EOIR & USCIS ISSUE COURT-REQUIRED NEW GUIDANCE ELIMINATING LARGE PORTIONS OF SESSIONS’S BOGUS GUIDANCE IN DOMESTIC VIOLENCE/GANG RELATED CASES — Advocates Should Be Pushing This At All Levels In All Forums!

Dear Colleagues,

Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.  This guidance takes immediate effect and should be relied upon and cited to by advocates.

The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:

1.     The general rule against claims relating to domestic and gang violence.

2.     The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

3.     The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.

4.     The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.

5.     The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.

6.     The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”

While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts.  Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law.  The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.

Best,

Karen
Karen Musalo
Bank of America Foundation Chair in International Law

Professor & Director, Center for Gender & Refugee Studies

SSRN Author Page:  http://ssrn.c

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

Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.

The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.

Most, if not all, cases denied on the basis of Sessions’s flawed decision in Matter of AB– should be subject to remand from the Article IIIs.  Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.

PWS

01-13-19

 

 

TAL @ SF CHRON: Dreamer Deal To End Shutdown Seems Unlikely — PLUS BONUS COVERAGE: My Essay “Let’s Govern!”

https://www.sfchronicle.com/politics/article/Why-a-DACA-deal-to-end-the-shutdown-is-unlikely-13517915.php?t=e29fabd761

Tal reports:

WASHINGTON — A perennial trial balloon is once more floating on the horizon: Could protecting young undocumented immigrants from deportation in exchange for border security money get Washington out of a lengthy government shutdown?

The idea is already rapidly falling back to Earth.

President Trump and House Speaker Nancy Pelosi, D-San Francisco, have both brushed aside suggestions that passing protections like the Deferred Action for Childhood Arrivals program could be a way out of the shutdown, which is nearing the end of its third week with no hint of a resolution.

  • Unlimited Digital Access for 99¢
  • Read more articles like this by subscribing to the San Francisco Chronicle

SUBSCRIBE

DACA temporarily protects many undocumented immigrants who arrived in the U.S. under the age of 16 from being deported. Trump, whose attempt to end DACA is tied up in the courts, said Sunday that he would “rather have the Supreme Court rule and then work with the Democrats” on extending protections for program recipients.

“They’re two different subjects,” Pelosi said last month when asked about trading DACA for Trump’s southern border wall — $5.7 billion for which he is demanding before he will sign any government funding bills for the agencies that have been shut down.

Democrats are not universally against the idea. San Mateo Rep. Jackie Speier told MSNBC last week that she “personally would support it” and “there is a willingness to look” at a DACA-for-wall money deal in the caucus. DACA protections for nearly 700,000 immigrants nationwide, 200,000 of whom are in California, are in limbo, and hundreds of thousands more would be eligible for the program.

But numerous other Democrats — including several on the influential Hispanic, Asian Pacific and black caucuses that have leadership’s ear on immigration — said a DACA deal involving wall money is a nonstarter in shutdown negotiations without serious and uncharacteristic overtures from Trump.

Here’s why it’s unlikely:

Trump thinks time, and the Supreme Court, are on his side. The White House believes the court will ultimately invalidate the Obama-era DACA program or side with Trump’s attempt to end it, which has been blocked by lower courts. When that happens, the administration believes, Trump will have more leverage to cut a better deal with Democrats desperate to keep sympathetic young DACA recipients from being deported, and Congress will be forced to deal with a dilemma it has long avoided.

Democrats don’t trust Trump, who has walked away from a number of DACA proposals in the past year. “Donald Trump is not a deal-maker, he’s a deal-breaker,” said Rep. Ruben Gallego, D-Ariz. “We’ve seen this happen numerous times, and we’re not going to come approach him with a deal that he’s only going to take and then reject and then come back and move the goalposts on.”

Pelosi is in touch with her base, and her base isn’t eager to broach that deal. “People don’t want to trade a wall for something that isn’t even real,” said Rep. Pramila Jayapal, D-Wash., co-chair of the Congressional Progressive Caucus. “People don’t want a wall, period, and I think there’s no trust that there’s any credible negotiation around something positive on immigration, given (Trump’s) history.”

Trump wants much more on immigration than just physical border security, where there are some areas of potential compromise. A presentation that Homeland Security Secretary Kirstjen Nielsen prepared for congressional leaders last week included calls not just for the wall, but the rollback of a bipartisan bill designed to protect human trafficking victims and a court-ordered settlement intended to safeguard immigrant children. Both of those are nonstarters with Democrats, who say the protections are needed and getting rid of them does not promote border security.

Republicans question whether Democrats are as motivated as they say they are to resolve the DACA issue. They’re skeptical Democrats want to take the political leverage off the table. Rep. Mario Diaz-Balart of Florida, a moderate Republican who has long worked on immigration reform, called the potential to get a deal out of the shutdown fight the “opportunity of a lifetime.”

“It requires the Democratic leadership to actually do something that they have not done in the past,” Diaz-Balart said, “which is match their rhetoric on DACA with actual action.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan

 

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

HERE’S YOUR “BONUS COVERAGE” ESSAY FROM “COURTSIDE:”

LET’S GOVERN!

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

I still think the best deal for America would be some form of “Wall for Dreamers” compromise. To me, the huge downside of “The Wall” would be more than offset by getting 800,000 great American young people — literally the future of our country – out of the shadows and contributing their maximum skills, talents, and creativity to making America really great (not the hollow mockery of “greatness’ peddled by Trump and his base).

But, Tal’s usually got her head “closer to the ground” than I do these days from my retirement perch in Alexandria. So, I’ll assume for the purposes of this piece that Tal is correct and that the “great compromise” isn’t in the cards – at least at this time.

So, where does we go from here? This is crystal clear: Trump can neither govern in America’s best interest nor can he cut any reasonable deal. So, it seems like the only alternative for America is for the Democrats in Congress to get together with the GOP and develop a plan for governing in the absence of a competent Executive. That means passage of “veto-proof” legislation that also places some specific limits and directions on Executive actions.

What could a “veto proof” compromise to reopen Government look like.  Well, of course, to start it must fund the affected Government agencies through the end of the fiscal year.

But, it also could include a robust $5.9 Million “Border Security” package.  Here’s what could be included:

  • Additional Asylum Officers;
  • Additional port of entry inspectors;
  • Additional Immigration Judges and court staff;
  • Additional funding for Office of Refugee Resettlement for health and safety of children;
  • Required e-filing and other management improvements at EOIR (including elimination of counterproductive “quotas” on judges, and providing at least one judicial law clerk for each judge);
  • Additional Assistant Chief Counsel for ICE;
  • Funding for counsel for asylum applicants and resettlement agencies;
  • Additional Anti-Smuggling, Intelligence, and Undercover Agents for DHS;
  • Smart Technology for and between ports of entry at the border and the interior;
  • Required improvements in management planning, hiring, and supervision within DHS;
  • Limitations on wasteful immigration detention (including a prohibition on long-term detention of children except in limited circumstances) and reprogramming of detention funds to alternatives to detention;
  • Funding for additional border fencing or fencing repairs in specific areas with an express prohibition on additional physical barriers without a specific appropriation from Congress.
  • Assistance to Mexico, the UNHCR, and other countries in the hemisphere to improve refugee processing and address problems in the Northern Triangle;

Sure, Trump could, and maybe would, veto it – although he’d be wise not to. And, I suppose, that veto, which would be overridden, could be the “red meat” for his base that he apparently favors over the “art of governing.”

But, in the meantime, Congress would fulfill its important role of governing in a bipartisan manner that will keep America moving forward even in the times of a weak and incompetent Executive. And, unlike the bogus “Wall,” the foregoing measures would actually contribute to our country’s security and welfare without wasting taxpayers’ money or trampling on individual rights and legal obligations. In other words, “smart governance.” That seems like a fair and worthy objective for both parties in Congress.

PWS

01-09-19

 

 

 

MORE PHONY BALONEY FROM LIAR-IN-CHIEF!

https://www.washingtonpost.com/politics/2019/01/09/fact-checking-president-trumps-oval-office-address-immigration/

Salvador Rizzo reports for WashPost:

The first misleading statement in President Trump’s Oval Office address Tuesday night came in the first sentence.

Trump, addressing a national television audience from behind his desk, warned of a “security crisis at the southern border” — even though the number of people caught trying to cross illegally is near 20-year lows.

Another false claim came moments later, when Trump said border agents “encounter thousands of illegal immigrants trying to enter our country” every day, though his administration puts the daily average for 2018 in the hundreds. A few sentences later, he said 90 percent of the heroin in the United States comes across the border with Mexico, ignoring the fact that most of the drugs come through legal entry points and wouldn’t be stopped by the border wall that he is demanding as the centerpiece of his showdown with Democrats.

Over the course of his nine-minute speech, Trump painted a misleading and bleak picture of the situation at the U.S.-Mexico border. He pumped up some numbers, exaggerated the public safety risks of immigration and repeated false claims regarding how to fund a border wall.

The appearance, coming as a partial federal government shutdown resulting from the wall fight enters its third week, underscored the extent to which Trump has relied on false and misleading claims to justify what has long been his signature political issue.

One false claim noticeably absent from the speech was the assertion made by the president and many of his allies in recent days that terrorists are infiltrating the country by way of the southern border. Fact-checkers and TV anchors, including those on Fox News, spent days challenging the truthfulness of the claim.

Below are the truths behind Trump’s claims from the Oval Office address:

“Tonight I am speaking to you because there is a growing humanitarian and security crisis at our southern border.”

By any available measure, there is no new security crisis at the border.

Apprehensions of people trying to cross the southern border peaked most recently at 1.6 million in 2000 and have been in decline since, falling to just under 400,000 in fiscal 2018. The decline is partly because of technology upgrades; tougher penalties in the wake of the 9/11 terrorist attacks; a decline in migration rates from Mexico; and a sharp increase in the number of Border Patrol officers. The fiscal 2018 number was up from just over 300,000 apprehensions at the U.S.-Mexico border for fiscal 2017, the lowest level in more than 45 years.

There are far more cases of travelers overstaying their visas than southern border apprehensions. In fiscal 2017, the Department of Homeland Security reported 606,926 suspected in-country overstays, or twice the number of southern border apprehensions. In fiscal 2016, U.S. officials reported 408,870 southern border apprehensions and 544,676 suspected in-country overstays.


(Kevin Uhrmacher/Washington, D.C.)

While overall numbers of migrants crossing illegally are down, since 2014 more families from El Salvador, Guatemala and Honduras have begun to trek to the United States in search of safer conditions or economic opportunities, creating a humanitarian crisis.

“Record numbers of migrant families are streaming into the United States, overwhelming border agents and leaving holding cells dangerously overcrowded with children, many of whom are falling sick,” The Washington Post reported Jan. 5. “Two Guatemalan children taken into U.S. custody died in December.”

“Every day Customs and Border Patrol agents encounter thousands of illegal immigrants trying to enter our country.”

Southern border apprehensions in fiscal 2018 averaged 30,000 a month (or 1,000 a day). They ticked up in the first two months of fiscal 2019, but it’s a stretch to say “thousands” a day. Better to say “hundreds.”

“America proudly welcomes millions of lawful immigrants who enrich our society and contribute to our nation, but all Americans are hurt by uncontrolled illegal migration. It strains public resources and drives down jobs and wages. Among those hardest hit are African Americans and Hispanic Americans.”

Some context here: In general, economists say illegal immigration tends to affect less-educated and low-skilled American workers the most, which disproportionately encompasses black men and recently arrived, low-educated legal immigrants, including Latinos.

The U.S. Commission on Civil Rights in 2010 found that illegal immigration has tended to depress wages and employment for black men. However, there are other factors at play, and “halting illegal immigration is not a panacea even for the problem of depressed wage rates for low-skilled jobs,” the commission found.

The consensus among economic research studies is that the impact of immigration is primarily a net positive for the U.S. economy and to workers overall, especially over the long term. According to a comprehensive 2016 report by the National Academies of Sciences, Engineering, and Medicine on the economic impacts of the U.S. immigration system, studies on the impact of immigration showed “the seemingly paradoxical result that although larger immigration flows may generate higher rates of unemployment in some sectors, overall, the rate of unemployment for native workers declines.”

“Our southern border is a pipeline for vast quantities of illegal drugs, including meth, heroin, cocaine and fentanyl. Every week, 300 of our citizens are killed by heroin alone, 90 percent of which floods across from our southern border.”

‘There is no crisis’: Three border-town neighbors react to Trump’s wall demand

With a partial wall near their homes, three neighbors in Penitas, Tex., react to President Trump’s call to expand the barrier on the Mexican border.

In 2017, more than 15,000 people died of drug overdoses involving heroin in the United States, according to the Centers for Disease Control and Prevention. That works out to about 300 a week.

But while 90 percent of the heroin sold in the United States comes from Mexico, virtually all of it comes through legal points of entry. “A small percentage of all heroin seized by [Customs and Border Protection] along the land border was between Ports of Entry (POEs),” the Drug Enforcement Administration said in a 2018 report. So Trump’s wall would do little to halt drug trafficking. Trump’s repeated claim that the wall would stop drug trafficking is a Bottomless Pinocchio claim.

“In the last two years, ICE officers made 266,000 arrests of aliens with criminal records, including those charged or convicted of 100,000 assaults, 30,000 sex crimes, and 4,000 violent killings. Over the years, thousands of Americans have been brutally killed by those who illegally entered our country, and thousands more lives will be lost if we don’t act right now.”

Trump warns about dangerous criminals, but the numbers he’s citing involve a mix of serious and nonviolent offenses such as immigration violations. U.S. Immigration and Customs Enforcement reports yearly arrest totals without breaking down the type of offense, which could be anything from homicide to a DUI to illegal entry.

Notice how Trump switches quickly from the 266,000 arrests over two years to charges and convictions: “100,000 assaults, 30,000 sex crimes, and 4,000 violent killings.” In many cases, the people arrested face multiple counts, so that switch gives a confusing picture.

In fiscal 2018, ICE conducted 158,581 administrative arrests for civil immigration violations. The agency’s year-end report says two-thirds (105,140) of those involved people with criminal convictions and one-fifth (32,977) involved people with pending criminal charges. Of the 143,470 administrative arrests in 2017, 74 percent involved people with criminal records and 15.5 percent involved people who had pending charges. But these totals cover all types of offenses — including illegal entry or reentry.

In the fiscal 2018 breakdown, 16 percent of all the charges and convictions were immigration and related offenses.

“Last month, 20,000 migrant children were illegally brought into the United States, a dramatic increase. These children are used as human pawns by vicious coyotes and ruthless gangs.”

No government statistic tracks children smuggled in by bad actors, “coyotes” or drug gangs. What Trump is referring to is CBP’s number for family unit apprehensions, a monthly statistic. The family unit by definition must include at least one parent or legal guardian and one minor. (There’s a separate figure for unaccompanied alien children.)

That number was 25,172 in November, the most recent month for which data are available, but it’s wrong to describe it as a statistic that represents children being smuggled into the country.

Trump describes this as 20,000 children, but it could be many more, considering that some families have multiple children. More important, Trump describes this as children being smuggled in by coyotes or gangs, but border officials screen for false claims of parentage. To imply as Trump does that a child’s mother, father or legal guardian is or hired a smuggler, coyote or gang member in all of these cases is wrong.

“Furthermore, we have asked Congress to close border security loopholes so that illegal immigrant children can be safely and humanely returned back home.”

The Trump administration considers the Flores settlement agreement a loophole. That policy requires the government to release unaccompanied immigrant children who are caught crossing the border within 20 days to family members, foster homes or “least restrictive” settings.

The president also wants to tighten U.S. asylum laws generally and the Trafficking Victims Protection Reauthorization Act, with the goal of restricting some immigrants’ opportunities to file asylum petitions. Trump describes these asylum provisions as “border security loopholes,” but supporters call them core provisions of U.S. laws that cover refugees.

“Finally, as part of an overall approach to border security, law enforcement professionals have requested $5.7 billion for a physical barrier. At the request of Democrats, it will be a steel barrier rather than a concrete wall.”

Trump suggests that Democrats requested a steel barrier rather than a concrete wall, but the proposed switch to steel was an idea the Trump administration brought up. No Democrats are on record demanding a steel barrier along the U.S.-Mexico border.

“This is just common sense. The border wall would very quickly pay for itself. The cost of illegal drugs exceeds $500 billion a year, vastly more than the $5.7 billion we have requested from Congress.”

Trump tweeted a similar claim in March, citing a study from the Center for Immigration Studies, which supports more restrictive immigration policies. Essentially, the claim that the wall pays for itself turns on three numbers: a) estimated savings from each undocumented immigrant blocked by the wall, b) the total number of undocumented immigrants stopped over 10 years and, and c) the cost of the wall.

It’s (a) $75,000 multiplied by (b) 160,000 to 200,000 equals (c) $12 billion to $15 billion. So, if the wall actually costs $25 billion, the number of undocumented immigrants halted by the wall would need to be doubled, or one has to assume it would take 20 years to earn the money back. But other experts offer different estimates for each of those numbers.

Plus, as we’ve previously reported, the wall would do little to stop drugs from entering the United States, since they primarily come in through legal points of entry, making the cost of illegal drugs irrelevant to this issue.

“The wall will also be paid for indirectly by the great new trade deal we have made with Mexico.”

This is a Four Pinocchio claim. During the campaign, Trump more than 200 times promised Mexico would pay for the wall, which the administration says would cost at least $18 billion. Now he says a minor reworking of the North American Free Trade Agreement (NAFTA) will earn enough money for pay for the wall.

This betrays a misunderstanding of economics. Countries do not “lose” money on trade deficits, so there is no money to earn; the size of a trade deficit or surplus can be determined by other factors besides trade. Congress must still appropriate the money, and the trade agreement has not been ratified.

“Senator Chuck Schumer, who you will be hearing from later tonight, has repeatedly supported a physical barrier in the past, along with many other Democrats. They changed their mind only after I was elected president.”

Schumer, Hillary Clinton and many other Democrats voted for the Secure Fence Act of 2006, which authorized building a fence along nearly 700 miles of the border between the United States and Mexico. But the fence they voted for is not as substantial as the wall Trump is proposing. Trump himself has called the 2006 fence a “nothing wall.”

Michelle Ye Hee Lee and Meg Kelly contributed to this report.

(About our rating scale)

 

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

Here is a good summary of Trump’s “Bogus, Self-Created Non-Emergency” (a/k/a “Fiddling While Rome Burns”) from the WashPost Editorial staff:

https://www.washingtonpost.com/opinions/here-are-some-real-emergencies-none-of-them-requires-the-president-to-turn-into-a-dictator/2019/01/08/7030a93c-1376-11e9-803c-4ef28312c8b9_story.html

January 8 at 4:44 PM

AS CRISES go, the situation along the southern border is certainly a logistical, humanitarian and managerial challenge. Its urgency is accentuated by laws and infrastructure ill-suited to the current flood of families seeking asylum in the United States. But it is not a national emergency, as President Trump has framed it, any more than numerous other challenges we can think of.

The Border Patrol’s average monthly arrests of undocumented immigrants have plummeted by nearly two-thirds from the administration of President George W. Bush to that of Mr. Trump. There is no evidence that terrorists have crossed the frontier illegally from Mexico, as Mr. Trump likes to say. And a wall of the sort the president covets would do little to deter drugs or criminals, most of which enter the country through legal crossing points.

As a legal matter, it’s unclear whether Mr. Trump has the authority to declare an official emergency as a means of diverting funds that would enable the military to build the wall; certainly, he would be challenged in court if he tried it. What is clear is that, as a policy matter, many crises are equally or more deserving of the attention, money and resolve Mr. Trump has focused on the wall.

Start with the opioid addiction epidemic, which the president did designate a national health emergency in the fall of 2017. Unfortunately, there has been limited follow-up from him or his administration since then. Even with more than 70,000 people dying in 2017 from drug overdoses, federal spending remains at levels far short of what experts say is required to fight addiction effectively.

What about fatal motor vehicle crashes, which, despite impressive progress in recent decades, claimed the lives of more than 37,000 people in 2017? That’s more than 100 deaths on average each day — more than twice the rate at which U.S. soldiers were killed during the Vietnam War’s bloodiest year, 1968. A similar number of people died in the United States as a result of firearms in 2016, about two-thirds of them involving suicide. Any other Western democracy would regard that as a bona fide emergency; Mr. Trump barely mentions it.

An excellent case could be made for declaring an emergency over Russian meddling in U.S. elections, the scale and scope of which is only gradually becoming clear. Climate change is a full-blown emergency whose threat to lives and property is poised to rise exponentially.

The right response to all these emergencies would be for Congress and the president together to shape policy responses — not to deny their existence, as Mr. Trump does with climate change, or use them for political gain, as he does with the border. The one emergency Mr. Trump fears is the threat he faces from his own base should it conclude his border-wall promise was a hoax. Thus has the president perverted the public debate and diverted the United States’ gaze from authentic dangers.

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

I could have spent all day posting about Trump’s bogus crisis, lies, etc. But, the above two posts really say about all you really need to know about the real facts about the border and Trump’s dishonest attempt to shift attention away from the real crisis he’s caused: The unnecessary and idiotic shutdown of essential Government functions from which it might take us years to recover, if ever! As pointed out by the Post, Trump’s dishonesty and incompetence undermines efforts to address the real problems faced by our nation. That’s going to take some “competence in government” — a feature completely absent from the Trump Administration which has encouraged and implemented “worst practices” at all levels.

I don’t know how we’re going to be able to recruit the “best and brightest” for our Career Civil Service in the future given the way they have been mistreated by Trump and the GOP.

And, Trump’s “kakistocracy,” is a shocking foretaste of what we’re in for in the future if we don’t get some basic competency, decency, and expertise back into our Government Service — at all levels, starting with the top.

PWS

01-09-19

 

HON. JEFFREY S. CHASE — USCIS RACISTS TARGET BLACK HAITIANS: As Evidence Unfolds In Federal Court, The Blatant Racism & Dishonesty Of USCIS Politicos In Bogus Termination Of TPS Becomes A Matter Of Public Record!

https://www.jeffreyschase.com/blog/2019/1/7/haiti-tps-and-racial-bias

Haiti, TPS, and Racial Bias

This morning, the trial begin in Saget v. Trump, before District Judge William Kuntz in the Eastern District of New York.  As your Brooklyn observer, I attended the opening hours of what is likely to be a two or three day trial.

The basis for the case is the Trump administration’s termination of Temporary Protected Status (“TPS”) for Haitians who have been present in the U.S. since January 12, 2011, and remain unable to return due to conditions in that country following a massive earthquake in 2010, a 2016 hurricane, and a major cholera epidemic.  59,000 Haitians in the U.S. are presently in TPS status, a number too large for the Haitian government to presently absorb if returned en masse.

TPS is not asylum, and offers no permanent status in this country.  It was created by Congress in 1990 to afford blanket protection to nationals of countries to which return is currently untenable for a variety of reasons, including armed conflict, natural disaster, rampant disease, or the inability of the country to absorb the mass repatriation of its nationals.  Such designation is granted in intervals of 6 to 18 months, and is reviewed by the Department of Homeland Security (“DHS”) at least 60 days before the end of each designated period. The law only allows TPS status to be terminated where such review finds that the conditions for designation no longer exist in the country; otherwise, the period of TPS is to be extended.  In the case of Haiti, after being designated for TPS in early 2010, such designation was extended in 18-month increments continually until the coming of the Trump Administration in 2017.

DHS, within its subcomponent, USCIS, has a Country Conditions Unit.  I know that unit’s director, LeRoy Potts, and met with him and some of his senior staff when I oversaw EOIR’s country conditions database during my time at the BIA.  They are knowledgeable, fair-minded, and in my experience, issued accurate reports free of political influence. The Country Conditions Unit is generally consulted in TPS decisions.  As it had in the past, the Unit again drafted a report finding serious problems in Haiti that would call for an extension of TPS.

However, as the Plaintiffs’ counsel noted in his opening statement, Robert T. Law, previously director of the vehemently anti-immigration lobby group ironically known by the acronym FAIR, who under the Trump administration was made a senior policy advisor to USCIS (which is mind-boggling on its own), decided that the Country Condition Unit’s memo was “overwhelmingly weighted for extension which I do not think is the conclusion we are looking for.”  According to petitioner’s counsel, Law edited the document (with the blessing of the USCIS chief policy strategist, Kathy Nuebel Kovarik) in 35 minutes, without further research. https://nationaltpsalliance.org/wp-content/uploads/2018/08/DPP-3349-EX-3.pdf   According to the opening statement, the only research requested by the administration was for evidence that Haitians in the U.S. had criminal records or received public assistance, a clear attempt to discredit a nationality using racial stereotypes.  Plaintiff’s counsel stated that the USCIS Country Conditions Unit characterized DHS’s final version of the report used to justify its termination of TPS for Haiti as “complete fiction.”

The Plaintiffs called as their first witness Ellie Happel, an expert on country conditions in Haiti and resident of that country from 2011 to 2017, who took apart the DHS memo sentence by sentence.  For example, Happel explained the meaninglessness of DHS’s claim that 98 percent of internal displacement camps (“IDPs”) in Haiti have been closed. Happel stated that the majority who left the camps did so due to actual or threatened forced eviction, and many did not return to durable housing.  When one settlement, Canaan, was decertified as an IDP camp, it statistically eliminated 50,000 people from the list of those internally displaced. However, those 50,000 people continue to live on the site of the former camp, a windswept, previously uninhabited land far from government services.

Happel cited a report (also referenced in the USCIS report) that a minimum of 500,000 homes would have to be constructed to meet the housing needs of the Haitian population.  Happel also testified in convincing detail to continued food insecurity, political instability, an economy marred by a 2 billion dollar debt to Venezuela caused by misappropriation or embezzlement of funds by government officials, and a continued susceptibility to cholera following one of the worst epidemics of the disease in recent history.

Why would DHS’s leadership go to such lengths to fabricate a fictitious report to justify returning 59,000 Haitians to such conditions before it was advisable to do so?  The plaintiffs pointed to the answer in the statements of President Trump himself, made a few months earlier to members of Congress, in which he referenced predominantly black nations as “shithole countries” (the presiding judge insisted on the use of the unedited quote), questioned “why do we need more Haitians? (whom he previously claimed “all have AIDS”); and stated his preference for immigrants from places such as Norway.  The government’s attorney somehow managed to keep a straight face when claiming in response that DHS’s acting Secretary had reached the decision to terminate independent of Trump’s opinions.

Sadly, Haitians have suffered a long history of unfair treatment under our country’s immigration laws.  In his excellent 1998 law review article “Race, the Immigration Laws, and Domestic Race Relations: A ‘Magic Mirror’ Into the Heart of Darkness,” Prof. Kevin R. Johnson wrote “No U.S. policy approached…the government’s extraordinary treatment of Black persons fleeing the political violence in Haiti.”  When the U.S. Supreme Court in its 1993 decision in Sale v. Haitian Centers Council, Inc., upheld the policy initiated by President George H.W. Bush, and surprisingly continued under President Clinton, of repatriating intercepted Haitians without first screening the returnees to see if they qualified for refugee status, Justice Brennan argued in dissent that the Haitian refugees “demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. We should not close our ears to it.”

Sadly, 25 years later, our nation’s most openly racist president continues to advocate for policies of extraordinary cruelty towards Haitians.  And seemingly without embarrassment, many of his underlings are happy to go to extreme lengths to carry out such policies, the admirable exception being the USCIS Country Conditions Unit.

It was heartwarming to see the large team of lawyers, paralegals, and expert witnesses united  in Judge Kuntz’s courtroom to continue to fight against such cruelty. Among those in attendance were Ira Kurzban, one of the plaintiff’s lawyers, and Michael Posner, founder and former director of Human Rights First, both of whom were early defenders of Haitian rights in the 1980s.  To see them working alongside a younger generation of attorneys and experts, such as Happel, the director of NYU Law School’s Haiti Project, and Florida attorney Kevin Gregg reminded this aging attorney that the struggle for immigrants’ rights will be passed on to most capable hearts and hands.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

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

Tal Kopan has unearthed some of this in an earlier post based on documents obtained under the FOIA. https://wp.me/p8eeJm-2rC

Gotta wonder about the ethics of DOJ lawyers defending the indefensible in Federal Court.

PWS

01-09-19

 

BOGO FROM THE GITGO?: Did Nielsen Fabricate “Agreement” With Mexico On “Historic Return To Mexico Policy?” — Nobody On Either Side Of The Border Appears To Know What’s Happening!

https://www.theguardian.com/world/2019/jan/05/mexico-us-immigration-policy-overhaul?CMP=Share_iOSApp_Other

Sarah Kinosian reports for The Guardian:

When she announced last month that tens of thousands of asylum seekers would be returned to Mexico while their cases are considered, the homeland security secretary, Kirstjen Nielsen, described the move as a “historic” overhaul of US immigration policy.

But more than two weeks later, the new strategy has yet to begin and it remains unclear how the plan would work – or even if Mexico is willing to enforce it.

The measure would be the Trump administration’s most significant move so far to dissuade people from seeking asylum. It would relieve pressure on US immigration authorities – and transfer it to Mexico.

But Mexican officials who would in theory implement the policy say they have been kept in the dark over the change – and some have explicitly opposed it.

“I had heard rumors, but I was not consulted,” said Tonatiuh Guillén, head of Mexico’s national immigration authority, told the Guardian.

“The US can’t just dump people into Mexico – they have to knock. We’ve asked for more answers, but the US government is shut down, so I guess they’ll answer when they figure that out. It’s all up in the air,” he said.

The number of people – mostly Central Americans – who would be parked in Mexico as a result of the move could be enormous.

In 2018, 93,000 people were given credible fear interviews – the first step in the asylum process. While overall immigration levels are at historic lows, the number of families and children crossing is at an all-time high. And a backlog of nearly 1m cases in the US means asylum seekers could remain in Mexico for years.

“It’s not some small detail. The numbers just aren’t manageable. It will have far-reaching effects on services, employment, everything – the social and political fabric of Tijuana and other border cities,” said Guillén

Confusion over the current state of the plan reigns on both sides of the border: when Nielsen announced the move on 20 December, Mexico’s foreign ministry reluctantly accepted, although within days the foreign minister, Marcelo Ebrard, said he would need more information from US authorities. Guillén said Mexico had not formally accepted the plan.

Meanwhile, US Congress members wrote to the secretary of state, Mike Pompeo, on 2 January requesting the text and details of any agreement.

Hopes for clarity have been further complicated by the shutdown of the US federal government triggered by a funding row over Donald Trump’s demands for a $5bn wall on the southern border.

US border officials are already limiting the number of people who can apply for asylum at a port of entry, creating delays of several months for migrants hoping to get into the US – and overwhelming public services in Mexican border cities.

Activists in Mexico say the “catch and return” policy would push conditions past breaking point.

“Aside from this taking away people’s right to apply for asylum, it would cause Mexico’s northern border cities to nearly collapse,” said Esmeralda Siu Márquez, the executive coordinator of Coalición Pro Defensa Del Migrante, a network of local migrant support organizations.

“This would change Tijuana from being a transit point. Shelters, which are already at capacity, are temporary – we’d need housing, integration programs, school programs, etc. We don’t have the budget.”

Officials in Tijuana have already stretched thin resources, normally focused on Mexican deportees, to deal with the more than 5,000 members of the Central American migrant caravans which started arriving in November.

Cesar Palencia, who handles migrant affairs in Tijuana, says he only heard of the plan on the news. “The city isn’t prepared for this. The [Mexican] federal government does not really understand what this would mean – they have no strategy, no budget for it,” he said.

Mexico’s new president, Andrés Manuel López Obrador, cut the country’s migration and refugee budget after he took office 1 December 2018, and has not indicated whether or not that would change in light of the new plan. His administration has also pledged visas and work in Mexico for Central American migrants.

But for many, like Samuel Tabora, a 24-year-old construction worker, the kind of jobs available in Mexico – particularly low-skill factory positions in Tijuana – do not pay enough for them to send much back home to Honduras, where over two-thirds of the country lives in poverty.

Faced with the prospect of staying years in Mexico, he said he would consider jumping the border fence with his partner and four-year-old daughter. “If they deport me, we’ll just turn around and come back. I want to work and make money and to have something to send home to my family,” he said.

Since Nielsen’s announcement, US agents have twice fired teargas into Mexico to prevent some people, including families with young children, from attempting to breach the border fence.

Several of the asylum seekers who had heard of the potential policy said they would simply wait it out in Mexico. “Going back, I may as well just tie a noose for myself and hang it from a tree,” said Francisco M, who left Guatemala with his wife and three children due to extortion threats from gangs. “We are here alone and it hurt to leave our roots, but I’d have to have a death wish to go back there. No, we will stay as long as it takes.”

Meanwhile, human rights groups warn that Mexico, one of the most violent countries in the world, is not safe for asylum seeker. Last month two Honduran teenagers who had traveled with the caravan were murdered in Tijuana.

Advocates warn the plan would add formidable new challenges to the already-tortuous asylum process. “The policy essentially dispossesses people of their right to trial. It takes me months to prepare one asylum case. I’ll maybe meet with a person six times. People cannot build cases in the US if they can’t meet with their lawyers. How will they get to their hearings?” said Erika Pinheiro of Al Otro Lado, a legal aid organization in Tijuana.

It would also encourage migrants seeking asylum to take more treacherous routes, she said. “By taking away legal avenues to asylum, you’re basically telling people to jump over the fence.”

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

It’s basically what I predicted: NQRFPT. https://wp.me/p8eeJm-3sC

A dumb Trump policy followed by an idiotic Trump shutdown with an incompetent DHS thrown in the toxic mix. And the combination of an unhinged and unqualified President with lightweight sycophantic Cabinet Members is a much greater threat to our national security than asylum applicants seeking refuge have ever been or will ever be.

PWS

01-07-19

RUTH ELLEN WASEM @ THE HILL: “Trump’s Wall Would Be A Symbol Of Failure”

https://thehill.com/opinion/immigration/423079-trumps-wall-would-be-a-symbol-of-failure

Ruth writes:

If erected, President Trump’s border wall would be a symbol for America’s failure to implement effective immigration policies. It would be a tombstone marking the abandonment of our values that protect refugees and welcome immigrants. It would be a monument to our neglect to support healthy democracies in our hemisphere.

Most Americans, of course, do not support a border wall. Public opinion polls from December 2018 found that 54 percent to 57 percent of those surveyed did not support building a wall along the U.S.-Mexico border. Most recently, the NPR/PBS/Marist Poll similarly reported that 56 percent of those surveyed thought President Trump should compromise on the border wall.

One only needs to turn to border security experts for reasons not to support a border wall. They note that the United States already has invested over $2 billion to build about 700 miles of fencing and has spent billions of dollars on border surveillance technologies. A 2016 study by the Migration Policy Institute that reviewed research from across the globe found little evidence that border walls stopped unauthorized migration. At best, the such barriers divert, rather than prevent, illegal flows.

It’s difficult to make a case for the border wall since unauthorized migration from Mexico has dropped to historic lows in recent years. The only significant uptick are the well-documented flows of asylum-seekers from Central America. Others more expert than I have warned about the dangers to our hemisphere if we turn our back on the violence and breakdown of civil society in the Northern Triangle. It is irresponsible to abandon Mexico to deal with the Central Americans displaced by the violence. Building Trump’s wall is not an honorable or a credible policy response, and it puts the stability of the whole region at risk.

The good news is that responsible and effective immigration policies do not need to be highly partisan issues. Democrats and Republicans are at an impasse only because President Trump insists that he needs $5 billionfor his border wall. When it comes to immigration reform and border control, there is considerable common ground among Republicans and Democrats.

Reasonable policymakers in both parties long have known that border security resources need to be committed to modernizing our ports of entry (POEs). As RAND border security expert Blas Nunez-Neto has written, “(P)olicymakers could consider investing in improvements to the ability to detect narcotics at ports of entry, the common entry point for the most dangerous drugs.” In addition, national security and commerce require that we upgrade the infrastructure at POEs to be able to handle the flow of people and goods in the 21st century. Neglecting the POEs in pursuit of a border wall is shortsighted and dangerous.

There long has been bipartisan support for increasing the number of immigration judges and asylum officers along the southern border. For example, Sen. Ted Cruz  (R-Texas) and Rep. Henry Cuellar (D-Texas) have supported increasing the number of judges. We would not need to turn a Walmart into a detention center if there were sufficient adjudicators and judges to process credible-fear and asylum cases fairly and expeditiously. Asylum-seekers and other migrants would not be languishing along the border, and children would not be separated from their parents, if we funded adjudicators commensurate with border security.

Finally, for the past two decades, policymakers from both sides of the political aisle have recognized the need to reform legal immigration so that it better conforms to the national interest. Several times during the Bush and Obama administrations, comprehensive immigration reform billsdrafted by a bipartisan group of senators passed the U.S. Senate. Even the “Dreamers” who enjoy broad and bipartisan support have not seen legislation enacted to resolve their immigration status. In other words, there is agreement that immigration policy should be revised to reflect the national interest, but we have not yet reached a consensus on what constitutes the national interest. This, not the wall, is the debate that should engage us.

At the dawn of 2019, it is time to leave failed ideas behind and move immigration reform and control forward.

Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration.

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

I agree with Ruth that for $5+ billion we should get some real border security, which certainly should include fairer, more efficient, more humane processing of asylum applicants. That, rather than bogus “Walls” (which wouldn’t be built for years anyway), more expensive, needless, and inhumane detention, and gimmicks like “return to Mexico” and intentional slowdowns in applicant processing is the way to get individuals to apply for asylum at ports of entry.

That being said, I’m sure that border security could include some physical barriers in places where experts think they actually would assist humane, professional border enforcement.

I also think, as Nolan and others have suggested, that some form of “Dreamer Relief” could be part of a compromise border security that could gain bipartisan support.

PWS

01-07-19

NYT: TRUMP’S FAILED “DETERRENCE” STRATEGIES CONTINUE TO THREATEN CHILDREN’S SAFETY AND WELFARE! — Even Some Of Those Charged With Implementing Administration’s Policies Recognize Their Cruelty and Futility — They Just Can’t “Speak Truth” Publicly!

bhttps://www.nytimes.com/2019/01/04/us/mexico-wall-policy-trump.html

Manny Fernandez, Caitlin Dickerson, and Paulina Villegas report for the NY Times:

. . . .

Much of the growing chaos, say many of those who work along the border and in some of the government’s own security agencies, is a result of a failed gamble on the part of the Trump administration that a succession of ever-hharsher border policies would deter the flood of migrants coming from Central America.

It has not, and the failure to spend money on expanding border processing facilities, better transportation and broader networks of cooperation with private charities, they say, has led to the current problems with overcrowding, health threats and uncontrolled releases of migrants in cities along the border.

“It’s the complete, 100 percent focus on harsher options that will deter the influx, with a disregard for managing what’s happening,” said a Department of Homeland Security official who spoke on the condition of anonymity for fear of being fired. “We have a lot more families, a lot more unaccompanied children, and the focus has just been on how can we deter, rather than how can we handle.”

Mr. Trump has made it a priority to end what he calls the practice of “catch and release,” but the policy of holding large numbers of migrants in detention has led to capacity problems. The Obama administration had a policy of releasing migrants who were considered safe and likely to appear in court in order to make room for others who were a higher priority for detention, but the Trump administration has largely eliminated that practice.

The number of detainees at Immigration and Customs Enforcement facilities has reached its highest point ever, according to figures provided by the agency, with an average daily population of 45,200 single adults and family units.

The result is the recent need to release large numbers of migrants, many simply dropped off at bus stations. About 600 migrants were dropped off with no advance planning in El Paso during the last full week in December. Similar releases have happened in recent days and weeks in Arizona and California.

The homeland security official said the administration could have done more to improve the situation and avoid the recent mass drop-offs, such as working more closely with nonprofit groups. “They could have put more resources down there, either monetary or physical,” the official said. “There are things you could do to manage it so that it’s not just, ‘We’re overwhelmed. We’re releasing them.’”

. . . .

Some of those involved in the policymaking said that there was open acknowledgment within the government that the newest policies under development — a plan that would require asylum seekers to wait in Mexico through the duration of their immigration cases, and one to build tent cities along the border to house more families — were either likely to face an immediate court injunction or were so costly that they could not be justified to taxpayers. But the officials said they were under orders from the White House to push forward.

“It’s like, ‘O.K., why are we working on this if it’s just another lawsuit in the making?’” said a second Homeland Security official, who also spoke on the condition of anonymity. “Everybody knows that it’s going to be challenged in the courts and likely struck down. I don’t think the people at the top feel like they have a choice. They just do what they are asked to do.”

The situation has become more tense in recent weeks as ICE authorities, who in the past were careful to coordinate with volunteer shelters when releasing migrants, have instead begun dropping them in large numbers in the streets in Texas, Arizona and California, forcing city officials and charity groups to scramble.

“We’re dealing with the symptoms of the root cause, which is the lack of a rational immigration policy from Washington, and both sides are culpable,” said Dee Margo, the mayor of El Paso.

City officials have been told that the government may soon increase the number of migrants released in El Paso to 500 daily. “That may be a killer, that may be a real challenge for us to be able to deal with,” Mr. Margo said.

The government itself is dealing with some of the most acute problems — housing large numbers of families in border processing centers built to handle single men.

. . . .

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

Read the complete article, with accompanying stats and charts, at the link.  Part of the real shame here is that the Government could actually make great strides in dealing with this situation properly and legally.  And it wouldn’t cost anything near the $5 billion the President insists on wasting on his “Wall.”

What’s really needed for improved border security is:

  •  More Asylum Officers;
  • More Immigration Judges and Court personnel;
  • More ICE Assistant Chief Counsel;
  • More port of entry inspectors;
  • Better technology at and between ports or entry and at international airports;
  • Better DHS intelligence capabilities;
  • More anti-smuggling and undercover officers;
  • Better funding for the UNHCR to improve asylum reception and processing in Mexico and other countries surrounding the Northern Triangle;
  • Funding to assist pro bono groups and NGOs in representing, advising, and when appropriate arranging either temporary or permanent resettlement;
  • More honest recognition of the many real refugees and granting them asylum or other protections in a timely and consistent manner so that they can get work authorization and begin contributing to our society;
  • Much better management and leadership at DHS.

I’ll bet that all that could be done for less than $5 billion. And, rather than more controversy, waste, and abuse, we’d see real improvement in both border security and the lives of human beings we are legally obligated to assist and protect.

PWS

01-06-19

PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

LINKEDINCOMMENTMORE

Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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

Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

 

 

 

PROFESSOR KAREN MUSALO: Persecution Of Women In El Salvador On The Basis Of Gender Is Real & Endemic – The Administration’s Attempts To Skew The Law Against Women Refugees Is Totally Dishonest, Immoral, & Illegal!

https://cgrs.uchastings.edu/sites/default/files/Musalo_El%20Salvador_A%20Peace%20Worse%20Than%20War_30%20Yale%20J.L.%20&%20Fem.%203_20018.pdf

Here’s part of the conclusion of Karen’s article “EL SALVADOR–A PEACE WORSE THAN WAR: VIOLENCE, GENDER AND A FAILED LEGAL RESPONSE” published at 30 Yale Journal of Law & Feminism 3 (2018):

Historical and contemporary factors have given rise to the extremely high levels of violence that persist in El Salvador today. Many of the Salvadorans interviewed for this article referred to a “culture of violence” going back to the brutal Spanish Conquest and continuing into more recent history, including the 1932 Matanza and the atrocities of the country’s 12-year civil war. Gender violence exists within this broader context. However, as almost every Salvadoran source noted, violence against women is even more deeply rooted than other expressions of societal violence as the result of patriarchal norms that tolerate and affirm the most extreme forms of domination and abuse of women.
. . . .

Levels of violence, including the killings of women, have continued to rise, while impunity has remained a constant. Criticism of the persistent impunity for gender violence resulted in El Salvador’s most recent legal development: the enactment of Decree 286, which created specialized courts. However, the exclusion of the most commonly committed gender crimes–intrafamilial violence and sexual violence–from the specialized courts’ jurisdiction, and the courts’ hybrid structure, which requires that cases still be initiated in the peace courts, do not inspire optimism for positive outcomes.

Notwithstanding these considerable obstacles, the Salvadorans interviewed for this article, who have long struggled for access to justice and gender equality, maintain the hope and the belief that change is possible. In the course of multiple interviews over a six-year period (2010 to 2016), Salvadoran sources have expressed deep frustration and disappointment but have not articulated resignation or defeat.

. . . .

The Salvadorans who I interviewed for this article have provided information, insights, and perspectives that are simply not available in written reports or studies. Although they come from a range of backgrounds–governmental and non-governmental; legal professionals as well as grassroots activists–they all acknowledge the complex causes of societal violence. As discussed throughout this article, they also have specific critiques and prescriptions for what must be done in order to see any real progress. Discussions of the country’s crisis, as well as of the international community’s response, must start by listening to the voices of the Salvadorans who, despite the seemingly intractable situation of violence and impunity in which they live, have refused to abandon the struggle for justice and equality. They are inspiring in their courage and resilience. By quoting extensively from these sources, this article has sought to amplify their voices.

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

Read Karen’s complete article at the above link.

Compare real scholarship and honest reflection of the experiences of women in El Salvador affected by this seemingly unending wave of persecution with the intentionally bogus picture painted by Jeff Sessions in Matter of A-B-. Hopefully, advocates will be able to use the research and expertise of Karen and others like her to enlighten fair-minded Asylum Officers and Immigration Judges, support their efforts to grant women the protection they merit as contemplated by the Refugee Act and the Convention Against Torture, and force the Article III Courts and eventually Congress to consign Sessions’s intentionally perverted reasoning to the dustbin of “Jim Crow Misogynist History” where it belongs.

Many thanks to my good friend and colleague in  “Our Gang,” Judge Jeffrey Chase, for passing this link to Karen’s important scholarship along.

Due Process For All Forever!

PWS

12-31-18

KILLER SYSTEM: ASYLUM OFFICES, IMMIGRATION COURTS FAIL TO PROVIDE BASIC DUE PROCESS, FUNDAMENTAL FAIRNESS, COMMITMENT TO THE GENEROUS HUMANITARIAN INTENT OF ASYLUM LAW — Those Entitled To Asylum Or Other Protections Pay With Lives Or Suffer Further Persecution As A Result Of Poor Performance From Failing System! — When Will This Deadly National Disgrace Now Driven By Outlaw Administration End?

https://www.washingtonpost.com/classic-apps/when-death-awaits-deported-asylum-seekers/2018/12/26/6070085a-a62d-11e8-ad6f-080770dcddc2_story.html

Kevin Sieff & Carolyn Van Houten report for WashPost:

The threats from MS-13 had become incessant. There were handwritten letters, phone calls and text messages that all said the same thing: The gang was preparing to kill Ronald Acevedo.

His family pieced together a plan. They paid a smuggler to take Acevedo to the United States border. It was April 2017, three months after Donald Trump was inaugurated. The family believed that Acevedo could convince anyone, even the new president, that returning to El Salvador meant certain death. The country had the world’s highest murder rate. Acevedo had already been stabbed once.

“They already kill my friends, and they are going to do the same to me,” he said, according to his asylum application.

The plan didn’t work. After eight months in detention, Acevedo, 20, abruptly withdrew his asylum claim, reversing course and telling an immigration judge, “I don’t have any fear” of returning to El Salvador.He was deported to El Salvador on Nov. 29, 2017. He disappeared on Dec. 5, 2017, and his body was later found in the trunk of a car, wrapped in white sheets. An autopsy showed signs of torture.

His family says that he expressed a willingness to return to El Salvador only after immigration officers told him that he had no chance at gaining asylum and could spend many more months in detention.

U.S. Immigration and Customs Enforcement (ICE) did not respond to the family’s allegations that immigration officials dissuaded him from continuing his asylum case but said in a statement that it had a legal obligation to hold him in detention.

“ICE’s detention authority is based in the furtherance of an alien’s immigration proceedings, and if so ordered, their removal from the country,” the agency said.

Acevedo’s relatives spoke on the condition that his full name not be used, out of fear for their safety. (The Post is using only part of his name.) In a series of interviews, they discussed his asylum application and provided letters, Facebook messages and official documents outlining what happened to him. The Post also obtained transcripts of the proceedings and asylum documents through a Freedom of Information Act request.

. . . .

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

Read the complete report at the link.

Based on these facts, Acevedo should have had a “slam dunk” claim for a grant of protection under the Convention Against Torture (“CAT”): a probability of torture at gang’s hands with government acquiescence/willful blindness.

He might also have had a grantable withholding of removal claim on the basis of imputed political opinion — opposition to gangs in a country where gangs are a political force, actually the de facto government in many areas.

He also appears to meet the basic requirements for a grant of asylum on the same ground. However, his participation in assisting gangs could be a basis for a discretionary denial of asylum. Depending on further development of the facts, it also might amount to “assistance in persecution of others” which would bar withholding of removal under the Refugee Act but not CAT protection.

Obviously, Acevedo was entitled to a full, fair hearing on this complex and substantial claim. That requires a lawyer and an impartial U.S. Immigration Judge.

Instead, individuals literally pleading for their lives under U.S. and binding international laws face a policy of official coercion, lack of real training, rampant bias and political interference, a “captive court” that lacks the authority and the will to do what’s necessary to get the results correct, widespread contempt for individuals, their lawyers, and human life: That’s “business as usual” at DHS, the Asylum Office, DOJ, EOIR and the Immigration Courts — all glommed together in an unethical and probably unconstitutional morass that elevates (often bogus or wildly exaggerated) enforcement concerns above the law and our obligations to provide fair opportunities to be heard and protect human life. Perhaps worst of all, nobody is held truly accountable for this ungodly mess that is a blot upon our national conscience and an affront to the rule of law.

Congress has been AWOL. The Article III Courts have provided some welcome pushback, but have only scratched the surface of this deeply corrupt and lawless system; they are still disingenuously deferential to an inherently flawed process that merits no deference whatsoever!

PWS

12-28-18

NOTORIOUS CHILD ABUSER JEFF SESSIONS ALSO TARGETED REFUGEE WOMEN & GIRLS FOR DEATH, RAPE, TORTURE, & OTHER MAYHEM — HIS EVIL PLANS HIT A ROADBLOCK: THE LAW! — Read The Latest Commentary From Hon. Jeffrey S.Chase On Challenges To Sessions’s Effort To Pervert The Law — Matter of A-B- In Light Of Grace v. Whitaker!

Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker.  The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-.  Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.

In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.”  In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.”  Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world.  However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid.  The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis.  And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1

If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2   A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others.  Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case.  Such Sisyphean approach seems ill suited to the current million-case backlog.

However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard.  When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations  harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.”  Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.

How far reaching is the Grace decision?  We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews.  But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?

USCIS of course is part of the Department of Homeland Security.  Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice.  Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal.  However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan.  The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.

Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR.  An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.”  The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard.  But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge.  The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard.  The USCIS memo reversed this, directing asylum officers to categorically deny such claims.  But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.

When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing.  Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings.  Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that.  Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.

But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)?  And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?

Many immigration judges are presently struggling to understand Matter of A-B-.  The decision was issued on the afternoon of the first day of the IJ’s annual training conference.  This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators.  But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon.  Needless to say, the training was not very useful in examining the nuances of the decision.  As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.

Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification.  However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4  I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process.  My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision.  Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.

A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

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

Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.

  • Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
  • A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
  • Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
  • Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.

There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by  screwing the most vulnerable among us!

PWS

12-26-18

 

THE HILL: Welcoming Refugees & Other Immigrants Makes Countries Happier!

https://thehill.com/opinion/immigration/421768-countries-that-welcome-refugees-and-immigrants-are-happier

Megan A. Carney writes for The Hill:

The Department of Health and Human Services recently reported that nearly 15,000 children are being held in immigrant detention centers across the United States. Most, if not all of these children are asylum-seekers, fleeing conditions of abject violence and poverty in their home countries. Regardless of one’s outlook on immigration, it is hard not to feel extremely saddened at the thought of so many children locked up, away from their loved ones and during the holiday season no less. It is even harder to fathom how this present scenario is making anyone happy. Imagine being separated from your family this holiday season.

Recent research shows that societies more open and welcoming to refugees and immigrants experience much higher happiness gains. Based on the findings of their research, the Migration Policy Institute concluded that “policies that contribute to migrant happiness are likely to create a win-win situation for both immigrants and natives.” In other words, both native- and foreign-born populations fare better in terms of overall happiness — also referred to as subjective well-being in the social sciences — when given a policy and social environment that accepts and promotes immigration.

Conversely, oppressive or negative attitudes toward immigrants and refugees are associated with declines in subjective well-being. Findings from a recent survey of 27 nations by the Pew Research Center suggest that many people worldwide, including a whopping 82 percent of Greeks, 72 percent of Hungarians, 71 percent of Italians, and 58 percent of Germans oppose immigration. That’s (potentially) a lot of unhappy people.

Policies and practices that restrict immigration such as building border walls, placing bans on certain nationalities from entering a country, and detaining and deporting individuals who lack legal status, may not only lead to happiness declines. They also heighten people’s fears and anxieties, predisposing them to negative psychological and physical health outcomes.

My research with Latin American communities in the U.S. for instance, has shown that immigrants’ fears and anxieties around the possibility of surveillance, detention, and deportation can lead to poor health in the form of depression, anxiety disorders, and avoidance of health care settings and providers.

What distinguishes societies that are more accepting of immigrants versus those that are less accepting?

This is a question that has been at the center of my own research in comparing contexts of immigrant reception in the U.S. and Italy for several years. In Italy, I’ve been particularly intrigued by the emergence of solidarity initiatives and networks between citizens and noncitizens that seek to collectivize risk and improve overall material and subjective well-being.

Building on findings from the medical and social sciences that societies rich in social capital, less unequal, and more egalitarian show higher life expectancies on average, one hypothesis of this research is that the promise of improved subjective well-being incentivizes people to enact solidarities such as take actions to feel aligned with one another — across lines of race, class and citizenship.

At a time of especially pronounced hostilities toward refugees and immigrants in the U.S., it is perhaps unsurprising that the U.S. trails far behind (18th) in world happiness rankings. Punitive immigration policies and negative attitudes toward immigrants not only harm the people directly targeted. These practices may also represent a sort of self-harm to the segment of the population that is native-born.

As the end of the year draws to a close, many of us exchange gifts because we think it will bring some shred of happiness. In our quest to spread this joy and bring more of it into our lives, perhaps this year more of us can act more humanely and compassionately toward refugees, asylum-seekers, immigrants, and other displaced persons who comprise an ever-growing segment of the global population.

Megan A. Carney is assistant professor in the School of Anthropology at the University of Arizona and a Public Voices Fellow with The Op-Ed Project. She is the author of “The Unending Hunger: Tracing Women and Food Insecurity Across Borders” and director of the UA Center for Regional Food Studies.

********************************************
Countries that allow themselves to be “led” by sociopaths, not so much!
PWS
12-26-18

NQRFPT: I’M ALREADY PROVED RIGHT ON NIELSEN’S LATEST HAREBRAINED SCHEME TO SCREW ASYLUM SEEKERS: Mexico is “Completely Unprepared,” DHS is Massively Incompetent, The “Real Experts” Among Advocacy Groups & NGOs Are Sharpening Their Litigation Knives, & The House Is Getting Ready To Hold Nielsen & Her Toadies Accountable For The Inevitable Deaths, Rapes, & Assaults On Asylum Seekers In Mexico!

https://apple.news/ABxGIu1zQSumaDYsJutu1uA

Scott Bixby reports for The Daily Beast:

Opponents of the Trump administration’s plan requiring all migrants seeking asylum in the United States to remain in Mexico for the duration of their immigration proceedings have vowed to challenge the policy, which they say—like nearly every other aspect of President Donald Trump’s immigration agenda—almost certainly violates constitutional protections, international treaties, and federal law.

The policy, dubbed the “Migration Protection Protocols” by the Department of Homeland Security, is “disgraceful and illegal” and “will result in the loss of life for vulnerable people seeking safety,” said Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commission. “This president has, again, chosen to exploit and endanger the lives of women and children to advance his own self-serving agenda.”

“Pushing asylum-seekers back into Mexico is absolutely illegal under U.S. immigration law,” Eleanor Acer, senior director for refugee protection at the nonprofit Human Rights First, told reporters on a conference call on Friday morning. “This scheme will increase, rather than decrease, the humanitarian debacle at the border.”

Under the proposed rule change, migrants who attempt to claim asylum in the United States at the southern border will almost universally be held in Mexico for the duration of their immigration proceedings, a process that could take years.

Calling the move “a historic measure,” the Department of Homeland Security revealed the plan on Thursday, at the same time Secretary Kirstjen Nielsen was being grilled by members of the House Judiciary Committee on the Trump administration’s numerous immigration controversies, including its family separation policy (the existence of which Nielsen denied) and the recent death of a 7-year-old migrant girl in the custody of Immigration and Customs Enforcement.

In the announcement, Nielsen said that “aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates.” Instead, “they will wait for an immigration court decision while they are in Mexico. ‘Catch and release’ will be replaced with ‘catch and return.’ ”

Mexico’s foreign ministry, contradicting the foreign policy platform that helped sweep the country’s new president into power, said that it “will authorize, for humanitarian reasons and temporarily, the entry of certain foreign persons from the United States who have entered the country through a port of entry or who have been apprehended between ports of entry, have been interviewed by the authorities of migratory control of that country, and have received a summons to appear before an immigration judge.” (The country’s top immigration official now says that Mexico is completely unprepared to fulfill its end of the bargain.)

Organizations on the ground say that the policy is a clear violation of both federal and international law, as well as constitutional guarantees of due process—and plan to fight it in court.

“This administration knows that the border area is unsafe for women and children,” Brané said, “and still, this administration doubles down on policies that make everyone less safe.”

“The administration seems to have no plan for implementation,” said Kennji Kizuka, a senior researcher and refugee protection policy analyst at Human Rights First. “Will lawyers be able to visit their clients before hearings? Where will those hearings take place?… Access to counsel is one of the most important factors in whether or not an asylum seeker is able to live in safety in the United States.”

In addition to Article 33 of the United Nations Convention and Protocol Relating to the Status of Refugees, which prevents the forcible return of asylum-seekers to countries where they face persecution, torture or death—dubbed the principle non-refoulement in international law—advocates pointed to laws passed by Congress that mandate the admission of unaccompanied children seeking asylum at the U.S. border as being blatantly violated by the president’s policy.

“Refusing to process children very clearly violates the Trafficking Victims Protection Reauthorization Act, written specifically to protect this vulnerable population,” said Lisa Frydman, vice president for regional policy and initiatives at Kids in Need of Defense (KIND), a nonprofit that works on behalf of unaccompanied children who enter the U.S. immigration system alone. Speaking on a call with reporters, Frydman recounted interviews with unaccompanied children held in shelters in Tijuana, the conditions of which are “squalid,” Frydman said.

“Unaccompanied children are being systematically denied access to apply for protection in the United States” as they seek asylum protections, Frydman said, and their efforts to avoid both U.S. and Mexican immigration authorities are putting them in even more danger of exploitation.

Some of the children have even taken to living on the streets of Tijuana, Frydman said, where they have no access to medical treatment, food, or protection from those who might exploit them. The dangers are extreme: just this week, two Honduran children were murdered in Tijuana after being stopped by would-be robbers as they attempted to move from one shelter to another.

“All of our organizations have been on the ground in Tijuana recently and are united in our assessment that conditions there are very unstable and very unsafe,” said Wendy Young, president of KIND. Those conditions, Young continued, “are going to further deteriorate” as the number of asylum-seekers stuck at the border increases.

A 2017 study by Human Rights First documented 921 crimes against migrants committed by federal or state officials in Mexico, where nearly 70 percent of migrant children are held in “prison-like” immigration detention facilities, according to a report from Human Rights Watch, despite Mexican laws prohibiting children from being held in such facilities.

These unsafe conditions in Mexico make forcing asylum-seekers to remain their a blatant violation of the principle of non-refoulement, advocates said, and therefore a violation of international law.

“These migrant camps are not safe for children,” said Dr. Alan Shapiro, a pediatrician who co-founded Terra Firma, an organization that provides medical care to undocumented children. “They are not enclosed camps, they do not have roofs over their head.” On a recent visit to one camp in Tijuana, Dr. Shapiro said, he saw a two-year-old child who had recently suffered a seizure and had no access to medical care, or even proper food.

“This child was eating powdered baby formula out of the can—there was no water for them to mix it with,” Shapiro said.

“There are very real risks to unaccompanied children,” said Leah Chavla, a policy adviser at the Women’s Refugee Commission. “This is a system that is ripe for exploitation… Mothers that we’ve spoken with have flagged that there are a lot of new faces around the camps and they don’t necessarily feel comfortable leaving their children with strangers.”

Advocates also pointed to serious logistical hurdles for asylum-seekers to receive proper legal counsel as they navigate the labyrinthine immigration system from outside the United States, pointing to those difficulties as potential violations of due process.

“It is unclear how attorneys in the United States would be able to work in and access their clients in Mexico—if at all,” said Jennifer Podkul, senior director for policy and advocacy at KIND. “Moreover, legal services capacity in Mexico would be insufficient to address these needs or to ensure the provision of accurate legal information and preparation of cases in accordance with U.S., rather than Mexican, law.”

Those difficulties are doubled for unaccompanied children, Podkul said, in light of their age and limited ability to testify in their own defense. “Without quality legal representation, unaccompanied children and other asylum seekers will be unable to fully present their cases for protection, and as a result, may be returned to harm, danger, or death.”

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

Imagine what it would be like to have a Government committed to following the law, including the generous humanitarian standards for asylum, rather than coming up with costly, impractical, and often illegal schemes to avoid the law.

Of course, following the law would likely result in many more asylum seekers being rapidly accepted after screening and settling down to lead peaceful, law-abiding, productive lives in the U.S. That would be good for the country, but bad for the racist White Nationalist agenda that this Administration peddles to its so-called “base” (which actually represents a minority of U.S. opinion, but a minority that strategically props up a minority government controlled by a minority party and an incompetent, out of control, would-be autocrat).

PWS

12-23-18

I WAS RIGHT (BARELY): CHIEF JUSTICE ROBERTS SAVES ASYLUM & RULE OF LAW — ADMINISTRATION’S REQUEST TO IMPLEMENT ORDER TRUNCATING ASYLUM LAW TURNED DOWN 5-4!

WASHINGTON — The Supreme Court on Friday refused to revive a Trump administration initiative barring migrants who enter the country illegally from seeking asylum.

The court was closely divided, with Chief Justice John G. Roberts Jr. joining the four-member liberal wing in turning down the administration’s request for a stay of a trial judge’s order blocking the program.

The court’s brief order gave no reasons for its action. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have granted the stay.

In a proclamation issued on Nov. 9, President Trump barred migrants from applying for asylum unless they made the request at a legal checkpoint. Only those applying at a port of entry would be eligible, Mr. Trump said, invoking what he said were his national security powers to protect the nation’s borders.

Lower courts blocked the initiative, ruling that a federal law plainly allowed asylum applications from people who had entered the country unlawfully.

“Any alien who is physically present in the United States or who arrives in the United States,” the relevant federal statute says, may apply for asylum — “whether or not at a designated port of arrival.”

Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order blocking the initiative nationwide. “Whatever the scope of the president’s authority,” Judge Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

Mr. Trump attacked Judge Tigar, calling him an “Obama judge.” Chief Justice John G. Roberts Jr. took issue with the characterization, saying that federal judges apply the law without regard to the policies of the presidents who appointed them.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to stay Judge Tigar’s order. The majority opinion was written by Judge Jay S. Bybee, who was appointed by President George W. Bush.

“We are acutely aware of the crisis in the enforcement of our immigration laws,” Judge Bybee wrote. “The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place — Congress.”

The Trump administration then urged the Supreme Court to issue a stay of Judge Tigar’s ruling, saying the president was authorized to address border security by imposing the new policy.

“The United States has experienced a surge in the number of aliens who enter the country unlawfully from Mexico and, if apprehended, claim asylum and remain in the country while the claim is adjudicated, with little prospect of actually being granted that discretionary relief,” Solicitor General Noel J. Francisco told the justices.

“The president, finding that this development encourages dangerous and illegal border crossings and undermines the integrity of the nation’s borders, determined that a temporary suspension of entry by aliens who fail to present themselves for inspection at a port of entry along the southern border is in the nation’s interest,” Mr. Francisco wrote.

The American Civil Liberties Union, representing groups challenging the policy, said Congress had made a different determination, one that only Congress can alter.

“After World War II and the horrors experienced by refugees who were turned away by the United States and elsewhere, Congress joined the international community in adopting standards for the treatment of those fleeing persecution,” lawyers with the A.C.L.U. wrote. “A key safeguard is the assurance, explicitly and unambiguously codified, that one fleeing persecution can seek asylum regardless of where, or how, he or she enters the country.

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

I had observed that attacking Federal Judges and dissing the Supremes and the Federal Courts as an institution was unlikely to help win the heart and mind of Chief Justice Roberts. Disturbingly, however, four of his colleagues appear to be ready and willing to hand the country over to Trump and Putin.

Stay well, RBG! The future of our American Republic depends on you and the your four colleagues who were willing to stand up for the rule of law against tyranny.

PWS

12-21-18

HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

 

  • The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
  • Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
  • By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
  • Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
  • By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
  • Representation of asylum seekers generally improves results, sometimes by as much as 5X.
  • It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
  • Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
  • As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
  • Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
  • The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
  • The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
  • With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
  • Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
  • Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
  • The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.

NOTE TO THE NDPA:

 The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.

Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.

Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.

Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!

In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.

Thanks for all you do! Keep fighting the “good fight!”

Go for it!

Due Process Forever! Scofflaw Administration Never!

PWS

12-21-18