Category: United States Citizenship and Immigration Services (“USCIS”)

SIJS VICTORY: 4TH CIR. EN BANC MAJORITY GIVES “NO DEFERENCE” TO USCIS’S MISINTERPRETATION OF LAW!  — Perez Perez v. Cooch

http://www.ca4.uscourts.gov/opinions/181330.P.pdf

Perez Perez v. Cooch, 4th Cir., En Banc, 02-10-20, published

BEFORE:  GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION BY:  Judge King, joined by Chief Judge Gregory and Judges Motz, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris 

DISSENTING OPINION: Judge Quattlebaum, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.

KEY QUOTES:

Felipe sought judicial review of the Agency’s rejection of his SIJ application, initiating these proceedings in October 2016 in the Western District of North Carolina against the Director of USCIS.1 In March 2018, the federal district court denied Felipe’s motion to set aside the Agency’s final action and granted the summary judgment motion of USCIS. Felipe then timely noted this appeal from the judgment of the district court. Unlike that court, we conclude that the Agency’s interpretation of the SIJ provision — that clause (i) requires a permanent custody order — is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Consequently, we reverse the judgment and remand with instructions to grant Felipe’s motion to set aside the Agency’s final action denying him SIJ status.

. . . .

Perhaps the most egregious aspect of the dissent is that it accuses us of “plac[ing] this Court’s stamp of approval on a brazen scheme to game our federal immigration system.” See post 32. That is, despite the lack of any determination from the North

Carolina district court or even from USCIS that Felipe has acted dishonestly or corruptly, 27

the dissent boldly declares that Felipe engaged in an “obvious manipulation of the state juvenile court to circumvent federal immigration laws.” See id. The dissent specifically finds that Felipe “used, at best, dubious claims of an emergency to obtain an ex parte order at a time close enough to his eighteenth birthday that the order would never receive a proper review.” See id. And, as if it demonstrates bad intent, the dissent points to the request in Mateo Perez Perez’s complaint for custody of his brother Felipe “that the North Carolina court make the precise findings that would permit [Felipe] to apply for SIJ status and then apply for a permanent visa to remain in the United States.” See id. at 34 (commenting that the “benefits [of obtaining SIJ status] were far from lost on [Felipe]”).

The dissent’s endeavor to demonize Felipe is wholly inappropriate, unfair, and dispiriting. First of all, the principle “that appellate courts do not make factual findings” is an “axiomatic” one. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 419 (4th Cir. 2010) (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) (“It is a basic tenet of our legal system that, although appellate courts often review facts found by a judge or jury . . . , they do not make such findings in the first instance.”)). The dissent’s fact finding is particularly objectionable here because it tramples upon the exclusive authority of the North Carolina district court to adjudicate Felipe’s custody. See Adoptive Couple v. Baby Girl, 570 U.S. 637, 656 (2013) (Thomas, J., concurring) (emphasizing that “domestic relations is an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)); cf. Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (explaining that “it is well understood that, in

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the United States, our various state courts exercise full authority over the judicial act of adoption”).

Furthermore, the dissent’s theory that Felipe acted dishonestly and corruptly is in no way compelled by the record. Indeed, many of the adverse inferences that the dissent draws against Felipe are patently unreasonable. For example, without acknowledging that Mateo filed his complaint for custody of Felipe nearly six months before Felipe turned eighteen, the dissent finds that Felipe plotted to obtain an unreviewable emergency custody order from the North Carolina district court within days of his eighteenth birthday. And although Felipe was required by federal regulation to submit to USCIS a state juvenile court order containing findings necessary to his SIJ application, see 8 C.F.R. § 204.11(d)(2), the dissent negatively cites the request for those findings made in Mateo’s complaint for custody of Felipe. The dissent even maligns Felipe for appreciating the benefits of SIJ status, as if a mere desire to live in the United States is evidence of immigration fraud.

There is no justification for the dissent’s dismal portrait of Felipe. The North Carolina district court certainly did not indicate that it thought itself manipulated in the custody proceedings, and USCIS did not attribute its rejection of Felipe’s SIJ application to any chicanery. Rather, the state court gave every indication it believed that Felipe was the victim of abuse, neglect, and abandonment by his biological parents in Guatemala and that placing him in the custody of Mateo was in Felipe’s best interests. Thereafter, USCIS denied Felipe SIJ status solely because he lacked the type of custody order — a permanent one — that the Agency has interpreted clause (i) of the SIJ provision to require. All we 29 say today is that, because USCIS’s clause (i) interpretation is not in accordance with law, the Agency must take another look at Felipe’s SIJ application.8

KEY QUOTE FROM THE DISSENT:

Finally, in addition to suffering from the legal deficiencies described above, I fear

our decision will have serious and far reaching ramifications. First, in adopting Perez’s arguments, we sanction a scheme to game United States immigration laws. As noted above, Perez’s brother alleged to a court of law and either Perez or his brother swore in an affidavit that temporary emergency custody of Perez was needed to protect Perez from imminent, serious physical harm from Perez’s parents. But at the time the motion containing this allegation and the supporting affidavit were filed, his parents were still in Guatemala. In

other words, Perez had been in the United States, over 2,700 miles from his parents, for 47

over a year. When asked by the panel at oral argument the basis of the purported emergency, counsel for Perez was unable to provide any explanation. He likewise provided none before the entire court sitting en banc. No one, at any time, has articulated any sort of emergency.3

If there was an actual emergency, one would expect Perez’s brother to have filed the motion for an emergency order at the time the complaint was filed, or even sooner. But he did not do so. Instead, he waited until June 2015, just weeks before Perez turned eighteen, to file the motion.4 By doing so, Perez was able to obtain the ex parte, emergency order without any meaningful examination of the allegations since the parents had no way to know the motion was even filed. And since Perez was about to turn eighteen on July 6, Perez and his brother knew the July 22, 2015 hearing the state court ordered would never happen. Perez’s scheme makes a mockery of the immigration laws passed by Congress. What’s more, by sanctioning this scheme, we are sending the clear message: Gaming the federal laws is fine with us. Keep doing it.

In insisting the record does not support my characterization of Perez’s conduct, the majority invokes John Adams’ famous reminder that “facts are stubborn things.” Indeed

3 The language cited by the majority at pages 6-7 of its opinion refer to circumstances that allegedly existed when Perez lived in Guatemala. Even if true, they offer no basis for an emergency, ex parte order hearing a year and a half after Perez left Guatemala and came to the United States.

4 Perez flip-flopped on this issue at the en banc oral argument. He first suggested that he promptly filed the motion and the delay was due to the slow pace of the North Carolina court. When pressed, however, he conceded that he had not filed the motion until six months later, in June.

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they are. The fact here is that the purported emergency on which Perez’s motion was based involves events that occurred years ago and thousands of miles away. J.A. 116-117. The fact here is that Perez’s brother waited until just before Perez turned eighteen to seek emergency relief. J.A. 88, 127. The fact here is that Perez’s brother sought emergency custody of Perez without providing any notice to their parents in Guatemala. J.A. 88-89, 129-130. The fact here is that the order on which Perez’s SIJ petition was based only preserved the status quo until a hearing with due process rights could be held. J.A. 130. All these facts are plainly in the record, and my good colleagues in the majority do not suggest otherwise. They simply come to a different, and in my view implausible, conclusion about them.5

5 In considering whether Perez’s conduct is part of a scheme to game our immigration laws, I note the remarkable similarities between the facts here and those of Reyes v. Cissna, 737 F. App’x 140 (4th Cir. 2018). There, Reyes lived with her grandparents from the time she was eleven until she was sixteen. Id. at 142. At age sixteen, she entered the United States unlawfully, was apprehended and, pending a removal hearing, was moved to North Carolina where her father lived. Id. Almost two years later, and four days before Reyes’ eighteenth birthday, Reyes’ father, represented by the same lawyers as Perez, filed an action in North Carolina state court to terminate the parental rights of Reyes’ mother. Id. Reyes’ father also filed a motion seeking emergency custody of Reyes because Reyes had been abandoned by her mother. Reyes’ father claimed he should be awarded custody of Reyes on an emergency basis even though the alleged abandonment took place seven years earlier when Reyes was eleven and even though Reyes lived with her grandparents from that time until she came to the United States illegally. The North Carolina state court granted the emergency relief and set a hearing just five days later to determine custody. Id. at 143. Like our case, however, Reyes turned eighteen just before the hearing, depriving the North Carolina state court of jurisdiction to make a custody determination. Despite that, Reyes used the emergency order, obtained without any due process provided to her mother, to petition for federal SIJ benefits. Id. at 143. Sound familiar?

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Second, our decision effectively transfers much of the responsibility of determining eligibility for SIJ benefits from the Agency—which is where Congress placed it—to state juvenile courts. In doing this, we pave the way for immigrants to seek orders from state juvenile courts in order to gain an immigration advantage. I agree that, as a general rule, neither federal agencies nor federal courts should wade into the waters of state domestic relations law. But the Agency did not make any state domestic relations law determinations. And giving appropriate respect to state courts in the area of domestic relations does not mean that the Agency must abdicate its role, rubber stamp a barebones set of “findings” or ignore the circumstances of an SIJ submission. Certainly nothing in the INA suggests that result.

Third, beyond the damage to our immigration laws, this scheme and our approval of it marginalizes the importance of parents having custody over their children. Our decision approves a scheme that terminated the custodial rights of Perez’s parents without a scintilla of due process. Here, although North Carolina law requires notice and a hearing for a custody determination, Perez made an end run around that requirement with his dubious claim of emergency. And although an emergency order normally only holds the status quo in place until a hearing of which all parties receive notice and are given an opportunity to be heard, Perez’s strategic timing of the emergency motion in relation to his eighteenth birthday assured that hearing would not take place. Then, the INA and its accompanying regulations, which assume that the state court order would have been carried out with due process protections, do not require the parents to be notified of the SIJ petition.

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Perez’s scheme, like a thief in the night, terminates his parents’ custodial rights without the parents even knowing.

Last, these results would be bad enough if they affected American citizens. But here, courts in the United States are being used to eviscerate the rights of citizens of Guatemala whose parental rights should be governed by the laws of that country. Imagine the outrage we would rightly feel if another country’s courts terminated the custodial rights of American citizen parents over an American child. International comity means nothing if these schemes are endorsed.

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

I had significant experience with SIJS during my 13 years on the bench in Arlington. I also worked some on enactment of the original SIJS law that was part of IMMACT 90 during my days in private practice.

Leaving aside the facts of this particular case, whatever they might be, I found SIJS to be a “life saver” for many deserving young people who might well have been severely harmed or abused, perhaps killed or forced to “join gangs or die,” if returned to their home countries. 

Some of them were individuals who should have been granted asylum, but were improperly excluded from that relief by intentional misinterpretations of asylum law directed against refugees from Central America which predated this Administration; such injustices obviously have been aggravated by the the Trump/Miller shameless White Nationalist agenda now being directed at asylum seekers of color, all too often with the wooden approval of life-tenured appellate judges who should know better.

Human lives are at stake here!  

PWS

02-11-20

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LETTER FROM 21 DEMOCRATIC SENATORS HIGHLIGHTS  FRAUD, “CRIMES AGAINST HUMANITY” IN TRUMP REGIME’S BOGUS “SAFE THIRD COUNTRY AGREEMENTS” WITH SOME OF THE WORLD’S MOST DANGEROUS AND INHOSPTABLE COUNTRIES FOR ASYLUM SEEKERS!

Trump Refugee Policy
Trump Refugee Policy

https://www.warren.senate.gov/imo/media/doc/2020.02.05%20Letter%20to%20State,%20DOJ,%20DHS%20about%20Northern%20Triangle%20Asylum%20Cooperative%20Agreements.pdf

 

The Honorable Michael R. Pompeo Secretary of State
U.S. Department of State
2201 C Street, NW

Washington, DC 20037

The Honorable William P. Barr Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001

The Honorable Chad F. Wolf
Acting Secretary of Homeland Security U.S. Department of Homeland Security 3801 Nebraska Avenue, NW Washington, DC 20528

tinitrd ~tatrs ~rnatr WASHINGTON. DC 20510

February 5, 2020

Dear Secretary Pompeo, Attorney General Barr, and Acting Secretary Wolf:

We write regarding the “asylum cooperative agreements”1 (ACAs) that the Department of Homeland Security (DHS) has signed in recent months with Guatemala? El Salvador,3 and Honduras,4 countries collectively referred to as the “Northern Triangle.” These agreements outline a framework that could enable the United States to expel asylum seekers to each ofthese countries, regardless of where the migrants are from or which countries they have transited en

1 Sometimes referred to as “safe third country agreements.” U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19, 2019, https://www.govinfo.gov/content/pkg/FR-20 19-11-19/pdf/20 19-25137.pdf.

2 U.S. Department of Homeland Security, “Agreement between the Government of the United States and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims,” signed July 26,2019, https://www.documentcloud.org/documents/6232982-Signed-Agreement- English.html#document/p 1.

3 U.S. Department of Homeland Security, “Agreement between the Government of the United States and the Government ofthe Republic ofEl Salvador for Cooperation in the Examination ofProtection Claims,” signed September 20, 2019, https://www.documentcloud.org/documents/6427712-US-El-Salvador-Cooperative- Agreement.html.

4 U.S. Department of Homeland Security, “Agreement between the Government ofthe United States and the Government ofthe Republic of Honduras for Cooperation in the Examination of Protection Claims,” signed September 25, 2019, https://ca-times.brightspotcdn.com/47/a5/85ea59444cb89bb2f3eca15880f3/us-honduras- asylum-cooperative-agreement.pdf.

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route to the United States.5 The Trump Administration’s approach to asylum seekers is not only inhumane and potentially illegal; it could also overwhelm the asylum systems ofGuatemala, El Salvador, and Honduras and further destabilize those countries. As such, these agreements could have serious and detrimental implications for U.S. national security.

There is significant evidence that the Northern Triangle countries are unlikely to provide safety or adequate protection for asylum seekers, both because ofthe pervasive violent crime and targeted persecution there as well as their governments’ weak or practically non-existent asylum capacities. We are also concerned that expelling asylum seekers under this framework raises serious legal and procedural questions, including the degree to which the Administration complied with relevant law in producing and signing these agreements.

As you know, the Northern Triangle countries have some ofthe highest homicide rates in the world and are experiencing massive forced displacement both internally and across borders.6•7•8 The Department of State’s own human rights reports for these countries describe the dangers of rape, femicide, forced child labor, and threats against the LGBTQ community.9 Gang violence is pervasive and often transcends borders; some ofthese criminal organizations are so dangerous that even some police forces trained to combat gang violence are themselves fleeing to the United States.10 Despite these troubling facts, on November 21,2019, the Administration expelled a Honduran man to Guatemala in the first transfer under these agreements.11 ·

The Administration has since expelled more than 250 migrants from Honduras and El Salvador to Guatemala.12 At first, the Administration said it would transfer only single adults.13 However,

5 The agreements do not allow for returning an asylum seeker to the country oftheir own nationality. But they allow, for example, for a Honduran or a Cameroonian asylum seeker to be deported to Guatemala. U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19,2019, https://www.govinfo.gov/content/pkg/FR-2019-11-19/pdf/2019-25137.pdf.

6 United Nations Office on Drugs and Crime, “Global Study on Homicide 2019,” July 2019, https://www.unodc.org/unodc/en/data-and-analysis/global-study-on-homicide.html.
7 United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2018,” June 20, 2019, p. 48, https://www.unhcr.org/en-us/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends-2018.html. (In 2018, over 282,000 people from the Northern Triangle countries had asylum applications pending adjudication worldwide)
8 Internal Displacement Monitoring Centre, “Painting the Full Picture: Persistent data gaps on internal displacement associated with violence in El Salvador, Guatemala and Honduras,” November 2019, pp. 10-15, http://www.internal-displacement.org/publications/painting-the-full-picture-displacement-data-gaps-in-the-ntca.
9 U.S. Department of State, “Country Reports on Human Rights Practices for 2018: El Salvador, Guatemala, Honduras,” 2018, https://www.state.gov/reportlcustoin/420abb692c/.
10 Washington Post, “It’s so dangerous to police MS-13 in El Salvador that officers are fleeing the country,” Kevin Sieff, March 3, 2019, https://www.washingtonpost.com/world/the americas/its-so-dangerous-to-police-ms-13-in-el- salvador-that-officers-are-fleeing-the-countrv/2019/03/03/e897dbaa-2287-11e9-b5b4-1d18dfb7b084 stmy.html

11 Reuters, “Shifting asylum ‘burden’: U.S. sends Guatemala first Honduran migrant,” Sofia Menchu, November 21, 2019, https://www.reuters.com/article/us-usa-immigration-guatemala/shifting-asylum-burden-us-sends-guatemala- frrst-honduran-migrant-idUSKBN1XV1 WM.
12 The Intercept, “One year into ‘Remain in Mexico,’ the U.S. is enlisting Central America in its crackdown on asylum,” Sandra Cuffe, January 29, 2020, https://theintercept.com/2020/01/29/remain-in-mexico-year-anniversary- central-america/.

13 LA Times, “In a first, U.S. starts pushing Central American families seeking asylum to Guatemala,” Molly O’Toole, December 10, 2019, https://www.latimes.com/politics/story/2019-12-10/u-s-starts-pushing-asylum- seeking-families-back-to-guatemala-for-first-time.

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the Administration has begun to transfer children and families, including a Honduran mother with two children who had been hospitalized.14 Reportedly, many ofthese migrants are not even aware in advance ofthe country to which they are being transferred. Upon arrival, they are told that they have 72 hours to either apply for asylum or leave, but are reportedly given practically no information about the process.15

Because ofthe lack ofprotection offered in Guatemala, El Salvador and Honduras, these agreements raise serious legal questions. On November 18,2019, the Department ofJustice and DHS released an interim fmal rule (“Rule”) amending departmental regulations in order to implement the ACAs.16 The Rule, effective November 19, 2019, characterizes the ACAs as “safe third country” agreements as described in the Immigration and Nationality Act, which provides that asylum seekers may be removed under the following conditiop.s:

“[I]fthe Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country ofthe alien’s nationality or, in the case ofan alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account ofrace, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, uilless the Attorney General fmds that it is in the public interest for the alien to receive asylum in the United States.”17

The Rule provides that the Attorney General and the Secretary of Homeland Security will make “categorical” determinations as to whether the Northern Triangle countries offer access to a “full and fair procedure” for determining asylum claims. Written information provided to our offices by the Administration indicates that “[t]he Attorney General and Secretary ofHomeland Security determined that Guatemala’s asylum system provides full and fair access to individuals seeking protection, as required by U.S. law, prior to the ACA entering into force on November 15.”18

The notion that Guatemala or the other two Northern Triangle countries offers such a procedure strains credulity-their systems for determining asylum claims are, at best, deeply flawed and under-resourced, and at worst, practically non-existent. According to the State Department’s human rights reports, in Guatemala, “identification and referral mechanisms for potential asylum seekers were inadequate… [and] migration and police authorities lacked adequate training

14 Associated Press, “Advocates: Honduran mother, children deported to Guatemala,” Nomaan Merchant, January 21, 2020, https://apnews.com/583a7dl0644f407e8035e5b6eddlc8f7.
15 Washington Post, “The U.S. is putting asylum seekers on planes to Guatemala- often without telling them where they’re going,” Kevin Sieff, January 14, 2020, https://www.washingtonpost.com/worldlthe americas/the-us- is-putting-asylum-seekers-on-planes-to-guatemala–often-without-telling-them-where-theyre- going/2020/01/13/0f89a93a-3576-llea-alff-c48cld59a4a1 story.html.

16 U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19, 2019. https://www.govinfo.gov/content/pkg/FR-2019-11-19/pdf/2019- 25137.pdf.

17 8 USC§ 1158(a)(2)(A). Emphasis added.
18 U.S. Department of State, Answer to Question for the Record to Deputy Secretary of State Nominee Stephen Biegun by Senator Bob Menendez (#235), Submitted November 20, 2019.

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concerning the rules for establishing refu,gee status.”19 Guatemala does not have a dedicated office for resolving asylum cases; instead, a commission offour officials from several ministries and the immigration department.meet a few times a year to decide cases.20 Reportedly, these officials did not resolve a single case in the first seven months of2019.21 Honduras and El Salvador do not have a single full-time asylum officer. By contrast, U.S. Citizenship and Immigration Services has about 500 asylum officers who are currently tasked with adjudicating over 300,000 pending asylum cases.22 Thus, the Northern Triangle countries are not remotely equipped to fully and fairly handle even a small fraction ofthese cases.

The lack of asylum capacity poses a grave risk that these Northern Triangle governments w ill- whether inadvertently or willfully-return asylum seekers to their country ofpersecution, constituting the serious human rights violation of refoulement that is prohibited under Section 208(a)(2)(A) ofthe U.S Immigration and Nationality Act.

This provision ofU.S.law codifies U.S. obligations prohibiting the return ofrefugees to a territory where his or her life or freedom would be threatened as a state party to the 1967 Protocol Relating to the Status of Refugees. The ACAs may also violate U.S. obligations as a party to the 1984 Convention against Torture.23 Indeed, in response to the publication ofthe Rule, the United Nations High Commissioner for Refugees released a statement, saying it “has serious concerns about the new U.S. policy on asylum,” calling it “an approach at variance with international law that could result in the transfer ofhighly vulnerable individuals to countries where they may face life-threatening dangers.”24 A recently filed lawsuit details additional legal violations posed by the implementation ofthe ACAs.25

The ACAs recently signed by DHS appear to have been drafted in haste, with multiple typographical errors introduced into the agreements.26 There is little sign that they were

19 U.S. Department of State, “Country Reports on Human Rights Practices for 2018: El Salvador, Guatemala, Honduras,” 2018, https://www.state.gov/reportlcustom/420abb692c/.
20 Wall Street Journal, “Asylum Seekers at U.S. Southern Border Can Now Be Sent to Guatemala Instead,” Michelle Hackman and Juan Montes, November 19, 2019, https://www.wsj.com/articles/asy1um-seekers-at-u-s-southern- border-can-now-be-sent-to-guatemala-instead-11574187109.
21 Univision News, “Guatemala’s ’embryonic’ asylum system lacks capacity to serve as safe U.S. partner, experts say,” David C. Adams, August 2, 2019, https://www.univision.com/univision-news/immigration/guatemalas- embcyonic-asylum-system-lacks-capacity-to-serve-as-safe-u-s-partner-experts-say.
22 Government Executive, “Homeland Security Says It Will Dramatically Increase Asylum Workforce by Year’s End,” Eric Katz, October 23, 2019, https://www.govexec.com/workforce/2019/10/homeland-security-says-it-will- dramatically-increase-asylum-workforce-years-end/160828/.
23 Protocol Relating to the Status ofRefugees, January 31, 1967; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 12, 1984; “Benchbook on International Law,” Diane Marie Amann (ed.), pp. ill.E-51, 2014, https://www.asil.org/sites/defau1t/files/benchbook/humanrights4.pdf.
24 UNHCR, “Statement on new U.S. asylum policy,” press release, November 19, 2019, https://www.unhcr.org/en- us/news/press/2019/11/5dd426824/statement-on-new-us-asylum-policy.html.
25 U.T. v. Barr, “Complaint for Declaratory and Injunctive Relief,” United States District Court for the District of Columbia, https://www.ac1u.org/sites/default/files/field document/complaint – u.t. v. barr 1 15 2020.pdf.
26 For example, the agreement with El Salvador refers to “El Salvadornian [sic] migration law, although this language is incorrect. A Google search for “El Salvadornian” produces zero results.:_the most common English- language demonym is “Salvadoran,” though “Salvadorian” and “Salvadorean” are also used. https://en.wikipedia.org/wiki/Salvadorans. U.S. Department of Homeland Security, “Agreement between the Government ofthe United States and the Government ofthe Republic ofEl Salvador for Cooperation in the

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negotiated in a meaningful way individually with each country. Furthermore, the President’s actions leading up to the agreements’ signing-including social media statements threatening to withhold, and subsequent withholding of, Congressionally-appropriated aid to the region- indicate that Central American officials may have accepted the terms under duress.27

~ Additionally, one news report indicated that, in a private meeting with President Trump, Secretary Pompeo criticized the agreement with Guatemala, “ca:lled the agreement flawed and a mistake,” and told the President that ”the Guatemalan government did not have the ability to carry out its terms.”28 This raises questions about the degree to which the State Department was involved in policy deliberations and decisions underlying these agreements.

Accordingly, please provide answers to the following questions by February 18, 2020:

  1. Did any officials within the State Department raise concerns abol)t the feasibility of implementing these ACAs due to the lack of capacity of the Northern Triangle countries’ asylum systems, or for any other reason? Please provide any such memoranda or communications in which any such concerns were articulated.
  2. What specific concerns about the agreement with Guatemala were raised by Secretary Pompeo in the reported Oval Office meeting with the President? Have these concerns been addressed?
  1. Were any assessments of the Northern Triangle countries’ asylum adjudication procedures made prior to the negotiation or conclusion ofthe ACAs? Please provide any documents related to any such assessments.
  2. The ACAs indicate that the parties shall develop standard operating procedures and plans regarding the implementation ofthese agreements. What is the status ofthese plans in each Northern Triangle coll.ntry?

4.. The ACAs indicate that they shall enter into force upon “exchange ofnotes” indicating that both countries have compl~ted the n~cessary domestic legal procedures for bringing the agreement into force. Which ofthe ACAs are in force? Please include copies ofany and all records related to this required exchange of notes.

  1. Reportedly, Honduran officials wanted to delay transfers until both countries “provided notification that they have complied with the legal and institutional conditions necessary for proper implementation of this agreement” but DHS officials wrote that this request read to them as an “escape-hatch not to implement the ACA.”29 Should this be taken as an indication that DHS considers the ACAs to be in force even in the absence of such “notification” by both countries?

Examination ofProtection Claims,” signed September 20, 2019, p. 2, https://www.documentcloud.org/documents/6427712-US-El-Salvador-Cooperative-Agreement.html.
27 Politico, “Trump warns ofretaliation against Guatemala after immigration deal falls through,” Rishika Dugyala and Sabrina Rodrigues, July 23, 2019, https://www.politico.com/story/2019/07/23/trump-guatemala-retaliation- immigration-deal-1426722; NPR, “Trump Froze Aid To Guatemala. Now Programs Are Shutting Down,” Tim McDonnell, September 17, 2019, https://www.npr.org/sections/goatsandsoda/2019/09/17/761266169/trump-froze- aid-to-guatemala-now-programs-are-shutting-down.
28 New York Times, “Trump Officials Argued Over Asylum Deal With Guatemala. Now Both Countries Must Make It Work,” Michael D. Shear and.Zolan Kanno-Youngs, August 2, 2019, https://www.nytimes.com/2019/08/02/us/politics/safe-third-guatemala.html.
29 BuzzFeed News, “Trump Wants To Start Deporting Asylum-Seekers To Honduras By January,” Hamed Aleaziz, November 25, 2019, https://www.buzzfeednews.com/article/hamedaleaziz/asylum-seekers-deportation-honduras- trump.

5

  1. The Rule indicates that the Attorney General and the Secretary ofHomeland Security will make a categorical determination that each ofthe Northern Triangle countries offers a “full and fair procedure” for adjudicating asylum claims.
    1. Which, if any countries have the Attorney General and Secretary of Homeland

Security determined do have a “full and fair procedure”? Which, if any countries have the Attorney General and Secretary of Homeland Security determined do not have a “full and fair procedure”? For each country, when were any such determinations reached?

    1. How are the Attorney General and the Secretary ofHomeland Security reaching these determinations? Please provide copies of any determinations made by DOJ and DHS and any related documentation ofdiscussions ofthis issue.
  2. The Rule characterizes the ACAs as “safe third country” agreements as described in the Immigration and Nationality Act. Besides the ACAs, the only “safe third country” agreements signed in the 50 years since the enactment ofthe Immigration and Nationality Act was the agreement with Canada. Over two years elapsed between December 5, 2002, when that agreement was signed, and December 29, 2004, when it came into force.30 In contrast, less than four months elapsed between July 26, 2019, when the ACA with Guatemala was signed, and November 15,2019, when it came into force.
  1. In the ACA signing ceremony in the Oval Office, Guatemala’s Minister of Interior and Home Affairs said that “Guatemala is definitely clear on the responsibility that it has. We are clear that we have to make changes.”31 What changes, if any, did Guatemala make to strengthen their asylum procedures in these four months? Please provide any communications between the government of Guatemala.and the Administration related to improvements made to Guatemala’s asylum system since the agreement was signed in July.
  1. In order to ensure that the United States fulfills its obligations to refrain from sending a person to a place where such person will face harm, what procedures will the Administration follow if asylum seekers face torture, ill treatment, or persecution after being transferred to the Northern Triangle? ·
  2. Is DHS transferring asylum seekers under the ACAs to Northern Triangle countries on the same flights as deportees? How is DHS ensuring that asylum seekers are not transferred in the company of individuals who may threaten their life or freedom after their arrival in country?
  3. What, ifanything, was promised or offered by U.S. officials to the governments of Guatemala, El Salvador, or Honduras in exchange for their signing onto these agreements?

30 “AgreementbetweentheGovernmentofCanadaandtheGovernmentoftheUnitedStatesofAmericaFor cooperation in the examination ofrefugee status claims from nationals ofthird countries,” signed December 5, 2002, https://www.canada.ca/enlimmigration-refugees-citizenship/corporate/mandate/policies-operational-instructions- agreements/agreements/safe-third-country-agreementlfmal-text.html.
31 White House, “Remarks by President Trump at Signing ofSafe Third Country Agreement with Guatemala,” July 26, 2019, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-safe-third-country- agreement-guatemala/.

6

Sincerely,

un· ed States Senator

k4-/a…~ Richard Blumenthal
United States Senator

~~~~

Kirsten E. Gillibrand Benjamin L. Cardin

United States Senator

United States Senator

‘0…=.>–·-topher S. Murphy United States Senator

United States Senator

~%Markey ·~ United States Senator

Edward J.

Bernard Sanders United States Senator

Thomas R. Carper United States Senator

~~

United States Senator

—

7

Tim Kaine
United States Senator

Christopher A. Coons United States Senator

8

Cory A. Booker United States Senator

 

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

All good points. But, I wouldn’t hold my breath waiting for a reply from the regime.

Obviously, in the process of selling out America, the GOP just authorized the regime to “give a big middle finger” to any type of Congressional oversight.

Once you get beyond the fraud, lawlessness, and intentional cruelty of the regime’s agreements, here’s the reality of what’s awaits those illegally “orbited” to dangerous failed states in the Northern triangle: death, torture, rape, extortion, etc.:

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

This isn’t “normal.” It’s politically and judicially enabled neo-fascism unfolding right in front of us.

PWS

02-10-20

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

Fernanda Echavarri
Fernanda Echavarri
Reporter
Mother Jones

https://apple.news/AyKjNs5gOQJqIJ2_IeeQvcg

Fernanda Echavarri reports for Mother Jones:

“A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts

SAN DIEGO IMMIGRATION COURT, COURTROOM #2;
PRESIDING: JUDGE LEE O’CONNOR

Lee O’Connor has been in his courtroom for all of two minutes before a look of annoyance washes over his face.

Eleven children and six adults—all of them from Central America, all of them in court for the first time—sit on the wooden benches before him. They’ve been awake since well before dawn so they could line up at the US-Mexico border to board government buses headed to immigration court in downtown San Diego, Kevlar-vested federal agents in tow. Like the dozens of families jam-packed into the lobby and the six other courtrooms, they’ve been waiting out their asylum cases in Mexico, often for months, as part of the Trump administration’s controversial border policy, the Migrant Protection Protocols.

O’Connor has a docket full of MPP cases today, like every day. Before he gets to them, though, he quickly postpones a non-MPP case to January 2021, explaining to a man and his attorney that he simply doesn’t have time for them today, motioning to the families in the gallery. While he’s doing this, the little girl in front of me keeps asking her mom if she can put on the headphones that play a Spanish translation of the proceedings. A guard motions the little girl to be quiet. 

For months, immigration attorneys and judges have been complaining that there’s no fair way to hear the cases of the tens of thousands of Central Americans who have been forced to remain on the Mexican side of the border while their claims inch through the courts. MPP has further overwhelmed dockets across the country and pushed aside cases that already were up against a crippling backlog that’s a million cases deep, stranding immigration judges in a bureaucratic morass and families with little hope for closure anytime in the near future.

I went last month to San Diego—home to one of the busiest MPP courts, thanks to its proximity to Tijuana and the more than 20,000 asylum seekers who now live in shelters and tent cities there—expecting to see logistical chaos. But I was still surprised at how fed up immigration judges like O’Connor were by the MPP-driven speedup—and by the extent to which their hands were tied to do anything about it.

Once O’Connor is done rescheduling his non-MPP case, he leans forward to adjust his microphone, rubs his forehead, and starts the group removal hearing. The interpreter translates into Spanish, and he asks if the adults understand. “Sí,” they say nervously from the back of the courtroom. O’Connor goes down his list, reading their names aloud with a slight Spaniard accent, asking people to identify themselves when their names are called. He reprimands those who do not speak up loud enough for him to hear.

O’Connor, who was appointed to the bench in 2010, is known for being tough: Between 2014 and 2019, he has denied 96 percent of asylum cases. He explains to the migrants that they have the right to an attorney, although one will not be provided—there are no public defenders in immigration court. O’Connor acknowledges finding legal representation from afar is difficult, but he tells them it’s not impossible. He encourages them to call the five pro bono legal providers listed on a sheet of paper they received that day. The moms sitting in front of me have their eyes locked on the Spanish interpreter, trying to absorb every bit of information. Their kids try their best to sit quietly.

As he thumbs through the case files, O’Connor grows increasingly frustrated: None of them has an address listed. “The government isn’t even bothering to do this,” he grumbles. The documents for MPP cases list people’s addresses as simply “Domicilio Conocido,” which translates to “Known Address.” This happens even when people say they can provide an address to a shelter in Mexico or when they have the address of a relative in the United States who can receive their paperwork. “I’ve seen them do this in 2,000 cases since May,” O’Connor says, and the Department of Homeland Security “hasn’t even bothered to investigate.” He looks up at the DHS attorney with a stern look on his face, but she continues shuffling paperwork around at her desk.

O’Connor picks up a blue form and explains to the group that they have to change their address to a physical location. The form is only in English; many of the adults seem confused and keep flipping over their copies as he tells them how to fill it out. O’Connor tells them they have to file within a week—perhaps better to do it that day, he says—but it’s unclear to me how they could follow his exacting instructions without the help of an attorney. He points out other mistakes in the paperwork filed by DHS and wraps up the hearing after about 45 minutes. The families don’t know that’s typical for a first hearing and seem perplexed when it ends. 

O’Connor schedules the group to come back for their next hearing in five weeks at 8:30 a.m. That will mean showing up at the San Ysidro port of entry at 4:30 a.m.; the alternative, he says, is being barred from entering the United States and seeking forms of relief for 10 years. “Do you understand?” he asks. The group responds with a hesitant “Sí.”

The Trump administration designed MPP to prevent people like them from receiving asylum, and beyond that, from even seeking it in the first place. First implemented in San Diego in late January 2019 to help stem the flow of people showing up at the southern border, the policy has since sent somewhere between 57,000 and 62,000 people to dangerous Mexican cities where migrants have been preyed upon for decades. Their cases have been added to an immigration court that already has a backlog of 1,057,811 cases—up from 600,000 at the time when Obama left office—according to data obtained by the Transactional Records Access Clearinghouse at Syracuse University.

The skyrocketing immigration court backlog

View on the original site.

According to immigration judge Ashley Tabaddor, who spoke to me in her capacity as union president of the National Association of Immigration Judges, MPP has constituted a fundamental change to the way courts are run. DHS, she says, is “creating a situation where they’re physically, logistically, and systematically creating all the obstacles and holding all the cards.” The MPP program has left the court powerless, “speeding up the process of dehumanizing the individuals who are before the court and deterring anyone from the right to seek protection” All this while the Department of Justice is trying to decertify Tabbador’s union—the only protection judges have, and the only avenue for speaking publicly about these issues—by claiming its members are managers and no longer eligible for union membership. Tabaddor says the extreme number of cases combined with the pressure to process them quickly is making it difficult for judges to balance the DOJ’s demands with their oath of office.

Immigration attorneys in El Paso, San Antonio, and San Diego have told me they are disturbed by the courtroom disarray: the unanswered phones, unopened mail, and unprocessed filings. Some of their clients are showing up at border in the middle of the night only to find that their cases have been rescheduled. That’s not only unfair, one attorney told me, “it’s dangerous.” Central Americans who speak only indigenous languages are asked to navigate court proceedings with Spanish interpreters. One attorney in El Paso had an 800-page filing for an asylum case that she filed with plenty of time for the judge to review, but it didn’t make it to the judge in time. 

As another lawyer put it, “The whole thing is a fucking disaster that is designed to fail.”

Guillermo Arias/Getty People line up at the San Ysidro border crossing in Tijuana in May 2019.

COURTROOM #4; PRESIDING: JUDGE PHILIP LAW

Down the hall, a Honduran woman I’ll call Mari stands up next to her attorney and five-year-old son, raises her right hand, and is sworn in. 

Mari’s hearing isn’t much of a hearing at all. Stephanie Blumberg, an attorney with Jewish Family Service of San Diego, who is working the case pro bono, asks for more time because she only recently took the case; Judge Philip Law says he will consolidate the cases of mother and child into one; and he schedules her next hearing for the following week at 7:30 a.m., with a call time of 3:30 a.m. at the border.

Just as it’s about to wrap up, Bloomberg says her client is afraid to return to Mexico. “I want to know what is going to happen with me. I don’t want to go back to Mexico—it’s terrible,” Mari says in Spanish, an interpreter translating for the judge. “I have no jurisdiction over that,” Law says. “That’s between you and the Department of Homeland Security.” Law then turns to the DHS attorney, who says he’ll flag the case and “pass it along.”

While nine families begin their MPP group hearing, Mari tells me back in the waiting room that she and her son crossed the border in Texas and then asked for asylum. They were detained for two days and then transported by plane to San Diego, where she was given a piece of paper with a date and time for court and then released in Tijuana. She didn’t know anyone, barely knew where she was, and, trying to find safety in numbers, stuck with the group released that day. Two days after US immigration officials sent her to Tijuana, she was raped.

Mari’s voice gets shaky, and she tries to wipe the tears from her eyes, but even the cotton gloves she’s wearing aren’t enough to keep her face dry. I tell her we can end the conversation and apologize for making her relive those moments. She looks at her son from across the room and says she’d like to continue talking.

“I thought about suicide,” she whispers. “I carried my son and thought about jumping off a bridge.” Instead, she ended up walking for a long time, not knowing what to do or what would happen to them because they didn’t have a safe place to go.

“I haven’t talked to my family back home—it’s so embarrassing because of the dream I had coming here, and now look,” she says. “We’re discriminated against in Mexico; people make fun of us and the way we talk.” Her boy was already shy but has become quieter and more distrusting in recent months.

In the last year, I’ve spoken to dozens of migrants in border cities like Ciudad Juárez and Tijuana who share similarly horrific stories. Human Rights First has tracked more than 800 public reports of torture, kidnapping, rape, and murder against asylum seekers sent to Mexico in the last year. A lawsuit brought by the American Civil Liberties Union, Southern Poverty Law Center, and Center for Gender and Refugee Studies is challenging MPP on the grounds that it violates the Immigration and Nationality Act, and the “United States’ duty under international human rights law” not to return people to dangerous conditions.

“The system has not been set up to handle this in any way,” says Kate Clark, senior director of immigration services with Jewish Family Service of San Diego, one of the groups listed on the pro bono sheet Judge O’Connor handed out earlier in the day. They’re the only ones with a WhatsApp number listed, and their phones are constantly ringing because “it’s clear that people don’t know what’s going on or what to expect—and they’re in fear for their lives,” Clark says. Still, her 8-person team working MPP cases can only help a small percentage of the people coming through the courtroom every day.

Later that afternoon, shortly after 5, two large white buses pull up to the court’s loading dock. Guards in green uniforms escort about 60 people out from the loading dock. Moms, dads, and dozens of little kids walk in a straight light to get on a bus. They are driven down to the border and sent back to Tijuana later that night.

A few days later, Mari’s attorney tells me that despite raising a fear of retuning to Mexico in court, US port officials sent Mari back to Tijuana that night.

COURTROOM #2; PRESIDING: JUDGE LEE O’CONNOR

I find myself back in O’Connor’s courtroom for his afternoon MPP hearings. This time, the only people with legal representation is a Cuban family who crossed in Arizona in July 2019 and turned themselves in to Border Patrol agents. This is their first time in court, and their attorney calls in from out of state.

Right away, O’Connor wants to address a different kind of clerical error from the one that bothered him earlier in the day—and one that he thinks matters even more. It involves the first document that DHS issues to “removable” immigrants, known as a Notice to Appear (NTA) form. Although the form allows agents to check a box to categorize people based on how they encountered immigration officials, O’Connor points out that in this case it was left blank—and that “this is fairly typical of the overwhelming majority of these cases.”

He isn’t the first or only judge to notice this; I heard others bring up inconsistent and incomplete NTAs. Border officials are supposed to note on the form if the people taken into custody are “arriving aliens,” meaning they presented at the port of entry asking for asylum, or “aliens present in the United States who have not been admitted or paroled,” meaning they first entered illegally in between ports of entry. Thousands of MPP cases have forms without a marked category. As far as O’Connor is concerned, that’s a crucial distinction. He believes that this Trump administration policy shouldn’t apply to people who entered the country without authorization—meaning countless immigrants who applied for MPP should be disqualified from the get-go.

In the case of the Cuban family, like dozens more that day, the DHS attorney filed an amended NTA classifying them as “arriving aliens.” O’Connor points out is not how they entered the United States. The DHS attorney is unphased by the judge’s stern tone and came prepared with piles of new forms for the other cases of incomplete NTAs. The family’s lawyer says maybe the government made a mistake. O’Connor, unsatisfied, interrupts her: “There was no confusion. I’ve seen 2,000 of theseâ¦the government is not bothering to spend the time.” After a lengthy back-and-forth, a testy O’Connor schedules the family to come back in three weeks.

O’Connor’s stance and rulings on this issue have broader implications. He terminated a case in October because a woman had entered the country illegally before turning herself in and wrote in his decision that DHS had “inappropriately subjected respondent to MPP.” He is among the loudest voices on this issue, saying that MPP is legal only when applied to asylum-seekers presenting at legal ports of entry—though it’s unclear to many lawyers what it might mean for their clients to have their cases terminated in this way. Would these asylum seekers end up in immigration detention facilities? Would they be released under supervision in the United States? Would they be deported back to their home countries?

Since MPP cases hit the courts last March, asylum attorneys have been critical of DHS for not answering these questions. I was present for the very first MPP hearing in San Diego and saw how confused and frustrated all sides were that DHS didn’t seem to have a plan for handling these cases. Now, almost a year later, little has changed.

Tabaddor, the union president, tells me that “there are definitely legal issues that the MPP program has presented” and that judges are having to decide whether the documents “are legally sufficient.” “The issue with DHS—frankly, from what I’ve heard—is that it seems like they’re making it up as they go,” she says.

Last week, Tabaddor testified in front of the House Judiciary Committee and for the independence of immigration courts from the political pressures of federal law enforcement. There are approximately 400 immigration judges across more than 60 courts nationwide, and almost half of those judges have been appointed during the Trump era. (According to a recent story in the Los Angeles Times, dozens of judges are quitting or retiring early because their jobs have become “unbearable” under Trump.)

California Democrat Zoe Lofgren, an immigrants’ rights supporter in Congress, argued during the hearing that the immigration courts are in crisis and the issue requires urgent congressional attention. “In order to be fully effective, the immigration court system should function just like any other judicial institution,” she said. “Immigration judges should have the time and resources to conduct full and fair hearings, but for too long, the courts have not functioned as they should—pushing the system to the brink.”

Guillermo Arias/Getty Asylum seekers in Tijuana in October

COURTROOM #1; PRESIDING: JUDGE SCOTT SIMPSON

“I don’t want any more court,” a woman from Guatemala pleads just before lunchtime. “No more hearings, please.”

Unlike many of the people who were there for their first hearing when I observed court in San Diego, this woman has been to court multiple times since mid-2019. No matter how hard she tried, she couldn’t find a lawyer, she tells Judge Scott Simpson. She’s had enough.

“We’ve reached a fork on the road, ma’am,” Simpson says in a warm, calm tone. “You either ask for more time for an attorney to help you or you represent yourself.”

“No, it’d be a loss since I don’t know anything about the law,” the woman responds, her voice getting both louder and shakier. Simpson explains to her again the benefits of taking time to find an attorney.

“It’s been almost a year. I don’t want to continue the case. I want to leave it as is,” she tells him. After more explanation from the judge, the woman says she’d like to represent herself today so that decisions can be made. Simpson asks what she would like to do next, and the woman says, “I want you to end it.”

This woman’s pleas are increasingly common. Tabaddor says MPP has taken “an already very challenging situation and [made] it exponentially worse.” The new reality in immigration courts “is logistically and systematically designed to just deter people from seeking or availing themselves of the right to request protection,” Tabaddor says.

After hearing the Guatemalan woman ask for the case to be closed multiple times, Simpson takes a deep breath, claps his hands, and says there are four options: withdrawal, administrative close, dismissal, or termination. He explains each one, and after 10 minutes the woman asks for her case to be administratively closed. The DHS attorney, however, denies that request. Simpson’s hands are tied.

The judge tells the woman that because DHS filed paperwork on her case that day, and because it’s only in English, that he’s going to give her time to review it, because “as the judge I don’t think it would be fair for you to go forward without the opportunity to object to that.” He schedules her to come back in a month.

“MPP is not a program I created,” he says. “That decision was made by someone else.” 

Additional reporting by Noah Lanard.

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

“Malicious incompetence,” “Aimless Docket Reshuffling,” “Man’s Inhumanity to Man” — it’s all there on public display in this deadly “Theater of the Absurd.”

Here, from a recent Human Rights Watch report on over 200 of those illegally returned to El Salvador without Due Process and in violation of the rule of law:

138 Killed;

70 Sexually abused, tortured, or otherwise harmed.

Here is the HRW report as posted on Courtside:

https://immigrationcourtside.com/2020/02/06/how-americas-killer-courts-promote-crimes-against-humanity-human-rights-watch-trump-his-white-nationalist-sycophants-toadies-tout-lawless-policies-that-violate-legal-obligations-he/

Where, oh where, has our humanity and human decency gone?

And, how do spineless jurists on Article III Courts who continue to “rubber stamp” and overlook the disgraceful abrogation of Due Process and fundamental fairness going on in a grotesquely biased and mismanaged “court system” controlled by a White Nationalist, nativist regime look at themselves in the mirror each morning. Maybe they don’t.

Abuse of the most vulnerable among us might seem to them to be “below the radar screen.” After all, their victims often die, disappear, or are orbited back to unknown fates in dangerous foreign lands. Out of sign, out of mind! But, what if it were their spouses, sons, and daughters sent to Tijuana to be raped while awaiting a so-called “trial.”

Rather than serving its intended purpose, promoting courage to stand up against government tyranny and to defend the rights of individuals, even the downtrodden and powerless, against Government abuse of the law, life tenure has apparently become something quite different. That is, a refuge from accountability and the rules of human decency.

John Roberts, his “Gang of Five,” and the rest of the Article III enablers will escape any legal consequences for their actions and, perhaps more significant, inactions in the face of unspeakable abuses of our Constitution, the rule of law, intellectual honesty, and the obligations we owe to other human beings.

How about those cowardly 9th Circuit Judges who ignored the law, betrayed human decency, and enabled rapes, killings, and other “crimes against humanity” by “green lighting” the unconstitutional and clearly illegal “MPP” — better known as “Let ‘Em Die in Mexico” with their absurdist legal gobbledygook in Innovation Law Lab v. McAleenan. They are enjoying life in the ivory tower while their human victims are suffering and dying.

But, folks like Fernanda and many others are recording their abuses which will live in history and infamy, will forever tarnish their records, and be a blot on their family names for generations to come. 

There is no excuse for what is happening at our borders and in our Immigration Courts today. Constantly Confront Complicit Courts 4 Change! Flood the Article IIIs with examples and constant reminders of their handiwork and dereliction of duty! Let the bodies pile up on their collective doorsteps until the stench is so great that even they can no longer ignore and paper over their own complicity and moral responsibility with legal banalities. Force them to see their own faces and the faces of their loved ones in the scared, tormented faces and ruined lives of those destroyed by our scofflaw regime and its enablers. 

Also, if you haven’t already done so, tell your Congressional representatives that you have had enough of this grotesque circus!

Here’s what I wrote to my legislators, and some from other states, recently:

I hope you will also speak out frequently against the grotesque abuses of human rights, Due Process, and human decency, not to mention the teachings of Jesus Christ and almost all other religious traditions, that the Trump Administration is carrying out against refugees of color, many of them desperate and vulnerable women and children, at our Southern Border.

Additionally, under Trump, the U.S. Immigration Courts, absurdly and unconstitutionally located within a politically biased U.S. Department of Justice, have become a mockery of justice, Due Process, and fundamental fairness. I urge you to join with other legislators in abolishing the current failed (1.1 million case backlog) and unfair system and replacing it with an independent Article I U.S. Immigration Court. It’s time to end the abuse! This must be one of our highest national priorities.

I invite you and your staff to read more about the grotesque abuses of law, human rights, and fundamental human decency being committed daily on migrants and other vulnerable humans by the Trump Administration in my blog: immigrationcourtside.com, “The Voice of the New Due Process Army.” This is not the America I knew and proudly served for more than three decades as a Federal employee.

Due Process Forever; Trump’s Perverted View of America Never!

Thanks again.

With my appreciation and very best wishes,

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Adjunct Professor, Georgetown Law

Due Process Forever; Complicit Courts & Feckless Legislators, Never!

PWS

02-07-20

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

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February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!

THE LATEST FROM HON. JEFFREY S. CHASE:  Rethinking Chevron In The Era Of Weaponized Immigration Courts Acting As Adjuncts Of DHS Enforcement, & Further Adventures Of The Round Table!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
jeffreyschase.com
In the present climate, immigration lawyers must continue to present judges with creative, intelligent arguments; to present the public with proof of what is wrong with the current system; and to present those in power to change what is wrong with solutions.

I’ve added posts that address each these points. First, I discuss some recent articles in which scholars raise creative legal arguments as to the limits of Chevron deference in appeals to the federal courts. I have also posted a statement of our Round Table of Former Immigration Judges to the House Judiciary Committee, Immigration and Citizenship subcommittee that was made part of the record of its hearing last Wednesday on solutions to the present crisis in the immigration courts.

I have also posted the group statement of our Round Table on the one-year anniversary of the MPP, or “Remain in Mexico” policy that was drafted by former Immigration Judge Ilyce Shugall, who has volunteered her time to travel to Texas to observe MPP hearings that is meant to raise awareness of the need to end this awful program.
SUN, FEB 02

Rethinking Chevron?

The powers of the Attorney General and the Board of Immigration Appeals to influence law by issuing binding precedent decisions is greatly enhanced by what is known as Chevron deference.  The principl
Read More
TUE, JAN 28

Statement to the House Judiciary Committee on Immigration Court Reform

On Wednesday, January 29 at 9:30 am, the House Judiciary Committee, Immigration and Citizenship Subcommittee is holding a hearing entitled “Courts in Crisis:  The State of Judicial Independence and
Read More
TUE, JAN 28

Statement on the One Year Anniversary of the MPP Program

January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system.  As former immigration judges, we
Read More
jeffreyschase.com, 500 4th Ave., Brooklyn, NY, USA

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Another article that ties in well with a critical re-examination of Chevron in immigration cases is Tess Hellgren’s recent wonderful short article: “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.” I recently republished it here: https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

As we see the results of the regime’s Article III-enabled and encouraged nativist, racist policies like an expanded “Travel Ban” that now includes a large portion of Africa, new non-legislative restrictions on legal immigration, unmitigated expansion of the deadly “New American Gulag,” intentional mistreatment of children, and the continuing abrogation of both Due Process and our binding obligations to protect refugees at our Southern Border and elsewhere, Tess’s last sentence is particularly prophetic:

As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

So far, the Supremes and the Circuits have largely “vacated the province and shirked their duties” to the nation and our laws by shrinking and cowering in the face of the regime’s continuing lawlessness, bullying, bias, and tyranny. Indeed, the Supremes have shown a disturbing favoritism to unjustified requests by Trump’s Solicitor General to short-circuit the litigation system and the rules that bind all others. 

Not since the Eisenhower Administration’s “Operation Wetback” (obviously one of the regime’s “models” of lawless disregard for human and legal rights, not to mention basic morality) has our national Government shown such overt racism and contempt for migrants of color. Yet, rather than standing tall and delivering a united, powerful, intellectually courageous defense of our Constitution, the “GOP Gang of Five Supremes” backed the dehumanization and demonization of migrants on racial and religious grounds for transparent and invidious political reasons in the “Travel Ban case.” They basically invited and then approved a demonstrably false and “bad faith” national defense “pretext” which the Administration has “jumped on” to justify other attacks on the rule of law.  

Now the “ban” has remarkably, but predictably, been extended to a large part of Africa, including its largest economy, Nigeria. Hardly a whimper as Trump disembowels both Constitutional norms and human decency. What’s next on the agenda, Supremes, a bogus Executive ban on all non-White, non-Christian immigration? Who’d be surprised at this point?

Of course, with “constitutional de-personification” well under way with Article III approval, the next targets will be US citizens of color and others who “dare to differ” like the LGBTQ community, women, political opponents, journalists, lawyers, and, finally, judges themselves once their usefulness to Trump and his authoritarian regime is exhausted. The all-powerful, unrestrained, “unitary Executive” has no need of legislature, judiciary, or the people except to “ratify” their authoritarian abuses.

The failure to defend and reinforce the courageous legal community challenging the regime’s authoritarian overreach and the pathetically weak defense of the integrity of judicial colleagues who have tried to hold the regime accountable by Roberts has done nothing  but confirm and reinforce Trump’s pre-existing  belief that courts are “his” tools and judges “his toadies.”

America deserves better from its life-tenured judiciary! What’s the purpose of a supposedly independent life-tenured judiciary that sides with powerful, dishonest, lawless, bullies over the rights of individuals and is unwilling to stand up for the rights and human dignity of the most vulnerable among us?

PWS

02-04-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

BIA: ANY OL’ NOTICE IS GOOD ENOUGH FOR ENDANGERED ASYLUM SEEKERS ORBITED TO MEXICO & BEYOND – MATTER OF J.J. RODRIGUEZ — How Judges At All Levels Are Abandoning The Rule Of Law & Enabling Abuse Of the Most Vulnerable!

 

http://go.usa.gov/xdDRq

Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020)

 

PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board Members.

OPINION BY: Acting Chairman Malphrus

 

BIA HEADNOTE:

Where the Department of Homeland Security returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing.

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Let’s put this in context!

 

This is an unrepresented asylum seeker “orbited” back to dangerous and chaotic conditions in Mexico. We don’t even know if he’s still alive.

 

He’s a native of Honduras. Obviously, he fled Honduras and sought admission to the United States for a reason. His only chance of not being returned to Honduras would be to show up for his hearing. Therefore, he would have no obvious reason for failing to appear at his hearing if he were able to do so.

 

In the past, in cases such as this, the DHS would have either: 1) released the respondent on bond to a known address in the United States that they would have recorded and furnished to EOIR; or 2) detained the respondent.

 

In the former case, the DHS would have been obliged to provide EOIR with a facially valid address to serve notices at the time of filing the Notice to Appear with the court. In the latter case, the DHS would be responsible for producing the respondent for all scheduled hearings.

 

Instead, in this case, the DHS chose under the mis-named “Migrant Protection Protocols” (“MPP”) (which are actually designed to reject rather than protect migrants) to abdicate its normal duties and send the respondent to an unknown location in Mexico without any reasonable safeguards to insure access to the hearing process or to counsel.

The DHS has no practical idea where they sent the respondent in Mexico and no reasonable method for contacting him or retrieving him.

Incredibly, and apparently with a straight face, the BIA lists the address of the respondent as “Domicilio Conocido, Tijuana, Baja California, Mexico.” That’s roughly the equivalent of “Manhattan, New York City, New York, USA.” Good luck with that!

How would a U.S. lawyer get in touch with the respondent? How would the Immigration Court notify the respondent of the ever-changing times and dates of hearings? How would the DHS serve the respondent with notices of evidence?  Obviously, they wouldn’t.

And, if the respondent failed to appear for a non-existent hearing, he undoubtedly would be “in absentia’d” under the BIA’s warped view of what is fair and reasonable. This whole MPP has obviously been constructed by DHS, with EOIR complicity, as an exercise in naked bad faith and intentional and unreasonable inconvenience to the respondents caught up in it.

In formalizing the MPP, the DHS could have worked cooperatively with the Mexican Government and the private bar to guarantee the respondent’s statutory rights to: 1) return to the United States for his removal hearing; and 2) reasonable access to pro bono counsel in the United States. The DHS chose not to do either, thereby leaving these statutory obligations potentially unachievable for this respondent. Through the BIA’s mental gymnastics, the DHS’s intentional indolence becomes the respondent’s problem!

It’s common knowledge that individuals returned to Mexico under the MPP are often forced to live on the streets and are in constant danger of kidnaping, extortion, robbery, rape, assault, starvation, and exploitation while in Mexico awaiting hearings.

There also are credible reports that some individuals returned under the MPP are sent to the interior of Mexico, to the Southern Border of Mexico, or returned to their home countries, thus making it impossible for them to appear for their scheduled hearings. See,e.g., https://www.latimes.com/world-nation/story/2019-10-15/buses-to-nowhere-mexico-transports-migrants-with-u-s-court-dates-to-its-far-south, “Mexico sends asylum seekers south — with no easy way to return for U.S. court dates.”

The DHS makes no effort to ascertain what happens to those sent back to Mexico under the MPP and takes no steps to insure that they are able to return to the U.S. border for their hearings.

The DHS has provided no reason to believe that individuals “relocated” after returning to Mexico either understand what is happening to their hearing rights or have any realistic mechanism for retuning.

Under these circumstances, there is a rebuttable presumption that individuals returned under the MPP who do not appear for immigration hearings have been denied both their statutory right to the hearing process and their statutory right to representation by counsel of their own choosing at no expense to the Government. These statutory rights are integral to insuring due process in the removal hearing process.

The DHS may rebut this presumption by showing either: 1) they made reasonable efforts to locate this respondent in Mexico; or 2) there are reasonable procedures in place with the Mexican Government and with pro bono providers to provide reasonable access to hearings and pro bono counsel that were available to the respondent in this case.

Since the DHS has made no such showing in this case, the Immigration Judge’s decision to terminate the proceedings without an in absentia order is reasonable and proper under the law. Indeed, it is the only lawful outcome.

This is especially true because there doesn’t appear to be any effective way an individual who was inhibited from return to the United States from Mexico for his hearing can seek to reopen an in absentia hearing from Mexico or some other country to which he might have been “orbited” by the Mexican Government.

Indeed, the process followed by the DHS in this case appears to be an intentional derogation of the normal statutory right to a stay of removal from the United States to which an individual challenging an in absentia removal order ordinarily would be legally entitled.

This is, of course, without prejudice to the DHS reinstituting removal proceedings in the future if the respondent is encountered at the border or in the United States.

Sadly, the BIA isn’t the only tribunal to “blow off” their statutory and constitutional responsibilities.

The feckless judges of the Ninth Court of Appeals “took a dive” on their oaths of office by “greenlighting” the illegal (not to mention totally dishonest and immoral) MPP by vacating the District Court’s properly issued preliminary injunction in Innovation Law Lab v. McAleenan.

As a result of the Ninth Circuit’s dereliction of duty, thousands of vulnerable asylum seekers have been irreparably injured.

Eventually, the MPP will go down as not only fraudulent and invidiously racially motivated, but as one of the most horrible, and preventable, failures of justice in modern American jurisprudence. It will rank right up there with Dred Scott., the Fugitive Slave Laws, “separate but equal,” Chinese Exclusion Laws, and Japanese internment of supposedly bygone ages. Dehumanization, exploitation, and abuse of Government authority is a common theme. It will indelibly stain the reputations of every bureaucrat and judge who touched it without “just saying no.”

While it might already be too late for many of the innocent victims of MPP, no amount of legal gobbledygook or “alternative facts” will save those responsible for initiating, carrying out, and enabling the MPP and similar violations of legal, constitutional, and human rights, and  well as human morality, from the judgments of history!

Due Process Forever; Complicit Courts Never!

PWS

01-31-20

 

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. WHERE’S THE OUTRAGE? — 9th CIRCUIT JUDGES ASSIST REGIME’S AGENTS IN COMMITTING “CRIMES AGAINST HUMANITY” MERE YARDS FROM THE BORDER! — NDPA Leader Jodi Goodwin, Esquire, Speaks Out: “I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me. I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.”
  4. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  

INSIDE TRUMP’S “NEW AMERICAN GULAG” — This Fox Is Licking Her Lips, Getting Ready To Devour Hens As Regime Pokes Congress In The Eyes With Sharp Sticks!

Hamed Aleaziz
Hamed Aleaziz
Immigration Reporter
BuzzFeed News
Julie Kirchner
Julie Kirshner
Anti-Immigrant Activist
DHS Official
“Fox in Hen House”

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-hardliner-detention-ombudsman

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration has named a hardline former leader of an anti-immigration group to help set up a new role created by Congress to oversee complaints of civil rights violations in detention centers and help those affected by misconduct, according to an internal memo obtained by BuzzFeed News.

The Office of the Immigration Detention Ombudsman was created in the most recent appropriations bill to “address issues that arise in DHS detention facilities” and remain independent of Immigration and Customs Enforcement or US Customs and Border Protection. The office will report directly to the secretary of Homeland Security.

Ken Cuccinelli, the controversial second-in-command at the Department of Homeland Security, appointed Julie Kirchner, former leader of FAIR, a group that advocated for policies that restrict immigration, to help set up the office, according to the memo. Cuccinelli also tapped Tracy Short — a former top ICE official who signed memos during the Trump administration to stop the agency from granting reprieves for certain immigrants facing deportation — to also help figure out the plans for the office.

“To spearhead this effort, I have asked Julie Kirchner, outgoing Citizenship and Immigration Services Ombudsman, and Tracy Short, Senior Advisor at Immigration and Customs Enforcement, to work with senior leadership and staff within the Department to lay the proper foundation for the [office],” according to the memo, which was dated Jan. 28.

Congress provided $10 million for the office to address issues of misconduct by DHS officials in detention centers, establish a process to oversee complaints made against immigration officials, inspect facilities, provide recommendations for improvement, and potentially help those whose rights have been violated while in custody.

“In the immediate days and weeks Julie and Tracy will be contacting a variety of individuals across the Department to solicit their input and request information regarding the formation of this new office,” Cuccinelli wrote.

Kirchner was initially picked as the ombudsman at USCIS in 2017, before her departure in the role was announced late last year.

When her appointment was originally announced in 2017, advocacy groups were outraged, due to her background at FAIR, which the Southern Poverty Law Center had labeled a hate group and “America’s most influential anti-immigrant organization.”

“Kirchner’s new position is a very powerful one, which it makes it all the more disturbing considering her past work,” the SPLC said at the time.

The move to appoint Kirchner and Short to help “lay the proper foundation” for the office will likely spur criticism from Congressional officials.

“That’s like letting the fox watch the hens,” said one congressional staffer in a message to BuzzFeed News.

John Sandweg, former acting head of ICE during the Obama administration, said the move was not surprising, but potentially indicative of how the administration sees the role.

“These are the architects of the Trump administration’s immigration enforcement policies,” he said. “It’s not a surprise they would try to build this thing in a way that makes it as less impactful as possible and seems inconsistent with the intent of Congress when they created the office. We have to wait to see what the end product is.”

DHS did not immediately comment.

ICE has expanded the number of people it detains to record levels under President Trump. As of late January, the agency was detaining nearly 41,000 immigrants. The peak came last summer, when around 55,000 immigrants were in custody in local jails and private prisons across the country.

In December, the House Oversight and Reform Committee announced it had opened an investigation into the medical care of immigrant detainees in the wake of a BuzzFeed News story that revealed a series of allegations of substandard care from a whistleblower.

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

Totally corrupt!

“Wait and see what the end product is?” John Sandweg, are you really so naive that you think Kirchner will do her job and help detainees to be treated like humans? Come on, man! No way! We already know what’s going too happen. And, it will be the exact opposite of what Congress intended in enacting this legislation. But, it’s not like Congress, or the courts for that matter, hold this regime accountable for scofflaw conduct.

She’s there to insure that cruel and inhuman treatment are the norms, there is no accountability, and that the legion of DHS detention abuses (the “core concept” of the “New American Gulag”) are covered up. In other words, to insure maximum dehumanization, a key part of the regime’s nativist agenda. What in Julie Kirchner’s anti-immigrant zealotry, or Tracy Short’s for that matter, would make you think that there is any “ambiguity” on how this will play out?

Keep those court cases rolling! Notwithstanding their tendency toward complicity, eventually, at least some Federal Judges hopefully can be “shamed” into enforcing laws protecting migrants, recognizing human rights, and requiring human dignity in DHS’s treatment of detainees (most of whom don’t belong in “uncivil” detention in the first place).

PWS

01-30-20

Related posts:

  1. IMMIGRATION COURTS: “MALICIOUS INCOMPETENCE ON STEROIDS” — With Court System Reeling & Asylum Applicants Suffering, Administration Plans Another Round Of Massive “Aimless Docket Reshuffling” (“ADR”), Reports Hamed Aleaziz @ BuzzFeed News!
  2. SPRINT TO THE BOTTOM: Trump Administration Trashes Refugees & Human Rights In A Despicable Return To “1939-Style Fascism Lite!” — America’s Rancid Conduct & Negative Leadership Presages Another Worldwide Refugee Tragedy — This Time The Blood Will Be Directly On Our Hands!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

ROUND TABLE OF FORMER IMMIGRATION JUDGES ISSUES STATEMENT CONDEMNING “MIGRANT PROTECTION PROTOCOLS” (A/KA “REMAIN IN MEXICO;” A/K/A “LET ‘EM DIE IN MEXICO”)!

pastedGraphic.png                                       January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system.  As former immigration judges, we understand the inherent limitations on due process in an immigration court system that is housed in the Department of Justice, a prosecutorial agency within the Executive Branch of the government.  This administration has systematically attacked due process in the immigration court system through new rules, memoranda, and policies.  However, the largest assault to due process is the Migrant Protection Protocols (MPP) program.  MPP prevents access to the court, to counsel, and to resources refugees need to effectively present their cases. The limitations on due process in MPP are not incidental to the program, they are intentional.

In addition to the elimination of due process in MPP, the government is putting vulnerable refugees in grave danger.  Refugees are forced to wait in dangerous border towns in Mexico without any protection or resources.  As with the elimination of due process, the state created danger generated by MPP is intentional.  It is part of the government’s attempt to eliminate access to asylum.

The Round Table of Former Immigration Judges calls for the elimination of MPP immediately, demands that the administration take efforts to locate the thousands of individuals who were prevented from appearing at their hearings, and that all in absentia removal orders in MPP cases be rescinded sua sponte.

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

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

Thanks to our Round Table colleague Hon. Ilyce Shugall for taking the lead on this effort.

Due Process Forever!

PWS

01-28-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

SUPREMES TANK AGAIN  —  “J.R. Five” Disses Rule Of Law & Lower Courts By “Greenlighting” Regime’s Attack On Legal Immigrants & Their Families, As Four Justices Dissent!

Robert Barnes
Robert Barnes
Supreme Court Reporter
Washington Post

https://www.washingtonpost.com/politics/courts_law/supreme-court-allows-trump-administration-to-proceed-with-immigration-rules/2020/01/27/6adb9688-412c-11ea-aa6a-083d01b3ed18_story.html

 By

Robert Barnes

Jan. 27, 2020 at 1:27 p.m. EST

The Supreme Court on Monday allowed the Trump administration to begin implementing new rules making it easier to deny immigrants residency or admission to the country because they have or might use public-assistance programs.

The court lifted a nationwide injunction imposed by a district judge in New York. That means the administration can begin applying the new standards, which challengers say would place a burden on poor immigrants, while legal challenges continue.

All four of the court’s liberal justices disagreed with the action.

The rules establish new criteria for who can be considered to be dependent on the U.S. government for benefits — “public charges,” in the words of the law — and thus ineligible for green cards and a path to U.S. citizenship. They were proposed in October but have never been implemented.

According to the new policy, immigrants who are in the United States legally and use public benefits — such as Medicaid, food stamps or housing assistance — or have at one time used public benefits, or are deemed likely to someday rely on public benefits would be suspect. The new criteria provide “positive” and “negative” factors for immigration officials to weigh as they decide on green-card applications. Negative factors include whether a person is unemployed, dropped out of high school or is not fluent in English.

Opponents of the rule argue that punishing legal immigrants who need financial help endangers the health and safety of immigrant families — including U.S. citizen children — and will foist potentially millions of dollars in emergency health care and other costs onto local and state governments, businesses, hospitals and food banks.

Federal officials say the rule ensures that immigrants can cover their own expenses in the United States without burdening taxpayers for food, housing and other costs. U.S. officials note that the change is not retroactive and exempts refugees and asylees who fled persecution for safety in the United States.

The only thing standing in the way of implementing the new regulations was the nationwide injunction imposed by U.S. District Judge George B. Daniels.

Daniels sided with challengers who said the changes upend 130 years of how the “public charge” definition has been interpreted. Generally, it was used to cover an individual “ who is or is likely to become primarily and permanently dependent on the government for subsistence.”

Daniels declared the proposed change would be “repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”

Several judges imposed injunctions such as Daniels’s, but two courts of appeals — the 9th and the 4th — overturned them. Solicitor General Noel Francisco noted in his brief to the Supreme Court that the 9th circuit “held that the rule ‘easily’ qualified as a permissible interpretation of the Immigration and Nationality Act.”

The administration said the ruling by Daniels, and a decision of the U.S. Court of Appeals for the 2nd Circuit not to stay it, means that “decisions by multiple courts of appeals have been rendered effectively meaningless within their own territorial jurisdictions because of a single district court’s nationwide injunctions, starkly illustrate the problems that such injunctions pose.”

Challengers, led by the state of New York in this case, said the new rule “is a stark departure from a more-than-century-long consensus,” and the status quo should remain until the legal challenges are decided.

Allowing the new rules, New York Attorney General Letitia James said in a brief to the court, would inject “confusion and uncertainty into immigration … and deter potentially millions of noncitizens residing in plaintiffs’ jurisdictions from accessing public benefits that they are legally entitled to obtain.”

Abigail Hauslohner and Maria Sachetti contributed.

 

**************************** 

Probably not too surprising to anyone who has studied this gang’s lack of understanding of our immigration system and lack of sympathy for human rights. Interestingly, Justices Gorsuch and Thomas used this a forum to further dump on the rights of immigrants by launching a right-wing attack on the use of nationwide injunctions, one of the few effective tools that immigrants have to defend their legal rights. They would, apparently, require immigrants and their often pro bono attorneys to litigate and win their cases in every jurisdiction in the federal system to get effective relief from the regime’s scofflaw actions.

Encouraged by the complicit Supremes, we’ll undoubtedly see new extremes of contempt for the rule of law and human lives by the regime. No amount of legal gobbledygook will disguise the truth of what’s going on here.

 

PWS

 

01-27-20

 

Related posts:

  1. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  2. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”
  3. EUGENE ROBINSON @ WASHPOST: KID KILLERS ON THE LOOSE: “Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

CONTEMPT FOR COURTS: 7TH CIR. BLASTS BIA FOR MISCONDUCT: “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.” — Baez-Sanchez v. Barr — Chief “Perp” Billy Barr remains at large to inflict more wanton damage on our republic, our legal system, and the most vulnerable humans!

FULL DECISION:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

Baez-Sanchez v. Barr, 7th Cir., 01-23-20, published

PANEL:  BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge Easterbrook

KEY QUOTE:

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our deci- sion is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive in- admissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the la]er. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive deci- sions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. §1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.

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

A NOTE TO THE 7TH CIRCUIT AND OTHER ARTICLE III JUDGES:

My sympathies to you. 

But, frankly, rather than coming as a “shock,” you should know that similar stuff happens every day in our U.S. Immigration Courts, which are not “courts” by any known definition, do not provide fair and impartial decision makers, do not satisfy even minimal standards of Constitutional Due Process, and operate in a blatantly unconstitutional manner that you and your colleagues in other circuits and the Supremes have condoned for decades as it unfolded right under your noses. Contempt for the law, disregard of basic Due Process and fundamental fairness, bias against immigrants, particularly asylum seekers, rude treatment, disrespect for lawyers, contempt for the other coequal branches of Government, and failure to respect human decency and dignity are now among the “staples” of today’s “captive” Immigration Courts.

It’s just that most litigants don’t have the wherewithal and and access to competent lawyers to take their cases all the way to the Circuit Courts, sometimes several times as happened in this particular case, in a search for justice. They are, in very plain terms, simply railroaded out of the country without regard to the law or our Constitution.

Sadly, even when they do get before your colleagues across the country, far too many of them ignore the contemptuous travesty of justice being perpetrated by the Department of Justice in the Immigration “Courts.” They merely “rubber stamp” the defective final product. It’s called “going along to get along” or “cowardice in the face of tyranny.” 

For some reason, not obvious those of who once put our careers on the line to stand up for justice and the legal rights and human dignity of the most vulnerable among us, many, many Article III Judges seem to treat “life tenure” as a sinecure that empowers them to ignore needlessly ruined lines and human suffering, rather than as an opportunity, given to none others within our democratic institutions, to stand up for truth, justice, and the Constitution, even in the face of an overbearing and tyrannical Executive who has no respect for your functions. 

Since you seem to have disturbingly little understanding of the true nature of the system which forms a significant part of your appellate workload, let me help you out. Members of the Board of Immigration Appeals are not true “judges” in any sense of the word. They are “employees” of Attorney General Billy Barr. 

Billy himself is an acolyte of the “Unitary Executive” — a neo-fascist concept described by former White House Counsel and ex-con John Dean as meaning “that neither Congress nor the federal courts can tell the President what to do or how to do it.” In Billy’s view,. the power of Donald Trump, or any other GOP President (I doubt that he would apply it to a Democrat President), is unlimited and unfettered and the functions of the Judiciary and the Legislature are largely meaningless, except to the extent that they align with Trump’s agenda. The same goes for the U.S. Constitution and the U.S. Code. They are nothing more than what Donald Trump and his toadies like Billy say they are.

Billy Barr is also an unapologetic agent of DHS Enforcement. Although nominally listed as a “party” before these “kangaroo court’ proceedings involving migrants, Barr and his equally contemptuous and lawless predecessor, Jeff “Gonzo Apocalypto” Sessions, have made it clear that “their judges” are to operate as an adjunct of their “partners” at DHS enforcement. Their only meaningful function is to railroad as many migrants as possible out of the country without regard to Due Process or legal rights. 

Indeed, both Barr and Sessions have simply rewritten the law, through bogus “precedent decisions” that plainly violate the basic rules of judicial ethics requiring impartiality and forbidding prejudgment of cases, as will as requiring that litigants and their attorneys be treated with basic respect and civility. All of these “bogus precedents” favor DHS Enforcement; none favor the individuals trying to save their lives and vindicate their legal rights. A number reverse well-established rules insuring fair adjudication, particularly for asylum seekers, while others deprive “their judges” of even minimal power to manage their dockets in a rational manner.

Additionally, Sessions and Barr have proved to be historically incompetent managers. While doubling the number of Immigration Judges, by hiring almost exclusively from the ranks of government prosecutors, they have more than doubled the court backlog, now approximately 1.1 million “active” cases with another 300,000 “waiting in the wings” as a result of a mindless and unethical precedent decision by Sessions reversing years of slow but incremental progress on docket management. 

They have also created this dysfunctional mess through a process of eliminating the reasonable and sensible use of priorities and “prosecutorial discretion” by DHS in the Immigration Courts as well as by using a process known as “Aimless Docket Reshuffling” or “ADR.” Under ADR, judges and cases are shuffled around the country and the dockets are rearranged to respond to the “emergency of the day” while “ready for trial” cases, some of which have been pending for many years, are arbitrarily “orbited” to the end of dockets, some of which stretch out beyond 2024.

The judges and Board Members work for Billy Barr, who can fire them, reassign them, send them off to the FOIA unit, or turn them into “hall walkers.” (All of which actually happened during the reign of John Ashcroft, where a group of us were “punished” for exerting our authority as independent quasi-judicial officials and the BIA was absurdly cut from 23 Members to 12, under an astoundingly disingenuous claim of “efficiency.” By comparison, Barr recently announced an equally ill-conceived and unjustified plan to expand the BIA to over 50 Members stationed throughout the country).

Under these conditions, it is hardly surprising that Board Members feel themselves compelled and justified in ignoring your court orders in favor of a footnote in letter from the Attorney General, “the boss.” It’s completely consistent with the theory of the all-powerful “Unitary Executive” and the actuality that Board Members and Immigration Judges are constantly told that there are “mere employees” of the Attorney General required to carry out his “policies” under the threat of job loss.

The good news is that you folks aren’t as powerless as you seem to think yourselves to be. You don’t actually need a “motion” from private counsel to:

  • Hold this systemic clown show purporting to be a “court” system unconstitutional, as it most surely is, and shut it down pending legislative reform;
  • Throw Billy Barr in jail for his contemptuous behavior in allowing the BIA to violate your valid orders and then compounding it by neither confessing error nor apologizing, but rather sending his DOJ attorneys in to waste your valuable time and insult your intelligence;
  • Schedule some contempt hearings for non-compliant EOIR officials and explain to them that the “Unitary Executive” is nothing more than a figment of Billy’s warped imagination and that, no matter who signs their paychecks, they are obliged to follow the laws, obey your orders, provide Constitutional Due Process of law to individuals coming before them, exercise independent judgment based on the law and facts in the record, and ignore any nonsense stemming from Billy & company that flies in the face of any of the foregoing.

Then and only then, by standing up for the rights of the most vulnerable among us and your constitutional prerogatives, will you become part of the solution instead of “just another snappy quote line in one of my Courtside headlines.” 

If you don’t act now, this dysfunctional mess of an out of control, illegal, and grotesquely mismanaged system will eventually fall into your collective judicial laps, no matter how much you would like to shun it. For example, Billy is encouraging, basically demanding, that the BIA make more use of largely judicially discredited. “summary affirmances” and often arbitrary, capricious, and sloppily reasoned, “single member opinions,” both entered without meaningful deliberation or discussion, to “rubber stamp” more removal orders. Indeed, one of your retired colleagues, Judge Richard Posner, was an outspoken critic of the shockingly unprofessional and frequently incorrect results produced by the earlier “weaponization” of  “assembly line justice,” featuring “summary affirmances” and “single member decisions” resulting from the “Ashcroft debacle.”

Billy and his EOIR bureaucratic toadies fully intend to further reduce the already questionable quality of the “legal product” that the BIA sends your way. They are counting on you folks to either 1) look the way and join the”rubber stamp brigade,” or 2) do their dirty work for them.  At that point, you will not be able to avoid the “judgment of history” regarding your own complicity and fecklessness in the face of lawless tyranny that is destroying our precious democratic institutions and even more precious human lives every day. Wake up and act, before it’s too late, for you and for our nation!

Due Process Forever!

With my very best wishes,

PWS

01-25-19

 

FOOTNOTE:

For those interested, Judge Easterbrook was appointed by President Reagan; Judge Bauer by President Ford; and Judge Hamilton by President Obama.

If nothing else, Billy and EOIR are uniting judges across the political spectrum in their disgust and outrage.

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. THE “MAINSTREAM MEDIA” HAS FALLEN FOR BILLY BARR’S LATEST “CON JOB” HOOK, LINE & SINKER — But YOU Shouldn’t — Bess Levin @! Vanity Fair Decodes Billy’s Real Message to His Don: “Let [me] turn the judicial branch into your own personal score-settling operation in peace!“  — Plus, My Bonus “Friday Essay” — “Don’t Believe A Word Billy Barr Says!”
  3. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  4. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!

AS IMMIGRATION COURT BACKLOGS CONTINUE TO SPIRAL OUT OF CONTROL, TRUMP REGIME TURNS TOWARD PUNISHING MIGRANTS FLEEING LEFT-WING AUTHORITARIAN STATES — Cuban, Venezuelan, Nicaraguan Dissidents Now Squarely In Sights Of Regime’s White Nationalist Enforcement Agenda! — “To put this recent 65,929-case growth in the backlog in perspective, assuming the pace of new filings continues at the existing rate and each judge met their administration-imposed quota of closing 700 cases a year, it would still require the court to hire almost 400 new judges – while stemming resignations and retirements among current judges – to stop the backlog from growing further. And a much larger round of judge hirings than this would be required in order to begin to reduce the backlog.”

Transactional Records Access Clearinghouse

Cubans, Venezuelans, and Nicaraguans Increase in Immigration Court Backlog

FOR IMMEDIATE RELEASE

The fastest growing segments of the Immigration Court backlog are now Cubans, Venezuelans, and Nicaraguans. Between September 2018, when fiscal year 2018 drew to a close, and December 2019, Cubans in the backlog increased by 374 percent, Venezuela increased by 277 percent, and Nicaraguans increased by 190 percent. These rates of increase stand out when compared to the overall growth of 42 percent across all nationalities during this same period.

Despite the many actions by the Trump Administration designed to stem the growth in the Immigration Court backlog, the court’s backlog continues to climb. In just the three-month period from October through December 2019 the backlog has grown by 65,929 new cases. The court ended December 2019 with 1,089,696 in its active backlog.

To put this recent 65,929-case growth in the backlog in perspective, assuming the pace of new filings continues at the existing rate and each judge met their administration-imposed quota of closing 700 cases a year, it would still require the court to hire almost 400 new judges – while stemming resignations and retirements among current judges – to stop the backlog from growing further. And a much larger round of judge hirings than this would be required in order to begin to reduce the backlog.

To read the full report, go to:

https://trac.syr.edu/immigration/reports/591/To examine the court’s backlog in more detail, now updated through December 2019, use TRAC’s free backlog app:

https://trac.syr.edu/phptools/immigration/court_backlog/Additional free web query tools which track Immigration Court proceedings have also been updated through December 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=immFollow us on Twitter at

https://twitter.com/tracreportsor like us on Facebook:

https://facebook.com/tracreportsTRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
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The awful, unconstitutional mess in our Immigration Courts is a direct result of the regime’s “malicious incompetence” leading to round after round of “Aimless Docket Reshuffling” (“ADR”). Contrary to the regime’s false narratives and distortions these backlogs are NOT primarily the result of either a) systematic use of dilatory tactics by migrants and their attorneys, or b) lack of work ethic on the part of Immigration Judges and court staff.
Those of us “in my age group” can remember when a concerted attack on those fleeing from Communist countries or other leftist dictatorships would have earned more immediate “pushback” from the GOP both from Congress and from those within GOP Administrations.
Indeed, the Reagan Administration famously just stopped enforcing deportation orders against Nicaraguans in South Florida, even if they had been denied asylum, without ever announcing a formal policy of “deferred action.” This eventually led to creation of “Temporary Protected Status” by Congress and the “Nicaraguan and Central American Relief Act” (“NACARA”) to grant lawful permanent resident status to nationals of Nicaragua, El Salvador, and Guatemala, as well as some former Soviet-Bloc nationals who were in the U.S. without status.
As a former Immigraton Judge who saw the many positive effects of NACARA, it was one of the “smartest ever” bipartisan immigration programs enacted by Congress. It gave many deserving and hard-working families a chance to become permanent residents and eventually citizens. At the same time, it was easy to administer — so easy in fact that many asylum cases could be sent from the the Immigration Courts to the Asylum Offices for adjudication under NACARA, thereby freeing time and space on overcrowded court dockets. Moreover, the NACARA program was self-supporting, being financed from the filing fees charged by USCIS.
Basically, it was a win-win for everyone.
Similarly, the Bush I Administration declined to deport Chinese resistors to the “one-child” policy even where they had been denied asylum under the standards then in effect. This eventually led to a bipartisan amendment to the “refugee” definition to include those opposed to “coercive population control.”
A wiser Administration would draw on the many favorable lessons learned from TPS and NACARA to propose a large-scale legalization program to Congress. In the meantime, those with long residence and no serious crimes could be taken off Immigration Court dockets and granted work authorization pending Congressional action.
With dockets thus cleared of those with substantial equities whose removal actually would harm our national interests, the Immigration Courts could once again begin working “in the present tense” on cases of more recent arrivals who have not yet established equities. And it wouldn’t take another 400 Immigration Judges to put non-detained cases on a more reasonable and achievable 6-18 month completion schedule.
As it is, unless and until the Article III courts do their constitutional duty, or we have regime change and an independent Article I Immigration Court, the backlogs and injustices will continue to grow.

Due Process Forever!

PWS
01-22-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. DUH OF DA DAY: White Nationalist Agenda, Anti-Asylum Gimmicks, Grotesque Mal-Administration Leads To Longer Waiting Times @ Disastrously Dysfunctional EOIR 🤮 — Biden-Harris Administration Must End America’s Disgraceful Star Chambers ⚰️!
  4. THE ROUNDTABLE IN ACTION: HON. ILYCE SHUGALL DELIVERS POWERFUL STATEMENT IN THE LA TIMES ON WHY SHE COULD NO LONGER SERVE AS A JUDGE IN OUR OBSCENELY DISTORTED AND UNFAIR U.S. IMMIGRATON COURT SYSTEM – “But nothing prepared me for the unprecedented, unfair and unworkable policies the Trump administration imposed on the courts and the immigration process.”

ROUND TABLE SPEAKS OUT AGAINST EXPANDED ASYLUM BARS!

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

ROUND TABLE SPEAKS OUT AGAINST EXPANDED ASYLUM

 

                                       January 19, 2020

 

VIA E-RULEMAKING PORTAL: www.regulations.gov

 

Lauren Alder Reid, Assistant Director

Office of Policy, Executive Office for Immigration Review

5107 Leesburg Pike, Suite 2616

Falls Church, VA 22041

 

Maureen Dunn, Chief

Division of Humanitarian Affairs, Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Ave. NW

Washington, DC 20529-2140

 

Re:      EOIR Docket No. 18– 0002

 

 

Dear Ms. Alder Reid and Ms. Dunn,

 

We are writing as members of the Round Table of Former Immigration Judges to express our strong opposition to the Department of Justice and Department of Homeland Security Joint Notice of Proposed Rulemaking (“proposed rule”) on “Procedures for Asylum and Bars to Asylum Eligibility”.

 

The Round Table of Former Immigration Judges is a group of former Immigration Judges and Board of Immigration Appeals (BIA) Members who united to file amicus briefs and engage in other advocacy work.  The group formed in 2017.  In just over two years, the group has grown to more than 40 members, dedicated to the principle of due process for all. Its members have served as amici 37 times in cases before the Supreme Court, various circuit courts, the Attorney General, and the BIA.  The Round Table of Former Immigration Judges has also submitted written testimony to Congress and has released numerous press statements and a letter to EOIR’s director. Its individual members regularly participate in teaching, training, and press events.

 

The Round Table opposes the proposed rule which violates the Immigration and Nationality Act, the United States Constitution, and the country’s international treaty obligations.  Each member of the Round Table has adjudicated applications for asylum and is intimately familiar with the asylum adjudication process.  Accordingly, the Round Table has the following concerns about the additional asylum bars and limits to immigration judges’, appellate immigration judges’, and asylum officers’ ability to exercise discretion in asylum cases.

 

The Round Table asserts that immigration judges and asylum officers who have been tasked with adjudicating asylum cases, are in the best position to assess the impact of criminal conduct and convictions on asylum applications.  The task of analyzing and reviewing criminal conduct and convictions should not be taken away from the judges and asylum officers through regulation.  Asylum seekers are the most vulnerable members of society who are seeking refuge in the United States.  Trained judges and asylum officers should have the authority to consider their cases, even where the applicants have criminal convictions.  Such authority is designated to the judges and asylum officers by statute.[1]

 

The agencies justify the expansive limitations on asylum by citing the authority designated to the Attorney General in the statute: “Congress further provided the Attorney General with the authority to establish by regulation ‘any other conditions or limitations on the consideration of an application for asylum,’ so long as those limitations are ‘not inconsistent with this chapter.’ INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B); see also INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).”  The new bars and limits on discretionary relief set forth in the proposed regulation are not consistent with the statute and are contrary to Congressional intent.  They also interfere with the role of immigration judges and asylum officers.  We therefore oppose the proposed additional bars to eligibility, the clarification of the effect of criminal convictions, and the removal of regulations regarding reconsideration of discretionary denials of asylum.

 

Additional Limitations on Eligibility for Asylum

 

The proposed rule intends to bar asylum to individuals convicted of nearly any criminal offense in the United States:

 

Those bars would apply to aliens who are convicted of (1) a felony under federal or state law; (2) an offense under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) (Alien Smuggling or Harboring); (3) an offense under 8 U.S.C. 1326 (Illegal Reentry); (4) a federal, state, tribal, or local crime involving criminal street gang activity; (5) certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant; (6) a federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and (7) certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.[2]

 

In the domestic violence context, a conviction would not be required.[3]

 

The agencies rely on the language in 8 U.S.C. § 1158(b)(2)(B)(ii) to assert that the Attorney General and Secretary of the Department of Homeland Security (DHS) have the authority to classify all felony offenses as particularly serious crimes.[4]  However, such a blanket rule is not consistent with 8 U.S.C. § 1158(b)(2)(B)(ii), which states that the Attorney General may designate “offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).”  8 U.S.C. §1158(b)(2)(A)(ii) specifies the bar to asylum is for a particularly serious crime wherein the non-citizen is a danger to the community.  Designating all felony convictions under all jurisdictions as bars to asylum is beyond what Congress intended and improperly removes all discretion and legal analysis from immigration judges and asylum officers.  Had Congress intended to bar all felony convictions, it would have specified that in the statute.

 

The agencies suggest that it has become too time intensive, difficult, and inefficient for immigration judges to make determinations about particularly serious crimes and aggravated felonies using the categorical approach required by the United States Supreme Court.[5]  However, it is the job of an immigration judge to employ his or her legal skills and analyze cases.  Moreover, the statute purposely does not limit the particularly serious crime bar to aggravated felonies.  Immigration Judges are in the best position to analyze whether a conviction, if not an aggravated felony, is nevertheless a particularly serious crime that should bar an individual from asylum.  Regulating away the immigration judge corps’ ability to exercise discretion does not render the process more efficient,[6] rather, it turns immigration judges into mindless adjudicators.  Moreover, the agencies cannot regulate out of existence Supreme Court precedent and international treaty obligations in order to promote efficiency.  The Supreme Court has held immigration judges to the categorical and modified categorical analysis when analyzing criminal convictions, as that is what the statute requires.[7]

 

Furthermore a conviction for a crime does not, without more, make one a present or future danger—which is why the Refugee Convention’s particularly serious crime bar, made part of United States law through 8 U.S.C. § 1158, should only properly apply if both (1) a migrant is convicted of a particularly serious crime and (2) a separate assessment shows that she is a present or future danger.[8]  By acceding to the 1967 Protocol Relating to the Status of Refugees,[9] which binds parties to the United Nations Convention Relating to the Status of Refugees,[10]the United States obligated itself to develop and interpret United States refugee law in a manner that complies with the Protocol’s principle of non-refoulement (the commitment not to return refugees to a country where they will face persecution on protected grounds), even where potential refugees have allegedly committed criminal offenses. As noted above, immigration judges and asylum officers already have over-broad authority to deny asylum based on allegations of criminal activity, which vastly exceeds the categories for exclusion and expulsion set out in the Convention. Instead of working towards greater congruence with the terms of the Convention, the Proposed Rules carve out categorical bars from protection that violate the language and spirit of the treaty.

 

Moreover, the Supreme Court in INS v. Cardoza-Fonseca found, “[i]f one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”[11]  The proposed regulations do the exact opposite.

 

The suggestion that the extensive bar is intended to increase efficiencies is belied by the agencies’ instructions that judges and asylum officers use a “reason to believe” standard to determine whether an offense is in furtherance of a criminal street gang and to “assess all reliable evidence in order to determine whether [a] conviction amounts to a domestic violence offense.”[12]  Further, in the domestic violence context, the proposed regulation would require the judges and asylum officers to consider whether non-adjudicated conduct “amounts to a covered act of battery or extreme cruelty.”[13]

 

The proposed regulations bar asylum to those convicted of a crime involving a criminal street gang, regardless of whether the conviction is a felony or misdemeanor.[14]  Moreover, this proposed bar does not even require that the statute of conviction include involvement in a street gang as an element.  Rather, the proposal is that the judges and asylum officers use a “reason to believe” standard to make the determination.[15] Federal courts have set forth the way in which to perform the categorical approach, whereas, the “reason to believe” standard is arbitrary.  Such an approach in the street gang context will lead to the unpredictable results the agencies suggest they are trying to avoid in other sections of the proposed regulations.

 

Further, the agencies propose to bar asylum under 8 U.S.C. § 1158(b)(2)(C) to “aliens who engaged in acts of battery and extreme cruelty in a domestic context in the United States, regardless of whether such conduct resulted in a criminal conviction.”[16]  As discussed above, these sweeping bars to asylum eliminate the discretionary authority given to immigration judges and asylum officers.   They also require an immigration judge to hold the equivalent of a criminal trial to determine if such activity has been “engaged in.”

 

Requiring immigration judges to make complex determinations regarding the nature and scope of a particular conviction or, in the case of the domestic violence bar, conduct, will lead to massive judicial inefficiencies and “mini-trials” within the asylum adjudication process. The scope of the “reliable evidence” available to immigration judges in asylum cases is potentially limitless; advocates on both sides would be obligated to present endless documents and testimony to prove their cases.  This would put an unsustainable burden on respondents, their counsel, and attorneys for DHS.  Asylum merits hearings, which tend to be three hours at most under current case completion requirements[17], would provide insufficient time for either side to fully present their cases and would make it impossible for immigration judges to complete cases under the current time constraints.

 

As the immigration courts contend with backlogs that now exceed one million cases, tasking judges and asylum officers with a highly nuanced, resource-intensive assessment of the connection of a conviction to gang activity and/or the domestic nature of alleged criminal conduct will prolong asylum cases and lead to disparate results that will give rise to an increase in appeals. The proposed regulations repeatedly cite increased efficiency as justification for many of the proposed changes. Yet requiring immigration judges to engage in mini trials to determine the applicability of categorical criminal bars, rather than relying on adjudications obtained through the criminal legal system, will dramatically decrease efficiency in the asylum adjudication process.

 

As discussed above, the Supreme Court has “long deemed undesirable” exactly the type of “post hoc investigation into the facts of predicate offenses” proposed by the agencies here.[18] Instead, the federal courts have repeatedly embraced the “categorical approach” to determine the immigration consequence(s) of a criminal offense, wherein the immigration judge relies on the statute of conviction as adjudicated by the criminal court system, without relitigating the nature or circumstances of the offense in immigration court[19]. As the Supreme Court has explained, this approach “promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact.”[20]

 

Furthermore, the Departments asks for comments on: (1) what should be considered a sufficient link between an asylum seeker’s underlying conviction and the gang related activity in order to trigger the application of the proposed bar, and (2) any other regulatory approaches to defining the type of gang-related activities that should render individuals ineligible for asylum. The premise of these questions is wrong: a vague “gang related” bar should not be introduced at all. The Immigration and Nationality Act and existing regulations already provide overly broad bars to asylum where criminal behavior by an asylum seeker causes concern by an immigration judge or asylum officer. Adding this additional, superfluous layer of complication risks erroneously excluding bona fide asylum seekers from protection without adding any useful adjudicatory tool to the process.      

 

Suggesting that the proposed regulations are aiming at efficiency while also requiring immigration judges to engage in excessive litigation is contradictory and makes it clear that the agencies are simply trying to eliminate asylum rather than increase efficiencies in adjudication.  This does not comport with the statute, constitution, or the United States’ international treaty obligations.  Finally, efficiencies will not result, as immigration judges will nevertheless be required to analyze the particularly serious crime bar for the withholding of removal analysis.[21]

 

In addition to creating new bars to asylum both by designating most crimes as “particularly serious crimes” pursuant to 8 U.S.C. § 1158(b)(2)(B)(ii), the agencies also render most crimes categorically exempt from a positive discretionary adjudication of asylum pursuant to 8 U.S.C. § 1158(b)(2)(C). This effort is unlawful. The agencies’ reliance on 8 U.S.C. § 1158(b)(2)(C) to render all felony convictions a bar to asylum takes away the discretionary authority granted to immigration judges and asylum officers when it comes to assessing the impact of a conviction on asylum eligibility.  Immigration judges and asylum officers have the opportunity to review all evidence, including the circumstances of the conviction during asylum interviews and hearings.  Such discretionary determinations are consistent with the statute and the intent of asylum, which is to protect the most vulnerable individuals in society from persecution.  “The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.”[22]

 

Setting arbitrary large-scale blanket bars to a discretionary determination is inconsistent with the statute and the United States’ international treaty obligations.  The statute provides specific language about criminal bars, persecutor bars, and particularly serious crimes.[23]  Had Congress intended to remove the discretionary authority to grant relief to nearly all applicants with criminal convictions, it would have made that clear in the above referenced sections.  However, Congress clearly delineated bars to asylum and while it also provided the Attorney General the authority to clarify such bars, it in no way suggested the Attorney General could regulate away legal analysis of the bars or an immigration judge’s or asylum officer’s discretion.[24]  The proposed rules add sweeping categories of offenses that automatically remove an applicant from the consideration of discretion—a regulatory proposal that is ultra vires to the plain text of the statute.

 

The agencies also propose to bar under 8 U.S.C. 1158(b)(2)(B)(ii) and (b)(2)(C) anyone convicted of alien harboring under 8 U.S.C. § 1324(a)(1)(A), (2),[25] illegal reentry under 8 U.S.C. 1326,[26] any convicted of a second or subsequent offense for driving while intoxicated, impaired (DUI), or under the influence or a single such offense that resulted in death or serious bodily injury.[27] The agencies further propose to bar asylum under 8 U.S.C. § 1158(b)(2)(B)(ii) to all individuals convicted for domestic violence and child abuse, regardless of whether the conviction is a misdemeanor or felony.[28]  The proposed regulations do not render the adjudication process more efficient, as the language in the domestic violence and DUI bar is vague and requires a case by case assessment of the facts of the case.  The proposed regulations serve to eliminate discretion while increasing demands on immigration judges and asylum officers as well as the length and complexity of hearings and interviews.

 

Moreover, the proposed bar to asylum for multiple offenses for driving under the influence is problematic, particularly for individuals with offenses from states like New Jersey.  Unlike the majority of states, New Jersey does not criminalize the offense of driving while intoxicated (DWI).  In NJ, DWI is only a traffic offense.[29]  Individuals who have been arrested for a DWI have access to certain constitutional protections, such as being entitled to a public defender, and having the burden of proof of beyond a reasonable doubt.[30]  However, other constitutional protections are not available, namely the right to trial by jury.  This is true regardless of whether the DWI is a first, second, or third offense, and regardless of whether actual jail time may be imposed.[31]

 

As a practical matter. NJ DWI adjudications are conducted in municipal courts, in which judges, the prosecutors, and the public defenders are all part-time, township-appointed officials.  The dockets are often enormous, and, in many cases, defendants do not even seek time to obtain an attorney. They line up to meet with the prosecutor and enter into plea agreements that limit their amount of jail time and/or loss of license.  The defendants, with their attorneys if they have one, then appear before the judge and allocute to a brief set of facts and plead guilty; then pay their fines and leave.  The prosecutor does not normally even appear in court.

 

Thus, under the INA, a DWI offense under NJ law does not constitute a crime. In order to be found guilty of a crime, more is needed than just a formal judgment of guilt under a “reasonable doubt” standard, and some punishment was imposed.[32]  However, under the proposed regulations, such an offense could nevertheless bar an individual from asylum.

 

 

The agencies further propose to bar asylum under 8 U.S.C. § 1158(b)(2)(C) to individuals convicted of an expansive list of misdemeanor convictions, including simple possession of a controlled substance.[33] Including such minor offenses in the list of convictions that lead to a bar to asylum further demonstrate that the agencies are working to eliminate discretion from the adjudicatory process.  Furthermore, although Congress assigned to the Attorney General the authority to promulgate regulations further defining the particularly serious crime bar and other limits on asylum, had Congress intended to bar from asylum all applicants with criminal convictions, it would have provided such direction in the statute.[34]  The language of the statute shows that Congress intended to distinguish particularly serious crimes and aggravated felonies from other crimes, as it set forth specific language barring applicants with such offenses from asylum.[35] Congress easily could have indicated that all felonies or all criminal convictions constitute particularly serious crimes, but it did not.  Accordingly, the bar is in conflict with the statute.

 

Clarification on the Effect of Criminal Conviction

 

The agencies further propose to increase the burden on asylum applicants to prove that orders vacating convictions or modifying sentences were not entered to avoid immigration consequences or for rehabilitative purposes.[36]  They also create a rebuttable presumption against the validity of an order if such order was entered after the initiation of a removal proceeding or if the applicant moved for the order more than one year after the original order of sentencing.[37]  Furthermore, “the rule would provide that the alien must establish that the court issuing an order vacating or expunging a conviction or modifying a sentence had jurisdiction and authority to do so.”[38]  These new rules would increase, rather than decrease burdens on immigration judges and asylum officers.  It would require judges and asylum officers to look beyond a court order.  It would also require judges and asylum officers to make jurisdictional findings about state court orders on facially valid orders.  It is a long-standing legal principle that courts have jurisdiction to determine their own jurisdiction.[39]  If a state court has determined it had jurisdiction to issue an order, it is not the role of the immigration court or any other court to question that finding.

 

Removal of Regulations Regarding Reconsideration of Discretionary Denials of Asylum

 

“The proposed rule would remove the automatic review of a discretionary denial of an alien’s asylum application by removing and reserving paragraph (e) in 8 C.F.R. 208.16 and 1208.16.”[40]  The current regulatory section is consistent with the purpose of asylum—to protect the most vulnerable members of society, including family members of those fleeing persecution.  To remove it is inconsistent with the purpose of asylum and therefore inconsistent with the statute.  The agencies acknowledge that the purpose of the existing regulation is to promote family unity and reunification with spouses and children in third countries.[41]  However, the agencies suggest that the automatic reconsideration is unnecessary, as family unity is a discretionary factor that should be considered in the original adjudication.[42]  8 C.F.R. § 208.16(e) and 1208.16(e) provide additional procedural protections to vulnerable refuges who have been found eligible for withholding of removal.  While the existing regulations require reconsideration and a weighing of factors, including family reunification, they in no way require the immigration judge or asylum officer to grant asylum upon reconsideration.  The proposed regulation provides an extra layer of protection for vulnerable family members and should not be removed.

 

The agencies again suggest that efficiency is the reason behind eliminating this regulatory section.  However, as discussed above, there are multiple sections of this proposed regulation that render adjudications less, not more efficient.  The purpose of this proposed section is to further limit discretion and reduce access to asylum.

 

Conclusion

 

These proposed rules erode access to asylum in violation of Congressional intent, the United States Constitution, and international treaty violations.   The Round Table of Immigration Judges therefore urges the Department of Justice and DHS to withdraw, not implement this rule.

 

Very truly yours,

 

/s/

Stephen Abrams

Sarah Burr

Teofilo Chapa

Jeffrey Chase

George Chew

Bruce J. Einhorn

Noel Ferris

John Gossart

Paul Grussendorf

Miriam Hayward

Rebecca Jamil
Bill Joyce

Carol King
Elizabeth A. Lamb

Donn Livingston
Peggy McManus

Laura Ramirez

John Richardson

Lory Rosenberg

Susan Roy

Paul Schmidt

Ilyce Shugall

Denise Slavin

Andrea Sloan

Polly Webber

 

The Round Table of Former Immigration Judges

 

[1] 8 U.S.C. §§ 1158(b)(1)(A); 1229a

[2] 84 Fed. Reg. 69645 (December 19, 2019).

[3] Id.

[4] 84 Fed. Reg. 69645.

[5] Id. citing Taylor v. United States, 495 U.S. 575 (1990); Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013).

[6] 84 Fed. Reg 69646

[7] Taylor v. United States, 495 U.S. 575 (1990); Moncrieffe v. Holder, 569 U.S. 184, 186 (2013); Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013)

[8] See U.N. High Commissioner for Refugees, Criminal Justice and Immigration Bill: Briefing for the House of Commons at Second Reading ¶ 11 (July 2007), http://www.unhcr.org/en-us/576d237f7.pdf (the Refugee Convention’s particularly serious crime bar only applies if (1) a migrant is convicted of a particularly serious crime and (2) a separate assessment shows she is a “present or future danger.”).

[9] United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268.

[10] Convention Relating to the Statute of Refugees, July 28, 1951, 140 U.N.T.S. 1954 (hereinafter

“Refugee Convention”).

[11] INS v. Cardoza-Fonseca, 480 U. S. 421, 437 (1987)

[12] 84 Fed. Reg. 69649, 69652

[13] 84 Fed. Reg 6952.

[14] Id.

[15] Id.

[16] Id.

[17] Memorandum, James R. McHenry III, Case Priorities and Immigration Court Performance Measures, January 17, 2018; see alsohttps://www.npr.org/2018/04/03/599158232/justice-department-rolls-out-quotas-for-immigration-judges (discussing memorandum requiring that Immigration Judges complete 700 cases per year).

[18] Moncrieffe v. Holder, 569 U.S. 184, 186 (2013).

 

[19] See Moncrieffe, 569 U.S. at 191 (“This categorical approach has a long pedigree in our Nation’s immigration law.”).

[20] Moncrieffe, 569 U.S. at 200-201.

[21] 8 U.S.C. § 1231(b)(3)(B)(ii)

[22] 8 U.S.C. §1158(b)(1)(A) (emphasis added)

[23] 8 U.S.C. § 1158(b)(2)(A), (B)

[24] 8 U.S.C. § 1158(b)(2)(C) (“The Attorney General may by regulation establish additional limitations and conditions, consistent with this section…”) (emphasis added)

[25] 84 Fed. Reg. 69647

[26] 84 Fed. Reg. 69648

[27] 84 Fed. Reg. 69650

[28] 84 Fed. Reg. 69651

[29] See NJSA § 39:4-50; see generally NJSA §§2C:1-98 (NJ criminal code, in which DWI does not appear)

[30] See, e.g. State v. Ebert, 871 A.2d 664 (App. Div. 2005)

[31] State v. Hamm, 121 N.J. 109, 577 A 2.d 1259 (1990)

[32] Castillo v. Att’y Gen., 729 F.3d 296 (3d Cir. 2013)

[33] 84 Fed. Reg. 69653

[34] 8 U.S.C. § 1158(b)(2)(B)(ii) (“The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).”)

[35] 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i)

[36] 84 Fed. Reg. 69654

[37] 84 Fed. Reg. 69655

[38] 84 Fed. Reg. 69656

[39] United States v. United Mine Workers of America, 330 U.S. 258, 289 (1947)

[40] 84 Fed. Reg. 69656

[41] 84 Fed. Reg. 69656

[42] 84 Fed. Reg. 69657

 

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

Many, many thanks to our wonderful Round Table colleague Judge Ilyce Shugall, who organized and coordinated our response!

 

PWS

01-21-20

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  3. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

THE NDPA STRIKES BACK:  ACLU Sues In DC To End The Regime’s Bogus “Safe Third Country” Abuse Of Human Rights & The Rule Of Law! — Regime’s Actions Could Be Characterized As “Crimes Against Humanity!”

Camilo Montoya-Galvez
Camilo Montoya-Galvez
CBS Journalist

https://apple.news/ALbDFozeyQemj7zT-zO0VUA

 

Camilo Montoya-Galvez reports for CBS News:

 

 ACLU files lawsuit to halt Trump policy of sending asylum-seekers to Guatemala

Washington — The American Civil Liberties Union on Wednesday mounted the first legal challenge against the Trump administration’s policy of sending migrants who seek protection at the U.S.-Mexico border to Guatemala, a country with a skeletal asylum regime that has seen an exodus of hundreds of thousands of its own citizens in the past two years because of extreme poverty and endemic violence.

The lawsuit filed in the U.S. District Court in Washington, D.C., seeks to halt the implementation of a controversial asylum agreement with the Guatemalan government. Under the deal forged last summer, the U.S. has sent more than 150 asylum-seekers from Honduras and El Salvador to Guatemala, denying them access to America’s asylum system and requiring them to choose between seeking refuge in the Central American country or returning home.

The agreement, the ACLU said in its 54-page complaint, amounts to “a deadly game of musical chairs that leaves many desperate asylum-seekers without a safe haven, in violation of U.S. and international law.”

“If this rule remains in effect, it means that the U.S. can completely wash their hands of any responsibility to provide safe haven for people fleeing persecution,” Lee Gelernt, the ACLU’s top immigration litigator, told CBS News. “It would end asylum at the southern border, plain and simple.”

A spokesperson for the Department of Homeland Security told CBS News that while it cannot comment on litigation, “the U.S. Government and the Government of Guatemala remain committed to the asylum cooperative agreement and stand behind the integrity of the program.”

For lead plaintiff, returning home isn’t an option

As of last week, 158 Honduran and Salvadoran migrants have been rerouted by the U.S. to Guatemala, including dozens of families and at least 43 children, according to the Guatemalan migration institute. Nine people initially chose to request protection in Guatemala, but five of them have since abandoned their claims, the institute said. The rest have asked for help returning to their home countries.

The lead plaintiff in the ACLU’s lawsuit is a gay man from El Salvador who was sent by the U.S. to Guatemala after asking for asylum at the southern border. The man, identified only by the initials U.T., says he was sexually abused as a child, disowned by his family because of his sexuality and threatened by a gang member who solicited him for sex in El Salvador.

When he arrived at the U.S.-Mexico border, he was told he would be sent to Guatemala. He told Customs and Border Protection (CBP) officials, who make the initial determination about whether migrants should be subject to the U.S.-Guatemala deal, that he feared being sent to Guatemala. His concerns fell on deaf ears.

He was then referred for an interview with an asylum officer and again expressed fear of persecution in Guatemala. Nonetheless, he was deported to the country shortly afterward.

During these types of interviews, migrants must affirmatively say they fear being sent to Guatemala. Even if they do, they have to meet a fear of persecution threshold that is much higher than that of the typical “credible fear” interviews most asylum-seekers at the southern border are subject to.

The ACLU says the man applied for asylum once in Guatemala, but officials there advised him to seek protection in Mexico instead, since Guatemala is “unsafe for gay people.” The State Department warns of “societal discrimination” and police abuse against LGBTI people in Guatemala.

Returning to El Salvador is not an option for the asylum-seeker, who is currently in Mexico, since he “fears that he will be attacked or killed for his sexual orientation if he tries to live openly as a gay man,” according to the ACLU.

“A way for the U.S. to simply pass the buck”

There are five other individual plaintiffs in the ACLU’s lawsuit, including a woman and two families who were sent to Guatemala by the U.S. The Tahirih Justice Center and Las Americas Immigrant Advocacy Center, two organizations that provide legal services to asylum-seekers, are also named as plaintiffs in the lawsuit — which the National Immigrant Justice Center, Center for Gender & Refugee Studies and Human Rights First joined the ACLU in filing.

The group is asking the court to prohibit officials from enforcing a regulation the administration unveiled in November to implement the Guatemala deal and similar agreements that the U.S. brokered with Honduras and El Salvador which have not yet been implemented. The suit also challenges a U.S. Citizenship and Immigration Services (USCIS) guidance document for asylum officers carrying out the agreement.

The ACLU alleged that both measures violate U.S. statutes designed to prevent officials from sending asylum-seekers to places where they may face persecution and that provide legal safeguards for migrants the government seeks to deport quickly. The group also said the policy violates administrative law, since the administration did not give the public a chance to comment on it and failed to provide “reasoned explanations” for dramatically changing the asylum system at the southern border.

The administration maintains that its agreements with Guatemala and the other countries in Central America’s Northern Triangle will foster the “distribution” of asylum claims among nations in the region and provide protection to migrants “closer to home.” But the ACLU says the so-called “Asylum Cooperative Agreements” represent a dramatic departure from the “safe third country” provision in U.S. law that the administration is using to defend their legality.

In 1996, President Bill Clinton signed into law an act that codified the “safe third country” concept, allowing the U.S. to enter into bilateral or multilateral agreements to send asylum-seekers to third countries, as long as the U.S. government made sure those asylum-seekers would not face persecution based on a protected ground under U.S. asylum law and would have access to a “full and fair” process to request protection in those nations.

Gelernt and his group believe the accords with Guatemala, El Salvador and Honduras violate this law because the countries do not have fully functioning asylum regimes, unlike Canada — the only nation which has an official “safe third country” agreement with the U.S.

“There is no way the administration can plausibly claim that Guatemala can provide a safe, fair and full asylum process. This administration has simply thumbed their nose at Congress,” Gelernt said, noting that Canada, a developed country with a robust asylum system, is a safe place for refugees.

“This is not a way to provide people with a fair asylum process but a way for the U.S. to simply pass the buck,” he added.

Guatemala has experienced moderate economic growth since the end of a bloody civil war in the 1990s, but it continues to grapple with high homicides rates, drug trafficking, political instability and widespread poverty, especially among its large indigenous communities in the Western highlands of the country. Only about 262 migrants sought refuge in Guatemala in 2018, according to the United Nations.

The ACLU also noted in its lawsuit that the Trump administration hasn’t publicly revealed any designations certifying that the Northern Triangle countries have the capacity to take in migrants rerouted there by the U.S., despite a requirement that such a certification be included in the government regulation to enforce the asylum agreements.

Sweeping implications for asylum-seekers

All three agreements the U.S. made last year suggest that they could grant the U.S. the power to reroute most asylum-seekers from any country in the world, barring a few exceptions, like unaccompanied children, to Central America. The ACLU underscored the sweeping nature of the deals in its suit, saying that in practice, the U.S. could send asylum-seekers from Afghanistan to one of the Northern Triangle countries, even if they did not travel through there to get to the U.S. southern border.

The administration believes it can include “all populations” in the agreements, and it recently announced it was planning to send Mexican asylum-seekers to Guatemala. The move sparked scathing criticism at home and abroad, with Mexico’s government objecting to the proposal.

Unlike migrants from Honduras and El Salvador, Mexican asylum-seekers do not travel through Guatemalan territory to reach the U.S.-Mexico border. A plan to subject Mexicans to the U.S.-Guatemala accord could, in practice, lead to the U.S. flying a Mexican asylum-seeker from Tijuana, San Diego’s neighboring city, some 1,500 miles away, asking her to seek protection in Guatemala.

How Guatemala continues to implement its “Asylum Cooperative Agreement” with the Trump administration will now be decided by conservative government of President Alejandro Giammattei, who took office on Tuesday.

The asylum agreements with countries in Central America are part of a series of policies the administration rolled out over the past year to restrict asylum at the U.S.-Mexico border. These also include a sweeping rule that renders most non-Mexican migrants ineligible for asylum and the Migrant Protection Protocols program, which has required more than 57,000 asylum-seekers from Central America to wait in dangerous Mexican border cities for the duration of their U.S. immigration proceedings.

First published on January 15, 2020 / 4:19 PM

© 2020 CBS Interactive Inc. All Rights Reserved.

 

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The bogus “Safe Third Country Agreements” with Guatemala, El Salvador, and Honduras, clearly unsafe countries without functioning asylum systems, in violation of U.S. and international laws, are daunting acts of malicious fraud. This fraud is undertaken, in the open, by a neo-fascist regime that has contempt for humanity and human rights, believes itself above the law, and has no fear of being held accountable by the Federal Courts or Congress (notwithstanding Trump’s impeachment).

 

The regime’s unlawful fraudulent actions are defended in court by DOJ lawyers who believe the obligation of truthfulness before tribunals and other ethical requirements simply don’t apply to them. And, that’s probably with good reason.

 

The Trump regime has been peddling lies, false narratives, and bad faith legal arguments to the Federal Courts, all the way up to the Supremes, for nearly three years now with no consequences to the lawyers or their political clients. Indeed, Wilbur Ross lied under oath in the “Census Case,” but continues to be the Secretary of Commerce; to my knowledge, the Government lawyers who tried to present, defend, and rationalize. Ross’s census fraud are still on the payroll. A few Supremes even voted to sweep it all under the rug. It took an unusual display of backbone by Chief Justice Roberts to prevent the fraud from being perpetrated on American voters, particularly targeting voters of color.

 

Private lawyers who conducted themselves in a similar manner would likely be facing state disciplinary proceedings. A private executive who lied under oath like Ross probably would have been referred for a perjury prosecution or held in contempt of court.

 

But, Federal Judges, who are used to giving U.S. government lawyers pretty much a “free pass,” don’t seem to “get” that they are now dealing with a willfully corrupt, thoroughly dishonest, neo-fascist regime, not “just another Administration.”

 

When the laws, rules, and our Constitution don‘t apply to our Government, and nobody is held accountable for outrageous official wrongdoing (arguably “crimes against humanity” in the “Safe Third Country Fraud”) we all lose!

 

Due Process Forever! Complicity In The Face Of Tyranny, Never!

 

PWS

 

01-16-20

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. WHERE’S THE OUTRAGE? — 9th CIRCUIT JUDGES ASSIST REGIME’S AGENTS IN COMMITTING “CRIMES AGAINST HUMANITY” MERE YARDS FROM THE BORDER! — NDPA Leader Jodi Goodwin, Esquire, Speaks Out: “I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me. I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

BAD NEWS FOR TEX. GOV. “GREG THE BIGOT” ABBOTT: U.S. District Judge Blocks Trump’s Illegal Anti-Refugee Order — But, Will Often Complicit Appellate Courts Uphold The Rule Of Law Or “Toady Up” To The Trump Regime’s White Nationalist Agenda?

Michelle Hackman
Michelle Hackman
Immigration Reporter
Wall Street Journal
Brent Kendall;
Brent Kendall
Legal Affairs Reporter
Wall Street Journal;

https://www.wsj.com/articles/federal-judge-blocks-trump-executive-order-on-refugees-11579108138?emailToken=575893ec6fe4b185f88708c59e175ef6CwUCcHqk/fEL6ReRFZZtuTxDwMXs7aS/qFBj8SMDh/g7NCEloF0znbPD48wkR6yiC0BZsPXe7V5mlXkbIptEUFTrxSHC0xOnxMYTwzWXscuGXaA/C7v5DN5I0vAE+Hef&reflink=article_email_share

Brent Kendall and Michelle Hackman report for the WSJ:

A fed­eral judge in Mary­land blocked Pres­i­dent Trump’s ex­ec­u­tive or­der giv­ing state and lo­cal gov­ern­ments the abil­ity to say no to hav­ing refugees placed in their com­mu­ni­ties.

U.S. Dis­trict Judge Pe­ter J. Mes­sitte is­sued a pre­lim­inary in­junc­tion Wednes­day that barred the ad­min­is­tration from im­ple­ment­ing the pres­i­dent’s or­der. He said refugee-re­set­tle­ment or­ga­ni­za­tions that sued to chal­lenge the pol­icy “are clearly likely to suc­ceed in show­ing, that, by giv­ing states and lo­cal gov­ernments veto power over the re­set­tle­ment of refugees within their bor­ders, the or­der is un­law­ful.”

Giv­ing states the power to de­ter­mine whether refugees will be re­ceived “flies in the face of clear con­gres­sional in­tent,” Judge Mes­sitte, a Clin­ton ap­pointee, said in the opin­ion.

. . . .

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

Those with WSJ access can read the complete article at the above link.

This “victory” might be little more than symbolic for refugee advocates. In an unprecedented action, the Trump Administration has slowed the flow of legal refugees to a trickle and could simply use the “bureaucratic veto” to prevent any more from coming, as they have gotten away with in other areas.

Certainly, this should give lie to the Trump Administration’s inevitable argument to Federal Appeals Courts that this is an “emergency” requiring them to intervene prior to the completion of District Court proceedings. But, up until now, neither law nor reality has been much of a factor when it comes to the Supremes, and sometimes the Circuits, going “belly up” and allowing the regime to run roughshod over human lives and the rule of law in the immigration and refugee areas. 

Chief Justice Roberts wonders why the judiciary is treated with contempt by the regime and is losing respect from the large majority of the legal community not subservient to Trump. The answer is all too often pretty obvious.

Per MKL, Jr.: “Injustice anywhere is a threat to justice everywhere.” It’s an important message that all too many Federal Judges and other (supposedly responsible) public officials seem to have forgotten in the “Age of Trump” and his corrupt and overtly White Nationalist regime.

PWS

01-15-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. HISTORICAL PERSPECTIVE: CLYDE W. FORD @ LA TIMES: “Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!

yhttps://www.washingtonpost.com/world/the_americas/the-us-is-putting-asylum-seekers-on-planes-to-guatemala–often-without-telling-them-where-theyre-going/2020/01/13/0f89a93a-3576-11ea-a1ff-c48c1d59a4a1_story.html

Kevin Sieff
Kevin Sieff
Latin American Correspondent, Washington Post

Kevin Sieff reports from Guatemala for WashPost:

By

Kevin Sieff

Jan. 14, 2020 at 4:21 p.m. EST

GUATEMALA CITY — The chartered U.S. government flights land here every day or two, depositing Honduran and Salvadoran asylum seekers from the U.S. border. Many arrive with the same question: “Where are we?”

For the first time ever, the United States is shipping asylum seekers who arrive at its border to a “safe third country” to seek refuge there. The Trump administration hopes the program will serve as a model for others in the region.

But during its first weeks, asylum seekers and human rights advocates say, migrants have been put on planes without being told where they were headed, and left here without being given basic instruction about what to do next.

When the migrants land in Guatemala City, they receive little information about what it means to apply for asylum in one of the hemisphere’s poorest countries. Those who don’t immediately apply are told that they must leave the country in 72 hours. The form is labeled “Voluntary Return.”

 

“In the U.S., the agents told us our cases would be transferred, but they didn’t say where. Then they lined us up to get on the plane,” said a woman named Marta, 43, from Honduras. She sat in a migrant shelter here with her 17-year-old son, who nursed a gunshot wound in his left cheek — the work, both say, of a Honduran faction of the MS-13 gang.

“When we looked out the window, we were here,” she said. “We thought, ‘Where are we? What are we supposed to do now?’ ”

After the volcano, indigenous Guatemalans search for safer ground — in Guatemala, or the United States

Human rights organizations in Guatemala say they have recorded dozens of cases of asylum seekers who were misled by U.S. officials into boarding flights, and who were not informed of their asylum rights upon arrival. Of the 143 Hondurans and Salvadorans sent to Guatemala since the program began last month, only five have applied for asylum, according to the country’s migration agency.

 

“Safe third country” is one of the Trump administration’s most dramatic initiatives to curb migration — an effort to remake the U.S. asylum system. President Trump has called it “terrific for [Guatemala] and terrific for us.”

But an Asylum Cooperation Agreement is bringing migrants to a country that is unable to provide economic and physical security for its own citizens — many of whom are themselves trying to migrate. In fiscal 2019, Guatemala was the largest source of migrants detained at the U.S. border, at more than 264,000. The country has only a skeletal asylum program, with fewer than a dozen asylum officers.

Trump wants border-bound asylum seekers to find refuge in Guatemala instead. Guatemala isn’t ready.

As the deal was negotiated, it drew concerns from the United Nations and human rights organizations. But its implementation, advocates say, has been worse than they feared.

“It’s a total disaster,” said Thelma Shau, who has observed the arrival of asylum seekers at La Aurora International Airport in her role overseeing migration issues for Guatemala’s human rights ombudsman.

“They arrive here without being told that Guatemala is their destination,” she said. “They are asked, ‘Do you want refuge here or do you want to leave?’ And they have literally minutes to decide without knowing anything about what that means.”

pastedGraphic_4.png

President Trump and first lady Melania Trump meet in the Oval Office last month with then-President Jimmy Morales of Guatemala. (Jabin Botsford/The Washington Post)

The Guatemalan government says that it explains asylum options and that migrants are simply choosing to leave voluntarily.

“Central American people are given comprehensive attention when they arrive in the country, and respect for their human rights is a priority,” said Alejandra Mena, a spokeswoman for Guatemala’s migration agency. “The information provided is complete for them to make a decision.”

In Guatemala, lenders that were supported by USAID and the World Bank are now funding illegal migration.

The Department of Homeland Security did not respond to requests for comment. The United States has signed similar “safe third country” agreements with El Salvador and Honduras, but they have not yet been implemented. In recent days, Trump administration officials have said they are considering sending Mexican asylum seekers to Guatemala to seek refuge.

Human rights groups in Guatemala that have observed the process say migrants here are not given key information about their options — such as what asylum in Guatemala entails and where they would stay while their claims are being processed. Many migrants are aware that Guatemala suffers from the same gang violence and extortion that forced them from their home countries.

pastedGraphic_5.png

Migrants from Guatemala disembark from a raft in Ciudad Hidalgo, Mexico, in June. (Rebecca Blackwell/Associated Press)

Paula Arana observed the orientation as child protection liaison for the human rights ombudsman.

“It’s clear that the government is not providing enough information for asylum seekers to make a decision, especially in the three minutes they are given,” she said. “Instead, they are being pushed out of the country.”

The United States had suggested that it would begin implementing the agreement by sending single men to Guatemala. But less than a month after it began, families with young children are arriving on the charter flights. Last week, Arana said, a 2-year-old arrived with flulike symptoms.

On Thursday, a man named Jorge, 35, his wife and two daughters, ages 11 and 15, landed here. A day later, they were clustered together at the Casa del Migrante, a shelter in Guatemala City where government officials took them in a bus. They had been given the papers with 72 hours’ notice to leave Guatemala, and couldn’t figure out what to do.

The family had fled multiple threats from gangs in Honduras, which started with an interpersonal dispute between Jorge’s wife and one of the gang’s leaders. Jorge was certain that going back would mean certain death. Like Marta, Jorge did not want his last name to be published out of fear for his family’s safety.

“We’re thinking about our options. We know we can’t stay here. What would I do? Where would we stay?” he said. “Maybe we need to try to cross to the United States again.”

In western Guatemala, cultivating coffee was once a way out of poverty. As prices fall, growers are abandoning their farms for the United States.

The Office of the U.N. High Commissioner for Refugees is not participating in the program. But officials say they’re aware of problems with its implementation.

“UNHCR has a number of concerns regarding the Asylum Cooperation Agreement and its implementation,” said Sibylla Brodzinsky, UNHCR’s regional spokeswoman for Central America and Mexico. “We have expressed these concerns to the relevant U.S. and Guatemalan authorities.”

 

Human rights advocates who have interviewed the asylum seekers, known locally as “transferidos,” say many have decided that their best option is to migrate again to the United States. Smugglers often offer their customers three chances to make it across the border.

Migrants at the Casa del Migrante described spending a week in Immigration and Customs Enforcement custody in the United States, where they had intended to make their asylum claims. Many carried binders full of evidence they assumed would bolster their cases. On her phone, Marta saved avideo of her son being tortured by MS-13 gang members.

But in their brief conversations with U.S. immigration officials, they were told they would not be given a chance to apply for asylum in the United States.

“We had all this information to show them,” Marta said, leafing through photos of her son’s scars and Honduran court documents. “They said, ‘That’s not going to help you here.’ ”

This school aims to keep young Guatemalans from migrating. They don’t know it’s funded by the U.S. government.

In interviews with The Washington Post, some migrants said they were told vaguely that their cases were being “transferred.” Others were told they were going to be returned to their countries of origin.

“One agent told me, ‘You’re going back to Honduras,’ ” Marta said. But then they arrived in Guatemala City.

“When we looked out the window, we just assumed it was a stop,” her son said.

Marta thought Guatemala might be even more dangerous. They had no connection to the country and nowhere to stay beyond their first few days. When she left the migrant shelter to buy food Friday morning, she said, she stumbled upon a crime scene with a dead body a few blocks away.

During their nine-day detention at an ICE facility in Texas, she said, the family shared a cell with a Guatemalan family that was fleeing violence perpetrated by a different MS-13 group based here.

pastedGraphic_7.png

Agronomy students, some hooded, block a street outside a Guatemala City hotel before lawmakers voted on the deal that made Guatemala a “safe third country” for migrants seeking asylum in the United States. (Oliver De Ros/Associated Press)

“Why would they send us to a country where the same gangs are operating?” she asked.

 

In the absence of a thorough explanation of their asylum rights in Guatemala, El Refugio de la Niñez is offering a short tutorial to the asylum seekers. So far, 45 have attended.

“The Guatemalan government is completely absent in this whole process,” said Leonel Dubon, the director of the U.N.-funded center. “It sends a clear message. The government isn’t here to offer shelter, it’s here to push people out as quickly as possible.”

The Trump administration negotiated the “safe third country” agreement last year with lame-duck Guatemalan President Jimmy Morales.

As Guatemala pursues war criminals, a dark secret emerges: Some suspects are living quiet lives in the U.S.

Guatemala’s constitutional court initially blocked the deal. Then Trump threatened tariffs on the country and taxes on remittances sent home by Guatemalans living in the United States. It was eventually signed in July.

The new Guatemalan president, Alejandro Giammattei, was sworn in Tuesday. He has raised concerns about the agreement, saying he hadn’t been briefed on its details.

At the signing ceremony, Trump said it would “provide safety for legitimate asylum seekers, and stop asylum fraud and abuses [of the] system.”

U.S. asylum officers do not vet the cases of migrants before they are sent to Guatemala.

In her brief conversations with U.S. immigration agents, Marta tried to get them to look at her binder full of documents and photos.

“They weren’t interested,” she said. “They just kept saying that your case will be transferred to an institution that can handle it.”

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

Kevin writes about a tragically absurd situation that seems to have fallen “below the radar screen” of public outrage or even discourse. This is wrong! Most days I can’t believe that the county that I proudly served for more than 35 years is engaging in this type of abusive behavior that would be below the level of even some Third World dictatorships.

And, it isn’t just “occasional abuse” — it’s systemized, institutionalized abuse and dehumanization on a global and regular basis — all approved or de facto enabled by feckless and spineless Federal Appellate Courts, all the way up to the Supremes! These are folks who should know better and really have no other meaningful function in our “separation of powers” system other than to protect our individual rights. Authoritarian governments and dictators hardly need “courts” to enforce their will, even if some find it useful to “go through the motions” of creating and employing complicit “judges.” As one of my Round Table colleagues succinctly put it “there appears to be no bottom!”

Clearly, the “Safe Third Country” exception was never intended by Congress, nor does the statutory language permit it, to be used to “orbit” asylum applicants to some of the most dangerous refugee sending countries in the world with thoroughly corrupt governments and non-existent asylum systems. So, why does the Trump regime have confidence that it can and will get away with these atrocities? Because they believe, correctly so far, that the Article III Federal Courts, many of them now stacked with Trump’s hand-selected “toady judges,” are afraid to stand up to tyranny and protect the rights of desperate, mostly brown-skinned, asylum seekers.

Obviously, from an institutional standpoint, the Article III Courts are saying:

 “Who cares what happens to a bunch of brown-skinned foreigners. Let ‘em die, rot, or be tortured. Human rights, due process, and human dignity simply don’t matter when they don’t affect us personally, financially, or socially. That’s particularly true because the results of our abuses are taking place, thankfully, in foreign nations: out of sight, out of mind. Not our problem.”

Apparently, many Americans agree with this immoral and illegal approach. Otherwise, the “black robed, life tenured ones” would be pariahs in their communities, churches, and social interactions. They wouldn’t be offered those cushy teaching positions at law schools or a chance to expound before public audiences.

But, not speaking out against bad judges and not insisting on integrity and courage in the Article III courts could ultimately prove fatal for all of our individual rights. Judges who use their privileged positions to turn a blind eye to the oppression of others, particularly the most vulnerable humans among us, and the catastrophic failure of the rule of law and Due Process in  the U.S. immigration system can hardly be expected to stand up for the individual rights of any of us against Government oppression. 

After all, why should an exulted Federal Appellate Judge or a Supreme Court Justice care about what happens to you, unless your blood is about to spatter his or her pristine black robe? Many of those supportive of or complicit in Trump’s tyranny will personally experience the costs of a feckless Federal Judiciary when their “turn in the barrel” comes. And, the Trump regime’s list of those who’s “lives and rights don’t matter” is very, very long and continually expanding.

All I can say now is that some day, the full truth about what happens to those unlawfully and immorally turned away at our borders will “out.” Then, many Articles III judges will try to disingenuously protect their reputations by saying, similar to many judges of the Third Reich, “Gee, who knew,” or “I was powerless,” or “It was a political problem beyond our limited jurisdiction.”

My charge to the New Due Process Army: Don’t let the complicit judges get away with it in the “Court of History.” You see, know, and experience first-hand every day the results of Article III judicial complicity. Don’t ever forget what those judges have done and continue to do to human lives from their protected and “willfully clueless” ivory towers! Ultimately, you aren’t as powerless as the “complicit ones” think you are!

Due Process Forever; Feckless, Complicit, Immoral Federal Judges Never!

PWS

01-14-20 

  

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. “IT’S 1939” & WHITE NATIONALIST AMERICA IS FAILING HUMANITY AGAIN: THE ST. LOUIS REPLAY: History Will Neither Forget Nor Forgive Us For Wrongfully Sending Refugees To Their Doom – Nor Will The Complicit Roles Of The Supremes & Other Life-Tenured Federal Judges Be Buried Beneath Their Cowardly Legal Gobbledygook! — “Extermination As Deterrence” Is Not “OK Policy!”