"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: United States Citizenship and Immigration Services (“USCIS”)
Adolfo Flores, Hamed Aleaziz, & Karla Zabludovsky for BuzzFeed News:
TIJUANA, Mexico — For Trump administration officials, an unprecedented confrontation at the US-Mexico border on Sunday invited an assessment that their policies have only exacerbated the problems of an overwhelmed immigration system whose court backlog has grown larger since Trump’s inauguration 22 months ago.
León Rodriguez, who headed the US Citizenship and Immigration Services agency from 2014 to 2016, didn’t want to comment on the events on the ground, but said what happened at the border seemed to be “a foreseeable result of the US policy of placing every conceivable obstacle in the way of orderly legal migration and of not having a policy that [recognizes] the desperate circumstances driving migration.”
Mexican officials shared that negative assessment. Héctor Gandini, who will take over as spokesperson for Mexico’s Interior Ministry when Mexico swears in a new president on Saturday, said that the US use of tear gas on migrants attempting to cross illegally into the country was “not correct. We don’t want them to hound migrants.”
“You have to respect migrants’ human rights,” Gandini added.
For Josué Rosales, one of the migrants who took part in the ill-fated march to the border, what began as a journey of hope had turned into one of despair, one that promised weeks of more nights inside the tent he’s now sharing with his girlfriend on the grounds of the Benito Juarez stadium, where the caravan has been camped for days. He said he’s not ready to give up.
“I’m waiting to see if Trump comes to some type of agreement that allows us to cross,” Rosales said. “If he says no we’ll figure out another way to cross.”
The Trump administration faces a situation its best efforts have failed to control.
Administration officials have imposed a number of policies to discourage migrants from seeking to enter the United States. Then Attorney General Jeff Sessions personally rewrote key immigration court decisions to eliminate domestic violence and fear of gang violence as reasons for asylum to be granted. The administration imposed a controversial family separation policy that was intended to discourage parents from crossing the border with their children. Trump dispatched 5,800 US active-duty soldiers to the border in a show of force that many critics also claim was a blatant political ploy ahead of the midterm elections earlier this month.
Kim Kyung-hoon / Reuter
And yet border apprehensions are at the highest level yet of the Trump administration (though still at historically low levels), family detentions are at record levels, and the number of people granted asylum actually rose in the fiscal year that just ended, to the highest level in two decades.
In Tijuana, where the number of would-be asylum seekers is growing by the day, immigration attorneys and advocates describe a bottleneck system that makes asylum seekers wait weeks before they can seek to enter the US for refuge. That’s created an enormous backlog.
And the situation promises only to get worse as more people seeking to reach the US arrive in Baja California, the Mexican state that abuts California. Mexico’s interior ministry said there are 8,247 people now in Mexico who are traveling as part of so-called caravans from Central America. The vast majority of migrants — 7,417 — are in the cities of Mexicali and Tijuana. The other 424 are in a Mexico City shelter, 253 are in the Mexican state of Sinaloa, and another 153 are making their way north on their own. It’s unclear how many of them will ask for asylum.
Caring for the migrants is costing about $27,000 daily — money Tijuana’s mayor says the city does not have.
Sunday’s march to the border was intended to be peaceful, but it devolved into a frantic rush toward the border fence after the group, which numbered about 500, according to the Mexican interior ministry, was blocked from reaching the San Ysidro port of entry by a line of Mexican federal police.
The crowd skirted the police line and rushed across the Tijuana River’s small stream that runs next to the walkway leading to the port of entry.
Then after being blocked on the street in front of the Chaparral border crossing by metal barriers and another line of federal police with shields, a group walked to a train border crossing a few minutes away.
Several members of the group told BuzzFeed News they wanted to negotiate some type of agreement with the Trump administration that would let them enter the United States. Others said they hoped to be able to cross into the US as a group.
Instead, US border officers met them with tear gas and pepper balls, according to a statement from Customs and Border Protection, the agency responsible for border law enforcement.
CBP said its officers deployed the tear gas and pepper balls after some members of the group threw objects, including rocks, at agents while others tried to enter the United States illegally, some through a gap in the metal barrier along the railroad tracks.
Kim Kyung-hoon / Reuters
But not all immigration officers were willing to defend the US actions. One US asylum officer, who could not talk about policy publicly, said the confrontation likely was the result of the US’s inability or unwillingness to process asylum claims at the border daily. The officer said USCIS recently had told staff to be on standby to be sent to San Diego to help hear asylum claims.
“I’m just glad nothing worse happened,” the officer said. “I think it’s illegal that they closed the border. We cannot decide when we can close the border if there’s no state of emergency. For a couple dozen asylum seekers? That was not an emergency that should justify closing the border. I’m just relieved it wasn’t worse.”
Another government official, who works on the issue but does not make policy, blamed the Trump administration for the tensions at the border.
“Trump has broken the law by not having people at the border processed for months and months and creating a bottleneck there,” the official said. “Tear gassing children because maybe they’ll get into the US? Heaven forbid.”
Mexican authorities late Sunday were contemplating what to do next. In a press release, the interior ministry said Mexican police had retaken control of the area leading to the San Ysidro port of entry and that Mexican troops would not be deployed “despite the magnitude of the situation.”
A government official who requested anonymity because they were not allowed to talk to reporters told BuzzFeed News that 30 migrants had breached the border and were promptly detained by CBP. The National Migration Institute said that it planned to deport as many as 500 others who attempted to cross into the US illegally but were unsuccessful. Since the first caravan entered Mexico on October 19, 11,000 migrants from Honduras, Guatemala, El Salvador and Nicaragua have been deported.
The escalation at the border comes at a complicated time — the country’s embattled president, Enrique Peña Nieto, will conclude his mandate in less than a week.
BuzzFeed News revealed earlier this month that the Trump administration was attempting to broker a deal that would force people to wait in Mexico while their asylum cases were processed. The Washington Post reported that incoming Mexican president Andres Manuel López Obrador’s transition team had agreed to this plan, but that report was disputed by the same officials it cited; they pointed out that López Obrador’s government would not take office for several more days. “There is no agreement of any sort between the future government of Mexico and the US government,” said a press release from López Obrador’s transition team.
Immigration promises to be a major challenge for López Obrador, who has pledged to give work permits and offer jobs to Central American migrants in Mexico. Detentions and deportations of migrants have increased steadily since 2014, when the government launched the Southern Border Program, shortly after a large wave of unaccompanied minors surged across the US-Mexico border.
Lucy Nicholson / Reuters
Sunday’s events were much different from the results of a spring caravan that arrived in Tijuana in late April with hundreds of asylum seekers. The group camped out on the grounds of the Chaparral border crossing for days after being turned away by CBP agents because the port of entry was at capacity. Over several days, small groups of asylum seekers were allowed into the US to make their claim, 93% of whom passed what’s known as a credible fear interview, a crucial first step in the asylum application process.
But that caravan was much smaller, at most 1,500 at its start in southern Mexico, than the thousands now waiting in Tijuana, and its members had been vetted by the NGO that led it, Pueblo Sin Fronteras, to weed out those whose asylum claims were likely to be found without merit by the time it reached the border. In the end, only 228 people sought asylum in a process that took just five days. Separately, other members of the caravan asked for asylum before and after those five days, putting the total number of asylum seekers at 401.
This time around, asylum seekers have been told they would likely have to wait weeks in Tijuana before they could ask the US for refuge because of a backlog at the border. The current expected wait to begin the process is now up to six weeks.
Delay at the border for requesting asylum is nothing new, but it’s been getting worse under Trump. The Department of Homeland Security’s inspector general found recently that US immigration authorities’ inability to handle the number of people seeking asylum at ports of entry had forced migrants to cross illegally. But there’s little sign that US officials are planning to take steps to improve the wait times.
And the likelihood is great that those who must wait in Tijuana will find only that their frustration will grow in the coming months.
“It’s difficult because we came as one peaceful caravan and now we’re just waiting here without any results,” Rosales, the march participant, told BuzzFeed News. “We’re sitting in the sun, thirsty, hungry, with no resolution to our situation.”
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The Trump Administration created this artificial mess. The solution is hardly “rocket science:”
More USCIS Asylum Officers;
More pro bono private attorneys;
More U.S. Immigration Judges and staff;
Restoring authority to Immigration Judges to work with both parties before their courts to close and remove hundreds of thousands of “low priority” cases from the courts’ dockets, thus freeing up judicial time to work on asylum cases of more recent arrivals;
Restoring precedents that would allow refugees with documented cases of persecution on the basis for domestic violence and family relationships to be expeditiously granted, thus freeing up docket space for other types of cases.
No chance that the Trump Administration will do this voluntarily. But, there might be an opening for House Democrats to condition further immigration enforcement funding on improvements in the foregoing areas and an end to the Trump-created “border backups.”
MEXICO CITY — Mexico’s incoming leadership is denying a published report that it had agreed to a Trump administration proposal requiring asylum seekers arriving at the southwest border to wait in Mexico as U.S. authorities consider their claims for safe haven.
The Washington Post reported Saturday that Washington had won the support of the government of Mexican President-elect Andres Manuel Lopez Obrador — who takes office on Dec. 1 — for a plan mandating that asylum seekers at the border remain in Mexico as their claims move through the U.S. immigration system.
The Trump administration has long sought such an accord with Mexico as a means of resolving what it has termed a “crisis” of an escalating number of Central American asylum applicants — and limited detention space in which to hold them on U.S. territory as their petitions are considered.
Critics on both sides of the border have long assailed the notion of Mexico serving as a way station or detention grounds for Central Americans and others applying for asylum in the United States.
The administration of Mexico’s current president, Enrique Peña Nieto, rejected a similar Trump administration proposal last year.
But the Post quoted Olga Sanchez Cordero, Mexico’s interior minister-designate, as saying Mexico’s new government had accepted the policy as a “short-term solution” to the issue of Central American migration — which has been dramatized in recent weeks as thousands of U.S.-bound Central Americans have made their way north through Mexico in caravans.
Later Saturday, however, she denied that Mexico had agreed to host people seeking U.S. asylum as their cases awaited judgment.
“There is no agreement of any sort between the future Mexican federal government and the U.S.,” the incoming interior minister said in a statement.
Moreover, she said Mexico’s new government had rejected any deal in which Mexico would be considered “a safe third country” for U.S. asylum applicants.
In a Twitter message on Saturday, President Trump reiterated threats to close the southern border — threats that have alarmed many in Mexico, since cross-border trade is a mainstay of the Mexican economy.
In his tweet, Trump also said migrants would not be allowed into the United States “until their claims are individually approved in court.”
Others, he said, would “stay in Mexico,” he added, without elaboration.
The Twitter message did not specify whether Washington had reached any kind of agreement with Mexico on the matter.
Only a small minority of Central American applicants are ultimately granted political asylum in the United States, but the decision-making progress can take months or years — during which time many are released and gain footholds in the United States.
Trump has vowed to end what he calls the “catch and release” system. “Our very strong policy is Catch and Detain,” he tweeted Saturday. “No ‘Releasing’ into the U.S.”
The White House has also pushed an alternative “safe third country” approach in talks with Mexican officials. Under such a plan, Central Americans seeking asylum would generally have to file for protection in Mexico, not in the United States.
The proposal is a variant of the Trump administration’s “remain in Mexico” plan, under which asylum seekers would wait in Mexico until their cases were adjudicated in the United States.
With a “safe third country” designation, the United States would consider Mexico a secure nation for receiving asylum applicants. In practice, that would bar most asylum seekers who entered Mexico from filing asylum claims in the United States. The United States already has such an understanding with Canada.
But immigrant advocates have long opposed such a designation for Mexico for a number of reasons — principal among them the country’s widespread and rising violence, which often targets Central American migrants. Mexico cannot be considered safe for asylum seekers, many argue.
Critics also say Mexico’s system for processing refugee requests is already overwhelmed and ill-prepared to handle a huge new influx.
In her statement, Mexico’s incoming interior secretary echoed the vows of leftist President-elect Lopez Obrador to protect the human rights of caravan travelers and other Central American migrants while providing them with food, healthcare and shelter. Lopez Obrador has also vowed to help Central Americans acquire work papers if they opt to remain in Mexico.
More than 6,000 caravan members, mostly Hondurans, have arrived this month in the Mexican border cities of Tijuana and Mexicali, posing a humanitarian, logistical and political challenge for the two cities on the border. The migrants say they are fleeing poverty and violence in their homelands.
Tijuana’s mayor declared a “humanitarian crisis” Friday as the border city sought additional federal and state aid to help house the migrants, most of whom are crowded into a sports complex a block from the U.S.-Mexico border fence.
Tijuana officials anticipate that as many as 10,000 Central American migrants could eventually converge on the city and be stuck there for months as they seek to file asylum claims in the United States, a time-consuming process. U.S. officials at the San Ysidro crossing generally accept no more than 100 asylum applications a day.
Special correspondent Sanchez reported from Mexico City and Times staff writer McDonnell from Washington.
“There is no agreement of any sort between the incoming Mexican government and the U.S. government,” future Interior Minister Olga Sanchez told Reuters on Saturday, contradicting Trump and an earlier Washington Post report that said a deal ― albeit an informal one ― had been struck between the two governments.
The Post had quoted Sanchez as saying the administration of Mexico’s President-elect Andrés Manuel López Obrador, who will take office on Dec. 1, had “for now” agreed to the so-called “Remain in Mexico” plan.
Sanchez was quoted by the paper as saying that Mexico would allow asylum seekers to stay in the country as a “short-term solution.”
Following the publication of the Post’s report, however, Sanchez back-pedaled on those remarks. She told Reuters that Obrador’s administration was “in talks” with the U.S., but stressed officials who weren’t yet in office couldn’t formally make any agreements.
ASSOCIATED PRESS
Seven-year-old Honduran migrant Genesis Belen Mejia Flores waves an American flag at two U.S. border control helicopters flying overhead near a shelter in Tijuana, Mexico.
Reuters reported that Sanchez “did not explicitly rule out” that Mexico could allow Central American caravan migrants ― thousands of whom have arrived in Tijuana, just south of California ― to wait in the country while their claims are processed in the U.S.
Sanchez did, however, say that plans for Mexico to assume “safe third country” status had been “ruled out.” Under a “safe third” agreement, the U.S. could force migrants to seek asylum in Mexico.
Trump said in a pair of Saturday evening tweets that migrants at the U.S.-Mexico border “will not be allowed into the United States until their claims are individually approved in court.”
“No ‘Releasing’ into the U.S. … All will stay in Mexico,” the president wrote.
His tweets were interpreted as possible confirmation of the posible deal between the U.S. and Obrador’s administration.
WASHINGTON — The incoming chairman of a key oversight committee in the House of Representatives said Sunday that any attempt by President Donald Trump to keep migrants from claiming asylum in the U.S. would be unlawful.
“That’s not the law,” Rep. Elijah Cummings, D-Md., said in an exclusive interview on “Meet the Press,” indicating that Congress will act if the president moves ahead with that policy. “They should be allowed to come in, seek asylum, that’s the law.”
President Donald Trump has said he’s reached a deal with the government of Mexico to keep migrants traveling in large caravans from Central America in Mexico until their court date to plead asylum. But a spokesman for incoming Mexican President Andrés Manuel López Obrador has said talk of such a deal is premature and U.S. officials told NBC News that the details are still being worked out.
Cummings said he supports the law as it stands. “I think we have a system that has worked for a long time. This president’s come in, wants to change it, that’s up to him. But now the Congress has got to stand up and hopefully they will,” Cummings said.
Family detention at the border and the separation of children from their parents after crossing the border was already on Cummings’ list of potential investigations as chair of the House Oversight and Government Reform Committee when Democrats take control of Congress in January.
Cummings has a list of 64 subpoenas it is ready to send to the Trump administration on a variety of issues ranging from immigration to voting rights act, drug prices and the opioid epidemic.
“I think the American people have said that they want checks and balances,” Cummings said. “And subpoenas, by the way, that may involve, say, private industries like the pharmaceutical companies” over “these skyrocketing drug prices.”
When asked about the priorities he is setting for areas of investigation, Cummings said he will focus on issues that “go to the very heart of our democracy and protecting that democracy.”
Cummings also said Sunday that his committee will “probably” look into Trump’s financial ties, especially to Saudi Arabia, and if it violates the emoluments clause, which is aimed at preventing a president from profiting on the office.
Cummings said he wanted to determine “whether the president is acting in his best interest or those of the American people,” adding, “I think this would be appropriate and there are other committees that will be looking at this too.”
Sen. Mike Lee, R-Utah, also criticized Trump over his support for Saudi Crown Prince Mohammed bin Salman despite reports that a CIA assessment concluded that the Saudi ruler ordered the murder of journalist Jamal Khashoggi. Lee said that Trump’s assessment is “inconsistent” with the intelligence he’s seen. “Intelligence I’ve seen suggests this was ordered by the crown prince,” he said.
Lee says that Khashoggi’s murder and Trump’s response provides “an opportunity” for Congress to weigh in to the U.S.-backed Saudi role in Yemen that has created a worsening humanitarian disaster.
“I think Congress has to take some ownership of U.S. foreign policy, especially as it relates to our intervention in this war,” Less said. “Our unconstitutional fighting of a civil war in Yemen that has never been declared by the U.S. Congress as a problem. And that’s on us.”
I agree with Congressman Cummings. Indeed, I’ve been saying for some time now that the law is well-designed to deal with the flow of asylum applicants to the Southern Border. This Administration has simply chosen not to make it work, in many ways. The result is a self-created crisis. I’m looking forward to some real oversight of the intentionally created immigration mess in the coming year, including holding some of those responsible for creating it accountable!
Nick MIroff, Joshua Partlow, and Josh Dawsey report for the WashPost:
November 21 at 10:18 PM
Central Americans who arrive at U.S. border crossings seeking asylum in the United States will have to wait in Mexico while their claims are processed under sweeping new measures the Trump administration is preparing to implement, according to internal planning documents and three Department of Homeland Security officials familiar with the initiative.
According to DHS memos obtained by The Washington Post on Wednesday, Central American asylum seekers who cannot establish a “reasonable fear” of persecution in Mexico will not be allowed to enter the United States and would be turned around at the border.
The plan, called “Remain in Mexico,” amounts to a major break with current screening procedures, which generally allow those who establish a fear of return to their home countries to avoid immediate deportation and remain in the United States until they can get a hearing with an immigration judge. Trump despises this system, which he calls “catch and release,” and has vowed to end it.
Among the thousands of Central American migrants traveling by caravan across Mexico, many hope to apply for asylum due to threats of gang violence or other persecution in their home countries. They had expected to be able to stay in the United States while their claims move through immigration court. The new rules would disrupt those plans, and the hopes of other Central Americans who seek asylum in the United States each year.
Trump remains furious about the caravan and the legal setbacks his administration has suffered in federal court, demanding hard-line policy ideas from aides. Senior adviser Stephen Miller has pushed to implement the Remain in Mexico plan immediately, though other senior officials have expressed concern about implementing it amid sensitive negotiations with the Mexican government, according to two DHS officials and a White House adviser with knowledge of the plan, which was discussed at the White House on Tuesday, people familiar with the matter said.
The White House did not immediately respond to a request for comment.
According to the administration’s new plan, if a migrant does not specifically fear persecution in Mexico, that is where they will stay. U.S. Citizenship and Immigration Services is sending teams of asylum officers from field offices in San Francisco, Washington, and Los Angeles to the ports of entry in the San Diego area to implement the new screening procedures, according to a USCIS official.
To cross into the United States, asylum seekers would have to meet a relatively higher bar in the screening procedure to establish that their fears of being in Mexico are enough to require immediate admission, the documents say.
“If you are determined to have a reasonable fear of remaining in Mexico, you will be permitted to remain in the United States while you await your hearing before an immigration judge,” the asylum officers will now tell those who arrive seeking humanitarian refuge, according to the DHS memos. “If you are not determined to have a reasonable fear of remaining in Mexico, you will remain in Mexico.”
Mexican border cities are among the most violent in the country, as drug cartels battle over access to smuggling routes into the United States. In the state of Baja California, which includes Tijuana, the State Department warns that “criminal activity and violence, including homicide, remain a primary concern throughout the state.”
The new rules will take effect as soon as Friday, according to two DHS officials familiar with the plans.
Katie Waldman, a spokeswoman for DHS, issued a statement late Wednesday saying there are no immediate plans to implement these new measures.
“The President has made clear — every single legal option is on the table to secure our nation and to deal with the flood of illegal immigrants at our borders,” the statement says. “DHS is not implementing such a new enforcement program this week. Reporting on policies that do not exist creates uncertainty and confusion along our borders and has a negative real world impact. We will ensure — as always — that any new program or policy will comply with humanitarian obligations, uphold our national security and sovereignty, and is implemented with notice to the public and well coordinated with partners.”
A Mexican official, speaking on the condition of anonymity, said that current Mexican immigration law does not allow those seeking asylum in another country to stay in Mexico.
On Dec. 1, a new Mexican president, Andrés Manuel López Obrador, will be sworn in, and it’s also unclear whether his transition team was consulted on the new asylum screening procedures.
The possibility that thousands of U.S.-bound asylum seekers would have to wait in Mexico for months, even years, could produce a significant financial burden for the government there, especially if the migrants remain in camps and shelters on a long-term basis.
There are currently 6,000 migrants in the Tijuana area, many of them camped at a baseball field along the border, seeking to enter the United States. Several thousand more are en route to the city as part of caravan groups, according to Homeland Security estimates.
U.S. border officials have allowed about 60 to 100 asylum seekers to approach the San Ysidro port of entry each day for processing.
Last week, BuzzFeed News reported that U.S. and Mexican officials were discussing such a plan.
Mexico also appears to be taking a less-permissive attitude toward the new migrant caravans now entering the country.
Authorities detained more than 200 people, or nearly all of the latest caravan, who recently crossed Mexico’s southern border on their way to the United States. This is at least the fourth large group of migrants to cross into Mexico and attempt to walk to the U.S. border. They were picked up not long after crossing. The vast majority of the migrants were from El Salvador, according to Mexico’s National Immigration Institute.
After the first caravan this fall entered Mexico, President Enrique Peña Nieto’s administration offered migrants the chance to live and work in Mexico as long as they stayed in the southern states of Chiapas and Oaxaca. Most chose not to accept this deal, because they wanted to travel to the United States.
nick.miroff@washpost.com
joshua.partlow@washpost.com
josh.dawsey@washpost.com
Partlow reported from Mexico City. Dawsey reported from West Palm Beach, Fla.
Let’s see, Trump shrugs off the murder of a Washington Post journalist by Saudi Arabia’s Crown Prince, downplays Putin’s overt interference in our elections, promotes mindless nationalism of the exact type responsible for two World Wars and tens of millions of avoidable deaths, and praises massive human rights violator and murderer Kim even as the latter is duping him on nukes. So, he’s scared to stand up to anyone powerful or for ideals and values that take courage to promote and advance.
But, when it comes to bullying, demonizing, and beating up on harmless but extremely vulnerable and desperate refugees, many of them women, children, and families fleeing for their lives, he excels. What does that tell us about the lack of character of the “man,” and the total lack of judgement and regard for American values of those in the minority who put him in office and continue to prop him up?
This appears to be a reaction to: 1) Federal Courts requiring Trump to follow the law; 2) Mexico’s refusal to be bullied into signing an absurdly inappropriate and totally one-sided “safe third country” agreement; 3) Congresses failure to fund the wasteful “Wall;” and 4) the near total, yet highly predictable, failure of Trump’s racist, White Nationalist inspired “get tough” immigration enforcement policies.
The Federal Courts are likely to permanently enjoin Trump from ignoring the law that specifically allows anyone in the U.S., legally or not, to apply for asylum. Additionally, Trump encourages violence against refugees and creates unsafe, inhumane conditions on the Mexican side of the border. Consequently, the end result of Trump’s intentional “making folks wait in Mexico” policy is likely to be encouraging individuals seeking asylum to enter illegally and then turn themselves in to the authorities to apply for asylum in the U.S.
Meanwhile, the better options of working with the UNHCR and Mexico to promote a multinational approach to protection and to solve the problems in the Northern Triangle causing this humanitarian flow remain unaddressed by the Trumpsters.
Also, when will the “Face of Evil,” Stephen Miller, finally be held accountable for his consistently cowardly and racist attacks on the law and the American legal system?
LOS ANGELES — A federal judge on Monday ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States, dealing at least a temporary setback to the president’s attempt to clamp down on a huge wave of Central Americans crossing the border.
Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.
“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Mr. Tigar wrote in his order.
As a caravan of several thousand people journeyed toward the Southwest border, President Trump signed a proclamation on Nov. 9 that banned migrants from applying for asylum if they failed to make the request at a legal checkpoint. Only those who entered the country through a port of entry would be eligible, he said, invoking national security powers to protect the integrity of the United States borders.
Within days, the administration submitted a rule to the federal registry, letting it go into effect immediately and without the customary period for public comment.
But the rule overhauled longstanding asylum laws that ensure people fleeing persecution can seek safety in the United States, regardless of how they entered the country. Advocacy groups, including the Southern Poverty Law Center and the American Civil Liberties Union, swiftly sued the administration for effectively introducing what they deemed an asylum ban.
The advocacy groups accused the government of “violating Congress’s clear command that manner of entry cannot constitute a categorical asylum bar” in their complaint. They also said the administration had violated federal guidelines by not allowing public comment on the rule.
But Trump administration officials defended the regulatory change, arguing that the president was responding to a surge in migrants seeking asylum based on frivolous claims, which ultimately lead their cases to be denied by an immigration judge. The migrants then ignore any orders to leave, and remain unlawfully in the country.
”The president has sought to halt this dangerous and illegal practice and regain control of the border,” government lawyers said in court filings.
Mr. Trump, who had made stanching illegal immigration a top priority since his days on the campaign trail, has made no secret of his frustration over the swelling number of migrants heading to the United States. The president ordered more than 5,000 active-duty troops to the border to prevent the migrants from entering.
The new rule was widely regarded as an effort to deter Central Americans, many of whom request asylum once they reach the United States, often without inspection, from making the journey over land from their countries to the border.
United States immigration laws stipulate that foreigners who touch American soil are eligible to apply for asylum. They cannot be deported immediately. They are eligible to have a so-called credible fear interview with an asylum officer, a cursory screening that the overwhelming majority of applicants pass. As result, most of the migrants are released with a date to appear in court.
In recent years, more and more migrants have availed of the asylum process, often after entering the United States illegally. A record 23,121 migrants traveling as families were detained at the border in October. Many of the families turn themselves in to the Border Patrol rather than queue up to request asylum at a port of entry.
The Trump administration believes the migrants are exploiting asylum laws to immigrate illegally to the United States. Soaring arrivals have exacerbated a huge backlog of pending cases in the immigration courts, which recently broke the one-million mark. Many migrants skip their court dates, only to remain illegally in the country, which Mr. Trump derides as “catch and release.”
But advocates argue that many migrants are victims of violence or persecution and are entitled to seek sanctuary. Gangs are ubiquitous across El Salvador, Honduras and Guatemala, where lawlessness and corruption enable them to kill with impunity.
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Entirely predictable. “Many of the families turn themselves in to the Border Patrol rather than queue up to request asylum at a port of entry.”
Why aren’t ethical requirements being enforced on Government lawyers who present and defend these clearly frivolous positions in court? Knowingly and intentionally depriving individuals of statutory, civil, and constitutional rights, while tying up Federal Judges and other “officers of the court” on frivolous political stunts directed at harming individuals on the basis of race and nationality must, at some point, be deterred!
These are not criminal proceedings, and the Administration is not entitled to a “presumption of innocence” for its lawless actions. At some point, ethical lawyers have an obligation “not to serve” a lawless Administration and to publicly disclose and oppose the Administration’s intentionally illegal actions and intentional wrongdoing aimed at migrants and communities of color in the U.S. “Job security” doesn’t entitle Government employees, let alone those who also are members of the bar, to violate their oaths to uphold the Constitution.
And no, no matter how much the GOP appointees might want to do so, the Supremes can’t authorize the President to rewrite the clear terms of the law at his whim.
At his postelection news conference, President Trump said of immigrants traveling to the United States, “I want them to come into the country, but they need to come in legally.” Yet newly released government data show that so far in 2018, the Trump administration is denying applications submitted to the United States Citizenship and Immigration Services at a rate 37 percent higher than the Obama administration did in 2016.
This makes no sense: Depriving immigrants of legal immigration options works against the president’s stated goal of increasing economic growth.
A new analysis for the Cato Institute has found that the Department of Homeland Security rejected 11.3 percent of requests to the immigration agency, which include those for work permits, travel documents and status applications, based on family reunification, employment and other grounds, in the first nine months of 2018. This is the highest rate of denial on record and means that by the end of the year, the United States government will have rejected around 620,000 people — about 155,000 more than in 2016.
This increase in denials cannot be credited to an overall rise in applications. In fact, the total number of applications so far this year is 2 percent lower than in 2016. It could be that the higher denial rate is also discouraging some people from applying at all.
In 2018, the D.H.S. turned away 10 percent of applicants for employment authorization documents compared with 6 percent in 2016, and it rejected applications for advanced parole — which gives temporary residents the authorization to travel internationally and return — at a clip of 18 percent, more than doubling the rate in 2016. Even skilled workers are being rejected at higher rates. The denial rate for petitions for temporary foreign workers shot to 23 percent from 17 percent. The application for permanent workers saw denials rise to 9 percent from 6 percent.
The largest increase in the denial rate for family-sponsored applications, for petitions for fiancés, rose to 21 percent from 14 percent.
Greg Siskind, a Memphis-based immigration attorney with three decades of experience, told me that these numbers back up the anecdotes that he has been hearing from colleagues across the country. The increase in denials, he said, is “significant enough to make one think that Congress must have passed legislation changing the requirements. But we know they have not.”
So what is going on?
Last year, the Trump administration increased the length of immigration applications by double, triple or even more, making them more time-consuming and complicated than ever. This made mistakes far more likely. This year, it also made it easier to deny applicants outright without giving them an opportunity to submit clarifying information. The agency has also made moves to police caseworkers who may be, in its view, too lenient.
Mr. Trump’s political appointees to the D.H.S. have also seized on his rhetorical attacks on immigrants, as well as executive orders like the “Buy American and Hire American” order and another mandating extensive vetting of foreigners, as a justification for a crackdown on legal immigration.
As a result of all this, total immigration to the United States has declined under President Trump, and fewer foreign travelers have been entering the country. These trends are surprising, because the economies of the United States and almost all other countries are growing, which usually generates more travel and immigration. The best explanation for this discrepancy is that the president’s policies are having their intended effect: reducing legal immigration to this country.
On some level, President Trump appears to understand this reality, but his policies are making the situation worse.
David J. Bier is a policy analyst at the Cato Institute.
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The answer is actually pretty simple, David. Trump lies, particularly when he repeats the racist restrictionist disingenuous claim that he “just wants legal immigrants.” I call BS! His pejorative use of the term “chain migration” and his bogus proposals for a fake “merit based” (read “no”) immigration system clearly belies any such claim.
In addition to being a congenital liar and proudly ignorant in an intellectual sense, Trump is a White Nationalist racist who hates all immigrants except, perhaps, his current wife and a few White Christian guys from Europe with PhDs. (Although, he really doesn’t like Europeans, Canadians, or any other type of “foreigner” who isn’t a human rights violating despot, leading to the conclusion that he truly despises human rights of any kind.)
His policies are driven by a toxic combination of intentional ignorance, hatred, White Nationalism, and political opportunism. You don’t have to be a rocket scientist to know that policies driven by such evil and irrational motives are going to produce irrational and highly counterproductive results.
Welcome to the Age of Trump & His GOP, David! Where’ve you been? What have you and your colleagues at CATO been doing to insure that Trump and the GOP are sent packing and replaced with leaders (e.g., Democrats, at least at present) who both understand and are willing to stand up for the national interest?
CATO is supported to a large extent by the Koch Bros. While I actually agree with some of their ideas, respect that they actually employ folks producing useful goods and apparently treat them reasonably well, and I occasionally attend CATO seminars, the “Bros” generally have been supporters and enablers of Trump, Pence, and the current GOP kakistocracy.
They helped prop up the truly reprehensible Scott Walker who wasted money, divided Wisconsin, demeaned education, tanked the infrastructure, screwed the environment, and diminished the state in almost every way. It turned what had been a fairly progressive, “midwest friendly,” and cooperative state into a leader in the “race to the bottom.” And, their support for the ugly and unprincipled opposition to Senator Tammy Baldwin was beyond despicable!
I think you and your CATO colleagues largely see where history is going. But, until you get out there and actively work for the Constitutional removal of Trump (and his toady Mike Pence), the defeat of the “Trump GOP,” and the return of “government for all the people” you will remain on the “wrong side of history.” Your dream of an economically prosperous and powerful America continuing to lead the world into the future will be just that — a dream that will never be fulfilled as long as racism and White Nationalism overrule reason!
America needs a two party system (or more). And, I believe there’s plenty of room and a need for a fiscally conservative, pro business, labor friendly, non-racist, non-White-Nationalist, non-homophobic party that challenges the idea that we can solve all problems by just throwing money at them. Not saying I’d join it, but I can see the need for it. But, the current GOP is nothing of the sort — talk about disingenuous rhetoric and total fiscal irresponsibility!
José de Córdoba and Juan Montes report for the WSJ:
That day, the mothers scoured the site outside El Fuerte, a town in Sinaloa state, on Mexico’s northern Pacific Coast, looking for one of two men presumably kidnapped by cartel gunmen in recent weeks. One body had already been found in a field. The women believed the other may be nearby. In the end, they came up empty.
“This is my life,” said Mirna Medina, a forceful woman who holds the group together. “Digging up holes.”
Her son, who sold CDs by a gas station, was kidnapped in 2014. Three years later to the day, she and the other mothers of the search group dug up his remains. “I felt his presence,” she said, remembering the day and breaking out in tears. “I wanted to find him alive, but at least I found him.”
Because the missing aren’t counted as part of the country’s official murder tally, it is likely Mexico’s rate itself is higher.
The killing and the number of missing grow each year. Last year, 5,500 people disappeared, up from 3,400 in 2015. Mexico’s murders are up another 18% through September this year.
Victims’ families, mostly mothers, organize search parties, climbing down ravines or scouring trash dumps. Their technique is crude. Sometimes they hire laborers to hammer steel rods into the soil and haul them up to see if they smell like decomposition. Other times, they simply look for an exposed body part or shallow grave.
The sheer numbers of the disappeared now rival more famous cases of missing people in Latin American history.
The Disappeared, or Desaparecidos, became a chilling part of Latin America’s vocabulary during the Cold War, when security forces kidnapped, killed and disposed of the bodies of tens of thousands of leftist guerrillas as well as civilian sympathizers. The most infamous case is Argentina’s “Dirty War,” where at least 10,000 people vanished from 1976 to 1983. In Buenos Aires, mothers of the missing organized weekly vigils in front of Argentina’s presidential palace, gaining world-wide prominence.
Mexico fought its own far-smaller war against Marxist guerrillas during the 1970s. According to the government human-rights commission, 532 people went missing, and at least 275 people were summarily executed by security forces.
This time around, the horror in Mexico is bigger and its causes more complex. Many of the disappeared in recent years are believed to be the victims of violence unleashed by criminal gangs fighting to control drug routes and other lucrative businesses such as extortion, kidnapping and the theft of gasoline from pipelines, often with the complicity of police forces, government officials say.
“It’s a crisis of civilization in Mexico,” said Javier Sicilia, a poet and victims’ advocate whose son was murdered in 2011. “It’s diabolical—an unprecedented perversity to disappear human beings and erase any trace of them from the world.”
The trauma of Mexico’s missing is an open wound in the nation’s psyche. Families who can’t grieve for their loved ones spend the day alternating between doubt and despair, praying for, and dreading, the blessing of certainty.
“We don’t sleep nights, we have nightmares wondering what happened, where can he be,” said Maria Lugo, 62, whose son disappeared in 2015.
. . . .
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Those with WSJ access can get the rest of the gruesome story at the link, along with pictures and graphs illustrating the extent of the problem.
Obviously, by no stretch of the imagination is Mexico a “Safe Third Country” for purposes of U.S. asylum law. The brazen attempt by the Trump Administration and GOP Senators led by Chuck Grassley and Mike Lee to force such an agreement down the throat of Mexico is as disingenuous as it is immoral.
It also is appalling the number of Trump Administration senior immigration officials who parrot the bogus claim that “refugees from Central America are required to apply for asylum in Mexico.” Neither international law nor U.S. law imposes such a requirement, for good reasons. Actually, the single “Safe Third Country Agreement” that we have negotiated with Canada in compliance with our immigration laws is quite circumscribed and very limited in scope. And, there are ongoing efforts in Canada to force Canada to withdraw from this agreement because of the Trump Administration’s mistreatment of asylum applicants.
Nevertheless, as I have previously pointed out, given conditions in the Northern Triangle, while Mexico isn’t a “Safe Third Country” for purposes of our law, it might well be a “safer third country,” in practical terms, for many Central American refugees and their families. It’s bigger than the Northern Triangle countries, somewhat better governed than the “failed states” of the Northern Triangle, easier and less dangerous to reach, has more economic opportunities and resettlement options, and is generally (although, sadly, not always) not as overtly hostile to refugees as is the U.S. under Trump.
To encourage (rather than attempt to force) more individuals to apply for asylum in Mexico, our Government should:
Publicly acknowledge and treat the migration from Central America as a “humanitarian situation,” rather than a law enforcement issue;
Work with the UNHCR and Mexican authorities to improve asylum processing, adjudication, and resettlement in Mexico;
Provide financial aid and incentives for Mexico to improve its asylum system (rather than law enforcement money or threats to cut off funding);
Emphasize to Central American refugees the possible benefits of applying for asylum in Mexico (or elsewhere), rather than threatening them and trying to intimidate them from coming to the U.S.
Finally, and most important, the U.S. should be taking a leadership role with the UNHCR and other countries in our hemisphere to address the endemic problems in the Northern Triangle that are creating these refugee flows.
Refugee situations are complex, on a number of levels. They won’t be solved by the simplistic approaches (a/k/a political stunts) currently being taken by the Trump Administration, including the ridiculous “Wall.” Indeed, they can’t be solved by any single country. It takes the countries of the world working together to resolve them. That’s exactly what the mechanisms set up under the U.N. Convention on Refugees were intended to do. It’s beyond foolish for our Government to ignore them.
Detention will continue to be a major problem, regardless.
Under the proclamation, DHS would not have to screen aliens to determine whether they have a credible fear of persecution for asylum purposes, but it would have to screen them to determine if they have a reasonable fear of persecution.
The United States is a signatory to the Refugee Convention, which prohibits expelling a refugee to a country where it is likely that he will be persecuted. Asylum just requires a well-founded fear of persecution.
America also is a signatory to the Convention Against Torture (CAT), which provides that, “No State Party shall expel … a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Relief under these provisions is limited to sending the alien to a country where he would not be persecuted or tortured.
The proclamation should be withdrawn until these problems can be resolved.
Nolan’s conclusion ties in nicely to my preceding posts that confirm, as Nolan points out, that CBP, the Asylum Office, the Immigration Courts, and probably the Federal Courts are woefully unprepared for the additional chaos and workload that is likely to be created by Trump’s shortsighted actions. Like most of what Trump does in the immigration areas it demonstrates a chronic misunderstanding of the laws, how the system operates, the reality of what happens at the border, and ignores the views of career civil servants and experts in the area. In other words, a totally unprofessional performance. But, that’s what “kakistocracy” is all about.
We’ll see what happens next. I expect a U.S. District court ruling on the ACLU’s suit to stop implementation of the Executive Order and the “Interim Regs” to be issued in the near future.
EL PASO, Texas—Huddled in blankets on a crisp morning last Tuesday, Gerson Valeriano and Yossira Gil were first in line on the Paso Del Norte bridge from Mexico to apply for asylum in the United States. It was their eighth day waiting with more than 100 migrants for Border Patrol to let them pass an invisible line just five feet away to apply for asylum.
The Trump administration wants all migrants and refugees to apply for asylum this way thanks to an executive order issued Friday that will make migrants who illegally cross at places other than ports of entry like Paso Del Norte ineligible for asylum. The administration would ram more people into bottlenecks like Paso Del Norte without providing more capacity to process aslyum-seekers, immigrant advocates and attorneys say.
“This administration is narrowing down their interpretation of who qualifies for asylum while literally physically preventing people from seeking asylum in the so-called right way,” said Alan Dicker, a volunteer with the Detained Migrant Solidarity Community in El Paso.
Trump achieves this by having federal law enforcement prevent migrants from entering the U.S. to claim asylum, often forcing them into making a difficult decision of whether to enter illegally. Doing so after the executive order is signed will make them ineligible for asylum.
The 100 migrants in line behind Valeriano and Gil—about half of them children—would wait even longer to apply for asylum, if they made it at all. Most wouldn’t, because Mexican immigration authorities kicked the migrants off the bridge on Friday afternoon, an advocate in El Paso told The Daily Beast.
CBP said in a statement it put officers on the bridge to “ensure that arriving travelers have valid entry documents in order to expedite the processing of lawful travel. That being said, CBP processes undocumented persons as expeditiously as possible without negating the agency’s overall mission, or compromising the safety of individuals within our custody.”
But even when there isn’t a line—as was the case in June, at the height of the family separation crisis—migrants are sometimes told by Border Patrol agents that there is “no room” in processing centers at ports of entry like Paso Del Norte. Both in June and in recent weeks, agents have stood at the apex of the bridge here, preventing migrants from physically entering United States territory where the government will then be legally required to process them for asylum if they simply say the word, asilo.
“If you are physically present in the U.S. you can apply for asylum, which is why [Customs and Border Patrol] has gone out of its way over the summer and now to prevent people from entering,” said Iliana Holguin, an El Paso immigration attorney.
CBP said its facilities were not “designed to hold hundreds of people at a time who may be seeking asylum” and that “as in the past when we’ve had to limit the number of people we can bring in for processing at a given time, we expect that this will be a temporary situation.”
Trump’s executive order seeks to bar those who enter illegally from applying for asylum. Instead, they’ll have to seek other forms of relief from deportation, proving that they have a “reasonable fear” of persecution in their home countries as opposed to the much lower threshold of “credible fear” that’s required as part of asylum cases, Holguin said.
“Those protections are much more difficult to obtain, have a much higher burden of proof, and are much, much harder to prove than asylum claims,” Holguin said.
Attorneys for every migrant who fails a reasonable fear interview and is processed for deportation, Holguin said, will almost surely file appeals and lawsuits on their clients’ behalf alleging Trump’s order is in violation of U.S. law. Those cases will be in addition to the lawsuits that will be filed by aid and advocacy organizations as soon as the executive order is entered into the federal register.
“I don’t think Trump understands, and I don’t think he cares, that this will not reduce the caseload in immigration court but increase it,” Holguin said. “Like sending troops to the border, I think he’s doing this for show. I think he’s doing it to look tough against desperate migrants who are fleeing violence and poverty.”
Instead of sending troops to the border, Holguin, Dicker and others say, the Trump administration should be allocating more resources to process asylum claims to reduce the backlog at ports of entry like Paso Del Norte.
“The administration is not interested in solving this complex humanitarian situation that is forcing families and children to flee for their lives and come to our border,” Greg Chen of the American Immigration Lawyers Association told The Daily Beast. “It’s a gross waste of American taxpayer dollars to deploy thousands of troops to the border instead of doing what would really address the problem, which is sending more asylum and refugee officers to screen the vulnerable people that are arriving.”
Valeriano and Gil fled Honduras because of rampant violence there. After a few years living in Mexico, the pair took a bus to Juarez, where they got in line with hundreds of other migrants from South America, Cuba and elsewhere.
“I believe that God has the power to give us the opportunity to be an American,” Valeriano said.
It’s hardly news that the Trump Administration has no intention of solving immigration problems. It’s all a political show for the “base.”
But what about the career civil servants who are knowingly participating in this sham, and in too many cases furthering and repeating knowingly false narratives? What about the government lawyers who are defending “bad faith positions” in court? What happened to their ethical responsibilities? What about their oaths of office?
The Immigration Crisis Jeff Sessions Leaves Behind
Assessing the ousted attorney general’s legacy on President Trump’s favorite issue.
But anyone who was following Sessions’ actions on immigration had no doubt that he was working hard. Before he was forced to resign on Wednesday, Sessions was exceptionally aggressive as attorney general, using his authority to steer the immigration courts, restrict access for migrants to the asylum system and deploy the federal courts for immigration enforcement purposes.
Under American law, the attorney general has broad powers over the immigration courts, which reside in the Justice Department not in the independent federal judiciary. Sessions, who made immigration a signature issue during his two decades as a Republican senator from Alabama, exercised those powers to rule from on high over the immigration system.
While Trump complained about Sessions, on immigration he was an unerringly loyal soldier, vigorously executing the president’s restrictionist policies.
Sessions made it his mission to reverse what he regarded as a failure to enforce order in the system by President Barack Obama and Democrats in Congress, despite plunging numbers of illegal border crossings and record deportations under the previous administration.
Join the community that keeps criminal justice on the front page.
A primary goal he declared was to speed the work of the immigration courts in order to reduce huge case backlogs. But according to a report this week by the Transactional Records Access Clearinghouse, or TRAC, the backlogs increased during his tenure by 49 percent, reaching an all-time record of more than 768,000 cases. That tally doesn’t include more than 330,000 suspended cases, which justice officials restored to the active caseload.
“I’ve never seen an attorney general who was so active in the immigration sphere and in a negative direction,” said Daniel Kowalski, the editor of Bender’s Immigration Bulletin, a widely-used reference for lawyers. Kowalski said he’s been practicing immigration law for 33 years.
Here are some of Sessions’ measures that shaped the crisis the next attorney general will inherit:
He imposed case quotas on immigration judges, which went into effect Oct. 1, demanding they complete at least 700 cases a year. With compliance becoming part of a judge’s performance evaluation, the immigration judges’ association has said the quotas impinge on due process.
He made frequent use of the attorney general’s authority to decide cases if he doesn’t like opinions coming from the immigration courts. Sessions used that authority to constrain judges’ decision-making. He made it more difficult for them to grant continuances to give lawyers time to prepare, and he limited judges’ options to close cases where they concluded deportation was not warranted, as a way to lighten overloaded court dockets.
Sessions discouraged immigration judges from allowing prosecutors to exercise their discretion to set aside deportations for immigrants with families or other positive reasons to remain in the United States.
In a policy known as zero tolerance, in April Sessions ordered federal prosecutors along the southwest border to bring charges in federal court against migrants caught crossing the border, for the crime of illegal entry. The policy resulted in parents being separated from their children, in episodes last summer that drew outrage until Trump ordered the separations to stop. But the prosecutions continue for illegal crossers who aren’t parents with children, swelling federal dockets and making it harder for prosecutors to pursue other border crimes, like narcotics and human trafficking, weapons offenses and money-laundering. In September, according to TRAC, 88 percent of the prosecutions in the Southern District of Texas were for an illegal entry misdemeanor; 65 percent of the cases in the Southern District of California were for the same minor crime.
Zero tolerance at the border
Under former Attorney General Jeff Sessions, federal prosecutors in five border districts significantly ramped up the number of misdemeanor cases they filed against migrants crossing illegally this year, particularly in south Texas.
Sessions took the position that a program initiated by Obama, which gave protection from deportation to undocumented immigrants who came here as children, was an overreach of executive authority. He declined to defend the program, called Deferred Action for Childhood Arrivals, or DACA, and praised Trump’s decision last year to cancel it. After federal courts allowed the program to continue, the Justice Department fought to bypass the appeals courts and get a hearing before the Supreme Court for its efforts to terminate the program.
Even though his relations with Trump soured early in his tenure, Sessions maintained a line of communication to the White House through Stephen Miller, a senior adviser. Miller was a senior staff member for Sessions in the Senate, and the two share similar views and goals for clamping down on immigration.
Lawyers and advocates say Sessions’ actions have politicized immigration court proceedings. “He stripped the judges of the authority to ensure due process and demonstrated how susceptible the courts are to the whim of politics,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, based in Chicago.
Advocates for immigration reform said a new attorney general should restore the flexibility of immigration judges to manage their own dockets to find efficient ways to reduce their caseloads. But they said Sessions’ tenure provided new arguments for Congress to move the immigration courts out of the Justice Department to the federal judiciary.
Gregory Chen, director of government relations for the American Immigration Lawyers Association, said, “The aggressive nature of his actions infringing on the independence of the courts has made the need for a new court system even more urgent.”
Go to Julia’s article at the above link to get the accompanying graphics and pictures.
The Immigration Court backlog reported by TRAC now is over 1.1 MILLION cases, with no end in sight. More disturbingly, there is no coherent plan for addressing these cases in anything approaching a rational manner, nor is there a plan for restoring some semblance of due process and functionality to the Immigration Courts. Like most Trump/Sessions initiatives, it’s “we’ll create the problem, make it much worse, then hinder the efforts of others to fix it.”
Three “no-brainers ” that Sessions wouldn’t do:
Working with the private bar, NGOs, states, and localities to make legal representation available to everyone in Immigration Court who wants it;
Letting U.S. Immigration Judges control their own dockets and make independent decisions, free from political interference; and
Removing hundreds of thousands of older cases of individuals eligible to apply for “Cancellation of Removal For Non-Lawful Permanent Residents” from the Immigration Courts’ active dockets and having them adjudicated by USCIS in the first instance.
Of course an independent Article I Immigration Court is an absolute necessity. But, that will take legislation. In the meantime, the foregoing three administrative steps would pave the way for an orderly transition to Article I status while promoting Due Process, fairness, and efficiency in the system.
But, I wouldn’t count on anyone in the “Current Kakistocracy” doing the right thing or actually implementing “good government.” If the Article IIIs don’t put an end to this travesty, it will continue to get worse and pull them down into the muck until we get “regime change.”
Ironically, Trump isn’t the only one who “hasn’t had an Attorney General over the past two years.” The majority of Americans haven’t had one either; while he might be on the verge of getting “his” Attorney General, the rest of us can only look forward to more pain and misery!
UPDATE: On Friday, President Trump signed a presidential proclamation denying asylum for immigrants who request it after crossing the border illegally rather than at a port of entry.
In a pre-midterms television ad deemed too racist for CNN, NBC and even Fox News, the White House described members of the large group of Central American migrants making their way through Mexico as “dangerous illegal criminals.” Ominous music played in the background of the ad as images of a convicted Mexican criminal were spliced with footage of the caravan.
This description was inaccurate, not to mention illogical ― aren’t hardened criminals and narco-traffickers wily enough to avoid such an arduous and physically taxing journey, and one that has captured such public attention and scrutiny?
The truth about these migrants comes down to the most basic of human needs: survival. Those who have joined the caravan have done so because their reality is simple. In the Northern Triangle countries of El Salvador, Guatemala and Honduras, where violence is endemic and justice is illusory, it’s a question of life or death.
The truth about these migrants comes down to the most basic of human needs: survival. Those who have joined the caravan have done so because their reality is simple. In the Northern Triangle countries of El Salvador, Guatemala and Honduras, where violence is endemic and justice is illusory, it’s a question of life or death.
Trump, in his roiling pre-midterm elections hate-speech tour, painted the caravan as an “invasion,” even though it’s a common occurrence that hasn’t disrupted the peace before. Traveling in a large group is far safer than traveling alone, with a human smuggler or in a small group, and migrant advocacy groups have organized large caravans for at least a decade. But beyond the president and his party’s racist rhetoric, there’s a broad assumption that such an influx of immigrants will both threaten American values and weigh heavily on the American taxpayer.
Like previous waves of immigrants, this group of new arrivals may need help to acclimate to this complex country of ours. Some will need medical care, thanks to years of living in countries with limited medical infrastructure. Others will need counseling to heal from layers of traumatic experiences against the backdrop of horrible violence ― which, lest we forget, the United States played a significant role in creating.
But they won’t need much. If I’ve learned one thing during my tenure as a trauma-focused clinician, it is this: Central American immigrants are resilient. They are driven and strong. They persevere. Despite the staggering hardships and suffering they have endured, they are defined by their ability to “seguir adelante” ― to move forward.
It’s a phrase that I’ve heard hundreds of times ― perhaps thousands ― in my therapy office. Nearly all my young clients have voiced their desire to “seguir adelante.” The 17-year-old boy who witnessed his father’s murder, finding himself alone and in grave danger; the 15-year-old girl who was kidnapped by the Zetas cartel in Mexico and held for ransom for weeks; the 18-year-old boy who served as a lookout for the MS-13 gang in exchange for his sister’s life before fleeing his country.
“Tengo que seguir adelante,” they tell me. I must continue moving forward.
The 13-year-old indigenous child who recounted months of eating “grass soup” when tortillas became too expensive. The 16-year-old who mourns the loss of her brothers ― all three of them, murdered while crossing gang-controlled territory. The 20-year-old working through the night at a bakery, then coming to school filled with energy and endless questions about the workings of American bicameral government.
Tengo que seguir adelante.
While their experiences are varied and diverse, my clients have two things in common. They have been exposed to multiple horrifying traumatic events, and they have an indefatigable desire to heal, grow stronger and move forward.
Trauma is never a desirable experience, or a deserved one. Many Central Americans have seen, experienced and survived more suffering and loss than any human should be asked to bear. But part of the “seguir adelante” mentality is the idea of being a metaphorical phoenix. Instead of allowing repeated traumatic events to crush them, many of the Central American clients with whom I work rise again as stronger, more resilient versions of themselves. While they may suffer from trauma-related symptoms like flashbacks, many are simultaneously able to devote their energy to finding a new sense of purpose in ways that I have not observed as universally in my work with American-born clients.
This phenomenon is illustrative of the positive psychology concept of post-traumatic growth, which posits that those who are exposed to trauma discover or develop new capabilities: closer social and familial bonds, increased resilience, stronger motivation and deepened spirituality.
So if the resilience of the “adelante” mentality drives these immigrants forward in spirit, what compels them to move forward physically? Perhaps they were unable to pay last month’s “impuestos de guerra,” or war taxes, to the local gang as rent for their space in the market. Maybe they refused to join the controlling gang in their neighborhood, despite the near-certainty of death if they stayed. Instead of remaining in Guatemala City, or Santa Tecla, or Tegucigalpa, they wagered it all, picked up and left.
They leave behind their families, their friends, their rich cultures, their language, their homeland. They understand the risks of the journey. They have heard the horror stories of kidnapping, rape, extortion and abandonment in the desert. Despite all this, they have decided to “seguir adelante,” fueled by hope for a brighter, safer future, to be achieved through hard work, determination and unwavering courage. Don’t those values sound reminiscent of those upon which our patchwork nation was founded?
In the end, all the migrant caravan really wants is to move forward. And as a democratic country founded on ideals of egalitarianism, isn’t it time for us to move forward, too?
Stephanie L. Carnes is a bilingual licensed clinical social worker at a large public high school in New York’s Hudson Valley. She was previously a clinician in a federally funded shelter program. She specializes in trauma treatment with Central American immigrant students and culturally competent mental health care.
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Eventually, the truth about how the Trump Administration is creating false narratives and violating both U.S. and international law by intentionally mistreating and mischaracterizing refugees will come out. Perhaps not soon enough to save the current refugees; but, certainly in time to put some of the intellectually dishonest government officials and their lawyers in the same category as we now view the failed legal profession, judiciary, and civil service during the Third Reich. Just take a stroll through the Holocaust Museum and see the disturbing similarities between the current racially driven false narratives and illegal actions being promoted by the Trump Administration and the pre-World War II actions of the Third Reich. Bogus “national security” rants are a common denominator.
The real scandal here is that although the vast majority of arrivals pass “credible fear” screening, so few them ever receive asylum. That strongly suggests that there are real problems in the “intentionally overly restrictive unduly legalistic” approach and the often dishonest ways that “in absentia orders” are used at EOIR. A better approach would probably be to allow those who have already been determined by the Asylum Office to have a “credible fear” present their initial asylum applications to those offices, rather than being forced immediately into the Immigration Courts, particularly given the current court backlogs.
The system has become far too restrictive and legalistic. Nobody has any realistic chance of winning a case without a lawyer. But, under Trump and Sessions, EOIR has abandoned efforts to insure that individuals are given reasonable access to pro bono lawyers before their cases are heard on the merits. Indeed, Sessions conducted a remarkably unethical, inappropriate, false, and vicious campaign against lawyers — right now about the only folks actually trying to make the system work and insure that our Constitution is complied with.
Of course, not every migrant from the Northern Triangle is a refugee as our law defines that term. But, we should recognize that almost all of them are decent people with good reasons for coming, even when those reasons don’t fit within our legal system. Even when they are not entitled to protection or to remain here, they deserve to be treated humanely, fairly, respectfully, and impartially, and have a full opportunity to present their claims.
The intentional demonization and dehumanization of asylum applicants, advanced by immoral and unethical folks like Trump, Sessions, Miller, and Nielsen, has now been picked up by lower level bureaucrats, who are spreading lies, promoting knowingly false narratives, and generally “taking a dive” to preserve their jobs (or, in a few cases, to gratify their own biases which match those of the Trump Administration.)
If we don’t figure out a way to stop their assault on humanity and human decency, eventually all of us will be splattered with the slime that is the Trump Administration’s approach to immigration! History will not judge us kindly for our subservience to evil.
President Donald Trumpsaid recently that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.”
But the rest of the 195 countries (80 per cent) base citizenship at birth on the nationality or resident status of the child’s parents.
Perhaps Trump should have said instead that the United States and Canada are the only two developed countries that have it, and Canada is in the process of deciding whether to stop using it.
Why have most of the countries in the world rejected birthright citizenship?
. . . .
The fact that so many countries have rejected birthright citizenship doesn’t justify giving it up, but it does warrant taking a closer look at the practice.
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Go on over to The Hill at the link to read Nolan’s complete article. Among other things, he discusses the approaches of the UK, Canada, and Ireland.
IS MATTHEW G. WHITAKER the legitimate acting attorney general? From approximately the second President Trump ousted Attorney General Jeff Sessions and tapped Mr. Whitaker to temporarily exercise the office’s vast authority, legal experts have sparred over whether Mr. Trump can unilaterally elevate someone from a role that does not require Senate confirmation to one that does. But regardless of whether the promotion is legal, it is very clear that it is unwise. Mr. Whitaker is unfit for the job.
Several prominent legal scholars point out that the Constitution demands that “principal officers” of the United States must undergo Senate confirmation. A 19th-century Supreme Court case suggeststhere may be limited room for temporary fill-ins, but Mr. Whitaker’s appointment is hardly so temporary; he could serve for most of the rest of Mr. Trump’s first term. Even if Mr. Whitaker’s promotion is constitutional, Congress passed a law governing Justice Department succession that also seems to prohibit Mr. Whitaker’s ascent. The department has a capable, Senate-confirmed deputy attorney general in Rod J. Rosenstein; he should be running the department in the absence of a permanent replacement.
The Senate above all should be offended by the president’s end run around its authority. Majority Leader Mitch McConnell (R-Ky.) should demand hearings and consider filing a lawsuit. Instead, he is helping to establish a troubling precedent, saying only that he expects Mr. Whitaker to be a “very interim AG.” Yet no random official should be endowed with all the powers of an office as powerful as attorney general, meant for a Senate-vetted individual, even for a relatively short time.
And Mr. Whitaker is worse than random. It took less than 24 hours for material to emerge suggesting he could not survive even a rudimentary vetting.
First, there are Mr. Whitaker’s statements criticizing the Russia probe of special counsel Robert S. Mueller III. At the least, they require him to consult Justice Department ethics counsel about whether he can oversee the inquiry with a plausible appearance of evenhandedness. He will do immediate and lasting harm to the Justice Department’s reputation, and to the nation, if he assumes the role of president’s personal henchman and impedes the Mueller probe.
Then there is Mr. Whitaker’s connection to a defunct patent promotion company the Federal Trade Commission called “an invention-promotion scam that has bilked thousands of consumers out of millions of dollars.” Mr. Whitaker served on its board and once threatened a complaining customer, lending the weight of his former position as U.S. attorney for the Southern District of Iowa to the company’s scheme.
Finally, and fundamentally most damning, is Mr. Whitaker’s expressed hostility to Marbury v. Madison, a central case — thecentral case — in the American constitutional system. It established an indispensable principle: The courts decide what is and is not constitutional. Without Marbury, there would be no effective judicial check on the political branches, no matter how egregious their actions.
If the Senate were consulted, it is impossible to imagine Mr. Whitaker getting close to the attorney general’s office. He should not be there now.
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There’s no doubt whatsoever that Whitaker is spectacularly unqualified for the job. But so was Sessions. And so were Pruitt and Price. And, so are Carson, DeVos, Nielsen, Zinke, and a host of Senate-confirmed underlings like L. Francis Cissna at USCIS.
Sadly, the point is that the GOP Senate lacks the integrity, backbone, and decency to perform their “advise and consent” function in a credible manner. So, I think the Post might be unduly optimistic in assuming that the GOP-controlled Senate would reject Whitaker merely because he is totally unqualified. Doesn’t seem to have bothered them before; no reason to believe that it will in the future. That’s one reason why our nation is “on the rocks.”
Joint Rule and Presidential Proclamation On Entry and Asylum: What You Need To Know
Updated November 9, 2018
What are these new policies?
On November 9, 2018, the Department of Homeland Security (DHS) and Department of Justice (DOJ) issued an interim final rule and a presidential proclamation affecting individuals seeking entry at the southern border of the United States. These executive actions place restrictions on asylum for certain noncitizens arriving in the United States.
What are these policies intended to do?
The interim final rule governs eligibility for asylum and screening procedures for those subject to a new presidential proclamation. Together, these executive actions suspend entry for noncitizens crossing the southern border and bar such noncitizens from asylum.
What is the scope of the joint interim rule and presidential proclamation?
The rule applies prospectively, so individuals who arrived in the United States before the effective date of November 9, 2018 are not covered. The rule also does not impact two related forms of relief known as withholding of removal and protection under the Convention Against Torture. These forms of relief are narrower and without the same benefits of asylum protection. No later than 90 days from the date of the presidential proclamation, November 9, 2018, the Secretary of State, Attorney General and Secretary of Homeland Security should submit to the President a
recommendation on whether the suspension should be extended or renewed.
What legal authority is the administration relying upon to issue the interim final and
presidential proclamation?
The joint interim rule points to several sections in the immigration statute known as the Immigration and Nationality Act (INA). Some of these sections are summarized below.
● INA § 212(f) states: “Whenever the President finds that the entry of any aliens or of anyclass of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
1
● INA § 208(d)(5)(B)● INA §
●
Has the administration used INA § 212(f) before?
Yes. Most recently, INA § 212(f) was used as a basis for three travel bans issued by the President, each of which prohibits the entry of nationals from certain countries. On June 26, 2018, the Supreme Court of the United States issued an opinion in the case of Hawaii v. Trump (Travel Ban 3.0). Writing for the majority, Chief Justice Roberts held that the travel ban does not violate the INA and described INA § 212(f) as a “comprehensive delegation” which “exudes deference to the President in every clause.”
Is the President’s use of INA § 212(f) in the Travel Ban distinguishable?
Yes. In Hawaii v. Trump, the courts did not analyze the suspension clause at INA § 212(f) against the asylum provision at INA § 208(a).
What are the legal concerns with these executive actions?
There is a concern that the executive actions violate the immigration statute and other laws. While the interim final rule and presidential proclamation identify some sections of the immigration statute, these sections cannot be read in isolation to the statute as a whole, nor can it conflict with the U.S. Constitution, statutes and other laws. One concern is that these actions violate the statutory provision that governs asylum law and other laws. INA § 208 states that any person physically present in the United States, regardless of how or where he or she entered is eligible to apply for asylum. The section states in part, “
ated port of arrival.
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
states that “[t]he Attorney General may provide by regulation for any
other conditions or limitations on the consideration of an application for asylum not
inconsistent with this Act.”
215(a) states that it is “unlawful . . . for any alien to depart from or enter or attempt
to depart from or enter the United States except under such reasonable rules, regulations,and orders, and subject to such limitations and exceptions as the President may prescribe.”
INA
§
208(b)(2)(C) states that the “Attorney General may by regulation establish
additional limitations and conditions, consistent with this section, under which an alien
shall be ineligible for asylum under paragraph (1).”
Any alien . . . who arrives in the United States (whether or not
at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of such alien’s status,
may apply for asylum . . .” (emphasis added).
Because
the plain language of the INA is clear that
any noncitizen is eligible for asylum regardless of her manner of entry, there is a concern that these policies violate the statute by restricting the availability of asylum seekers only to those who
present at a design
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Why is the administration issuing these policies?
It is the administration’s position that the United States has seen an increase in the number of noncitizens arriving at the United States between ports of entry along the southern border and that
many of the asylum claims brought forth by this population are without merit.
What are some of the countervailing views to the administration’s position taken by some
refugee advocates and scholars?
Many asylum seekers arriving at the southern border are from the Northern Triangle which is comprised of Guatemala, El Salvador and Honduras. The violence and danger in these countries is well documented. Individuals who have suffered or will suffer individual harm for a specific
reason are eligible to apply for asylum under the immigration statute and other laws. Many of the
asylum claims by individuals from the Northern Triangle are with merit.
What is an “Interim Final Rule”?
An Interim Final Rule becomes effective immediately upon publication and is an exception to the general rule that public notice and comment must take place before the effective date of a regulation. DOJ and DHS have concluded that a “good cause” exception exists to publish this asylum regulation as an interim final rule. Written comments can be submitted by the public for a period of sixty days from the date of publication.
What is a presidential proclamation?
A presidential proclamation is one form of presidential power and similar to an executive order. It is an order issued by the President of the United States and may possess the authority of law. See e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
What comes next?
Given the legal concerns of restricting asylum, litigation is expected. Further, under section 4 of the presidential proclamation, if any section of the proclamation is found to be invalid, the remainder of the proclamation shall remain effective.
Where can I find more resources?
See the Penn State Law Center for Immigrants’ Rights Clinic website for updates on this and other immigration policies. Also visit:
● Department of Homeland Security
● American Immigration Lawyers Association
● American Immigration Council
● Human Rights FirstThe goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
3
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It’s critically important to the future of our nation and the world that the actions of Trump and his White Nationalist scofflaws be resisted in the courts and in our political system.
In the meantime, since virtually everything the Administration says on this topic is a false narrative or obfuscation of their real racist agenda, an honest expert analysis like this is a “gold mine.”
We can (and are) diminishing ourselves as a nation, but it won’t stop human migration!
Trump administration to issue travel ban-like rule at southern border
Tal Kopan Nov. 8, 2018
WASHINGTON — The Trump administration is using travel ban-like authority to substantially curtail immigrants’ ability to seek asylum in the U.S.
The administration took the first step Thursday to bar immigrants from applying for asylum if they cross the southern border illegally. On Friday, President Trump is likely to issue a proclamation implementing the ban, a senior administration official suggested in a briefing.
The ban will apply to future illegal border crossers, not those who have already entered the country, the official said.
The move, which was first reported by The Chronicle last month, comes as a caravan of thousands of impoverished migrants is slowly traveling through Mexico toward the U.S. The migrants are still several weeks away from the border, but Trump has already sent 5,000 troops to the Southwest to prepare for their possible arrival.
Related Stories
Trump’s proclamation will apply only apply to those who cross the U.S.-Mexican border illegally. The goal, said a second administration official, is to “funnel” asylum seekers to legal border crossings, where the government is “better resourced” and has “better capabilities and better manpower and staffing.”
But the rule could have overwhelming consequences for crossings like San Ysidro in San Diego County. The busiest land crossing in the Western hemisphere, that port of entry already struggles to process immigrants who arrive seeking asylum, with wait times often approaching weeks.
The administration officials did not answer a question about how the ports of entry would be able to accommodate even more immigrants.
The San Ysidro crossing can process 50 to 100 immigrants a day, according to Customs and Border Protection Commissioner Kevin McAleenan. There were days in July when the line was 1,000 people long.
Officials cannot legally turn away immigrants seeking asylum at recognized border crossings. But they do conduct “metering,” stopping immigrants before they get to the crossing and telling them they have to come back.
That has created desperate situations south of the border. An inspector general’s report analyzing the administration’s handling of the family separation crisis this summer blamed “metering” for causing more people to cross into the U.S. illegally.
Federal law says asylum protections, which afford a path to citizenship for qualifying immigrants who fear persecution in their home countries, are available to immigrants “whether or not” they arrive at a legal crossing. The administration argues that other provisions of the law allow them to restrict that.
Immigrant advocates disagree, and have already said they will sue to block Trump’s expected proclamation.
“The asylum ban is patently unlawful and disregards our nation’s long commitment to providing a safe haven for those fleeing danger. Court challenges are coming,” said Lee Gelernt, a lead immigration attorney for the American Civil Liberties Union.
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These “Interim Regs” are 78 pages of pure legal gobbledygook, bureaucratic doublespeak, and irrelevant and intentionally misleading stats purporting to “justify the unjustifiable.” So, I’ll make this simple.
The asylum statute says individuals have a right to apply for asylum regardless of legal status and without regard to whether they arrived or entered at a legal “port of entry;”
This “Interim Regulation” purports to make those who don’t arrive at a port of entry ineligible to apply for asylum;
The regulation cites a statutory provision that allows the AG and the Secretary of DHS to create “exceptions” and “conditions” on applicants by regulation;
But, that statute actually says those “exceptions and conditions” must be “consistent with” the statute;
The “exception” to eligibility in this Interim Regulation specifically contradicts the clear language of the statute permitting those who enter or arrive illegally to apply for asylum;
Therefore, the exception is beyond the authority of the AG and the Secretary to create by regulation;
Indeed, the facial invalidity of this Interim Regulation is so clear that the EOIR and DHS position is frivolous— not passing the “straight face test” — and the policy officials and bureaucrats involved are promoting frivolous litigation before the Federal Courts — generally frowned upon when done by members of the public!
Perhaps at some point the Federal Courts will assert themselves by starting to “take names” of those US Government officials wasting court time in pursuit of illegal, racially-motivated objectives.
No wonder the Dudes who drafted this piece of garbage wanted to bury their real actions and intent in 78 pages of pure nonsense! This from an Administration supposedly committed to cutting bureaucracy and eliminating unnecessary and burdensome regulations!
Tomorrow, as previously promised, Trump will continue to carry out his racist, White Nationalist political agenda by declaring a totally bogus “immigration emergency” by Executive Order (similar to the bogus emergency he used to justify the discriminatory and bogus “Travel Ban”). The only question is whether the Federal Courts will let him get away with thumbing his nose at the statute, our Constitution, and the authority of the Article III Courts themselves.
From the LA Times Editorial Section for Nov. 3, 2018:
Re “Who’s really an American?” editorial, Oct. 31
Questions over who ought to be considered American are complicated for those who do not look white. Ethnically and culturally, I am numerous things, which is a huge bonus because it helps me understand others. Because I have a significant amount of indigenous American heritage, I can honestly state that some of my people have been in North America for thousands of years.
However, within the last year, I have been told to go back where I came from. Since I don’t speak Spanish, being dumped in Mexico, presumably where these people want me to go, would be a challenge. Regardless, not one of my ancestors arrived here any later than the early 1800s.
On the other hand, President Trump’s mother, both of his paternal grandparents and two of his wives were not born in the United States. Trump’s present wife, who is our first lady, speaks English well enough to hold a casual conversation. In other words, the president’s family is a family of immigrants, and they have been welcomed here.
However, Trump’s rhetoric has people expressing hatred toward Americans like me, whose ancestors have been here for generations, and now he preaches against migrants who want to come here now. Perhaps Trump should learn more about the customs of his family’s adopted homeland so he can become a leader rather than a divider of people.
Marcella Hill, Los Angeles
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Pretty much says it all about Trump’s lack of character, morality, and qualifications to serve as President.
Regime change can start on next Tuesday! Get out the vote! Take our “country of immigrants” back from the White Nationalists (who, ironically, also are immigrants themselves, notwithstanding their ingratitude, lack of decency, and lack of any sense of REAL history — not the White Nationalist version peddled by Trump, Sessions, Miller, Bannon, Kobach, Steve King, etc.).
