention, which means border agents often must release families into the interior. Such releases speed up processing, but demoralize agents and may encourage more migration, McAleenan argued.
The current migratory flow is also different because of the greater proportion of asylum applications at the border in recent years. Central American families arriving at the border frequently seek such refuge, which puts them into an immigration process that can take years to resolve.
The Trump administration argues that the asylum claims largely lack merit, but immigration court statistics don’t back that up. Roughly 25 percent of defensive asylum applications were approved by an immigration judge in fiscal year 2017, with 41 percent denied and 34 percent resolved in another manner, such as a withdrawn application.
Still, immigration hard-liners contend that lax asylum laws have been a magnet for Central Americans.
Mark Krikorian, director of the restrictionist Center for Immigration Studies, compared the current influx at the border to Europe’s migratory surge in 2015.
“We are seeing an Angela Merkel-style disaster on the border caused by loopholes in our laws that the Democrats refuse to even consider changing,” he said.
Democrats and advocates argue that the Trump administration’s response has exacerbated problems at the border.
Administration officials have known for months — arguably years — that more migrant families could trek to the United States, yet they appear to have been caught flat-footed.
During McAleenan’s press conference in El Paso Wednesday, reporters observed hundreds of parents and children held in a parking lot converted into a makeshift detention center.
“That’s their solution? That’s not a solution,” Escobar said. “In my community when these families are released, the community … scrambles and works hard to create hospitality centers, to feed these people, to help get them to their final destination. If we can do it with a fraction of the resources and power of the federal government, surely DHS can find a better solution.”
Escobar said DHS hasn’t taken adequate steps to deal with a long-term trend of more family and child arrivals. Border Patrol often uses small concrete cells that were better suited to the earlier populations of single men, many of whom would be sent back to Mexico in a day’s time, she said.
“They’ve been acting and responding in the same way over the last five years despite the change in the migration pattern,” she said.
The spending package approved by Congress in February included $192 million to construct a large processing center for migrant families in El Paso. The facility will house multiple agencies that deal with families in one building, but will take six months to a year to become functional, according to Escobar.
In the meantime, the Texas Democrat argues that if Trump truly deems immigration a national emergency, he should work harder to house and care for incoming migrants, perhaps with Federal Emergency Management Agency trailers or Red Cross assistance.
Under a January 2017 Trump executive order, federal immigration officials remain tasked with arresting and detaining as many migrants as possible, without a system of prioritization. Advocates contend the enforcement push has sapped resources that could be used to address the care and custody of newly arrived migrant families.
“They just detain any grandpa or mom that they find in the interior and they don’t prioritize who they should be putting in detention,” said Kerri Talbot, a director with the Washington, D.C.-based Immigration Hub. “They don’t need any more money, they need a new strategy.”
Under its “zero tolerance” strategy, the Trump administration sought to prosecute all suspect border crossers for illegal entry. Children couldn’t travel with their parents to criminal detention facilities, so they were reclassified as “unaccompanied” and transferred to the custody of the Health and Human Services Department. Thousands of families were split apart from April until June, only to see Trump reverse the policy and a federal judge order families reunited.
The administration also has sought to keep asylum-seeking migrants in Mexico for longer periods of time.
Using a practice known as “metering,” border officials have forced families to wait in Mexico, only accepting a certain number of asylum applicants at ports of entry each day.
A September report by the DHS inspector general’s office found evidence that forcing migrants to wait at ports actually encouraged more people to cross illegally. The report cited a Border Patrol supervisor and accounts of several migrants who said they attempted to enter illegally after being turned away at a port.
“They’re afraid of waiting in Mexico until they can get in at the port,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center. “They’re balancing that against their desire to do it legally. And I definitely think its emboldening the smugglers to go to those who are waiting.”
McAleenan acknowledged during a December Senate committee hearing that metering could lead to an increase in the number of people attempting to cross the border illegally, saying it’s “certainly a concern.”
Still, the Trump administration has moved forward with a separate policy to keep asylum seekers in Mexico for extended periods of time.
The administration’s “remain in Mexico” policy — announced in late December and now implemented in several areas along the border — forces certain non-Mexican asylum seekers to wait in Mexico during the duration of an asylum case.
At the same time, the administration has moved slowly to disperse funding to address root causes of migration in El Salvador, Guatemala and Honduras.
POLITICO reported this week that hundreds of millions in aid dollars remain stalled at the White House budget office as aides wonder how seriously to take Trump’s threats to cut the funding.
“Mexico is doing NOTHING to help stop the flow of illegal immigrants to our Country. They are all talk and no action,“ Trump tweeted Thursday. “Likewise, Honduras, Guatemala and El Salvador have taken our money for years, and do Nothing. The Dems don’t care, such BAD laws. May close the Southern Border!“
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Trump’s unwise threat to “close” the Southern Border could turn a humanitarian situation into a self-created international crisis. And, Trump continues to be the “best friend” of smugglers, cartels, and gangs.
There is a clear and present threat to our national security. It’s not desperate refugees (mostly women, children, and families) seeking to exercise their legal rights; unfortunately, it’s our President.
CBP COMMISSIONER McAleenan Is At It Again — Blaming Victims & The Smugglers He Empowers For His Own Incompetence & Lack Of Courage To Stand Up For Human Rights, The Real Rule Of Law, & Legitimate Law Enforcement — Don’t Let Him Get Away with His Latest False Narrative!
By Paul Wickham Schmidt
CBP Commissioner McAleenan is at it again: declaring a self-created “border emergency” and blaming smugglers (whom he aided and empowered with “designed to fail” policies) and lax asylum laws for the problem.
No mention of wasting time on walls and barbed wire, zero tolerance, child separation, mindless detention, Migrant Protection Protocols, bogus “Regional Compacts” that don’t address the problems, illegal regulations, overloading the courts, wrong credible fear advice, failing to deal with root causes, eliminating the Central American Refugee program, slow walking asylum applications, overloading the Immigration Courts with cases that never should have been brought, deporting gang members without considering the consequences, failing to work cooperatively with attorneys and NGOS, failing to focus on conditions in the Northern Triangle, intentional misinterpretation and bias in asylum adjudication, bogus statistics, false narratives about crime, or any of the other many failed Administration “enforcement only” policies that created this perfectly foreseeable “crisis.” While it is a legitimate humanitarian tragedy, it is not a “law enforcement crisis.”
Apparently, the only solution according to McAleenan is for Congress to eliminate rights of asylum seekers and kids so that the Border Patrol can just arrest them and toss them back across the border without any process at all. (No mention, of course, of how that might affect folks turning themselves in — why wouldn’t smugglers just do a “quick reset” and smuggle everyone to the interior? Too deep a thought for the Commish, apparently).
Problem is that in the absence of knowledge and an understandable “counter-message and solutions” McAleenan’s idiotic restrictionist views are getting traction with the press. Indeed, they were reflected in Nielsen’s equally idiotic and dishonest request to Congress for permission to abuse and threaten the lives of the most vulnerable of the vulnerable — children.
Seems like it would be prudent for some group with expertise and credibility to push back against this latest offensive. And, it would also be critical to get folks to the House Dems with the information and facts they need to resist what is sure to be a new offensive by the Administration and GOP for harsh laws basically eliminating asylum status, claiming quite falsely that it’s the only way to secure the border. Or perhaps, the declaration of a “New Border Emergency” suspending asylum laws and the Fifth Amendment.
Indeed, the best way of securing the border would be the immediate removal of Trump and the rest of the “malicious incompetents” who make up his Kakistocracy. But, that’s not going to happen any time too soon.
Trump has failed yet again. That means that his victims and the “usual suspects” — asylum applicants, kids, women, lawyers, NGOs, reporters, Dems — are going to have to pay “big time” for his latest failure. Might as well get ahead of the curve.
WASHINGTON — Department of Homeland Security Secretary Kirstjen Nielsen will ask Congress for the authority to deport unaccompanied migrant children more quickly, to hold families seeking asylum in detention until their cases are decided and to allow immigrants to apply for asylum from their home countries, according to a copy of the request obtained by NBC News.
In a letter to Congress, Nielsen said she will be seeking a legislative proposal in the coming days to address what she called the “root causes of the emergency” that has led to a spike in border crossingsin recent weeks. The letter has not yet been sent.
The legislative proposal would have to clear the Democratic-controlled House of Representatives, which is likely to respond with strong opposition.
Since February, Customs and Border Protection has seen a jump in the number of undocumented immigrants attempting to cross the border each day.
Daily border crossings have recently hit a 13-year high, leading immigration agents to release immigrants from their custody rather than transferring them to prolonged detention. The influx has left many charities in the U.S. and Mexico scrambling to provide care and has left many asylum seekers waiting in dangerous areas without shelter on the southern side of the border.
Under current law, children who enter from non-contiguous countries, which effectively means children from Central America, are transferred to the custody of the Department of Health and Human Services, which works to reunite them with a relative or sponsor in the United States. And under a federal court agreement, immigrant families with children cannot be detained longer than 20 days. The Trump administration has previously tried to reverse the court decision through executive action, but has so far been unsuccessful.
In the letter, Nielsen makes the case that the law’s limitations on DHS’s ability to deport migrant children is serving as “another dangerous ‘pull’ factor.”
“The result is that hundreds of Central American children come into our custody each day, await transfer to (Health and Human Services) care, and, ultimately are placed with a sponsor in the United States,” Nielsen said in the letter, which is expected to be sent to members of Congress on Thursday night.
The letter also indicates that the Trump administration will be requesting emergency funds to deal with the migrant flow, including what Nielsen predicts to be thousands of shelter beds for unaccompanied migrant children.
Kirstjen Nielsen, from center, Secretary of the Department of Homeland Security, tours the border area with San Diego Section Border Patrol Chief Rodney Scott at Borderfield State Park along the United States-Mexico Border fence in San Ysidro, California on Nov. 20, 2018.Sandy Huffaker / AFP – Getty Images file
HHS, the agency responsible for sheltering children who arrive at the border without a parent, “is still approaching its maximum capacity and will very likely require thousands of additional beds in the coming weeks and months,” the letter said.
Nielsen said in the letter that the exact dollar amount of the request is still being worked out with the Office of Management and Budget, but a senior administration official told NBC News the request is likely to be in the hundreds of thousands of dollars.
The funding would also cover more medical teams and vehicles to transport immigrants, following the deaths of immigrants in the custody of CBP agents who were not able to provide care in time.
Julia Ainsley
Julia Ainsley is a national security reporter for NBC News.
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Every day demonstrates the complete “malicious incompetence” of the Trump Kakistocracy! Clearly DHS needs (but won’t get) competent management at all levels that knows how to deal with humanitarian situations in some way other than rolling out more gimmicks and bogus requests in an attempt to turn a refugee situation into a fake law enforcement crisis.
There is no real law enforcement crisis with refugees turning themselves in to assert their legal rights under our laws. Indeed, a more competent Administration with all this advance notice could have channeled most folks to designated ports of entry where they should have been guaranteed prompt, fair, and humane processing. Instead they mindlessly wasted time and money on unneeded troops, dumb walls, and illegal gimmicks that haven’t and won’t “deter” forced migrants (but do encourage, empower, and enrich smugglers).
Why not rehire retired Asylum Officers, Refugee Officers, and other retired personal at the USCIS Office of International Operations? Why not use VOLAGS involved in overseas refugee processing who now under Trump’s destruction of refugee programs have nothing to do overseas? Why not ask for processing help from the UNHCR? Why not use some of the bloated DHS enforcement and detention budgets to hire temporary Asylum Officers from the private sector? Why not offer grants to Catholic Conference, LIRS, HIAS and other experienced refugee resettlement agencies to aid in temporary placement of those who pass credible fear? Why not beef up accreditation programs for non-attorney representatives working for charitable organization to meet representation needs? Why not simply recognize gender-based persecution as a subset of “particular social group” rather than forcing slow and intensive re-litigation of gender-based issues in ever case with inconsistent results and no guidance for parties or adjudicators.
There are lots of things a competent Administration dedicated to fairly administering refugee and asylum laws could do to handle this humanitarian situation. But, that won’t happen without “regime change” and removal of the Kakistocracy.
Indeed, the most likely outcome of the Trump Admonistration’s “malicious incompetence” will be complete loss of faith in our legal system. Folks will do what they have to do to save their lives — even if it means abandoning a system that has betrayed Due Process and fundamental fairness.
Then, we finally will have a Trump-caused “law enforcement crisis.” While the presence of more refugees in the U.S. presents more of an opportunity than a security problem, the disappearance of our Constitutional protections and intentional destruction of our legal system will be a lasting problem for all of us.
Prior to this year, I had never been on a college spring break trip. I had never experienced the stereotypical American “Cancun trip” full of debauchery, innocentfun and the fantasy MTV sold me in the early 2000s. Part of this was due to financial considerations, the other part was that I always had some kind of commitment whenever this season came upon me. This year, I finally got to go on a spring break trip with some of my law school peers. But the Mexico I saw was far from a carefree oasis for the inebriated and the carefree.
This past March, I along with my Asylum clinic professor and four New York Law School classmates volunteered in Tijuana for a week at an organization called Al Otro Lado, Spanish for “On the Other Side.” Al Otro Lado (“or AOL”) is a not for profit organization run almost exclusively by volunteers. AOL provides free legal and medical services to migrants both in Tijuana and San Diego and is currently in the process of suing the U.S. government for its recently adopted border policies. AOL is composed of volunteers from all walks of life. Some are attorneys, others doctors or nurse practitioners. Most, though, are concerned U.S. citizens who wanted to see for themselves the humanitarian crisis occurring in our country. They come from all walks of life, ages, races and socioeconomic backgrounds. But for that week, our collective problems and biases were set aside due to the more pressing concerns facing the people we were seeking to assist.
During my week volunteering with AOL in Tijuana, my classmates and I utilized our studies in immigration and asylum law to educate asylum seekers as to the process that awaits them. I met with over a dozen migrants, one-on-one, and heard their stories of plight and fear. I didn’t tell them what to say, instead I explained to them that asylum is a narrowly applied form of relief. That in order to be granted asylum in the U.S. that they had to essentially prove 1. They have suffered a harm or credible fear of harm. 2. This fear or harm is based on an immutable trait (such as race, religion, nationality, political opinion or membership to a particular social group) 3. They cannot relocate to another area of their country because their government either cannot or refuses to help them. 4. They tried to go to the police or couldn’t due to inefficacy or corruption. Many of the folks I spoke with had no idea what asylum was or what exactly were its requirements. At times, I would find out that the family I was speaking to was crossing that same day meaning that I had 5 minutes to explain to them what a “credible fear interview” was.
My favorite part of my week though, was when I got to conduct the Charla slang for “a talk.” The Charla is a know your rights workshop where AOL explains the asylum procedure, the illegal “list” number system currently being conducted by the U.S. and Mexican government, and what possibilities await them after their credible fear interviews. Currently, if you arrive in Tijuana and want to plead for asylum in the U.S. you can’t just go and present yourself to U.S. Customs and Border Protection officials. The Mexican government has security keeping you from being able to speak to U.S. CBP. Mexican officials, though, do not want to take on this responsibility either, so the idea somehow came about of having the migrants themselves keep a list or a queue amongst themselves. The way it works is that every morning at El Chaparral, one of the ports of entry between Tijuana and San Diego, a table with a composition notebook is set up. In that notebook is a list usually somewhere in the several thousands. For each number, up to ten people can be listed and in order to sign up and receive a number you have to show some form of identification. Once you have a number, the average wait time is about 4-5 weeks. Sometimes families and people disappear as their persecutors come to Tijuana and seek them out. Every morning at El ChaparralI would see families lined up either to receive a number or to hopefully hear their number be called. Best of all, right next to the migrants who would be managing “the list” would be Grupo Betas, a Mexican “humanitarian” agency who aids in the siphoning of migrants to the U.S.
If and when your number is called, you’re shuttled off to U.S. CBP officials who will likely put you inLa Hieleras or “The Iceboxes.” Migrants named them as such because they are purposely cold rooms where migrants are kept for days or weeks until their credible fear interviews. Here, families can be separated either due to gender or for no reason given at all. Migrants who had been to La Hieleras would tell me that they were given those aluminum-like, thermal blankets marathon runners often get. They state how they are stripped down to their layer of clothing closest to the skin and crammed into a jail like cell with no windows and lights perpetually on. After La Hieleras, a U.S. immigration official will conduct a credible fear interview. The purpose of this interview is for the U.S. to see if this permission has a credible asylum claim. If you fail this interview your chances of being granted asylum become slim to none. If you pass three possibilities await you. First, you might be released to someone in the U.S. who can sponsor you, so long as that person has legal status and can afford to pay for your transport. The second, and newest, is that you might be rereleased and told to wait for your court date in Tijuana. And the last is indefinite detention somewhere within the U.S.
As I would inform families of the future that awaited them, I felt embarrassed of my country. I felt anger at the fact that we are telling folks who are fleeing cartel, gang and military violence to grab a number and wait in line for four to five weeks. That I had to help mothers and fathers write their information on their babies in case they were separated. It broke my heart to have to tell a mother that her pain and suffering just couldn’t be pigeon holed into “race, religion, nationality, political opinion or a particular social group.” Thank you, try again. I feel like after this trip I have more questions than answers. That the work volunteer work I was doing was more triage than anything else. That even if I graduate law school and become an attorney at most I would be putting a band aid on a gunshot wound and never really addressing the disease.
It’s easy to feel defeated. It’s much more difficult to work towards a solution. I’m not an expert on any of these subjects. But I know that xenophobia and racism have no place in international police or immigration practices. I know that the folks I encountered during my time at the border were families fleeing not criminals scheming. I know that I may not have all the solutions but we should begin by instilling empathy, humanity and altruism into how we speak of asylum seekers and immigrants in general. That not much separates me, an American citizen, from the people I met in Tijuana. I may not have the answers to the turmoil I saw at the border but I’m determined to giving the rest of my life to figuring it out.
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Thanks, Amín!
He is one of the students of NY Law School Clinical Professor Claire Thomas who went to the border to “fight for the New Due Process Army” following the Asylum and Immigration Law Conference at New York Law School. Putting knowledge into practice! Saving lives!
Two really important points to remember from Amín’s moving account. First, because of BIA and AG interpretations intentionally skewed against asylum seekers from Latin America, many of whom should fit squarely within the “refugee” definition if properly interpreted, many refugees from the Northern Triangle intentionally are “left out in the cold.” That, plus lack of representation and intentionally poor treatment by DHS meant to discourage or coerce individuals results in unrealistically “depressed” asylum grant rates. Many who have been to the border report that a majority of those arriving should fit within asylum law if fairly and properly interpreted.
Second, many of those who don’t fit the asylum definition are both highly credible and have a very legitimate fear of deadly harm upon return. They merely fail to fit one of the “legal pigeon holes” known as “nexus” in bureaucratic terms. The BIA and this Administration have gone to great lengths to pervert the normal laws of causation and the legal concept of “mixed motive” to use “nexus” as an often highly contrived means to deny asylum to those genuinely in danger. A better and more humane Administration might devise some type of prosecutorial discretion or temporary humanitarian relief as an alternative to knowingly and intentionally sending endangered individuals and their families back into “danger zones.”
What clearly is bogus is the disingenuous narrative from Kirstjen Nielsen and other Administration officials that these are “frivolous” applications. What is frivolous is our Government’s cavalier and often illegal and inhumane treatment of forced migrants who seek nothing more than a fair chance to save their lives and those of their loved ones.
Whether they “fit” our arcane and intentionally overly restrictive interpretations, they are not criminals and they are not threats to our security. They deserve fair and humane treatment in accordance with our laws on protection and Due Process under our Constitution. What they are finding is something quite different: a rich and powerful (even if diminishing before our eyes) country that mocks its own laws and bullies, dehumanizes, and mistreats those in need.
This is derived from the closing lines of my speech to the 2019 FBA New York Asylum and Immigration Law Conference at NY Law School last Friday, March 8!
“Practicing what they preach,” Professor Claire Thomas of NY Law School and her courageous, smart, and dedicated students are now at the Southern Border saving lives and making a historical record of the cruel, ineffective, illegal, and bias-driven policies of the Trump Administration.
Thanks again to Professor Thomas, who was also one of the primary organizers of the “sold-out” Conference, and her inspiring students for all they are doing to preserve America and our system of justice against the attacks on the rule of law, our Constitution, and simple human decency by the scofflaw and incompetent Trump Administration.
A federal judge who ordered that more than 2,700 children be reunited with their parents has expanded his authority to potentially thousands more children who were separated at the border earlier during the Trump administration.
Dana Sabraw ruled late Friday that his authority applies to any parents who were separated at the border on or after 1 July 2017. Previously his order applied only to parents whose children were in custody on 26 June 26 2018.
Sabraw said his decision responds to a report by the US Health and Human Services Department’s internal watchdog that said thousands more children may have been separated since the summer of 2017. The department’s inspector general said the precise amount was unknown.
“The court made clear that potentially thousands of children’s lives are at stake and that the Trump administration cannot simply ignore the devastation it has caused,” said Lee Gelernt, the ACLU’s lead attorney in the lawsuit.
The judge says he will consider the next steps on 28 March.
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Progress. Judge Sabraw is a patient man.
But, here’s the reality:
The parents and children who are victims of the Government’s illegal conspiracy to violate their Constitutional rights are still suffering.
An Administration with billions to waste on unnecessary walls, unneeded troops at the border, and inhumane detention has no time, money, or interest in rectifying their own misconduct.
So, how is this “justice?”
It’s time for some accountability that will prevent such gross misconduct by Government officials from occurring in the future.
TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.
And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.
Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.
For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.
But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.
The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.
More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.
The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.
More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.
The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.
ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.
Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”
The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”
It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.
The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.
Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.
The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.
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Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”
First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.
Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.
Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.
No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.
While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.
Today, a wall looms large in my thoughts. It isn’t the structure President Trump has in mind for our southern border. I’m thinking of the Wall of Honor at the African American Civil War Memorial, located at Vermont Avenue and U Street NW.
Listed on the wall are the names of 209,145 U.S. Colored Troops who fought during the Civil War. One of those names is that of Isaiah King, my great-grandfather.
I think of those courageous black men as America’s original “dreamers.”
Today’s dreamers are in their teens and 20s, having arrived in this country as children. King’s generation of dreamers were former slaves or descendants of slaves brought to these shores against their will.
However, the black men who fought in the Civil War had the same status as today’s dreamers: noncitizens without a discernable path to citizenship.
Like dreamers of today, those black soldiers and sailors also had families and attended churches; some were enrolled in schools. They could dream of a future, anchored in the rights and privileges that come with democracy. But they had no legal claim to an existence within America’s borders.
My great-grandfather was born in the slave-holding city of Washington in 1848, but his mother was a freed woman. She moved the family to New Bedford, Mass., when he was 4. Around the time of his 17th birthday, Isaiah King enlistedin the 5th Massachusetts Cavalry (Colored), thinking, “I would have it easier riding than walking,” he told the New Bedford Evening Standard in an interview on the eve of Memorial Day services in 1932.
Black men such as my great-grandfather signed on to fight for a Union in which the right to citizenship was reserved for white people. The Supreme Court ruled in Dred Scott v. Sandford, in 1857, that black people were not citizens of the United States. Putting it bluntly, the high court said black people were “so far inferior that they had no rights which the white man was bound to respect.”
And even then, they started their service to the United States one step behind.
In his book “The Fifth Massachusetts Colored Cavalry in the Civil War,” Steven M. LaBarre cited the first disparity: It was enshrined in the Second Confiscation and Militia Act of July 17, 1862, which authorized recruitment of black men into the Union army. The law stated that a “person of African descent [of any rank] . . . shall receive ten dollars per month . . . three dollars of which monthly pay may be in clothing.” White privates at the time received $13 per month plus a $3.50 clothing allowance. It wasn’t until July 15, 1864, that Congress granted equal pay to black soldiers.
Yet, serve they did.
As evidence of the regard in which they were held, LaBarre quoted Massachusetts Gov. John Albion Andrew’s commendation of the 5th Massachusetts Cavalry when it was launched: “In this hour of hope for our common country and for themselves; at a time when they hold the destiny of their race in their own grasp; and when its certain emancipation from prejudice, as well as slavery, is in the hands of those now invited to unite in the final blow which will annihilate the rebel power, let no brave and strong man hesitate. One cannot exaggerate the call sounding in the ears of all men, in whose veins flows the blood of Africa, and whose color has been the badge of slavery. It offers the opportunity of years, crowded into an hour.”
Volunteering was a start. They still had something to prove.
According to National Archives, by the end of the Civil War, roughly 179,000 black men were serving as soldiers — 10 percent of the Union army — and 19,000 served in the Union navy. Nearly 40,000 black soldiers died over the course of the war — 30,000 of infection or disease. By war’s end, 16 black soldiers had been awarded the Medal of Honor .
King came back to the capital in May 1864 as a private with the 5th Massachusetts Cavalry to defend the city against attack by Confederate troops. His unit participated in the Siege of Petersburg. They guarded Confederate prisoners at Point Lookout, Md. And his unit was among the first Union regiments to enter Richmond, capital of the dying Confederacy, on April 3, 1865.
The Civil War ended, but not his service. Three months later, the 5th Massachusetts Cavalry was sent to Texas to defend against threats from Mexico. (Sound familiar?) He was mustered out of service on Oct. 31, 1865, at Clarksville, Tex. — still not a citizen of the United States.
It wasn’t until 1868 that the threat of removal from the United States was lifted by the 14th Amendment, which granted citizenship to all persons born or naturalized in this country, including former slaves.
The men with names on the African American Civil War Memorial’s Wall of Honor fought and died to end two centuries of slavery, without being able to count democracy as their own.
For their descendants, the fight for full rights, for full participation in every part of our democracy, goes on.
That fight must continue on behalf of today’s dreamers, the disenfranchised, the demeaned and left out, and all freedom-loving people in this nation.
Thanks, Colby, for putting the current plight of “Dreamers” (and I might add refugees and other migrants who are serving, contributing, and building our society despite their disenfranchisement and the government-sponsored dehumanization being inflicted upon them) in the historical context of the fight for civil rights and human dignity in America.
That’s why the “21st Century Jim Crows” like Trump, Sessions, Stephen Miller, Sen. Tom Cotton, Rep. Steve King, and others (largely associated with the GOP) are so pernicious. Like the “Jim Crows of the past,” these guys use degrading racial stereotypes, intentionally false narratives, and bogus “rule of law” arguments to generate hate and bias, sow division, and use the law to suppress and violate rights rather than advancing them.
While sycophant DHS Sec. Kirstjen Nielsen does not appear to be an “ideological racist,” her mindless and disingenuous parroting of the Trump White Nationalist “party lies” and “enforcement” (read “de-humanization”) agenda certainly makes her a “functional racist.”
It’s quite outrageous and dangerous that individuals with these types of views have been elevated to powerful public offices in the modern era, after the death of Rev. Martin Luther King, Jr. When will we ever learn, when will we ever learn?
Former FBI Deputy Director Andrew McCabe’s new book, which details his frustrations with President’s Trump administration, has made it clear that his “disdain for Trump is rivaled only by his contempt for [Jeff] Sessions,” according to an assessment from Washington Post reporter Greg Miller.
According to Miller’s review of the book, McCabe saw then–Attorney General Sessions as a Trump-like idiot and racist who had “trouble focusing, particularly when topics of conversation strayed from a small number of issues,” failed to read intelligence reports, and jumbled classified material with publicly reported news.
The strangest detail from the book, though, had to do with Sessions’ thoughts on the FBI’s hiring practices. According to the Post:
The FBI was better off when “you all only hired Irishmen,” Sessions said in one diatribe about the bureau’s workforce. “They were drunks but they could be trusted. Not like all those new people with nose rings and tattoos — who knows what they’re doing?”
According to a Wall Street Journal review of the book, McCabe wrote in his book that Sessions was only interested in immigration issues. He obsessed over the connection between crime and immigration, and he believed that Islam was an inherently violent religion, according to the Post. When presented with a counterterrorism case, he would first ask where the suspect was born or where the suspect’s parents were from. “He blamed immigrants for nearly every societal problem and uttered racist sentiments with shocking callousness,” Miller concluded from McCabe’s book.
McCabe’s assessment is surprising in only that it comes so bluntly from a man who once was acting head of the FBI but now seems intent on speaking out against the men who made his professional and personal life so difficult for 10 months (before he was fired just hours before his planned retirement, blocking him from receiving his full pension benefits). Sessions has a long, long history of making racist and anti-immigrant comments, while also implementing racist and anti-immigrant policies. A non-exhaustive list includes: allegedly warning a black lawyer to “be careful how you talk to white folks”; calling the NAACP “un-American”; reportedly joking that he used to think the KKK was “OK” until he discovered some smoked marijuana; praising an 1924 immigration act promoted by Nazi-style eugenics; denigrating a judge in Hawaii as “sitting on an island in the Pacific”; fondly remembered George Wallace, America’s most famous segregationist politician, as “one of the most formidable third-party candidates in this century; and lauding “the Anglo-American heritage of law enforcement.”
As for actions, in Alabama, Sessions punished black activists, defended voter suppression tactics, and kept black judges off the federal bench. He opposed sentencing reform over the crack-cocaine disparity. He has opposed hate crime protections and defended the official display of the Confederate flag. He has regularly attended events hosted by anti-immigrant and anti-Muslim groups, which he maintains a close relationship with. He touted falsehoods about DACA and immigrants in general. And of course, he pushed, relentlessly, for deportations and prosecutions of undocumented immigrants and even refugees fleeing domestic and gang violence.
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Sessions is a living example of how someone can spend a lifetime “on the dole” as a so-called “public servant” without providing any meaningful positive service or contributions to the public good.
Compare this “life not so well lived” with the “real world” contributions of the many decent, hard-working, honest, and dedicated civil servants who were screwed over by Trump’s shutdown. Or, compare Sessions’s squandered, anti-social life with the significant “real life” contributions of many of the immigrants, both documented and undocumented, who came before me in Immigration Court over 13 years.
I’m not sure even the worst of the aggravated felons that I ordered deported did as much lasting damage to our nation and its future as did Sessions! He was a child abuser on a grand scale, and someone who used knowingly false narratives to send deserving refugees, particularly abused women, back to torture or even death in the countries from which they had fled. He was the architect of both family separation and the unbridled expansion of the “New American Gulag.”
He promoted hate, intellectual dishonesty, ignorance, bias, and intolerance of all kinds, and was an avowed enemy of kindness and human compassion. He even had the absolute audacity to cite the Christian Bible, the compassionate, merciful, inclusive, and forgiving teachings of one of the world’s greatest “outcasts,” in support of his own perverted, bias-driven, and totally un-Christian world view.
Oh yeah, and he had no management qualifications going into the job and proved, beyond a reasonable doubt, that he couldn’t manage his way out of a paper bag. Seldom in modern times has there been a more demoralized, mission-less, and dysfunctional mess than today’s Department of Justice. Even Watergate didn’t do as much institutional damage.
Sessions’s only real contribution to justice, due process, and the public good was the day he walked out of the U.S. Department of Justice for the last time. But, it will take years, if not generations, to repair the damage he has inflicted on the rule of law, our Constitution, honest government, and humane values.
Truly, Liz was right! This was one supremely unqualified dude!
Funding deal blocks ICE from arresting adults taking in undocumented children
By Tal Kopan
WASHINGTON — A government funding deal on the verge of congressional passage would block federal officers from arresting undocumented immigrants solely because they come forward to take in migrant children.
The constraint on the Immigration and Customs Enforcement agency comes after The Chronicle reported that the government had made scores of such arrests — including more than 100 people who were taken into custody from July through November despite having no criminal record. Immigrant and child welfare advocates had assailed the practice as endangering young people by keeping them in detention longer and by giving immigrants an incentive to conceal potential sponsors’ true identities.
The population of undocumented children in government custody skyrocketed to record levels as immigration officials investigated the potential sponsors.
The ban on arresting sponsors with no criminal record is included in a bill to fund roughly one-quarter of the government through September. The appropriations legislation is the product of weeks of intense negotiations to avert a repeat of the partial shutdown that began Dec. 22 and lasted 35 days.
The Senate passed the bill Thursday and the House was expected to follow suit before government funding runs out Friday. The White House said President Trump would sign it.
House Democrats pushed strongly for the provision during negotiations over the funding package, said a Democratic aide who was not authorized to speak publicly about the talks. Florida Democratic Rep. Debbie Wasserman Schultz offered the specific legislative language.
“Arresting potential sponsors only ensures that children who flee dangerous circumstances will languish longer in overly crowded detention facilities,” Wasserman Schultz said. “Democrats agree, this cruel, immoral Trump trap does nothing to make America safer.”
At issue is the process of finding homes for undocumented immigrant children who come to the U.S. by themselves or are separated from an adult at the border.
Those children end up detained in a national network of shelters until they can be released to an adult, usually a relative. The shelters are designed to be a temporary bridge for often-traumatized children to more stable homes, in which they can pursue their case to stay in the country legally.
To sponsor a child, adults have long had to go through background checks for any criminal history or other red flags that might endanger the child. Immigration status is not weighed as a risk factor.
But last year the Trump administration added additional layers of review, including working with Immigration and Customs Enforcement to run fingerprints of potential sponsors. That caused concern within the immigrant community that sponsors, many of whom are undocumented themselves, could be ensnared in the administration’s no-limits immigration enforcement. The revelation that ICE had in turn used that information to arrest potential sponsors, most of whom had no criminal record, confirmed that fear.
Under the administration’s policies, the number of children in custody reached nearly 15,000, breaking records even after the government halted the practice it implemented in spring 2018 of separating families at the border. In December, the Department of Health and Human Services stopped requiring that every additional adult in a sponsor’s home be fingerprinted, a practice that had greatly slowed the process, keeping children detained longer. Since then, the number of children in custody has dropped to 11,500.
The government funding bill bars the administration from detaining or moving to deport undocumented immigrants based solely on information provided by Health and Human Services, which runs the unaccompanied children program, unless it provides evidence of a past child abuse-related felony or potential human trafficking.
Thanks, Tal, for putting the Chron “on top” of this grotesque mistreatment of children by the Trump Administration. Obviously, your courageous and timely reporting of abuses of human rights that DHS was trying to hide from public viewhas had a “real life” impact on legislation and people’s lives.
The intentional abuses of children and families that the Trump Administration is perpetrating in the name of our country is simply outrageous! Bad things happen to countries that make child abuse a national policy!
It also shows that the Democrats are right in challenging funding for abusive, wasteful, and unnecessary DHS detention. While they lacked the votes to succeed this time around, the battle certainly will continue, on both legislative and litigation fronts. As it does so, the full range of abuses, corruption, and unethical behavior by the Administration and DHS will be exposed and recorded for posterity.
As I’ve said before, it’s time for Article III Judges who have been lied to by Administration officials and whose orders to reunite families have been arrogantly ignored by the Trump Administration to put some of the Administration officials who have planned and carried out these gross human right abuses and thumbed their noses at court orders in jail for contempt.
Again, Tal, thanks for all you do for “truth, justice, and the American way!” And, thanks to conscientious legislators of both parties who helped put these restrictions on anti-social behavior in place. When the system works for the greater good, everyone benefits.
Feb 10 Wait in Mexico Policy, Access to Counsel, & Crime
A February 1, 2019 article in the L.A. Timesreported that two American attorneys who work for the immigrant rights organization Al Otro Lado, which has sent attorneys to Tijuana to offer advice to Central American refugees seeking to apply for asylum in the U.S., were stopped by Mexican immigration officials while attempting to enter that country. The attorneys were detained and questioned, and eventually denied entry because their passports had been “flagged.” One of the lawyers was actually traveling to Mexico on a family vacation, and was separated from her husband and 7-year-old daughter at the airport and taken to a separate room where she was interrogated. Her crying daughter was eventually allowed to join her; the two were held for 9 hours and forced to sleep on a cold floor without food or water before being sent back to the U.S. Two journalists who had been covering the issue of refugees seeking asylum at the U.S.-Mexico border suffered the same experience. The Mexican government denied responsibility for the “flagging;” one of the journalists was told “the Americans” were responsible.
One of my first reactionsto the remain in Mexico policy was the impact it would have on access to counsel. I have heard disturbing first-hand reports from individuals who have traveled to Tijuana to provide legal assistance to refugees there. When crossing back to the U.S., American citizens identified by Customs and Border Patrol officers as “activists” have been harassed by being sent to secondary inspection, where they have been questioned and, remarkably, have had the contents of their electronic devices accessed by DHS agents. A means of avoiding such treatment was to fly directly to Mexico. However, the reported policy of flagging the passports of attorneys engaged in such work has undermined that route as well. Thus, attorneys are being treated like criminals for the “crime” of doing their job of providing legal assistance to asylum seekers.
While DHS focuses on such imaginary “crime,” it willfully ignores the actual crime to which those asylum seekers forced to wait in Mexico are exposed. In a letterto DHS Secretary Kirsjen M. Nielsen, the American Immigration Council, American Immigration Lawyers Association, and Catholic Legal Immigration Network reported that 90.3% of asylum seekers surveyed said that do not feel safe in Mexico; 46% stated that either themself or their child had suffered harm in Mexico, and 38.1% reported mistreatment at the hands of the Mexican police. Female asylum seekers accompanied by their minor children reported suffering crimes in Mexico including rape, sexual assault, kidnaping, extortion, and death threats.
Keep in mind that the Administration has shamelessly named its wait-in-Mexico policy the “Migrant Protection Protocols.” Instead, the policy exposes asylum seekers (including vulnerable unaccompanied children and families) to crime and police harassment, while restricting their access to counsel.
Access to counsel is increasingly critical to Central American asylum seekers, many of whose claims require proving that their fear is on account of their membership in a particular social group. Where fear is of non-governmental persecutors, applicants must further establish that the government is unable or unwilling to control such actors, and that internal relocation to another part of the country was not reasonable. Meeting these criteria requires an applicant to offer complex legal theories, and to support such claims with affidavits, reports, and articles from one or more experts. Without legal assistance, this is a daunting task for refugees (some of whom are families or children) living under difficult conditions (including the above-mentioned exposure to crime and government harassment) on the Mexico side of the border. Under present BIA precedent, an asylum seeker who is just a little off in formulating their particular social group (even if they included one word too many or too few) is stuck with such formulation, and may not amend it should they be fortunate enough to obtain counsel to assist them with their appeal. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).
The Trump Administration’s policies towards Central American asylum seekers has consistently run counter to our country’s international treaty obligations. The Administration has tried to argue that those fleeing to our country are not truly refugees, falsely painting them (in the words of a Human Rights First release) as “frauds, security threats, and dangerous criminals.”
By undertaking efforts on so many fronts to make it increasingly more difficult for such claimants to succeed in their asylum applications, the Administration seeks to paint the resulting drop in grant rates as “proof” that such claims are “fraudulent.” In criminally prosecuting those who eventually try to cross the border when they are no longer to endure the conditions under which refugees are forced to wait in Mexico, the Administration cites such convictions as “proof” that the refugees are “criminals.” The Administration seems to view the flight to the U.S. as a choice, and believes that its deterrence policies might convince refugees to simply return to their home countries.
Such view is at odds with reality. This December articleby Prof. Karen Musalo in the Yale Journal of Law & Feminismadds further corroboration to the many reports detailing the horrible violence Central American refugees are fleeing. And the World Migration Project at the Columbia Univ. School of Journalism continues to track those who have suffered harm (including death) following their deportation from the U.S.; its findings also counter the Administration’s position that those fleeing are not truly refugees, and that repatriation is a viable option.
As the late Arthur Helton wrote more than 25 years ago, “A basic measure of a civilized society is the way it treats strangers.” Similarly, Jorge Ramosrecently wrote in Timemagazine that “countries are judged by the way they treat the most vulnerable, not the rich and powerful.” Our government’s policies towards asylum seekers (including its most recent efforts to interfere with that population’s ability to retain counsel), and its willingness to expose such a vulnerable population to harm (including murder and rape) shames us all.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.
As Jeffrey and I have pointed out a number of times before, a “bona fide Administration” could resolve the “self-created non-crisis” at the Southern Border simply by:
Following existing asylum laws;
Generously granting asylum in accordance with the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the Handbook;
Working with NGOs, pro bono groups, bar associations, “Big Law,” the religious community, and affected states and localities to provide easy access to counsel and achieve universal representation of asylum seekers, which, in turn:
has a proven strong correlation to court appearances;
makes most detention unnecessary, and most important,
safeguards Due Process and the rule of law.
Clearly, these measures could be accomplished more quickly and for far less than the $5.7 billion that Trump so desperately wants to waste on his Wall. And, other than perhaps a few “tweaks” to allow some U.S. Government funding of pro bono and “low bono” representation projects, they would not require a major rewrite of current statues.
By sharply reducing unnecessary and wasteful “civil immigration detention” (a/k/a the “New American Gulag” or “NAG”) and the many legal challenges it generates, the money and litigation time, on both sides, could be redirected at actually solving the problems, rather than making them worse.
On Friday, officials from the Trump administration said it would require too much effort to reunite the thousands of families it separated before implementing its “zero-tolerance” policy in April, according to a declaration filed as part of an ongoing lawsuit between the American Civil Liberties Union and U.S. Immigration and Customs Enforcement.
Last month, the inspector general of the Department of Health and Human Services released a report stating that “thousands” more immigrant families had been separated than the government had previously disclosed. In the declaration submitted Friday, HHS officials said they don’t know the exact number of children who were taken from their parents before “zero tolerance” and that finding them would be too much of a “burden” since there was no formal tracking system in place.
“The Trump administration’s response is a shocking concession that it can’t easily find thousands of children it ripped from parents and doesn’t even think it’s worth the time to locate each of them,” said Lee Gelernt, the lead lawyer in the ACLU’s ongoing lawsuit against ICE, in a statement. “The administration also doesn’t dispute that separations are ongoing in significant numbers.”
HHS did not respond to HuffPost’s request for comment.
The deputy director of the Office of Refugee Resettlement, Jallyn Sualog, said that 100 ORR analysts would have to work eight hours each day for between seven and 15 months to “even begin reconciling” data on separated families. “In my judgment, ORR does not have the requisite staff for such a project,” Sualog wrote in the declaration.
Immigration advocates are appalled by the fact that the government didn’t bother to properly track separated families and that it is now shirking its responsibility to reunite parents and children.
“They are saying they just don’t care,” said Michelle Brané, the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission. “It’s shocking frivolous om a human rights perspective for a government to behave this way.”
“I think the policy of taking the children away in the first place was cruel,” said Gelernt, the ACLU lawyer, “but to not even have a system to return the parents to the children just increases the magnitude of the cruelty.”
The government also failed to properly track the roughly 2,800 children that it separated from their parents under the “zero-tolerance” policy between April and June. The administration was required to reunite families as part of an ACLU lawsuit, an ongoing process that has at times required immigration advocates to search for deported parents on foot in remote, crime-ridden areas of Central America.
According to the inspector general’s report, 159 children who were separated under “zero tolerance” are still in ORR care, most of whose parents were deported and decided to keep their kids in the U.S. due to dangerous situations back home. If the government doesn’t allow those parents to re-apply for asylum in the U.S., families may remain permanently separated. Gelernt worries that before “zero tolerance” the government could have deported hundreds more parents who might not have had a say in their children’s futures.
In the declaration, Jonathan White, a commander with the U.S. Public Health Service Commissioned Corps, said that most unaccompanied children are released to family sponsors and that in addition to logistical challenges, trying to reunite separated kids with their parents could be destabilizing and “would present grave child welfare concerns.”
But Gelernt says the government should not be making decisions on behalf of mothers and fathers. “[The administration] had no right to just give these kids away unless the parent was making an informed decision,” he said. “This is not a situation where the parents put the child up for adoption. This is a situation where the child was forcibly taken from the parents.”
On Feb. 21, Gelernt will argue in front of a federal judge in California that all families separated before “zero tolerance” should be part of the ACLU’s ongoing lawsuit and that the government has a responsibility to reunify these parents with their children. He is disappointed that the administration failed to act humanely towards immigrant families in its declaration.
“The [government] is saying it’s not legally required for them to [reunite families] and therefore they won’t do it,” he said. “But why not do it because it’s the right thing to do?”
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Isn’t it time for the U.S. District Judge to start holding ICE and ORR officials in contempt of court? What about former AG Jeff “Gonzo Apocalypto” Sessions who “masterminded” this cruel fiasco?
Can there be justice without any morality or accountability?
SAN FRANCISCO — Central American migrants seeking asylum at the US–Mexico border will be forced to remain in Mexico while their cases in the US are being processed, the Trump administration said Thursday.
The unprecedented policy change will take effect on Friday with the return of the first group of migrants at the border crossing between San Diego and Tijuana, Mexico, according to Vox.
The policy, titled the Migrant Protection Protocols, is the latest attempt by the Trump administration to discourage migrants, including asylum-seekers, from trying to enter the United States. Previous attempts, such as banning asylum for those who crossed without authorization, were blocked by the courts, and this effort also is likely to face a challenge in court.
Under the policy, certain migrants at the border will receive a “notice to appear” in US immigration court and will be returned to Mexico until their hearing, according to a Department of Homeland Security fact sheet. The Mexican government, according to the agency, has provided the ability for those individuals to stay in the country until their court dates in the US. On the day of their hearing, migrants will be taken to US immigration courts for their cases to be heard.
Unaccompanied children will be excluded from the policy and those from “vulnerable populations” may be excluded on a case-by-case basis.
“We have implemented an unprecedented action that will address the ongoing humanitarian and security crisis at our Southern border,” said Homeland Security Secretary Kirstjen Nielsen. “For far too long, our immigration system has been exploited by smugglers, traffickers, and those who have no legal right to remain in the United States. The Migrant Protection Protocols represent a methodical commonsense approach to exercising our statutory authority to require certain individuals to await their court proceedings in Mexico.”
A US official close to the process who is critical of the policy told BuzzFeed News it would lead migrants to “revert to sneaking in rather than going to ports of entry” and cause “more deaths in the desert.”
The Trump administration informed the Mexican government that it was going to be enacting the policy based on a statute stating that certain individuals can be sent back to the contiguous country they arrived from.
BuzzFeed News first reported that the administration was considering such a policy back in November.
Trump administration officials have accused asylum-seekers of gaming the US system, requesting asylum that they know they won’t qualify for so that they can remain in the country for months or years while immigration courts hear their cases.
Rep. Zoe Lofgren, a California Democrat, said the policy was a circumvention of the country’s immigration laws.
“Today’s announcement creates more questions than answers. Even putting aside the unlawfulness of this action, we do not know where these asylum-seekers will be held, who will be responsible for their safety, how and where their hearings will take place, or how access to counsel will be handled,” she said in a statement Thursday.
Jeff Chase, a former immigration judge, said the move was outrageous.
“We should be allowing asylum-seekers to enter and pursue their claims according to the international legal norms,” he said. “It will obviously be much more difficult for asylum-seekers to obtain counsel and to meaningfully participate in increasingly complex legal claims from outside the country.”
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Right on, Jeffrey! Thanks for expressing our outrage in the dishonest, deceitful, inhumane, and counterproductive actions of shallow Trump sycophant Nielsen. Another mess is sure to follow. Despite her claims, and Nielsen is an established liar, everything I’ve read indicates that Mexico is unready to implement this if it involves more than a few hundred individuals. And, if the program were that small, it wouldn’t be worth doing. The Trump Administration of incompetents has yet to carry out any major new program without screwups.
What if Trump, Nielsen, DOJ, and EOIR just did their jobs by generously and efficiently granting asylum as mandated by the Refugee Act, the Supremes in Cardoza–Fonseca, and, ironically, the BIA’s own well-established but seldom enforced precedent Mogharrabi?
What if we took 50,000 refugees directly from the Northern Triangle, as we easily could and should do?
What if the Administration worked with, rather than against, pro bono groups and NGOs so that asylum seekers could fairly and efficiently move through the system consistent with Due Process?
What if DHS enforcement actually concentrated on potential “bad guys” rather than getting sidetracked by treating refugee families like criminals?
What if Trump treated refugees like the deserving and productive human beings that they have been throughout our history and welcomed and integrated them into our society?
What if he stopped using false narratives and restrictionist White Nationalist racist lies to make policy?
What if he cut the often illegal, always “built to fail,” and grossly fiscally wasteful gimmicks, smoke, mirrors, and job avoidance and just got the job done?
We’d actually be on the way to making America great again. Too bad that neither the Trump Administration nor the GOP seems interested in doing the real work of making government function within the law and advancing the real general public interests!
