Kirstjen Nielsen – Page 15 – immigrationcourtside.com

U.S. District Judge Leonie Brinkema Lays Groundwork For Holding Trump’s Child Abusers & Family Separators Accountable!

https://www.justice4all.org/wp-content/uploads/2018/11/JECM-Motion-to-Dismiss-Ruling.pdf

FOR IMMEDIATE RELEASE
Contacts: Rebecca Wolozin, (571) 373-0518
Simon Sandoval-Moshenberg, (434) 218-9376

FEDERAL COURT ALLOWS CHALLENGE TO GOVERNMENT POLICY

USING DETAINED CHILDREN AS BAIT TO ARREST FAMILIES

ALEXANDRIA, VA (November 16, 2018) — Yesterday, the U.S. District Court for the Eastern District of Virginia denied the U.S. government’s motion to dismiss Legal Aid Justice Center’s lawsuit on behalf of detained immigrant children and their families, striking a blow to a new immigration policy that has kept thousands of children unnecessarily detained for months. The Court’s decision is a victory for immigrant children and their families in Virginia and across the country.

This case is particularly significant, not only in Virginia, but nationally. Over 13,000 children are held by Office of Refugee Resettlement (ORR) under the policies challenged in this suit, hundreds of whom are in Virginia. Because the policies are federal policies implemented across the country, the outcome of this case will have a nationwide impact.

Legal Aid Justice Center (LAJC), together with the intellectual property law firm of Sterne, Kessler, Goldstein, and Fox, brought this first-of-its-kind class action lawsuit challenging the government’s recent policy of sharing sponsor information and information about sponsors’ household members with U.S. Immigration and Customs Enforcement (ICE). That policy has resulted in ICE arrests of family and friends that came forward to bring their children home.

“The Trump administration has been carrying out a backdoor family separation agenda, keeping immigrant children apart from their families and using children as bait to break up the very families they have traveled so far and risked so much to join,” said Becky Wolozin, lead counsel and attorney with LAJC’s Immigrant Advocacy Program. “This decision is a victory for immigrant children and families. The Court has said clearly that the government cannot run roughshod over the rights of these children and their loved ones.”

The lawsuit stemmed from the experience of four children in ORR custody on Virginia who were held by the government for over five months while their relatives tried to bring them home. Three of the four children were finally reunified with their families – one just weeks before the Court’s order came down. The three children who have been reunified with their families have been dismissed from the case. One child remains in government custody, where he has been held apart from his adult sister for six months, after fleeing violence and neglect in his home country.

“For years, ORR has neglected its obligations under the Administrative Procedure Act,” said Sterne Kessler Director Salvador Bezos, lead of the firm’s immigration-focused pro bono matters. “The Administrative Procedure Act provides essential protections against this kind of agency overreach. I am proud of my colleagues’ and LAJC’s efforts to force the government to meet its obligations to the children in its custody.”

“ORR is supposed to protect vulnerable immigrant children. Instead it is placing them in harm’s way under the guise of child welfare,” said Simon Sandoval-Moshenberg, Legal Director of LAJC’s Immigrant Advocacy Program. “Their policy and its enforcement undermine successfully placing children with their families and the vast surveillance actions are destabilizing immigrant communities.”

In the November 15th ruling, U.S. District Court Judge Leonie Brinkema firmly upheld children’s right to liberty and the right to family unity for immigrant families. Judge Brinkema found that the children and their sponsors provided sufficient reason to suggest that their constitutional rights were violated, and that the government violated the Administrative Procedure Act when it enacted its ICE sharing policy earlier this year. The case will now move forward as LAJC works to certify the class and the parties work to complete discovery.

Read the legal ruling here.

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Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/current-initiatives/fighting-family-separation/

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Congrats to Rebecca, Simon, and the wonderful crew over at Legal Aid Justice in Virginia! True fighters and leaders of the New Due Process Army!

Hopefully this will pave the way not only for the end of these despicable and illegal behaviors, but also holding the Trump Administration scofflaws and their career employee accomplices who plan and execute these violations of law fully accountable for their intentionally unlawful and unconstitutional actions.

PWS

11-18-18

EYORE FIDDLES WITH DOCKET AS ROME BURNS – Latest Bureaucratic Gobbledygook From Falls Church Shows Why EOIR Must Be Abolished & Replaced By An Independent Court, Run By Sitting Judges, With Professional, Apolitical Administration!

https://www.justice.gov/eoir/page/file/1112036/download

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So, let’s see what’s really going on here, beneath all of the “Tower bureaucratese.”

Bureaucrats at Falls Church “Headquarters,” who are beholden to DOJ politicos, are setting the local Immigration Court docket priorities to the exclusion of sitting Immigration Judges, Respondents’ Counsel, NGOs and the members of the public who actually use the system;
But one party, the DHS, is effectively being given unilateral authority to establish the Immigration Courts’ “docket priorities;”
DHS also unilaterally decides which cases will be designated as “family units” and therefore “prioritized;”
EOIR notes that the prioritization of certain “aliens with children” cases between 2014 and 2017, also at the behest of DHS, was a MASSIVE failure that actually decreased productivity and significantly accelerated the backlog (what I refer to as “Aimless Docket Reshuffling”);
Nevertheless, EOIR inexplicably decides to “double down” on a known failure just because their “partners” (Sessions’s term) at DHS essentially have ordered them to do so;
Why “Baltimore, but not Arlington;” “San Francisco, but not San Diego,” “Denver, but not Dallas,” etc.?
“EOIR remains committed to the timely completion of all cases consistent with due process” — Really?
- Lead by enforcement guru Jeff Sessions and DHS, the Trump Administration has intentionally “artificially jacked” the “backlog” to over 1.1 million cases;
- If the approximately 350 currently authorized Immigration Judges were all on board and each met their 700 case “quota,” the Immigration Court could complete only about 250,000 cases per year;
- If no additional cases were filed, and none of the judges left, the pending cases wouldn’t be completed until the latter half of 2023;
- But of course, under the Trump Administration’s mismanaged and totally undisciplined enforcement program, new cases will be piled into the system without regard to its capacity and judges will continue to burn out and leave;
- So, effectively, there is no cogent program for getting the backlog under control — ever;
What’s missing from this bureaucratic never-never land is any sense of fairness, competence, or meaningful participation by those most affected by the backlogs and “Aimless Docket Reshuffling” and who possess the most expertise at arranging dockets for fairness and efficiency: sitting Immigration Judges, Respondent’s Counsel, NGOs, and respondents themselves (along, of course, with the ICE Chief Counsel unencumbered by the “DHS Enforcement Wackos“);
Also glaringly absent: any requirement that the DHS justify their requests to prioritize the dockets or exercise any responsible “prosecutorial discretion” to take “lower priority ” cases off the dockets;
A “no-brainer” in a functioning independent court system would be requiring DHS to remove one (or more) “low priority” cases for each case they wish the court to “prioritize” or otherwise move ahead of other, older pending cases.

The rapidly failing and unfair system needs aggressive oversight and monitoring — from Congress (read the House) and the Article III Courts!

Ultimately, it will continue its “death spiral” until both the EOIR bureaucracy and the Administration politicos who abuse it are permanently removed from the equation and an independent court, run by sitting judges with assistance from other court management professionals with meaningful public input is established. A strong, independent, efficient, unbiased U.S. Immigration Court will also help ICE carry out its law enforcement mission in a professional, legal, non-discriminatory, de-politicized, and humane manner, perhaps bringing enough rationality to the system to save that beleaguered agency from its critics.

PWS

11-18-18

TAL @ SF CHRONICLE: DHS Enforcement Policies Calculated To Maximize Kiddie Detention @ ORR, Create Backlogs, Increase Suffering, & Maximize Long-Term Damage To Kids, Families!

More than 14,000 immigrant children are in U.S. custody, an all-time high

WASHINGTON — The number of undocumented immigrant children in government custody has topped 14,000 for the first time, a rise that shows no signs of slowing as the Trump administration enforces policies that are keeping them in care longer.

There were 14,056 unaccompanied immigrant minors in Health and Human Services custody on Friday, according to a government source familiar with the number. A spokeswoman for the Department of Health and Human Services confirmed that the total had reached approximately 14,000.

That number tops records set just two months ago, putting further strain on an already overburdened system.

The issue of immigrant children in government custody gained widespread attention in the spring and summer when the Trump administration separated thousands of families at the southern border. Almost all those separated children have since left Health and Human Services care, but the total number of children in the system has steadily grown.

The reason is that children who arrive unaccompanied in the U.S. are spending more time in holding facilities before they can be released to suitable adults, often family members. One change that has especially slowed that down is an agreement Health and Human Services signed earlier this year for Immigration and Customs Enforcement to do background checks on potential sponsors.

ICE confirmed in September that it had used that information to arrest undocumented adults who came forward to take custody of children. Previous administrations didn’t look into people’s immigration status when deciding whether to release children into their care, but that changed under President Trump.

The Health and Human Services care system was intended to be a temporary bridge for often-traumatized children into a more stable home while they sought legal status in the U.S. But the Trump administration changed course, declaring that no undocumented immigrant was off limits from potential arrest and deportation.

More: https://www.sfchronicle.com/nation/article/More-than-14-000-immigrant-children-are-in-U-S-13399510.php

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The nasty incompetents in charge of these programs need some meaningful oversight from both Congress (read House) and the Article III Courts. When this sorry episode is finally over, there should be some accountability for both the politicos and the career bureaucrats who have designed and implemented a system intended to inflict maximum harm and suffering on kids and their families, and, in some cases, lied to cover up or mask what they are really doing. Nielsen should be first in line as she fits all the categories: intentionally inhumane (probably illegal) policies, incompetent administration, and intentional lies.

“Nice folks” working for the Government these days!

PWS

11-17-18

CRUEL, INHUMANE, INEFFECTIVE, WASTEFUL: New Report From CMS, KBI, & CBE Shows How Trump’s Racist Immigration Enforcement Policies Are Destroying & Dividing America, Not Protecting Us!

FINAL-Communities-in-Crisis-Report-ver-5

EXECUTIVE SUMMARY:

A report of the , Center forMigration Studies, and Office of Justice and Ecology

Section 1: Introduction

A woman and her child waiting at the port of entry in Nogales, Sonora to be processed into the US asylum system. Photo: Greg Constantine.

KBI, CMS, and OJE Report November 2018Communities in Crisis: Interior Removals and

Their Human Consequences

“My oldest son asks, ‘Where are my rights as a US citizen? Where is my right to live with my family and have a home?’”

— Mother of three US citizen children and wife of detained immigrant

“My husband called and said that he had a normal check-in like every year. He went like always, but this time they arrested him. I asked why if everything was going well. He had a clean record. He is a good father. He is working to help our kids get ahead. We have two children who are citizens and we are fighting for them, so that they are good people and professionals. I didn’t see any reason for him to get arrested.”

— Woman whose husband was deported

“In my preaching, I guide and insist that it is important to be aware of our rights, to not have fear, and to know that we all are God’s children and need a piece of land in this planet. I try to remind them that they are immigrants but also human beings before anything else and that all human beings have rights.”

— Priest

Executive Summary

In late 2017, the Kino Border Initiative (KBI), the Center for Migration Studies of New York (CMS), and the Office of Justice and Ecology (OJE) of the Jesuit Conference of Canada and the United States initiated a study to examine the characteristics of deportees and the effects of deportation, and to place them in a broader policy context (Attachment A).1

The CRISIS Study (Catholic Removal Impact Survey in Society) included both quantitative and qualitative elements. During the first five months of 2018, KBI staff surveyed 133 deportees from the United States at its migrant shelter in Nogales, Sonora. Survey respondents were all Mexican nationals, all but one were men, and each had been living for a period of time in the United

1 KBI, which operates in Nogales, Arizona and Nogales, Sonora, seeks “to promote US/Mexico border and immigration policies that affirm the dignity of the human person and a spirit of binational solidarity.” KBI provides humanitarian assistance and accompaniment to migrants; social and pastoral education with communities on both sides of the border; and research and advocacy. CMS is a think tank and an educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. CMS is a member of the Scalabrini International Migration Network (SIMN), a global network of migrant shelters, service centers, and other institutions, and the Scalabrini Migration Study Centers. OJE of the Jesuit Conference of Canada and United States seeks to foster reconciliation on issues such as refugee protection, immigration, and economic, criminal, juvenile, and environmental justice.

2

KBI, CMS, and OJE Report November 2018

States.2 They had resided in 16 US states, the majority in Arizona, followed by Nevada, California, and Utah. The survey sought information on their US lives, the removal and detention process, and the impact of removal on them and their families (Attachment B).

The study also included one interview with a deportee (via Skype) and 20 interviews with the family members of deportees and other persons affected by deportation in Catholic parishes in Florida, Michigan, and Minnesota. The parishes — which the report will not identify in order to ensure the interviewees’ anonymity — were chosen based on their geographic, demographic, and sociopolitical diversity, their connections to the agencies conducting the study, and their ability to facilitate access to deportees, their families, and others impacted by deportation.

The interviews explored: (1) the impact of removals on deportees, their families, and other community members; (2) the deportation process; and (3) the relationship between deportees and their families (Attachment C). They provided an intimate, often raw look at the human consequences of deportation.

Long Tenure, Homeownership, Legal Status, and Community Engagement

By and large, survey respondents had built their lives, made their homes, and established long and deep ties in the United States.

On average, they had lived in the United States for 19.9 years.

More than half (56 percent) first entered the country as minors (below age 18), and 21 percent below age 10.

Thirty-eight percent reported having legal status in the United States, including 14.3 percent who were lawful permanent residents (LPRs).

Twenty-six percent had been US homeowners.

Fifty-two percent had participated in church activities, 34.1 percent regularly attended church services, and 9 percent had participated in community organizations.Family and Economic Ties and the Consequences of DeportationSurvey respondents had established strong family and economic ties in the United States. Deportation mostly severed these ties, and divided, devastated, and impoverished the affected families.

Seventy-eight percent of survey respondents had US citizen children.3

The average age of respondents’ children living in the United States was 14.9 and 33 percent were 10 years old or less.

Forty-two percent had US citizen spouses or partners.4

Ninety-six percent had been employed in the United States.2 The report uses the phrase “interior removals” to refer to the deportation of persons who have been living in the United States for a period of time.
3 Respondents were asked to list the age, residency, and citizenship status of up to five children.
4 This figure refers to respondents with spouses or domestic partners.

Communities in Crisis: Interior Removals and Their Human Consequences

On average, they had worked nearly 10 years in the same job and earned roughly $2,800 per month.

Respondents had an average of $142 in their possession at the time of their deportation.5

Deportees reported that they needed employment (78.2 percent), financial (68.4 percent), housing (56.4 percent), emotional (56.4 percent), and social integration (54.9 percent) assistance.

Most survey respondents reported that their spouse or partner in the United States did not have enough money to support their children (74 percent) or to live on (63 percent).

Respondents identified a range of close family members who depended on them financially prior to their deportation, including their mothers (72 percent), fathers (57 percent), and siblings (26 percent).

Forty percent reported having dependents with chronic health or psychological conditions, including heart disease, cancer, diabetes, and autism.

Nearly one-half (48.1 percent) said that their children — some of whom lived in the United States and some in Mexico — were experiencing difficulties in school.Plans to Return to the United StatesGiven the strong ties binding survey respondents to the United States, it comes as little surprise that:

Three-quarters (73.5 percent) reported that they planned to return to the United States.

Forty-five percent identified only a little or “not at all” with their country of birth.

Only one-third (35.4) percent reported feeling safe since their deportation.The Criminalization of DeportationThe Trump administration has regularly portrayed undocumented residents, migrants seeking to request asylum at the US-Mexico border, and deportees as criminals and security threats. Most survey respondents either had not been convicted of a crime or had committed an immigration or traffic offense prior to their deportation. Nevertheless, study participants described a deportation system that treated them as criminals and instilled fear in their communities.

Nearly one-half of respondents said they had not been convicted of a crime prior to their deportation.

Of the 37 respondents (51.4 percent) who reported having been convicted of a crime,6 more than one-third (35.1 percent) had been convicted of a traffic or immigration offense, 21.6 percent of a drug-related crime (including possession), and another 21.6 percent of a violent crime.75 Mexican pesos were converted into dollars using prevailing exchange rates on August 19, 2018.
6 Only 72 respondents answered this question.
7 The study classified these self-reported crimes based on the National Crime Information Center’s (NCIC) uniform offense codes.

3

4

KBI, CMS, and OJE Report November 2018

A high percent of respondents (65.2) reported that their deportation began with a police arrest, 30.3 percent reported having been arrested by Immigration and Customs Enforcement (ICE), and less than 1 percent by Customs and Border Protection (CBP).

The majority of apprehensions took place while respondents were driving (36.1 percent), at home (26.3 percent), or at work (6 percent).

Survey respondents spent an average of 96 days in immigrant detention. Most were detained for 30 days or less, and 17 percent were detained for 180 days or more.

Only 28 percent were able to secure legal counsel.

Roughly one-fourth of survey respondents reported spending no time in criminal custody and 22.6 percent spent a week or less prior to their deportation. However, 17.3 percent spent more than one year.RecommendationsThe CRISIS Study provides a snapshot of the Trump administration’s deportation policies and their effect on established US residents (deportees), families, and communities. In order to mitigate the harsh consequences of these policies and promote the integrity of families and communities, we make the following recommendations.
To the Department of Homeland Security:

Issue prosecutorial discretion guidelines that de-prioritize the arrest and removal of long- term residents; persons with US family members; and those without criminal records or with records for only minor offenses.

Use detention only as a “last resort” and employ the least restrictive means necessary — including supervised release and other alternatives to detention (ATDs) — to ensure appearances in court, check-ins with immigration officials, and possible removal.

Adhere to ICE’s National Detention Standards, which recognize the need for access to legal counsel, generous family visitation guidelines, transparency regarding the location of detainees, and humane conditions of confinement.To Congress:

Pass broad legislation to reduce family-based visa backlogs; to align US legal immigration policies with the nation’s economic, family, and humanitarian interests; to legalize the undocumented parents of US citizens and LPRs and undocumented persons who entered as children; and to expand equitable relief from removal.

Appropriate funding to the Department of Homeland Security (DHS) and the Department of Justice at levels that align with the recommendations in this report and that, in particular, assume the principled exercise of prosecutorial discretion, reduced use of detention, and expansion of community-based ATDs and legal orientation programs.

Reduce funding to ICE in light of its indiscriminate enforcement policies and their negative impact on the safety and integrity of US families and communities.

Communities in Crisis: Interior Removals and Their Human Consequences

• Provide greater oversight of formal partnerships and collaboration between state and local police and ICE and CBP to ensure that these arrangements do not undermine community safety or lead to racial profiling.

To state and local police:

Collect data to measure the prevalence of pretextual police stops and arrests (intended to lead to removal) for minor criminal violations, with a focus on the extent to which such stops involve racial and ethnic minorities.

Limit collaboration with ICE and CBP to prevent local police from acting as immigration agents, to promote public safety, and to ensure that no group of residents fears reporting crimes or otherwise cooperating with the police.

Strengthen policies against racial bias in policing, and regularly train and evaluate law enforcement officers on adherence to these policies.

Adopt and implement policies — like municipal identification cards and driver’s licenses for the undocumented — that treat immigrants as full members of their communities.To faith communities:

Address the urgent priorities of immigrants, including the need for safe and welcoming spaces, deportation planning, transportation, access to legal representation, public safety, access to the police, and accompaniment to places where they might be vulnerable to arrest.

Prioritize pastoral service to immigrants and their families; fully incorporate them into all faith institutions, ministries, and programs; and educate nonimmigrant members and the broader public on the immense challenges facing immigrants.

Identify, collect, disseminate and implement best pastoral practices for accompanying and supporting deportees and their families at all stages of the removal process.

Advocate for the generous exercise of prosecutorial discretion; humane enforcement policies that prioritize family unity and cohesive communities; expanded legal avenues to regularized status; and strong citizenship policies.

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Takeaways:

DHS must reinstate the use of prosecutorial discretion (“PD”) (of the type heavily used by every other law enforcement agency in America) in both enforcement actions and Immigration Courts;
- Under the toxic “leadership” of former AG Jeff Sessions the discretion of both DHS and EOIR to use sensible “PD” was basically eradicated;
DHS Enforcement is over funded to the point where money and resources are routinely wasted on counterproductive politically motivated initiatives;
- Congress should resist any further increases in DHS Enforcement funding until DHS shows better management, accountability, and reasonable use of existing resources.

PWS

11-13-18

TRUMPED: Nielsen Is A Sycophant Who Lied To Cover Her Boss’s Stupid, Cruel, & Often Illegal Antics On Immigration – Reportedly, She’s About To Learn That There’s No “Graceful Exit” From The Kakistocracy – “Trump puts people like Nielsen in the position of accounting for his whims and his counterfactual claims. His expectations for how much someone like Nielsen could accomplish when it comes to securing the border were almost definitely unreasonable. She tried to compensate for those shortcomings by saying things she couldn’t possibly have believed to boost Trump.”

https://www.washingtonpost.com/politics/2018/11/13/kirstjen-nielsen-repeatedly-did-trumps-bidding-her-reward-an-unceremonious-impending-exit/?utm_term=.2e8283f31a2a

Aaron Blake reports for WashPost:

We may not be there yet, but there may come a point at which it’s very difficult to find well-qualified people willing to serve in President Trump’s Cabinet. And if we do, we’ll look back on Kirstjen Nielsen’s tenure as an early indicator.

The homeland security secretary appears set for an unceremonious exit less than one year after taking over the nation’s third-largest agency, report The Post’s Nick Miroff, Josh Dawsey and Philip Rucker. The writing has been on the wall for months — and her departure could ostensibly be delayed further — but Trump’s long-standing frustration with Nielsen and the freedom he now has with the 2018 elections behind him seem to be bringing this situation to a head. Trump has previewed a potential shake-up in recent weeks, and Nielsen was always among the most endangered top officials.

The looming decision is about Nielsen’s failure to meet Trump’s expectations when it comes to curtailing illegal immigration at the U.S.-Mexico border. An uptick in border apprehensions in recent months and the caravan of migrants coming up from Honduras have probably sealed Nielsen’s fate.

But she seems to be a victim of irrational expectations more than anything. And she has spent much of her tenure tolerating Trump’s whims and even putting her reputation on the line in the name to keeping her job. No amount of public fealty, it seems, has been enough.

Nielsen has repeatedly fed Trump’s narrative about the Russia investigation with misleading or incorrect comments. Like Trump, she declined to directly blame Vladimir Putin for Russia’s 2016 election interference, even though the U.S. intelligence community does. Months earlier, she was asked about that same conclusion and said: “I do not believe that I’ve seen that conclusion. . . . That the specific intent was to help President Trump win? I’m not aware of that.”

She also suggested that Russia’s attacks an American election infrastructure weren’t necessarily aimed at helping Trump, even though the intel community says the broader effort was — a bizarre delineation clearly aimed at appeasing the boss, who has asserted that Russia actually favored Hillary Clinton.

During testimony in January, Nielsen declined to confirm Trump’s closed-door remarks describing African nations, Haiti and El Salvador as “shithole countries” — even though she was present. Then, in an exchange that followed, she was asked to account for Trump saying the United States needed more immigrants from Norway, an overwhelmingly white country. She even tried to pretend that she wasn’t sure Norway was an overwhelmingly white country and that Trump was referring to work ethic:

LEAHY: What does he mean when he says he wants more immigrants from Norway?

NIELSEN: I don’t believe he said that specifically. . . . What he was specifically referring to is, the prime minister telling him that the people of Norway work very hard. And so, what he was referencing is, from a merit-based perspective, we’d like to have those with skills who can assimilate and contribute to the United States, moving away from country quotas and to an individual merit-based system.

LEAHY: Norway is a predominantly white country, isn’t it?

NIELSEN: I actually do not know that, sir, but I imagine that is the case.

By far the most controversial chapter of Nielsen’s tenure, though, has been the separation of migrant families at the border — a policy that led to the detention of children in large cages and the government’s failure to promptly reunite them with their families. Nielsen reportedly resisted the policy behind the scenes. But publicly, she boosted it and even made implausible arguments in favor of it. She even went so far as to argue that it wasn’t an actual policy.

“We do not have a policy of separating families at the border, period,” she said, laughably. A DHS inspector general’s report last month contradicted this and other claims Nielsen made about the policy’s implementation.

And that’s the thread that runs through all of this. Trump puts people like Nielsen in the position of accounting for his whims and his counterfactual claims. His expectations for how much someone like Nielsen could accomplish when it comes to securing the border were almost definitely unreasonable. She tried to compensate for those shortcomings by saying things she couldn’t possibly have believed to boost Trump.

If and when she is finally ousted, it should serve as notice to anybody who would succeed her, or anyone else in the administration, that fealty is a necessary but not sufficient part of the job. And there’s no guarantee that sacrificing your own reputation for Trump will be rewarded.

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As I said in connection with the recent Sessions firing, nobody should be surprised by these totally irrational moves against his own loyal toadies. Trump and his policies are failures; so, he obviously needs someone else to blame because he isn’t man enough to take accountability for his own mistakes. It might be hard to find such complete lackeys for these key jobs, but maybe not in today’s GOP.

(I note that Sessions only recused himself from the Russia probe because failure to do so could have been a clear ethical breach that could well have cost him his law license. While Sessions is definitely a sleazy character, for the top law enforcement official in the country to willingly ignore advice of his own ethics officials would take sleaze to an even higher and much more publicly obvious level.)

As I have said before, while public humiliation of loyal toadies is never a pretty sight, nobody should shed tears for either Sessions or Nielsen. They weren’t required to take these jobs and Trump’s lack of character and willingness to bully and publicly humiliate those who had loyally worked for him were well-known long before he became President. He might value sycophantic loyalty (see Mike Pence), but he has none to give. It’s the victims for whom we should feel sorry — families, immigrants, communities, and others who have been hurt by Nielsen’s willingness to ignore the law, human decency, and rational policies in a vain effort to hold onto her job.

PWS

11-13-18

WASHPOST: ANY WAY YOU SAW IT, THIS DUDE’S A HACK – Trumpism Continues To Demean & Destroy Our Most Precious Democratic Institutions!

https://www.washingtonpost.com/opinions/there-is-no-way-this-man-should-be-running-the-justice-department/2018/11/09/f4a2ee60-e45e-11e8-8f5f-a55347f48762_story.html

The Post Editorial Board writes:

IS MATTHEW G. WHITAKER the legitimate acting attorney general? From approximately the second President Trump ousted Attorney General Jeff Sessions and tapped Mr. Whitaker to temporarily exercise the office’s vast authority, legal experts have sparred over whether Mr. Trump can unilaterally elevate someone from a role that does not require Senate confirmation to one that does. But regardless of whether the promotion is legal, it is very clear that it is unwise. Mr. Whitaker is unfit for the job.

Several prominent legal scholars point out that the Constitution demands that “principal officers” of the United States must undergo Senate confirmation. A 19th-century Supreme Court case suggeststhere may be limited room for temporary fill-ins, but Mr. Whitaker’s appointment is hardly so temporary; he could serve for most of the rest of Mr. Trump’s first term. Even if Mr. Whitaker’s promotion is constitutional, Congress passed a law governing Justice Department succession that also seems to prohibit Mr. Whitaker’s ascent. The department has a capable, Senate-confirmed deputy attorney general in Rod J. Rosenstein; he should be running the department in the absence of a permanent replacement.

The Senate above all should be offended by the president’s end run around its authority. Majority Leader Mitch McConnell (R-Ky.) should demand hearings and consider filing a lawsuit. Instead, he is helping to establish a troubling precedent, saying only that he expects Mr. Whitaker to be a “very interim AG.” Yet no random official should be endowed with all the powers of an office as powerful as attorney general, meant for a Senate-vetted individual, even for a relatively short time.

And Mr. Whitaker is worse than random. It took less than 24 hours for material to emerge suggesting he could not survive even a rudimentary vetting.

First, there are Mr. Whitaker’s statements criticizing the Russia probe of special counsel Robert S. Mueller III. At the least, they require him to consult Justice Department ethics counsel about whether he can oversee the inquiry with a plausible appearance of evenhandedness. He will do immediate and lasting harm to the Justice Department’s reputation, and to the nation, if he assumes the role of president’s personal henchman and impedes the Mueller probe.

Then there is Mr. Whitaker’s connection to a defunct patent promotion company the Federal Trade Commission called “an invention-promotion scam that has bilked thousands of consumers out of millions of dollars.” Mr. Whitaker served on its board and once threatened a complaining customer, lending the weight of his former position as U.S. attorney for the Southern District of Iowa to the company’s scheme.

Finally, and fundamentally most damning, is Mr. Whitaker’s expressed hostility to Marbury v. Madison, a central case — thecentral case — in the American constitutional system. It established an indispensable principle: The courts decide what is and is not constitutional. Without Marbury, there would be no effective judicial check on the political branches, no matter how egregious their actions.

If the Senate were consulted, it is impossible to imagine Mr. Whitaker getting close to the attorney general’s office. He should not be there now.

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There’s no doubt whatsoever that Whitaker is spectacularly unqualified for the job. But so was Sessions. And so were Pruitt and Price. And, so are Carson, DeVos, Nielsen, Zinke, and a host of Senate-confirmed underlings like L. Francis Cissna at USCIS.

Sadly, the point is that the GOP Senate lacks the integrity, backbone, and decency to perform their “advise and consent” function in a credible manner. So, I think the Post might be unduly optimistic in assuming that the GOP-controlled Senate would reject Whitaker merely because he is totally unqualified. Doesn’t seem to have bothered them before; no reason to believe that it will in the future. That’s one reason why our nation is “on the rocks.”

PWS

11-09-18

TRUMP’S BOGUS BORDER CRACKDOWN & ATTACK ON ASYLUM EXPLAINED: Professor Shoba Sivaprasad Wadhia & The Penn State Law Center For Immigrants Rights Clinic Provide “Fact Sheet”

Blocking those Seeking Entry PolicyFinal

Joint Rule and Presidential Proclamation On Entry and Asylum: What You Need To Know

Updated November 9, 2018

What are these new policies?

On November 9, 2018, the Department of Homeland Security (DHS) and Department of Justice (DOJ) issued an interim final rule and a presidential proclamation affecting individuals seeking entry at the southern border of the United States. These executive actions place restrictions on asylum for certain noncitizens arriving in the United States.

What are these policies intended to do?

The interim final rule governs eligibility for asylum and screening procedures for those subject to a new presidential proclamation. Together, these executive actions suspend entry for noncitizens crossing the southern border and bar such noncitizens from asylum.

What is the scope of the joint interim rule and presidential proclamation?

The rule applies prospectively, so individuals who arrived in the United States before the effective date of November 9, 2018 are not covered. The rule also does not impact two related forms of relief known as withholding of removal and protection under the Convention Against Torture. These forms of relief are narrower and without the same benefits of asylum protection. No later than 90 days from the date of the presidential proclamation, November 9, 2018, the Secretary of State, Attorney General and Secretary of Homeland Security should submit to the President a

recommendation on whether the suspension should be extended or renewed.

What legal authority is the administration relying upon to issue the interim final and

presidential proclamation?

The joint interim rule points to several sections in the immigration statute known as the Immigration and Nationality Act (INA). Some of these sections are summarized below.

● INA § 212(f) states: “Whenever the President finds that the entry of any aliens or of anyclass of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
1

● INA § 208(d)(5)(B)● INA §
●

Has the administration used INA § 212(f) before?

Yes. Most recently, INA § 212(f) was used as a basis for three travel bans issued by the President, each of which prohibits the entry of nationals from certain countries. On June 26, 2018, the Supreme Court of the United States issued an opinion in the case of Hawaii v. Trump (Travel Ban 3.0). Writing for the majority, Chief Justice Roberts held that the travel ban does not violate the INA and described INA § 212(f) as a “comprehensive delegation” which “exudes deference to the President in every clause.”

Is the President’s use of INA § 212(f) in the Travel Ban distinguishable?

Yes. In Hawaii v. Trump, the courts did not analyze the suspension clause at INA § 212(f) against the asylum provision at INA § 208(a).

What are the legal concerns with these executive actions?

There is a concern that the executive actions violate the immigration statute and other laws. While the interim final rule and presidential proclamation identify some sections of the immigration statute, these sections cannot be read in isolation to the statute as a whole, nor can it conflict with the U.S. Constitution, statutes and other laws. One concern is that these actions violate the statutory provision that governs asylum law and other laws. INA § 208 states that any person physically present in the United States, regardless of how or where he or she entered is eligible to apply for asylum. The section states in part, “

ated port of arrival.

The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.

states that “[t]he Attorney General may provide by regulation for any

other conditions or limitations on the consideration of an application for asylum not

inconsistent with this Act.”

215(a) states that it is “unlawful . . . for any alien to depart from or enter or attempt

to depart from or enter the United States except under such reasonable rules, regulations,and orders, and subject to such limitations and exceptions as the President may prescribe.”

INA

§

208(b)(2)(C) states that the “Attorney General may by regulation establish

additional limitations and conditions, consistent with this section, under which an alien

shall be ineligible for asylum under paragraph (1).”

Any alien . . . who arrives in the United States (whether or not

at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of such alien’s status,

may apply for asylum . . .” (emphasis added).

Because

the plain language of the INA is clear that

any noncitizen is eligible for asylum regardless of her manner of entry, there is a concern that these policies violate the statute by restricting the availability of asylum seekers only to those who

present at a design

2

Why is the administration issuing these policies?

It is the administration’s position that the United States has seen an increase in the number of noncitizens arriving at the United States between ports of entry along the southern border and that

many of the asylum claims brought forth by this population are without merit.

What are some of the countervailing views to the administration’s position taken by some

refugee advocates and scholars?

Many asylum seekers arriving at the southern border are from the Northern Triangle which is comprised of Guatemala, El Salvador and Honduras. The violence and danger in these countries is well documented. Individuals who have suffered or will suffer individual harm for a specific

reason are eligible to apply for asylum under the immigration statute and other laws. Many of the

asylum claims by individuals from the Northern Triangle are with merit.

What is an “Interim Final Rule”?

An Interim Final Rule becomes effective immediately upon publication and is an exception to the general rule that public notice and comment must take place before the effective date of a regulation. DOJ and DHS have concluded that a “good cause” exception exists to publish this asylum regulation as an interim final rule. Written comments can be submitted by the public for a period of sixty days from the date of publication.

What is a presidential proclamation?

A presidential proclamation is one form of presidential power and similar to an executive order. It is an order issued by the President of the United States and may possess the authority of law. See e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

What comes next?

Given the legal concerns of restricting asylum, litigation is expected. Further, under section 4 of the presidential proclamation, if any section of the proclamation is found to be invalid, the remainder of the proclamation shall remain effective.

Where can I find more resources?

See the Penn State Law Center for Immigrants’ Rights Clinic website for updates on this and other immigration policies. Also visit:

● Department of Homeland Security

● American Immigration Lawyers Association

● American Immigration Council

● Human Rights FirstThe goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
3

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

It’s critically important to the future of our nation and the world that the actions of Trump and his White Nationalist scofflaws be resisted in the courts and in our political system.

In the meantime, since virtually everything the Administration says on this topic is a false narrative or obfuscation of their real racist agenda, an honest expert analysis like this is a “gold mine.”

We can (and are) diminishing ourselves as a nation, but it won’t stop human migration!

PWS

11-09-18

TRUMP’S TOADIES: EOIR JOINS “PARTNERS” AT DHS IN FRIVOLOUS “INTERIM” REG THAT CLEARLY VIOLATES ASYLUM STATUTE! — All In Pursuit Of Trump’s Racist, Anti-Asylum Agenda!

Here’s a link to the “Interim Regulations:”

https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-24594.pdf

Here’s “Tal’s Take:”

https://www.sfchronicle.com/politics/article/Trump-administration-to-issue-travel-ban-like-13376110.php

Trump administration to issue travel ban-like rule at southern border

Tal Kopan Nov. 8, 2018

WASHINGTON — The Trump administration is using travel ban-like authority to substantially curtail immigrants’ ability to seek asylum in the U.S.

The administration took the first step Thursday to bar immigrants from applying for asylum if they cross the southern border illegally. On Friday, President Trump is likely to issue a proclamation implementing the ban, a senior administration official suggested in a briefing.

The ban will apply to future illegal border crossers, not those who have already entered the country, the official said.

The move, which was first reported by The Chronicle last month, comes as a caravan of thousands of impoverished migrants is slowly traveling through Mexico toward the U.S. The migrants are still several weeks away from the border, but Trump has already sent 5,000 troops to the Southwest to prepare for their possible arrival.

Related Stories

Trump’s proclamation will apply only apply to those who cross the U.S.-Mexican border illegally. The goal, said a second administration official, is to “funnel” asylum seekers to legal border crossings, where the government is “better resourced” and has “better capabilities and better manpower and staffing.”

But the rule could have overwhelming consequences for crossings like San Ysidro in San Diego County. The busiest land crossing in the Western hemisphere, that port of entry already struggles to process immigrants who arrive seeking asylum, with wait times often approaching weeks.

The administration officials did not answer a question about how the ports of entry would be able to accommodate even more immigrants.

The San Ysidro crossing can process 50 to 100 immigrants a day, according to Customs and Border Protection Commissioner Kevin McAleenan. There were days in July when the line was 1,000 people long.

Officials cannot legally turn away immigrants seeking asylum at recognized border crossings. But they do conduct “metering,” stopping immigrants before they get to the crossing and telling them they have to come back.

That has created desperate situations south of the border. An inspector general’s report analyzing the administration’s handling of the family separation crisis this summer blamed “metering” for causing more people to cross into the U.S. illegally.

Federal law says asylum protections, which afford a path to citizenship for qualifying immigrants who fear persecution in their home countries, are available to immigrants “whether or not” they arrive at a legal crossing. The administration argues that other provisions of the law allow them to restrict that.

Immigrant advocates disagree, and have already said they will sue to block Trump’s expected proclamation.

“The asylum ban is patently unlawful and disregards our nation’s long commitment to providing a safe haven for those fleeing danger. Court challenges are coming,” said Lee Gelernt, a lead immigration attorney for the American Civil Liberties Union.

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These “Interim Regs” are 78 pages of pure legal gobbledygook, bureaucratic doublespeak, and irrelevant and intentionally misleading stats purporting to “justify the unjustifiable.” So, I’ll make this simple.

The asylum statute says individuals have a right to apply for asylum regardless of legal status and without regard to whether they arrived or entered at a legal “port of entry;”
This “Interim Regulation” purports to make those who don’t arrive at a port of entry ineligible to apply for asylum;
The regulation cites a statutory provision that allows the AG and the Secretary of DHS to create “exceptions” and “conditions” on applicants by regulation;
But, that statute actually says those “exceptions and conditions” must be “consistent with” the statute;
The “exception” to eligibility in this Interim Regulation specifically contradicts the clear language of the statute permitting those who enter or arrive illegally to apply for asylum;
Therefore, the exception is beyond the authority of the AG and the Secretary to create by regulation;
Indeed, the facial invalidity of this Interim Regulation is so clear that the EOIR and DHS position is frivolous— not passing the “straight face test” — and the policy officials and bureaucrats involved are promoting frivolous litigation before the Federal Courts — generally frowned upon when done by members of the public!
Perhaps at some point the Federal Courts will assert themselves by starting to “take names” of those US Government officials wasting court time in pursuit of illegal, racially-motivated objectives.

No wonder the Dudes who drafted this piece of garbage wanted to bury their real actions and intent in 78 pages of pure nonsense! This from an Administration supposedly committed to cutting bureaucracy and eliminating unnecessary and burdensome regulations!

Tomorrow, as previously promised, Trump will continue to carry out his racist, White Nationalist political agenda by declaring a totally bogus “immigration emergency” by Executive Order (similar to the bogus emergency he used to justify the discriminatory and bogus “Travel Ban”). The only question is whether the Federal Courts will let him get away with thumbing his nose at the statute, our Constitution, and the authority of the Article III Courts themselves.

Stay tuned!

PWS

11-08-18

ELISE FOLEY @ HUFFPOST – Finally, There Will Be Some Meaningful Oversight Of Trump’s Racist, Xenophobic Immigration Policies! – It Won’t Stop, But Could Slow, The “Race To The Bottom!”

https://www.huffingtonpost.com/entry/democrats-house-immigration_us_5be2ec2fe4b0e84388924c3d

Elise writes:

The new Democratic majority in the House of Representatives can’t force President Donald Trump to abandon his efforts to crack down on asylum-seekers, migrant families and immigrants already living in the U.S. But it can make it harder for him to enact his agenda.

Whether through oversight, withholding funds or passing pro-immigrant bills and daring the Republican-controlled Senate and the president to shoot them down, Democrats now have leverage on immigration.

Republicans, of course, will still control the Senate after Tuesday’s midterms, and Trump will still be in the White House, where he has already cracked down on undocumented immigrants without congressional help.

Still, there were glimmers of hope around the country. Oregon voters rejected a ballot measure that would have ended the state’s “sanctuary” policies. Kansas gubernatorial candidate Kris Kobach, a Republican who has spent years pushing hard-line immigration policies around the country, lost. So did Pennsylvania U.S. Senate candidate Lou Barletta, who enacted an anti-immigrant policy years before as a mayor and recently defended separating families at the border. Several other Republicans who campaigned on immigration crackdowns lost too, which immigrant rights advocates held up as proof that Trump’s fear-based campaigning wasn’t the guaranteed winner he seemed to think it was.

And now that Democrats have taken control of the House, they can serve as a check on Trump’s immigration efforts.

Democrats are expected to launch investigations and conduct oversight on a number of Trump actions and policies ― something Republicans have so far declined to do. And immigrant rights groups will be pressing them to do so.

Tyler Moran, managing director of progressive group The Immigration Hub and a former Senate and White House staffer, pointed out several areas ripe for oversight. Those include the Trump administration’s family separations at the border, its deportation tactics, and its decision to end the Deferred Action for Childhood Arrivals program for young undocumented immigrants and temporary protected status for certain nationalities of immigrants whose home countries suffered natural disasters or violence.

Many of Trump’s immigration policies also require significant funding increases ― something a Democratic House is likely to fight. The Democrats have already vowed not to fund Trump’s wall along the southern border. Trump is expected to push for wall funding during the lame duck session while Republicans maintain control of both chambers, and has suggested a government shutdown in December if he doesn’t get what he wants.

House Minority Leader Nancy Pelosi (D-Calif.) told The Wall Street Journal ahead of the election that if Democrats should win a majority on Tuesday, they’d have more leverage to block wall spending even before they officially take over.

“Why would we compromise on the wall now?” she said.

BLOOMBERG

Current House Minority Leader Nancy Pelosi (D-Calif.) has pushed for more protections for undocumented immigrants.

Mass detention of families and asylum-seekers, which Trump is pushing for through a proposed rule change and a potential executive order, would also have a hefty price tag. Most Democrats oppose such policies.

Democrats are also likely to push legislation that protects undocumented immigrants, particularly young immigrants, which could increase public pressure for Senate Republicans and Trump to back it.

Trump ended the Deferred Action for Childhood Arrivals program, or DACA, last year, but so far has been forced to keep it running by court orders that he is continuing to fight. Although Republicans opposed DACA, some have voiced support for some type of legislative measure that would keep its recipients ― so-called Dreamers who have lived in the U.S. since childhood ― from being deported.

But so far, Republicans haven’t actually supported measures that would do so, at least without simultaneously aiming to restrict legal immigration and ramp up deportation efforts.

Immigrant rights groups want a “clean” bill for Dreamers, called the Dream Act, that doesn’t include other measures. Democrats are expected to push for it, but past stalemates are likely to continue. More likely, Democrats could make a deal to protect Dreamers while also giving Trump something he wants, but not the whole spate of anti-immigrant measures Republicans tried, and failed, to pass earlier this year.

While Democrats gaining the majority was a good thing for supporters of immigrant rights, it required knocking out some moderate Republicans who could previously be claimed as allies on bipartisan legislation. Rep. Carlos Curbelo (R-Fla.), who unsuccessfully pushed for protections for undocumented young people, lost to a Democrat. So did Rep. Mike Coffman (R-Colo.), another Republican who called for legal status for Dreamers, although he spoke in more hawkish terms at an August fundraiser.

The defeat of bipartisan backers may be more of a symbolic loss than a substantive one. The Democrats who will take their place are likely to be even more reliable supporters of immigration reform.

Leading immigrant rights advocates, including Frank Sharry of America’s Voice, cheered Coffman’s defeat.

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

Even with the departure of the truly terrible Jeff Sessions, the situation is likely to remain grim. Trump’s dreams of legislation slashing legal immigration and eliminating the right to apply for asylum are DOA. Also, he’s not likely to get funding for expanding the New American Gulag, “the wall,” harassing Dreamers, or expanding already bloated, ineffective, and inhumane ICE civil enforcement. Oversight might even result in some accountability for human rights abusers like Nielsen.

But, as he has already shown, there is plenty of damage that Trump can do to the Constitution, human rights, the legal system, and our national values in the area of immigration “administratively.” It’s likely that he’ll look for a total sycophant in the Mike Pence mold for Attorney General. With the Senate firmly in GOP hands, there will be nobody to stop even more unqualified appointments. However, House oversight and budget control might be able to slow the pace of the abuses or at least make a public record for history and future action.

PWS

11-06-18

SCOFFLAW KAKSITOCRACY: Trump Politicos Were Advised That “Zero Tolerance” & Family Separation Likely Illegal & Unconstitutional – They Went Ahead Anyway!

https://www.washingtonpost.com/news/posteverything/wp/2018/10/25/feature/civil-servants-said-separating-families-was-illegal-the-administration-ignored-us/

Scott Shuchart writes in the Washington Post:

The meeting was way overdue, and it wasn’t going well.

It was May 21. The Department of Homeland Security, where I worked as a senior adviser in the Office for Civil Rights and Civil Liberties, had been making a show of prosecuting undocumented immigrant parents for weeks, cleaving them from their children without paying much attention to where the family members went or setting up any procedure for tracking and reuniting them later.

My office had played a central role, for years, in Homeland Security’s treatment of families and children. But when a cadre of Trump administration political appointees put the family separation plan into motion, neither they nor the career staff in the immigration enforcement agencies under DHS consulted with the civil servants in my office. When media reports throughout April and May led us to understand what was going on, we had urgent questions: What exactly was the policy? What had DHS’s front-line agents in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) been told to do? How had the department assessed the risk that litigation would interfere with the policy? How was this justified in light of our treaty obligations toward refugees? And why was the department pushing out transparently misleading — or simply false — statistics to justify these steps? We were obliged, under the law that created our office, to register our objections that the administration was knowingly violating people’s rights.

But the top political appointee at the May meeting — John Mitnick, the experienced, Senate-confirmed general counsel — and his deputy seemed confused that the civil rights office would see any cause for concern. The administration was claiming in public that a policy of prosecuting all border crossers didn’t target families as such, so it could not present any legal issues. And if there were any issues, they hadn’t been raised ahead of time.

That was false. The next day, I called around to colleagues who confirmed that there had been multiple interagency phone calls and documents, involving the State and Justice departments as well as DHS, making clear that lawyers throughout the government worried that deliberately separating families could violate migrants’ rights under humanitarian treaties or U.S. law. But the political appointees simply didn’t listen. And a few weeks later, I came across an April 24 memo — signed by the very officials I had met with a month later — acknowledging, but dismissing, the legal risks. Even worse, it encouraged indicting immigrants specifically because doing so would justify separating families, arguing that the government’s “legal position” on “separating adults and children through the immigration process . . . is likely strongest [when] separation occurs in connection with a referral of an adult family member for criminal prosecution.”

Mitnick, through a DHS spokeswoman contacted by The Washington Post, declined to comment for this story. That spokeswoman, Katie Waldman, said: “The Department of Homeland Security does not disclose or comment on privileged legal advice provided by our attorneys to the Secretary or other officials, and therefore, unfortunately, we are not in a position to refute false narratives put forward by a former employee. We note, however, that in order to address the crisis at the border, the Trump Administration made a decision to enforce long-standing U.S. law and refer for prosecution under 8 U.S.C. § 1325(a) adults who crossed into the United States illegally. As we have repeatedly stated, the policy was to enforce the law, not to separate families.”

She also sent a statement from Cameron Quinn, the Trump appointee who runs the office I worked in: “I participated in the meeting in question. It was a brief, general discussion, and Mr. Mitnick made it clear that he desired to work collegially with our office.”

By law, our job in that office was to ensure that “the civil rights and civil liberties of persons are not diminished” by DHS’s programs. When it became clear that the department would be tearing families apart and — thanks to incompetence, dishonesty and sheer disinterest — had no reasonable plan to put them back together, I realized I could not do that. A few weeks after that meeting, I quit my job and left public service, carrying a profound sense of failure.

Children and parents from Central America, part of a caravan trying to reach the United States, wait to apply for asylum in Mexico at a checkpoint in Ciudad Hidalgo on Oct. 20. (Ueslei Marcelino/Reuters)

The government formally announced the family separation policy in April. The point was clear, as several officials later admitted: By threatening to separate their children, the administration hoped to deter Central American asylum seekers from coming here in search of humanitarian protection. Then-Homeland Security Secretary John Kelly had suggested the practice during a CNN interview in March 2017, and it had been gaining support in the White House since then.

Many senior civil servants at DHS believed that the policy violated the civil and human rights of migrants. (Many of them, like me, were trained and licensed attorneys, though our role was to give policy advice, not legal advice.) Crossing the border to surrender immediately to authorities and claim asylum is protected by the United Nations refugee protocol signed by the United States. Even for families outside that protection, the substantive due process principle in the Constitution suggests that it is illegitimate to threaten to harm or abscond with someone’s children to deter the commission of a misdemeanor. (First-time unlawful entry is the lowest level of federal crime.)

During past surges in border crossings, such as in 2005, 2006 and 2007 under George W. Bush and 2014 under Barack Obama, the civil rights office was central to planning humane and effective protections for migrants as they were arrested, detained, screened and, if they passed initial “credible fear” screenings, placed into immigration court proceedings. But Trump appointees such as White House adviser Stephen Miller, Attorney General Jeff Sessions, DHS Secretary Kirstjen Nielsen, CBP Commissioner Kevin McAleenan and U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna — along with many deputies, assistants and enablers inside ICE and CBP who dreamed up the “zero tolerance” policy — didn’t consult career experts like me: not when it was being considered last year, not when it was unveiled and not for the critical weeks afterward, even as we begged to share our legal and policy analyses.

My job was to ensure that the government did not violate clearly established individual rights, and the Trump administration was pushing a policy whose principal aim was to do just that. My colleagues and I identified a number of constitutional provisions and related case law holding that parents had rights to due process that could limit the ability of the government to separate them from their children for civil immigration violations. That meant that once parents served their typically short criminal sentences for crossing the border illegally, they should have been reunited with their children. Our research also suggested that threatening to detain children separately, and threatening civil detention generally to deter future conduct, was probably unconstitutional.

In our capacity as a gateway for public complaints about DHS, my office was analyzing hundreds of incidents of family separation, including dozens sent over by career staff at the Department of Health and Human Services, which was taking custody of children who had been separated from their parents. We noticed early that CBP and ICE weren’t providing HHS with proper records to allow families to be reunited or pursue their immigration cases jointly. We recommended that officials tell parents promptly and clearly where their children were going, how they could be reached and how family members could get them out of government custody while the parents were detained. Perhaps most urgently, we tried to ensure that children with serious disabilities were not thrown into a system unprepared to care for them. As allegations emerged of chaotic separations and deliberate lies — parents being told that their children were headed to a shower when they were instead placed in another agency’s custody — we started drafting guidelines and training for the Border Patrol agents on the ground. Above all, we tried to ring the alarm that the legal, strategic and human dimensions of the policy hadn’t been thought through, needed fast improvement and posed a massive liability for the government.

My colleagues and I learned while reviewing internal DHS documents through April and May that CBP had, the previous fall, undertaken a pilot project of prosecuting parents with small children who crossed the border illegally near El Paso, leading to a wave of separated families. But when we asked the acting second-ranking CBP official about it, he denied having any information.

That was also false. The formal memo to Nielsen from CBP, ICE and USCIS recommending the family separation policy had justified it on the basis of this same El Paso project, including misleading statistics that had already been debunked by Vox when DHS tried to pass them off to reporters.

Every attempt to raise civil rights concerns led nowhere: a lengthy staff memo to my boss, the top civil rights official; efforts to explain in meetings the toll on our staff from investigating complaints of children and parents who had been separated, without any communication to get back together; multiple efforts to schedule, and reschedule, a briefing that James McCament, the head of the DHS Office of Policy, had promised near the start of the crisis but never convened. Civil servants advanced recommendations for mitigating the worst of the harm; we suggested improving record-keeping, giving separated parents and children better information, and permitting more regular phone calls among families.

After hundreds of complaints filed by migrant children, parents and advocates on their behalf, my office finally managed to arrange a meeting in June with CBP managers to understand how they were separating families and to present ideas about how to do it in a more humane way, if they insisted on doing it. My notes from the meeting record my boiling frustration with the absurd answers we received. Border Patrol agents dismissed our offer to train them on how to speak to children after ripping them from their families. “No,” we were told, “many of our agents are parents themselves. They are very empathetic to the child’s needs and will know what to do.” Had officials in Washington directed agents to record family members’ names and information, so they could later be reunited? “I think we sent an email.” Can we see the email so we know what agents were directed to do? “Um, I’d have to find it.” (The official never did.) Is there a written policy on how to determine whether children have suffered trauma or have some other condition that would mean separating them from their parents would do too much harm? “No, we have no need for written policy. It’s simply ingrained in law enforcement culture.”

The culture ingrained at CBP, though, is one where the Border Patrol’s union opened its podcast (“The Green Line”) with the oath of the Night’s Watch from “Game of Thrones” — the pledge of a band of warrior monks to protect a magical kingdom from an army of ice zombies. If federal law enforcement agents see Central American children as the moral equivalent of the frozen undead, we can’t expect them to understand intuitively how to detain and process them humanely without training, guidance and leadership. That’s why my colleagues and I were pushing for record-keeping, communication and other policies that Trump appointees ignored. (Representatives of the Border Patrol union did not immediately return requests for comment from The Post.)

A U.S. Border Patrol agent acknowledges a family that had illegally crossed the Rio Grande from Mexico in Fronton, Tex., on Oct. 18. (Adrees Latif/Reuters)

It would be easy to see all this as part of the federal sausage-making, the usual intentional delays and risk-managing memos that bureaucrats deploy. But this level of dishonesty and subterfuge was unusual. This month, the DHS inspector general released a report making clear that the incompetence in managing family separation was pervasive, from a lack of planning, to “information provided to alien parents [that] resulted in some parents not understanding that their children would be separated from them,” to false public claims of having a “central database” of parents and children.

The Department of Homeland Security is filled with excellent, dedicated public servants. But it also has enormous authority and the power to enforce thousands of laws well or badly. Its leaders have a responsibility to give their people orders that they can competently and ethically execute, and the tools and guidance to do so. The family separation crisis represented a new frontier in weaponizing DHS’s authority, and its borderline competence, to disastrous effect. Front-line officers weren’t given enough guidance, and their managers in the field didn’t do enough to help them figure it out. Only the administration’s naivete in failing to predict the bipartisan public outrage kept it from being worse.

But most culpable were the high-level appointees, unwilling to take ownership of what they’d decided to do; lying to their staffs in the expectation that nobody really cared what happened to poor Central American kids; cynical about the notion that most of us who swear an oath to uphold the Constitution actually mean it. I cast about for more to do, but within a month of that June meeting, I realized there was no way to keep my oath and my job.

I quit.

Outlook • Perspective

Scott Shuchart was a senior adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties from 2010 to 2018. He is a non-resident senior fellow at the Center for American Progress. Follow @scottshuchart

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Seems like these are precisely the type of knowingly lawless, extra-legal actions that personal liability under the “Bivens doctrine” is supposed to discourage and prevent. It remains to be seen whether the Federal Courts, particularly the Supremes, will have the backbone to hold scofflaw Government officials like Sessions, Nielsen, Miller, & co. personally accountable for their intentional perversions of the rule of law. Recently, the Supremes have indicated that a majority would like to narrowly limit or even abolish Bivens liability. Just when the country needs it most to rein in an out of control Administration!

PWS

10-29-18

TRUMP LAUNCHES PREDICTABLE LARGELY FACT FREE TIRADE AGAINST DESPERATE MIGRANTS – They Aren’t A Threat To Our National Security – But, Trump & His White Nationalist Policies Of Hate & Xenophobia Are!

http://time.com/5430940/donald-trump-migrant-caravan-false-claims

Katie Reilly reports for Time:

For more than 15 years, nonprofit groups have helped hundreds of asylum-seeking migrants journey through Central America to the United States, traveling together in a caravan to make the journey safer and their plight more visible. Thousands of Central American migrants currently walking to the U.S. border are doing the same, fleeing deadly violence on a trek that has drawn international focus.

As many as 7,000 migrants, according to one local estimate, have now joined the caravan that started on Oct. 13 in Honduras, many wearing flip flops and carrying their children on a journey that will be at least 1,500 miles long, depending on which part of the U.S. border they reach.

President Donald Trump — who has long critiqued U.S. immigration policies and denigrated immigrants since the start of his presidential campaign — has made numerous baseless claims about the caravan in recent weeks, spreading alarm and touting it as a “Great Midterm issue for Republicans!” Trump has claimed, without evidence, that the group included “criminals and unknown Middle Easterners” and falsely suggested that Democrats funded the caravan. He also blamed Democrats for the current immigration laws, though Republicans currently control both chambers of Congress and the White House.

“I have alerted Border Patrol and Military that this is a National Emerg[enc]y,” Trump tweeted early Monday, threatening to cut off foreign aid to Guatemala, Honduras and El Salvador for not “stopping people from leaving their country and coming illegally to the U.S.”

But videos and reporting from journalists traveling with the caravan of migrants show weary families making an arduous journey because of violence or lack of opportunity in their home countries, and no evidence that there are “unknown Middle Easterners” among the group.

“The migrants are ordinary people from Central America. They’re joining the caravans because the migration routes through Mexico are perilous for them and highly expensive,” says Elizabeth Oglesby, an associate professor of Latin American studies at the University of Arizona, who has studied Central America and human rights issues. “The more that the border has become militarized between the U.S. and Mexico, the more perilous and the more expensive the journey has become for Central Americans. So that’s why we see people coming together in the caravans.”

She says the caravan, which is larger than many of its annual predecessors, has grown because of how word spread on social media and because of worsening conditions in Honduras, where the murder rate is among the highest in the world and where the government has cracked down on political protestersfollowing last year’s disputed presidential election.

Oglesby says just a fraction of migrants who begin the trek make it to a U.S. point of entry each year, as many turn back or peel off if they can find work or safety in Mexico instead.

While no specific group has said it’s responsible for organizing the current caravan, Pueblo Sin Fronteras, founded in 2010, has led asylum-seeking migrants through Central America for more than 15 years, most recently in April — another caravan that drew ire from Trump. The group aims to “provide shelter and safety to migrants and refugees in transit, accompany them in their journey, and together demand respect for our human rights.” Some Pueblo Sin Fronteras leaders and organizers are involved in the current caravan.

Trump has lashed out at the caravan as an example of illegal immigration, threatening to deploy U.S. military force to “close our Southern border” and stop what he has described as a crisis. But illegal border crossings have been declining overall for more than a decade, though the number of border apprehensions fluctuates month-to-month. And under U.S. law, it is legal to petition for asylum at the border, though the process may be lengthy and ultimately unsuccessful.

“These migrant caravans are not a border crisis,” Oglesby says. “People are doing this openly and visibly, and they plan to show up at the U.S. port of entry and petition for political asylum, and that is exactly how our laws are supposed to function. The crisis comes about when U.S. border officials discourage people from political asylum, leave them on the bridges or threaten them that if they go forward with a political asylum claim, they might lose their children.”

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Katie is hardly the only informed observer to note that Trump is even more full of BS, fabricated facts, and bogus scare techniques than usual on this one.

Here’s Maegan Vasquez over at CNN:

https://www.cnn.com/2018/10/22/politics/donald-trump-migrant-caravan-fact-check/index.html

Washington (CNN)President Donald Trump, in a series of tweets on Monday, claimed he would declare a “national emergency” over an issue that has frequently piqued his attention — migrant caravans moving toward the United States through Central America and Mexico.

His tweets come just weeks ahead of the 2018 midterm elections and he has emphasized immigration as a key issue, without evidence accusing Democrats of pushing for overrun borders in what appears to be a naked fear campaign aimed at turning out his supporters. Immigration was a key issue in the 2016 presidential race.

Crowds of migrants, estimated to be in the thousands on Monday, resumed their long journey north on Sunday into Mexico as part of a migrant caravan originating in Central America.

Bolton and Kelly get into heated shouting match sparking resignation fears

Currently migrants are at the Central Park Miguel Hidalgo in the center of Tapachula. Organizers plan for them to begin moving north, reaching the northern city of Huixtla, which is about 20 miles north, and resting there.

The President, in his tweets, also made several questionable claims concerning immigration and the caravan. Among them: that “unknown Middle Easterners” are “mixed” in with the caravan, that he would be cutting off foreign aid over the caravan, and that Mexican authorities failed to stop migrants from coming into Mexico.

Asked later Monday about his assertion about “unknown Middle Easterners” in the caravan, Trump said: “Unfortunately, they have a lot of everybody in that group.”

“We’ve gotta stop them at the border and, unfortunately, you look at the countries, they have not done their job,” he said. “They have not done their job. Guatemala, Honduras, El Salvador — they’re paid a lot of money, every year we give them foreign aid and they did nothing for us, nothing.”

Here’s what we know:

Are there “unknown Middle Easterners” “mixed” into the migrant caravan?

Trump tweeted “criminals and unknown Middle Easterners are mixed” into the migrant caravan moving toward the United States. He called this a “national emergy” (sic).

It’s unclear what “unknown Middle Easterners” Trump appears to be referring to in his tweet, since there have been no reports, in the press or publicly from intelligence agencies, to suggest there are “Middle Easterners” embedded in the caravan.

A senior counterterrorism official told CNN’s Jessica Schneider that “while we acknowledge there are vulnerabilities at both our northern and southern border, we do not see any evidence that ISIS or other Sunni terrorist groups are trying to infiltrate the southern US border.”

White House press secretary Sarah Sanders said Monday afternoon that the administration “absolutely” has evidence of Middle Easterners in the caravan, “and we know this is a continuing problem.”

However, she did not provide the specific evidence supporting that claim.

During a White House conference call with surrogates regarding the caravan, a Homeland Security official said the administration is looking into a claim from Guatemalan President Jimmy Morales that his country has been able to capture around 100 terrorists. However, the official did not offer any evidence of the Middle Eastern people who Trump claims are hiding among migrants in the caravan.

“We are looking into that claim from the President Morales on the numbers,” Jonathan Hoffman, the DHS official, said. “It is not unusual to see people from Middle Eastern countries or other areas of the world pop up and attempt to cross our borders.”

Earlier this month, Morales claimed foreign individuals linked to terrorism were captured in the country during his administration, which began in January 2016.

“We have arrested almost 100 people highly linked to terrorist groups, specifically ISIS. We have not only detained them in our territory, they have also been deported to their countries of origin. All of you here have information to that effect,” Morales said during a Conference on Prosperity and Security in Central America event attended by Secretary of State Mike Pompeo.

There’s no direct link or correlation between Morales’ statement and Trump’s assertion about the caravan on Twitter.

The Department of Homeland Security also did not provide any evidence to bolster the President’s claim about “unknown Middle Easterns” in the caravan when asked for it by CNN on Monday.

A department official told CNN that in fiscal year 2018, Customs and Border Protection “apprehended 17,256 criminals, 1,019 gang members, and 3,028 special interest aliens from countries such as Bangladesh, Pakistan, Nigeria and Somalia. Additionally, (Customs and Border Protection) prevented 10 known or suspected terrorists from traveling to or entering the United States every day in fiscal year 2017.”

The Department of Homeland Security did not specify any Middle Eastern countries.

Pressed about the President’s assertion that there are “unknown Middle Easterners” mixed in with the caravan, a State Department spokesperson said they understand there are several nationalities in the caravan and referred us to Department of Homeland Security for more information.

Will the administration cut off foreign aid? Can they?

Trump is threatening foreign aid over the new migrant caravan. Here’s what’s at stake.

Trump tweeted that because “Guatemala, Honduras and El Salvador were not able to do the job of stopping people from leaving their country and coming illegally to the U.S.,” the United States “will now begin cutting off, or substantially reducing, the massive foreign aid routinely given to them.”

It’s unclear where the administration will propose to make the cuts the President appears to be talking about, and CNN has reached out to the White House and the DHS for further information.

However, the Congressional Budget and Impoundment Control Act prohibits the President from withholding — or impounding — money appropriated by Congress.

New York Rep. Eliot Engel, the top Democrat on the House Committee on Foreign Affairs, said Monday that his office has reached out to the Government Accountability Office to ensure that the President does not violated the act.

“Fortunately, Congress — not the President — has the power of the purse, and my colleagues and I will not stand idly by as this Administration ignores congressional intent,” Engel said in a statement.

Trump has made the threat of cuts to foreign aid going to Latin American countries over migrant caravans several times over the last year.

Under the Trump administration, and with the approval of the Republican-controlled Congress, there have already been significant cuts to foreign aid to Guatemala, El Salvador and Honduras — the three countries he mentioned Monday — and the administration plans to continue making cuts in fiscal year 2019.

Were authorities from Mexico unable to stop the migrant caravan from heading into the US?

Migrant caravan resumes march north from Mexico-Guatemala border

Trump tweeted Monday that “Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States.”

There are some 7,500 people marching north as part of a migrant caravan through Mexico, caravan organizer Dennis Omar Contreras told CNN. He said the organizers did a count of participants Monday morning.

He said the migrants will leave Mexico’s Tapachula for the town of Huixtla, which is located more than 20 miles northwest of their Monday morning location.

While Mexican authorities said before the caravan’s arrival that anyone who entered the country “in an irregular manner” could be subject to apprehension and deportation, many migrants from the caravan appear to have circumvented authorities.

CNN crews witnessed migrants jumping off a bridge at the Mexico-Guatemala border and riding rafts to reach Mexican soil.

Mexican authorities say more than 1,000 Central American migrants officially applied for refugee status in Mexico over the past three days.

It’s unclear how authorities will respond to the thousands of other migrants who are marching north.

Will the President declare a national emergency over the caravan?

It’s unclear exactly what executive action, if any, the President will take following his tweet saying that he has “alerted Border Patrol and Military that this is a National (emergency).”

Previous administrations have ordered troops to the US southern border, and Trump issued a similar memorandum earlier this year ordering National Guard troops to be deployed to the US-Mexico border. The memo came around the same time another, smaller migrant caravan was moving toward the US through Central America.

Lieutenant Colonel Jamie Davis, a spokesman for the Defense Department, told CNN that “beyond the National Guard soldiers currently supporting the Department of Homeland Security on our southern border, in a Title 32, U.S. Code, section 502(f) duty status under the command and control of the respective State Governors, the Department of Defense has not been tasked to provide additional support at this time.”

The Department of Homeland Security, which oversees Customs and Border Protection, referred questions about the national emergency to the White House, which did not answer to several questions for comment.

Doris Meissner, a senior fellow at the Migration Policy Institute and the former commissioner of the Immigration and Naturalization Service, told CNN that the President’s use of the term national emergency, and his potential subsequent declaration, is “a subjective judgment.”

“It is certainly true that the numbers that have been reported in this group are larger than anything that we’ve seen before this from these countries concentrated in one group,” she said.

However, she added that the reaction is “disproportionate to what’s happening.”

“I’m not saying it’s not a genuine problem, but it’s not like this is organized insurrection, in the way that its been characterized,” she added.

CNN’s Catherine Shoichet, Sarah Westwood, Ryan Browne, Jennifer Hansler, Geneva Sands, Dakin Andone, Patrick Oppmann, Natalie Gallón, Kevin Liptak and Jessica Schneider contributed to this report.

This story has been updated.

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And, here’s the ever-wonderful Tal from her “new home” over at the SF Chronicle:

Here’s what happens when the migrant caravan arrives at U.S. border

By Tal Kopan

WASHINGTON — President Trump ratcheted up his rhetoric Monday about a caravan of thousands of Central Americans making its way toward the U.S., even as uncertainty grew over what will happen to the migrants if they reach the border.

Trump has seized on the caravan as a key talking point heading into the midterm elections. The president has been pointing to the growing group of migrants as justification for his aggressive immigration proposals.

“Sadly, it looks like Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States. Criminals and unknown Middle Easterners are mixed in. I have alerted Border Patrol and Military that this is a National Emergy. Must change laws!” Trump tweeted Monday.

A source familiar with the government’s information on the caravan said there was no evidence Middle Easterners were mixing into it. It’s unclear whether Mexico will allow the group to continue the remaining 1,000-plus miles to the U.S. border without interfering.

More:

https://www.sfchronicle.com/politics/article/Here-s-what-happens-when-migrant-caravan-13327887.php#photo-16376169

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Actually, contrary to the false narrative put out by Trump, Sessions, Nielsen, and others, our legal system is set up to handle this situation:

USCIS could move additional Asylum Officers to ports of entry along the Southern border, particularly given the substantial advance notice;
Arriving migrants could be promptly and fairly screened for “credible fear;”
Those who pass could be matched with available pro bono lawyers and released to those locations where their lawyers and community support are located, thus insuring a high rate or appearance for asylum hearings in Immigration Court;
Those who fail credible fear could be returned to their home countries in a humane manner, perhaps working with the UNHCR;
If the Administration wants these cases to be “prioritized” in a backlogged Immigration Court system, they could remove an equal number of “low priority” older cases from the docket, thus preventing growth in the backlog and largely avoiding “Aimless Docket Reshuffling;”
The Refugee Act of 1980 could be used to establish a robust program for screening and resettlement of refugees directly from the Northern Triangle, thus both reducing the incentive to make the land journey to apply for asylum and setting a leadership example for other countries in the hemisphere to take additional refugees from the Northern Triangle;
We could work cooperatively with the UNHCR and other countries to establish shared resettlement programs for those who flee the Northern Triangle and can’t return;
We could invest more foreign aid in infrastructure, and job creation programs in the Northern Triangle which would deal with the causes of the continuing outward migration.

We do know from experience and observation what won’t work: incarceration, prosecutions, threats, family separation, child abuse, misconstruing asylum law against applicants, tirades directed against sending and transit countries, saying “we don’t want you,” etc.

PWS

10-22-18

LEXISNEXIS: New Suit Highlights How Sessions & Other Trumpsters Knowingly & Intentionally Violate U.S. Asylum Laws!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/new-legal-filing-links-high-level-trump-officials-to-asylum-turnback-policy—al-otro-lado-inc-v-nielsen

Posted by Dan Kowalski @ LexisNexis:

New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

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It’s a strange system where the victims of law violations are punished while the “perps” — folks like Sessions, Nielsen, Miller, etc — walk free and are allowed to continue their lawless behavior.

Even stranger: A guy like Sessions — a scofflaw “Jim Crow Throwback” if there ever was one — has the absolute audacity to whine, complain, and even threaten when occasionally Federal Judges intervene in relatively limited ways to force him and even Trump to comply with our country’s laws and our Constitution. But, I suppose that’s what free speech is all about. Nevertheless, Sessions’s freedom to express his opinions that mock, distort, and mischaracterize our laws doesn’t necessarily entitle him to act on those opinions in a manner inconsistent with those law.

PWS

10-18-18

HOW THE TRUMP ADMINISTRATION’S LIES AND MISCONDUCT HAVE CREATED THE VERY “FAKE BORDER CRISIS” THAT THEY CLAIM TO DECRY (& Use To Attempt To Justify Even More Draconian Measures To Mask Their Illegal & Immoral Conduct)

https://www.texasobserver.org/u-s-and-mexican-officials-collaborating-to-stop-asylum-seekers-attorneys-allege/

Gus Bova reports for the Texas Observer:

Elsa, a Guatemalan living in Southern Mexico, knew something was wrong. Her husband began traveling a lot without explanation, and physically abusing her and their two kids. When she eventually figured out that he’d gone to work for a cartel, she left him. But in 2016, the gang came after her to collect on debts the ex-husband had skipped out on. She fled to other Mexican towns, but the cartel men tracked her down. Then she went back to Guatemala, but they found her there, too. Finally, in September, Elsa decided to gamble on Uncle Sam — but the foot of the Reynosa-Hidalgo bridge was as far as she would get.

The Trump administration has repeatedly insisted that asylum-seekers should follow the rules by turning themselves in at ports of entry. Elsa tried to do just that. As a legal Mexican resident, she even had proper documentation for herself and her two children. Still, a Mexican customs agent stopped her at the turnstile and told her she couldn’t pass. He yelled at her that they were abusing their Mexican status by seeking asylum in the United States, and he threatened to tear their papers to shreds. Scared, the family slunk back into narco-ravaged Reynosa, and into total uncertainty.

The story of Elsa, whose name the Observer has changed for her protection, was included in a petition filed last week with the Inter-American Commission on Human Rights, a 59-year-old organization based in Washington, D.C., that investigates abuses in the Americas and issues recommendations to offending nations. The petition, filed by immigration attorneys working in the Rio Grande Valley, describes a systematic conspiracy between U.S. and Mexican customs agents to prevent asylum-seekers from requesting protection. The attorneys are asking the commission to tell both nations to stop stonewalling the law-abiding migrants.

U.S. customs agents blocking entry at the international boundary line on the Gateway International Bridge, Brownsville, July 2. COURTESY/FILING WITH THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Since June, the lawyers allege, Mexican customs officials along the Texas-Mexico border have been doing something virtually unprecedented: stopping asylum-seekers from entering the bridge, and if the migrants lack proper Mexican travel documents, the Mexican agents detain and even deport them. If an asylum-seeker makes it onto the bridge, U.S. customs officials call their Mexican counterparts to retrieve them; the Observerdocumented this phenomenon in a June story cited in the petition. In Nuevo Laredo, according to sworn affidavits from two Central American asylum-seekers, Mexican agents have demanded bribes of $500 per person to get onto the bridge. And in September, in Reynosa, they also started rejecting people, like Elsa, with Mexican papers.

“This petition highlights the reality of the U.S. working hand in glove with the Mexicans to completely shut down bridges, in violation of a number of human rights prohibitions,” said Jennifer Harbury, a longtime Rio Grande Valley attorney. Harbury has spent months documenting problems at the bridges and provided the majority of the information in the filing. According to Harbury and an affidavit from longtime Brownsville activist Mike Seifert, the international collaboration began after public outcry over long lines of asylum-seekers baking in the sun for weeks on the U.S. side of the bridges.

Harbury says in the filings that numerous Mexican agents at the Reynosa bridge have privately told her that the two governments are working together, and they’ve expressed frustration at doing the United States’ “dirty work.” Two other witnesses — a journalist and an activist — wrote similar affidavits. But U.S. customs agents have told Harbury that the Mexicans are acting alone, and a September letter she sent to Homeland Security Secretary Kirstjen Nielsen has gone unanswered. The United States began pressuring Mexico to stop migration at its southern border in 2014, and last month, Trump signaled he would redirect $20 million in foreign aid to beef up Mexico’s deportations. Neither U.S. nor Mexican immigration officials responded to Observer requests for comment.

The United States is unlikely, Harbury said, to heed the eventual request from the human rights commission. For one, the U.S. government rejects the authority of the commission’s enforcement arm, the Inter-American Court of Human Rights in San José, Costa Rica. (The same court recently ruled that many Latin American countries must recognize same-sex marriage.) But Harbury has higher hopes for Mexico, which is subject to the court and has an incoming leftist president in Andrés Manuel López Obrador. “I think the new president of Mexico is not going to want the commission saying they’re running dogs for Uncle Sam,” she said.

In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals.

If Mexico stops its collaboration, then the United States would have to do its own “dirty work” of stopping asylum-seekers, and hold all liability for the potentially illegal actions. In California, a lawsuit was filed last year after border agents briefly turned away asylum-seekers all along the U.S.-Mexico border on the false premise that Trump’s inauguration had abolished asylum. That suit continues to play out.

In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals. According to Attorney General Jeff Sessions, the point of the “zero tolerance” policy was to force families to use official ports of entry instead of crossing illegally. But U.S. customs agents started stonewalling asylum-seekers at the bridges. Now, with the threat of separation gone and the bridges still a dicey proposition, families have responded accordingly: More are crossing the river illegally to turn themselves in to Border Patrol. Immigration officials, in turn, are using this apparent spike to sound the alarm about another border crisis.

Meanwhile, many asylum-seekers from Central America, Africa and the Caribbean remain stranded, paralyzed by uncertainty in dangerous Mexican border towns where gangsters prey on refugees. In an affidavit, one would-be asylum-seeker wrote that she hears “shooting day and night” in Reynosa; another simply wrote, “many people die here.” As Harbury, the attorney, put it, “they’re like a snowball in Hell down there.”

Gus Bova reports on immigration, the U.S.-Mexico border and grassroots movements for the Observer. He formerly worked at a shelter for asylum-seekers and refugees. You can contact him at bova@texasobserver.org.

Get the latest Texas Observer news, analysis and investigations via Facebook, Twitter and our weekly newsletter.

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Jeff Sessions is a key part of this legal charade and scofflaw behavior. He disingenuously asserts that individuals should be using the legal system while doing everything in his power to make it impossible for individuals to present their asylum claims at ports of entry and have them fairly heard by fair and unbiased judges in Immigration Court.

The results of these shortsighted, cruel, illegal, and ultimately ineffective policies are to: 1) enrich smugglers, 2) make the trip more dangerous for asylum seekers, virtually insuring that more will die or be abused during the journey, and 3) to enlarge and promote the already robust “extralegal system” for immigrants and refugees. When orderly processing and the legal system for immigration are shut down or made less “user friendly,” the result is unlikely to be less overall immigration; just less immigration through legal channels and more “extralegal immigration” driven by Trump, Sessions, and their fellow White Nationalists.

Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!

Many thanks to Dan Kowalski over at LexisNexis Immigration Community for forwarding to me this timely and excellent reporting.

PWS

10-14-18

SOME ARTICLE III JUDGES “JUST SAY NO” TO SESSIONS’S “ZERO TOLERANCE” ABUSES OF CRIMINAL JUSTICE SYSTEM!

https://www.washingtonpost.com/local/public-safety/us-judges-balk-at-ice-detention-of-defendants-granted-bail-under-trump-zero-tolerance-push/2018/10/10/ccd42830-c4f7-11e8-b2b5-79270f9cce17_story.html

Spencer Hsu reports for WashPost:

Judges in the nation’s federal criminal courts increasingly are balking at what they call unlawful efforts by U.S. immigration authorities to continue to detain people charged with entering the country illegally, even after they have been granted bail.

The rulings complicate the Trump administration’s “zero tolerance” crackdown on defendants who are charged with illegally crossing the border but whom judges have determined do not pose a flight or safety risk.

The decisions force prosecutors to make a choice — charge defendants with illegal entry or reentry and risk that a federal judge releases them pending trial, or keep suspects locked up in civil detention pending deportation proceedings and forgo criminal prosecution.

A recent ruling by a federal judge in Washington highlights the human and legal issues at stake, the case of a dishwasher from El Salvador who has a wife and two children in the District, where he returned after two deportations.

The surge in such criminal cases stems from an April 2017 announcement by U.S. Attorney General Jeff Sessions prioritizing Justice Department prosecutions of entry and reentry crimes. More than 60,000 people have faced such criminal charges since then, with twice as many new prosecutions this July, the most recent month for which data is available, compared with the same month in 2017, according to Syracuse University’s Transactional Records Access Clearinghouse, which monitors cases.

Individuals caught without documents on a first offense can be charged with a misdemeanor, but anyone caught in the United States after a prior deportation can be charged with a felony and face more than a year in prison. Immigration-related prosecutions are now the majority of all federal criminal cases, stretching far beyond states bordering Mexico.

Attorney General Jeff Sessions early this month in Ohio. (Adam Cairns/Columbus Dispatch/AP)

Advocates for immigrants say the recent court rulings may limit the use of the criminal charges to pressure defendants to abandon efforts to stay in the United States. The impact on overall removal efforts remains to be seen, but courts appear to be pushing back at an expansion of authority by prosecutors and Immigration and Customs Enforcement.

In the District, one rejection of the tougher tactics came from U.S. District Judge Royce C. Lamberth, a 1987 appointee of President Ronald Reagan. On Sept. 26. Lamberth said the government cannot have it both ways — asking federal courts to deny bail to defendants awaiting criminal trial and then, if a judge disagrees, holding them anyway in the immigration system.

The decision came in the case of Jaime Omar Vasquez-Benitez, 38, who court papers say was picking food up at a restaurant in July when D.C. police stopped him for suspected gang activity and turned him over to ICE. Federal public defenders say Vasquez-Benitez had quit a gang and fears for his life if he is deported.

He was charged in August with felony reentry despite deportation orders in 2008 and 2014.

A federal magistrate and district judge ruled Vasquez-Benitez should be released on bail, but U.S. marshals returned him to ICE custody. Defense attorneys moved to enforce the release order, and the case ended up in front of Lamberth after Vasquez-Benitez was indicted.

Lamberth ruled that a landmark 1966 U.S. bail statute specifically covers migrants and must “trump” more-general immigration laws, releasing Vasquez-Benitez into a high-intensity supervision program. He wrote that courts have long “upheld as sacrosanct” the principle that no one can act as prosecutor and judge at the same time, and that the Justice Department cannot ignore bail rulings any more than it can shrug off a defendant’s right to a speedy trial.

The judge said prosecutors can pursue both criminal charges and civil removal cases against defendants but must abide by a judge’s decision to grant bail. Or they can forgo charges and keep defendants locked up in civil detention while pursuing deportation.

People detained without valid immigration documents may well be worse off if uncharged, “languishing” indefinitely without speedy trial or access to bail in ICE detention camps far from families or counsel, the judge noted.

“Nevertheless, the government can do that” under immigration law, Lamberth wrote. “But so long as the government invokes the jurisdiction of a federal court, the government must consent to the Court’s custodial dominion over the criminal defendants before it.”

A decision on whether to appeal is pending. Bill Miller, a spokesman for the U.S. attorney’s office for the District, said the office was reviewing the ruling.

In a July 2017 Justice Department bulletin to 94 U.S. attorney offices nationwide, Oregon federal prosecutor Gregory R. Nyhus said that federal criminal statutes and civil immigration laws “are reconcilable” and that “courts should be encouraged to harmonize these statutes rather than focusing on [one] to the complete exclusion of the other.”

The government’s position — that it can hold Vasquez-Benitez strictly for deportation on a reinstated removal order, unrelated to his prosecution — has yet to be decided by an appeals court.

Rulings by trial judges in similar cases have varied.

Since July 2017, federal judges in Washington, Manhattan, Brooklyn, Detroit, Cleveland and Austin have rejected the government’s approach, drawing on a 2012 district court opinion in Oregon and a similar 2015 ruling by the U.S. Court of Appeals for the 9th Circuit that “the executive branch has a choice to make” between holding an undocumented person for deportation or prosecuting that person under criminal law and the Constitution.

Federal judges in Buffalo and Philadelphia have come down on the other side, saying that criminal and immigration laws can “coexist” on “parallel” tracks. Before the Trump administration, prosecutors would typically drop criminal charges to pursue civil removal if a previously deported defendant won bail.

Yihong “Julie” Mao, staff attorney with the National Immigration Project of the National Lawyers Guild, said the group was “heartened” by court rulings upholding undocumented immigrants’ right to bail and pretrial release based on family and community ties. She added: “This is fundamentally a separation-of-powers issue. The Department of Justice cannot be both judge and prosecutor.”

Mary Petras, an assistant federal public defender who is representing Vasquez-Benitez in the District, declined to comment.

[Trump’s ‘zero tolerance’ at the border is causing child shelters to fill up fast]

In court filings, Assistant U.S. Attorney Kenneth Clair Kohl argued that the defendant’s case is not covered by the 2012 ruling, because ICE is holding him solely to deport him, not to prosecute him.

The Salvadoran man was first arrested in 1997, falsely claimed Mexican citizenship and was allowed to go to Mexico, according to court papers. He was deported in 2008 after serving a three-year sentence for felony obstruction of justice in the District and again in 2014, before he was caught for a fourth time this July.

Prosecutors would have prosecuted Vasquez-Benitez even in past years because of what they said in court papers was his “threatening, violent behavior” and felony criminal conviction. Vasquez-Benitez was convicted of obstruction of justice for telling a woman in 2005 she would “pay the consequences” if she called the police, and a 2014 arrest warrant in El Salvador said he has been charged with extortion, prosecutors said.

“There may come a time . . . [when] immigration proceedings have concluded . . . forcing the United States to choose between physical removal and continuation of this criminal case. That time, however, has not yet come,” wrote Kohl and Assistant U.S. Attorney Elizabeth Dewar in an unsuccessful effort to detain the man.

Petras told the court the man is a longtime restaurant worker, and his wife works part time as a hotel housekeeper. Both have family nearby, and the couple’s 3-year-old daughter and 9-year-old son attended a recent court hearing.

Petras argued the man posed no flight risk, because he is seeking to halt his deportation after gang members in El Salvador sent him a message warning that he had “signed his death warrant” by quitting the gang and removing gang tattoos.

The lawyer said the fact that her client has lived in the Washington area for years and returned shows that he “wants to be here and that he has no intent or incentive to flee.”

Read more:

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Compare what is happening in DC and some other jurisdictions with the “go along to get along” approach by some U.S. District Judges and U.S. Magistrate Judges along the border whom I have criticized in prior posts. The latter have allowed Sessions, Nielsen, and co. to turn their courts into “assembly line justice” — the kind that Session is implementing in his “wholly owned” U.S. Immigration Courts.

It’s pretty clear from the published reports that almost none of those being railroaded through that system actually understand the full immigration implications of their guilty pleas, nor do they understand how they can apply for asylum and what other rights they might have under the “civil immigration system.” Indeed, accepting guilty pleas without insuring that those entering the pleas fully understand the civil immigration situation and implications, including the likelihood of indefinite civil immigration detention and possible denial of a chance for a full hearing before an Immigration Judge, is arguably a violation of the U.S. Supreme Court’s decision in Padilla v. Kentucky.

I also have a “personal recollection” of Judge Royce Lamberth from decades ago when he was the Chief of the Civil Division at the U.S. Attorneys Office for DC and I was the Deputy General Counsel/Acting General Counsel at the “Legacy INS.” On several occasions I had to trek over from the “Central Office” in the “Chester Arthur Building” at 4th and Eye St., NW to the U.S. Courthouse complex on 5th Street to explain and justify the INS position to Royce.

He was known as a formidable individual, even in those days — a chief litigator who brooked no-nonsense from USG Agencies and who was concerned with maintaining the Government’s reputation for integrity and legal excellence before the U.S. Courts. That probably has much to do with how he got nominated and confirmed to be a U.S. District Judge and why he still brooks no-nonsense from the “Masters of Nonsense” in the Trump Administration.

PWS

10-13-18

MILLER & TRUMP ADMINISTRATION HATCHING ANOTHER ILLEGAL CHILD SEPARATION PROGRAM AS THEIR CRUEL & COUNTERPRODUCTIVE WHITE NATIONALIST ENFORCEMENT CONTINUES TO FAIL!

https://www.washingtonpost.com/local/immigration/trump-administration-weighs-new-family-separation-effort-at-border/2018/10/12/45895cce-cd7b-11e8-920f-dd52e1ae4570_story.html?utm_term=.e82d531c008e

Nick Miroff, Josh Dawsey, & Maria Sacchetti report for WashPost:

The White House is actively considering plans that could again separate parents and children at the U.S.-Mexico border, hoping to reverse soaring numbers of families attempting to cross illegally into the United States, according to several administration officials with direct knowledge of the effort.

One option under consideration is for the government to detain asylum-seeking families together for up to 20 days, then give parents a choice — stay in family detention with their child for months or years as their immigration case proceeds, or allow children to be taken to a government shelter so other relatives or guardians can seek custody.

That option — called “binary choice” — is one of several under consideration amid the president’s frustration over border security. Trump has been unable to fulfill key promises to build a border wall and end what he calls “catch and release,” a process that began under past administrations in which most detained families are quickly freed to await immigration hearings. The number of migrant family members arrested and charged with illegally crossing the border jumped 38 percent in August and is now at a record level, according to Department of Homeland Security officials.

Senior administration officials say they are not planning to revive the chaotic forced separations carried out by the Trump administration in May and June that spawned an enormous political backlash and led to a court order to reunite families.

But they feel compelled to do something, and officials say senior White House adviser Stephen Miller is advocating for tougher measures because he believes the springtime separations worked as an effective deterrent to illegal crossings.

At least 2,500 children were taken from their parents over a period of six weeks. Crossings by families declined slightly in May, June and July before surging again in August. September numbers are expected to be even higher.

While some migrants worried about separations, others felt seeking asylum was worth the risk

For some seeking asylum, family separations were worth the risk: ‘Whatever it took, we had to get to this country’ (Zoeann Murphy, Jorge Ribas/The Washington Post)

While some inside the White House and DHS are concerned about the “optics” and political blowback of renewed separations, Miller and others are determined to act, according to officials briefed on the deliberations. There have been several high-level meetings in the White House in recent weeks about the issue. The “binary choice” option is seen as one that could be tried out fairly quickly.

“Career law enforcement professionals in the U.S. government are working to analyze and evaluate options that would protect the American people, prevent the horrific actions of child smuggling, and stop drug cartels from pouring into our communities,” deputy White House press secretary Hogan Gidley said in an emailed statement.

Any effort to expand family detentions and resume separations would face multiple logistical and legal hurdles.

It would require overcoming the communication and data management failures that plagued the first effort, when Border Patrol agents, Immigration and Customs Enforcement officials and Department of Health and Human Services caseworkers struggled to keep track of separated parents and children.

The Trump administration believes it is on solid legal ground, according to two officials, in part because U.S. District Judge Dana M. Sabraw, who ordered the government to reunite separated families in June, approved the binary-choice approach in one of his rulings. But a Congressional Research Service report last month said “practical and legal barriers” remain to using that approach in the future and said releasing families together in the United States is “the only clearly viable option under current law.”

‘Administration officials said the CRS report cited earlier legal rulings. But the American Civil Liberties Union, which launched the separations lawsuit, disputed that interpretation and said it would oppose any attempt at expanded family detentions or separations.

“The government need not, and legally may not, indiscriminately detain families who present no flight risk or danger,” ACLU attorney Lee Gelernt said in an email. “It is deeply troubling that this Administration continues to look for ways to cause harm to small children.”

Another hurdle is that the government does not have detention space for a large number of additional families. ICE has three “family residential centers” with a combined capacity of roughly 3,000 parents and children. With more than four times that many arriving each month, it is unclear where the government would hold all the parents who would opt to remain with their children.

But Trump said in his June 20 executive order halting family separations that the administration’s policy is to keep parents and children together, “including by detaining” them. In recent weeks, federal officials have taken steps to expand their ability to do that.

In addition to considering “binary choice” and other options, officials have proposed new rules that would allow them to withdraw from a 1997 federal court agreement that bars ICE from keeping children in custody for more than 20 days.

The rules would give ICE greater flexibility to expand family detention centers and potentially hold parents and children longer, though lawyers say this would be likely to end up in court.

Officials have also imposed production quotas on immigration judges and are searching for more ways to speed up the calendar in its courts to adjudicate cases more quickly.

Federal officials arguing for the tougher measures say the rising number of family crossings is a sign of asylum fraud. DHS Secretary Kirstjen Nielsen has blasted smugglers for charging migrants thousands of dollars to ferry them into the United States, knowing that “legal loopholes” will force the administration to release them pending a court hearing. Federal officials say released families are rarely deported.

Advocates for immigrants counter that asylum seekers are fleeing violence and acute poverty, mainly in Central America, and deserve to have a full hearing before an immigration judge.

“There is currently a crisis at our southern border,” DHS spokeswoman Katie Waldman said in a statement, adding, “DHS will continue to enforce the law humanely, and will continue to examine a range of options to secure our nation’s borders.”

In southern Arizona, so many families have crossed in the past 10 days that the government has been releasing them en masse to shelters and charities. A lack of available bus tickets has stranded hundreds of parents and children in Tucson, where they sleep on Red Cross cots in a church gymnasium.

At a Senate hearing Wednesday, Sen. John Kyl (R-Ariz.) told Nielsen that migrants were “flooding into the community” and that authorities there had “no ability to do anything about it.”

Nielsen said lawmakers needs to give DHS more latitude to hold families with children in detention until their cases can be fully adjudicated — a process that can take months or years because of huge court backlogs.

DHS officials have seen the biggest increase this year in families arriving from Guatemala, where smugglers called “coyotes” tell migrants they can avoid detention and deportation by bringing a child, according to some community leaders in that country.

On Friday, Nielsen called for a regional effort to combat smuggling and violence in the region and to “heighten our penalties for traffickers.”

“I think there’s more that we can do to hold them responsible, particularly those who traffic in children,” she said in a speech in Washington at the second Conference on Prosperity and Security in Central America.

More than 90,000 adults with children were caught at the southwest border in the first 11 months of fiscal 2018. The previous high for a single year was 77,600 in 2016

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My recollection is that 1) the DOJ conceded in court that a policy of intentionally separating families is unconstitutional; and 2) Federal Courts have held that detention of individuals who are neither security risks nor likely to abscond for the primary purpose of “deterrence” is illegal.

So, if this facially illegal program is put into action, why shouldn’t Stephen Miller go to jail and be held personally liable for all the damages he causes with his scofflaw racist policies? Why shouldn’t Nielsen, Sessions, and others who are part of the Miller White Nationalist scheme also be held personally liable?

More cruelty, more wasting of taxpayer resources, more abuse of the judicial process by the Trump Administration.

Oh, and by the way. although today’s out of control U.S. Immigration Court backlogs began with “Aimless Docket Reshuffling” during the Bush II and Obama Administrations, Sessions and the Trump Administration have pushed them to astounding new levels with their incompetence and anti-asylum bias. Don’t blame the victims for the Government’s irresponsible actions!

If folks who believe in human decency and the rule of law don’t get out and vote, these abuses and degradations of our national values will continue.

PWS

10-12-18

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EXECUTIVE SUMMARY:

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These “Interim Regs” are 78 pages of pure legal gobbledygook, bureaucratic doublespeak, and irrelevant and intentionally misleading stats purporting to “justify the unjustifiable.” So, I’ll make this simple.

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Are there “unknown Middle Easterners” “mixed” into the migrant caravan?

Will the administration cut off foreign aid? Can they?

Were authorities from Mexico unable to stop the migrant caravan from heading into the US?

Will the President declare a national emergency over the caravan?

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Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!

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