"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.
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!
Washington (CNN)Federal Judge Emmet Sullivan on Friday rejected a Justice Department request to stay his earlier ruling blocking the Trump administration’s policy that makes it difficult for victims fleeing domestic and gang violence to qualify for asylum in the United States.
Last month, Sullivan agreed with a group of women and children who said the policy imposed a heightened standard in reviewing their claims, concluding that the administration must stop deporting migrants currently in the US “without first providing credible fear determinations consistent with the immigration laws.”
Friday, he wrote: “The government now requests a stay, pending appeal of the Court’s Order, to enable the unlawful policies to continue to apply in all expedited removal cases, except the plaintiffs. … Defendants’ motion for stay is DENIED.”
The attorney general has full authority over the immigration courts — a separate court system which operates under the Justice Department.
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We have an Administration without shame, human decency, or, obviously, the will and skill to govern. And, a DOJ where lawyers act not as legal guardians of the people’s rights, but continue to defend the indefensible, ill serves the American people.
“It’s chaos on top of disaster. By the end of next week, Trump will have added at least 100,000 cases to the already existing backlog of 800,000 + cases, plus another 300,000 that former A.G. Sessions diabolically and unnecessarily promised to artificially force back into the system. That’s 4-5 years of work for the Courts even with no new filings! People with good cases are denied justice while others postpone their day of reckoning indefinitely.
Many of these cases will never be decided unless Congress reforms this broken system by removing political control from the DOJ. I call this “Aimless Docket Reshuffling” (“ADR”) — cases being moved around by incompetent politicos at the DOJ without ever being completed. And under Sessions, the DOJ excelled at ADR, unnecessarily and artificially “jacking” the backlog by an incredible 50%+ in less than two years of politically biased and incompetent maladministration of the system. And, that’s even with more judges on the bench! Trump and his cronies have effectively destroyed one of America’s largest and most important court systems.
It must be reformed into a court independent of Executive overreach and incompetence. A new court must be established run by apolitical expert judges with the assistance of professional court administrators accountable to those judges, not Administration politicos. It’s not rocket science, just common sense, fundamental fairness, and above all, Constitutional Due Process.”
The result: Morale is at a “historic low,” said Ashley Tabaddor, the president of the National Association of Immigration Judges and a Los Angeles-based immigration herself, in an interview with CBS News.
The immigration court docket is split into two categories: Hearings for immigrants who have been detained represent about 5 to 10 percent of the docket. These cases have been uninterrupted during the shutdown and have been overseen by approximately 100 judges who aren’t getting paid.
But the vast majority of the immigration court docket is made up of immigrants who have been released but being monitored, or “non-detained” cases. Those cases case been postponed during the showdown. Judges who oversee these cases are completely barred from working, even on their own time to get ahead on administrative issues.
“I’ve been using the words ‘unprecedented’ and ‘surreal,’ and yet it keeps becoming more unprecedented and more surreal,” said Tabaddor. “It’s so unfortunate that we’ve reached this level of dysfunction.”
Adding to the low morale is a the massive backlog of cases, which has risen by nearly 50 percent since President Trump took office. As of November 30 the backlog stood at just over 800,000 cases, but if the shutdown continues through February it could break one million.
Worse still for the judges is a new quota system announced in October by the Department of Justice. It said that all judges would be required to complete 700 immigration cases in the following year; if they fall behind, their job security could be on the line.
“It’s so disconnected from reality,” said Tabaddor. “Those cases just can’t be completed in the timeframe that the administration is demanding. Frankly, it’s laughable.”
Given that many judges haven’t been able to work for more than a month, will the quota be waived? DOJ hasn’t given any guidance, said Tabaddor.
“It’s not like if you miss a day of work, they work just goes away,” Tabaddor said. “Everyone knows that they minute the shutdown is over, what awaits them is 10 times worse than what they left behind.”
“Judges jobs are on the line if they don’t meet these arbitrary number,” Tabaddor said. “People are very concerned.”
A call and email to the Department of Justice were not returned, but the agency’s website said that press inquiries may not be returned because of the government shutdown.
Currently, most non-detained judges have four to five thousand hearings scheduled through 2021 and in some cases 2022, Tabaddor said, noting that “every single day on their calendar is booked.” Immigrants who had hearings originally scheduled during the shutdown will most likely be forced to wait years before they’re able to get in front of a judge.
Forcing judges to rush through their quotas could have a devastating impact on immigration hearings, said Kate Voigt, the associate director of government relations at the American Immigration Lawyers Association. When forced to choose between their own job security and a through understanding of an individual’s case, many judges have gone with the former, pushing through cases without giving immigrants their due process, Voigt said.
The Department of Justice has “increased pressures on judges to churn out cases at lightning speeds, at the expense of due process and case-by-case determinations,” Voigt said in an email to CBS News.
In Charlotte, North Carolina some judges have refused to hear testimony from female asylum seekers from Central America, citing an now-overturned policy statement from former Attorney General Jeff Sessions that removed domestic and gang violence from admissible asylum criteria, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina, in an interview with CBS News. In one asylum hearing McKinney had last year prior to the government shutdown, Judge Barry Pettino refused to let his client testify, instead denying her asylum case outright because it dealt with gender-based violence, according to McKinney.
“My client didn’t think she was going to win her case, but she certainly didn’t think we were going to be in and out in 45 minutes,” McKinney said. “If the asylum seeker never gets to take the stand under oath, never gets to tell their story, that’s a fundamental due process problem right there.”
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In the words of the distinguished Judge Tabaddor, “surreal!” Why is it “OK” to have a court operating in the “Twilight Zone” making life or death decisions? How would you like YOUR life or YOUR loved one’s life to be determined by this dysfunctional mess?
Simply shameful! Also completely unnecessary. Trump and the DOJ are totally unqualified to run any court, let alone one with life or death authority. Congress is paralyzed. If the Article IIIs don’t step in, take this over, and require the restoration of at least rudimentary Due Process, there might not be any removals in the future!
How will they “reopen” this mess even when the “Trump shutdown” ends? Why won’t most of the overworked, underpaid, under appreciated, stressed out Court Clerks who keep this (unautomated, paper heavy) “Rube Goldberg Contraption” afloat, and who live paycheck to paycheck, have found new jobs where they are fairly paid and appreciated? Why won’t all the retirement-eligible judges head for the exits where life is better, the paychecks keep coming, and you can actively fight the Trump idiocy?
SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.
Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.” who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.
For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).
Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.
Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.
I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.
Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.
Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.
Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system. I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!
This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”
The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!
The greatest contrast between the time King led the struggle for America’s legal and social transformation and now is a White House occupied by Donald Trump.
The federal government, once a powerful legal and moral force to make real the promise of democracy, is in the hands of adversaries who seek to restore a hierarchy in which the interests of the bigoted, the xenophobic, the sexist and the defender of white male privilege always come out on top.
There is a long list of ways in which backtracking on civil and human rights has occurred since the election of a president who lost the popular vote by nearly 3 million votes. It ranges from discriminatory travel bans against Muslims to turning a federal blind eye to intentionally racially discriminatory state voter-suppression schemes, to opposing protections for transgender people, to inhumanely separating children from families seeking to enter the country.
Sadly, that’s not all that stands out.
Once the federal locus of the nation’s quest for racial reconciliation, today’s White House is a source of racial divisiveness and a beacon to the prejudice-warped fringes of American society. It’s no surprise that the FBI found hate crimes in America rose 17 percent in 2017, the third consecutive year that such crimes increased. In King’s day, racially loaded, hateful rhetoric could be heard across the length and breadth of the Deep South. Now, mean, disgusting and inflammatory words come out of the mouth of the president of the United States.
How far have we traveled?
From the promise of guaranteed rights to a return to the insecurity of injustice. A pluralistic America is being cynically drawn along racial lines by a president who is as far from the civility of his predecessors Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, the Bushes, Clinton and Obama as the charter of the Confederacy was from the Constitution.
King, and the movement he led, would be outraged. The rest of us should be, too.
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Read the full op-ed at the above link.
Very powerful! King speaks truth, reason, and humanity — in the spirit of Dr. King. Contrast that with the vile slurs, bogus race-baiting narratives, and non-policies spewing from the mouth of our racist (and incompetent) Liar/Grifter-in-Chief!
Two of my favorite MLK quotes (from the Letter from the Birmingham Jail — with acknowledgment to the Legal Aid and Justice Center from their poster hanging in my “office”)):
Injustice anywhere is a threat to justice everywhere.
Whatever affects one directly, affects all indirectly.
Thanks to those many courageous and dedicated individuals tirelessly serving America in the New Due Process Army by resisting Trump’s illegal and anti-American policies! You, indeed, are the 21st Century continuation of Dr. King’s legacy to our country and the world! Dr. King would be proud of you! Due Process Forever!
The Trump administration may have separated thousands of migrant children from their parents at the border for up to a year before family separation was a publicly known practice, according to a stunning government review of the health department’s role in family separation.
A report by the health department’s Office of Inspector General (OIG) published Thursday said officials at the health department estimated “thousands of separated children” were put in health department care before a court order in June 2018 ordered the reunification of 2,600 other children.
“The total number of children separated from a parent or guardian by immigration authorities is unknown,” the report said.
In 2017, officials at the health department’s Office of Refugee Resettlement (ORR) observed a steep increase in the number of children referred to ORR care who had been separated from their parents or guardians by the Department of Homeland Security (DHS), according to the report.
In response to the increase, officials began informally tracking separations. “Thousands of children may have been separated during an influx that began in 2017, before the accounting required by the court, and HHS has faced challenges in identifying separated children,” the report said.
US attorney general Jeff Sessions announced the “zero tolerance” policy that made family separations possible in April 2018, but advocacy groups had been warning for months that family separations were already taking place.
In June 2018, a federal judge ordered 2,600 children to be reunited with their parents, but the health department said in the five months following the order, it was still identifying children who should have been considered separated but were not being clearly tracked in government systems.
At the Berks Family Residential Center, an immigrant detention facility in Leesport, Pennsylvania, advocates and former detainees say it’s normal for children held there to have health problems.
One mother, who asked to use her middle name Arely, told the Guardian that children often had fevers or vomited when she was detained at Berks. She said she watched helplessly as her two-and-a-half-year-old daughter threw up blood for three days.
Another woman – who asked to be referred to only by her middle name Fernanda because she still fears her antagonists in her home country – remembered children with the flu and respiratory illnesses, and how the on-site medical professionals would take their temperatures but never give out medicine. When Fernanda’s own daughter had fever, she had to go to the hospital just to get Tylenol, she said.
Since attorney Jacquelyn Kline began representing immigrant families detained at Berks in the summer of 2014, she said the majority of her clients have gotten sick. Usually, the illnesses have been minor. But sometimes, when common problems have gone ignored or untreated, they have spiraled to become something more.
“In my experience, [the staff] do the bare minimum and they don’t want to do more than that unless it becomes a situation where they have to do it,” Kline said. “Because they don’t address things when there are minor issues, it allows them to become more serious issues.”
One Berks resident wrote to US Immigration and Customs Enforcement (Ice) in late 2015 that though her son’s skin disease had spread to his genitals and bled when scratched, the clinical team had not provided him with medication.In May 2016, a three-year-old boy who had been suffering from fevers and loss of appetite for months was finally diagnosed with an intestinal parasitism after his mother found a worm in his diaper.
Berks did not respond to a request for comment. Ice’s public affairs officers are out-of-office for the duration of the government shutdown, according to an automated email from the Pennsylvania officer’s account. Ice confirmed that he is currently furloughed.
Relatives cry over the coffin of seven-year old Jakelin Caal, who died in a Texas hospital on 8 December, two days after being taken into custody by US border patrol agents.Photograph: Johan Ordóñez/AFP/Getty Images
The fact that serious medical conditions occur and go untreated for days, weeks or months while immigrant children are under the government’s protection may come as a surprise to many. But advocates who have been on the ground at detention facilities under the purview of the Department of Homeland Security (DHS) are well acquainted with stories such as these that point to a wider trend.
“I am surprised that more children or parents have not died while in DHS custody, given the systemic failure on the part of the government to provide medical services,” said Kathryn Shepherd, national advocacy counsel for the Immigration Justice Campaign at the American Immigration Council.
In late 2018, the deaths of two migrant children while in US custody near the southern border made national headlines and refocused attention on immigrant children who are in the country illegally. First, seven-year-old Jakelin Amei Rosmery Caal Maquin died from cardiac arrest associated with dehydration on 8 December after being apprehended by DHS’s Customs and Border Protection (CBP).
Then, on Christmas Eve, eight-year-old Felipe Gómez Alonzo became the second child in a matter of weeks to succumb to illness after being taken into custody by CBP. It was later determined that he had the flu.
At first glance, the deaths appeared an exceptional phenomenon. Homeland security secretary Kirstjen M Nielsen has said that before last December, an immigrant child had not died in CBP custody in more than a decade.
But for those familiar with the ways in which DHS holds immigrant families beyond the border through Ice, the deaths felt part of a long medical history of neglect, misdiagnoses and close calls associated with undocumented children. This history dates to at least 2014, when the department ramped up mass incarceration of immigrant families under President Barack Obama.
“I don’t think that this is a new problem,” said Shepherd. “I think that this is something that’s been a problem for a long time.”
Before accepting her current post, Shepherd served as managing attorney for a pro-bono project representing asylum-seeking families at the South Texas Family Residential Center in Dilley, Texas. Women and children detained there have beenairlifted or rushed to a hospital in an ambulance on a number of occasions, she said. Last summer, Vice News reported that a toddler had died six weeks after leaving the Ice detention center, where she contracted what started as a common cold but evolved into a deadly virus.
Eight-year-old Felipe Gómez Alonzo died on Christmas Eve after being taken into custody by DHS’s Customs and Border Protection.Photograph: Catarina Gomez/AP
Brad Berman, a clinical professor of pediatrics at the University of California- San Francisco and fellow of the American Academy of Pediatrics, said the DHS facilities he is aware of that hold immigrant families crossing through the US’s southern border appear to be “providing inadequate or substandard medical care”.
“They are violating their own standards – federal standards, as well as state standards, as well as ethical standards,” he said.
Vincent Picard, deputy assistant director to Ice public affairs, said that Ice spends more that $250m annually on healthcare for their charges. He cited the June 2017 DHS inspector general’s report that found the agency’s family residential centers to be “clean, well-organized and efficiently run”.
“Ice takes very seriously the health, safety and welfare of those in our care,” Picard said in a statement. “Ice is committed to ensuring the welfare of all those in the agency’s custody, including providing access to necessary and appropriate medical care. Comprehensive medical care is provided to all individuals in Ice custody.”
An independent medical evaluation Berman did tells a different story. He found that “the standards of pediatric medical care and mental health evaluations and care” for one immigrant child “were breached during her stay” at Berks, the Ice family detention center in Pennsylvania, in 2016. The girl, whose mother Maria requested she be referred to by her middle name Beatriz, was bedwetting after traveling to the US from El Salvador. She was nine years old.
Soon after arriving at Berks, Beatriz had several appointments with Michael Mosko, a psychologist provided by the facility. In his notes from one of the sessions, Mosko wrote that after conferring with an interpreter , he was under the impression that the bedwetting “was related to nothing more than laziness”.
After Beatriz was released from Berks, she visited a pediatric urologist and nephrologist who diagnosed her with chronic renal failure – or loss of kidney function. Though the condition was likely associated with Beatriz’s premature birth, it was exacerbated by a misdiagnosis during her time in detention, Berman said.
Now, Beatriz takes pills every night for her illness, which Maria said can’t be cured.
“She looked good when we were in El Salvador,” Maria said. “It was when she came here that she got sick.”
For Maria and Beatriz – as for many of the families from Central America who have crossed the US-Mexico border in recent years – leaving El Salvador was an attempt at self-preservation. When licensed clinical social worker Kathryn S Miller evaluated Beatriz, her report indicates that Beatriz and Maria shared stories about how the child watched her mother get robbed at knifepoint, experienced a home invasion, and overheard accounts of family friends being murdered by gang members.
Over the course of a year, Miller evaluated a handful of children who were detained at Berks. She said there was no doubt that each of them had been exposed to repeated trauma while in their home countries and had legitimate reasons for requesting asylum.
While families seeking asylum make their case, many of them fall into DHS custody and rely on the medical professionals the department supplies.
“There’s just basic needs that children have,” said Miller. “And if they’re going to be tasked with taking care of vulnerable children, they need to have the training and support to make sure they’re taking good care of them.”
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The shutdown hasn’t stopped the Administration’s many abuses of migrants and children. Clearly, a Wall is not the answer to forcing the Administration to follow the law.
Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings. This guidance takes immediate effect and should be relied upon and cited to by advocates.
The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:
1. The general rule against claims relating to domestic and gang violence.
2. The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”
3. The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.
4. The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.
5. The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.”
6. The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”
While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts. Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law. The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.
Best,
Karen
Karen Musalo
Bank of America Foundation Chair in International Law
Professor & Director, Center for Gender & Refugee Studies
Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.
The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.
Most, if not all, cases denied on the basis of Sessions’s flawed decision in MatterofA–B– should be subject to remand from the Article IIIs. Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.
But more than two weeks later, the new strategy has yet to begin and it remains unclear how the plan would work – or even if Mexico is willing to enforce it.
But Mexican officials who would in theory implement the policy say they have been kept in the dark over the change – and some have explicitly opposed it.
“I had heard rumors, but I was not consulted,” said Tonatiuh Guillén, head of Mexico’s national immigration authority, told the Guardian.
“The US can’t just dump people into Mexico – they have to knock. We’ve asked for more answers, but the US government is shut down, so I guess they’ll answer when they figure that out. It’s all up in the air,” he said.
The number of people – mostly Central Americans – who would be parked in Mexico as a result of the move could be enormous.
“It’s not some small detail. The numbers just aren’t manageable. It will have far-reaching effects on services, employment, everything – the social and political fabric of Tijuana and other border cities,” said Guillén
Confusion over the current state of the plan reigns on both sides of the border: when Nielsen announced the move on 20 December, Mexico’s foreign ministry reluctantly accepted, although within days the foreign minister, Marcelo Ebrard, said he would need more information from US authorities. Guillén said Mexico had not formally accepted the plan.
Meanwhile, US Congress members wrote to the secretary of state, Mike Pompeo, on 2 January requesting the text and details of any agreement.
Hopes for clarity have been further complicated by the shutdown of the US federal government triggered by a funding row over Donald Trump’s demands for a $5bn wall on the southern border.
US border officials are already limiting the number of people who can apply for asylum at a port of entry, creating delays of several months for migrants hoping to get into the US – and overwhelming public services in Mexican border cities.
Activists in Mexico say the “catch and return” policy would push conditions past breaking point.
“Aside from this taking away people’s right to apply for asylum, it would cause Mexico’s northern border cities to nearly collapse,” said Esmeralda Siu Márquez, the executive coordinator of Coalición Pro Defensa Del Migrante, a network of local migrant support organizations.
“This would change Tijuana from being a transit point. Shelters, which are already at capacity, are temporary – we’d need housing, integration programs, school programs, etc. We don’t have the budget.”
Officials in Tijuana have already stretched thin resources, normally focused on Mexican deportees, to deal with the more than 5,000 members of the Central American migrant caravans which started arriving in November.
Cesar Palencia, who handles migrant affairs in Tijuana, says he only heard of the plan on the news. “The city isn’t prepared for this. The [Mexican] federal government does not really understand what this would mean – they have no strategy, no budget for it,” he said.
Mexico’s new president, Andrés Manuel López Obrador, cut the country’s migration and refugee budget after he took office 1 December 2018, and has not indicated whether or not that would change in light of the new plan. His administration has also pledged visas and work in Mexico for Central American migrants.
But for many, like Samuel Tabora, a 24-year-old construction worker, the kind of jobs available in Mexico – particularly low-skill factory positions in Tijuana – do not pay enough for them to send much back home to Honduras, where over two-thirds of the country lives in poverty.
Faced with the prospect of staying years in Mexico, he said he would consider jumping the border fence with his partner and four-year-old daughter. “If they deport me, we’ll just turn around and come back. I want to work and make money and to have something to send home to my family,” he said.
Several of the asylum seekers who had heard of the potential policy said they would simply wait it out in Mexico. “Going back, I may as well just tie a noose for myself and hang it from a tree,” said Francisco M, who left Guatemala with his wife and three children due to extortion threats from gangs. “We are here alone and it hurt to leave our roots, but I’d have to have a death wish to go back there. No, we will stay as long as it takes.”
Advocates warn the plan would add formidable new challenges to the already-tortuous asylum process. “The policy essentially dispossesses people of their right to trial. It takes me months to prepare one asylum case. I’ll maybe meet with a person six times. People cannot build cases in the US if they can’t meet with their lawyers. How will they get to their hearings?” said Erika Pinheiro of Al Otro Lado, a legal aid organization in Tijuana.
It would also encourage migrants seeking asylum to take more treacherous routes, she said. “By taking away legal avenues to asylum, you’re basically telling people to jump over the fence.”
A dumb Trump policy followed by an idiotic Trump shutdown with an incompetent DHS thrown in the toxic mix. And the combination of an unhinged and unqualified President with lightweight sycophantic Cabinet Members is a much greater threat to our national security than asylum applicants seeking refuge have ever been or will ever be.
More bogus, anti-immigrant, anti-Due Process certification decisions from AG
Pereira mess in scheduling
Cancellation mess; hundreds of thousands eligible for relief; no plans for adjudication
Dockets will continue to be screwed up by failure of responsible enforcement policies by DHS, failure of prosecutorial discretion exercised by virtually all other law enforcement authorities, and mindless, inappropriate “re-docketing” of previously Administratively Closed cases for no particular reason except White Nationalist inspired meanness
Massive returns of asylum and other improperly decided cases to Immigration Courts by Article IIIs
More deaths, illness, abuses resulting from Trump’s cruel, ill-conceived detention and border policies
Mexico and Article IIIs will,”push back” against Administration’s ill-conceived plans to “dump” legitimate asylum seekers over Mexican border
Public Charge Controversy
TPS Termination & Litigation
One of Trump’s dumbest, most unnecessary, & disruptive moves will wreak havoc on the economy and the legal system
Lots of fraud, waste, and abuse at DOJ and DHS will be exposed by House Committees
Will new AG prove to be “Button Down Version of Jeff Sessions?”
Here’s part of the conclusion of Karen’s article “EL SALVADOR–A PEACE WORSE THAN WAR: VIOLENCE, GENDER AND A FAILED LEGAL RESPONSE” published at 30 Yale Journal of Law & Feminism 3 (2018):
Historical and contemporary factors have given rise to the extremely high levels of violence that persist in El Salvador today. Many of the Salvadorans interviewed for this article referred to a “culture of violence” going back to the brutal Spanish Conquest and continuing into more recent history, including the 1932 Matanza and the atrocities of the country’s 12-year civil war. Gender violence exists within this broader context. However, as almost every Salvadoran source noted, violence against women is even more deeply rooted than other expressions of societal violence as the result of patriarchal norms that tolerate and affirm the most extreme forms of domination and abuse of women.
. . . .
Levels of violence, including the killings of women, have continued to rise, while impunity has remained a constant. Criticism of the persistent impunity for gender violence resulted in El Salvador’s most recent legal development: the enactment of Decree 286, which created specialized courts. However, the exclusion of the most commonly committed gender crimes–intrafamilial violence and sexual violence–from the specialized courts’ jurisdiction, and the courts’ hybrid structure, which requires that cases still be initiated in the peace courts, do not inspire optimism for positive outcomes.
Notwithstanding these considerable obstacles, the Salvadorans interviewed for this article, who have long struggled for access to justice and gender equality, maintain the hope and the belief that change is possible. In the course of multiple interviews over a six-year period (2010 to 2016), Salvadoran sources have expressed deep frustration and disappointment but have not articulated resignation or defeat.
. . . .
The Salvadorans who I interviewed for this article have provided information, insights, and perspectives that are simply not available in written reports or studies. Although they come from a range of backgrounds–governmental and non-governmental; legal professionals as well as grassroots activists–they all acknowledge the complex causes of societal violence. As discussed throughout this article, they also have specific critiques and prescriptions for what must be done in order to see any real progress. Discussions of the country’s crisis, as well as of the international community’s response, must start by listening to the voices of the Salvadorans who, despite the seemingly intractable situation of violence and impunity in which they live, have refused to abandon the struggle for justice and equality. They are inspiring in their courage and resilience. By quoting extensively from these sources, this article has sought to amplify their voices.
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Read Karen’s complete article at the above link.
Compare real scholarship and honest reflection of the experiences of women in El Salvador affected by this seemingly unending wave of persecution with the intentionally bogus picture painted by Jeff Sessions in Matter of A-B-. Hopefully, advocates will be able to use the research and expertise of Karen and others like her to enlighten fair-minded Asylum Officers and Immigration Judges, support their efforts to grant women the protection they merit as contemplated by the Refugee Act and the Convention Against Torture, and force the Article III Courts and eventually Congress to consign Sessions’s intentionally perverted reasoning to the dustbin of “Jim Crow Misogynist History” where it belongs.
Many thanks to my good friend and colleague in “Our Gang,” Judge Jeffrey Chase, for passing this link to Karen’s important scholarship along.
With President Trump, there is no bottom. Every time you think you have seen it, he manages to sink even lower.
It is not news that the president is indifferent to human suffering. His limp response to the devastation of the 2017 hurricane in Puerto Rico — which he claimed to have been a “fantastic job” on the part of his administration — stands out in that regard. But on Saturday, we saw yet another level of depravity when Trump made his first comments regarding the deaths in recent days of two migrant Guatemalan children after they were apprehended by federal authorities. It revealed not only callousness but also opportunism, as he sought to turn this tragedy into a partisan advantage in his current standoff with Democrats over the government shutdown.
His statements came, not unexpectedly, over Twitter. First this:
Any deaths of children or others at the Border are strictly the fault of the Democrats and their pathetic immigration policies that allow people to make the long trek thinking they can enter our country illegally. They can’t. If we had a Wall, they wouldn’t even try! The two…..
…children in question were very sick before they were given over to Border Patrol. The father of the young girl said it was not their fault, he hadn’t given her water in days. Border Patrol needs the Wall and it will all end. They are working so hard & getting so little credit!
Not a word of sympathy here — much less remorse on the part of the government over the deaths of a 7-year-old girl and 8-year-old boy while in its custody. Nor does Trump address questions that are being raised about whether the administration’s new policy seeking to limit the ability of immigrants to seek asylum protection might be a factor in putting more at risk. Under recent changes, migrants must remain in Mexico as their asylum cases are processed, possibly increasing their willingness to do something reckless to come across the border.
Then there was the dissonance: His blast came on a day that Homeland Security Secretary Kirstjen Nielsen was visiting Yuma, Ariz., after stopping in El Paso, Tex. Her department has promised more thorough medical screenings and is calling on other agencies to help. “The system is clearly overwhelmed and we must work together to address this humanitarian crisis and protect vulnerable populations,” Nielsen said in a statement.
Even if Trump were to get funding for the wall — and even if the wall were the deterrent he promises it would be, a more dubious proposition — that would be many months if not years in the future. This is an immediate crisis, for which the president seems to have no concern. Nor does Trump address the fact that what he claims are Democratic immigration policies have been in place for decades, and yet, until this month, it had been more than a decade since a child had died while in Customs and Border Protection custody.
It is true that greater numbers of vulnerable Central American children are being put into treacherous situations. My colleagues Joshua Partlow and Nick Miroff have done excellent reporting on how smugglers are gaming a dysfunctional immigration system:
This is happening because Central Americans know they will have a better chance of avoiding deportation, at least temporarily, if they are processed along with children.
The economics of the journey reinforces the decision to bring a child: Smugglers in Central America charge less than half the price if a minor is part of the cargo because less work is required of them.
Unlike single adult migrants, who would need to be guided on a dangerous march through the deserts of Texas or Arizona, smugglers deliver families only to the U.S. border crossing and the waiting arms of U.S. immigration authorities. The smuggler does not have to enter the United States and risk arrest.
The Trump administration tried to deter parents this spring when it imposed a “zero tolerance” family-separation policy at the border. But the controversy it generated and the president’s decision to halt the practice six weeks later cemented the widely held impression that parents who bring children can avoid deportation.
As Trump fulminates about the wall, he rarely brings up the idea of doing anything about the source of the problem: the desperation of people who are being driven from their native countries by poverty and violence. Until those forces are addressed, migrants will keep coming, even if it means taking greater risks to do so.
In the meantime, we have a president who is willing to politicize the deaths of two young children to score points against the opposition party. And the most shocking thing about seeing him scrape along a new moral bottom is this: It is no longer shocking at all.
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Read the original article at the link.
The key:
As Trump fulminates about the wall, he rarely brings up the idea of doing anything about the source of the problem: the desperation of people who are being driven from their native countries by poverty and violence. Until those forces are addressed, migrants will keep coming, even if it means taking greater risks to do so.
Walls, detention centers, tent cities, and more Border Patrol Agents won’t solve this problem. Nor will proposed changes in the law and administrative actions aimed at further undermining our legal obligations toward refugees and asylum seekers. In fact, as we can see, the Administration’s approach is making things worse.
Establishing a fairer and appropriately more generous interpretation and application of our asylum and related protection laws, investing in addressing “push” conditions in Central America, establishing robust “in country” refugee programs in the Northern Triangle, cooperation with the UNHCR is seeking “regional solutions” closer to the Northern Triangle, more well-trained Asylum Officers, and more well-trained, fair and impartial U.S. Immigration Judges with a prior background in fair and humane treatment of asylum seekers would, over time, improve the situation. Perhaps in the long run, it would even solve the problems.
How Far Reaching is the Impact of Grace v. Whitaker?
Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker. The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-. Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.
In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.” In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.” Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world. However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid. The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis. And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1
If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2 A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others. Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case. Such Sisyphean approach seems ill suited to the current million-case backlog.
However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard. When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.” Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.
How far reaching is the Grace decision? We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews. But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?
USCIS of course is part of the Department of Homeland Security. Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice. Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal. However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan. The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.
Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR. An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.” The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard. But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge. The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard. The USCIS memo reversed this, directing asylum officers to categorically deny such claims. But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.
When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing. Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings. Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that. Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.
But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)? And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?
Many immigration judges are presently struggling to understand Matter of A-B-. The decision was issued on the afternoon of the first day of the IJ’s annual training conference. This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators. But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon. Needless to say, the training was not very useful in examining the nuances of the decision. As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.
Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification. However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4 I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process. My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision. Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.
A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.
Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.
There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by screwing the most vulnerable among us!
