"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”)
“Group Leader” Hon. Jeffrey Chase forwards these items:
Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:
Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
. . . .
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”
The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
. . . .
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)
Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”
Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!
Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.
An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.
In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune. Different views are one thing; overt bias and lack of empathy is another.
Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.
A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”
Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”
But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.
US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.
Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.
“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”
To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”
That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.
Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges
Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.
The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.
Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.
“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”
Therefore, she adds, they should be structured “like a traditional court.”
Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.
Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.
Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.
“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.
Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.
“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”
Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.
Sessions’ decision will make it even harder.
In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”
The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court. At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.
Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.
According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.
Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”
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Here’s another one from Bea Bischoff at Slate:
How the attorney general is abusing a rarely used provision to rewrite legal precedent.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.
On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.
During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.
Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.
Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.
A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.
During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.
Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.
Sessions trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerablewomen.
After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.
The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.
Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.
Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.
On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.
The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.
In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.
As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.
The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.
While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.
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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.
I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.
A few problems, though:
Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!
There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.
The massive asylum changes Jeff Sessions tucked into the footnotes
By Tal Kopan, CNN
When Attorney General Jeff Sessions ruled that domestic violence and gang victims are not likely to qualify for asylum in the US, he undercut potentially tens of thousands of claims each year for people seeking protection.
But in a footnote of his ruling, Sessions also telegraphed a desire for more sweeping, immediate reinterpretations of US asylum law that could result in turning people away at the border before they ever see a judge.
Sessions wrote that since “generally” asylum claims on the basis of domestic or gang violence “will not qualify for asylum,” few claims will meet the “credible fear” standard in an initial screening as to whether an immigrant can pursue their claim before a judge. That means asylum seekers may end up being turned back at the border, a major change from current practice.
“When you put it all together, this is his grand scheme to just close any possibility for people seeking protection — legally — to claim that protection that they can under the law,” said Ur Jaddou, a former chief counsel at US Citizenship and Immigration Services now at immigration advocacy group America’s Voice. “He’s looking at every possible way to end it. And he’s done it one after the other.”
The Trump administration has focused on asylum claims — a legal way to stay in the US under domestic and international law — characterizing them as a “loophole” in the system. The problem, they say, is many claims are unsuccessful, but in the meantime as immigrants wait out a lengthy court process, they are allowed to live and work in the US and build lives there, leading some to go into hiding.
I strongly recommend that you go on over to CNN at the link to read Tal’s amazing and incisive analysis of Jeff Sessions’s insidious plan to destroy US protection laws and undermine our entire Constitutional system of justice to further his obscene White Nationalist agenda.
For those of you who read “Courtside” on a regular basis, it’s no secret that I’m a “Charter Member” of the “Tal Kopan Fan Club.” I have total admiration for her amazing work ethic, ability to understand and simplify one of the most complex subjects in US law and politics, and to turn out such tightly written, gobbledygook free copy on a regular basis.
In my view, even for a superstar like Tal, this is one of her “best ever” articles, and one that every American interested in saving lives, preserving our refugee and asylum laws, retaining our Constitutional system of Due Process, and remaining a nation of “values rather than men” in light of a totally unprincipled attack by an Attorney General unqualified for office should read and digest Tal’s analysis!
How disingenuous a scofflaw is Jeff Sessions? As Tal mentions, in FN 8 of Matter of A-B-, Sessions takes aim at the well-established principle of asylum law that “family” is a qualifying “particular social group.”
Now, lets hear what a “real” Article III Court, one not bound to a restrictionist White Nationalist anti-asylum agenda, and where they judges don’t work for Jeff Sessions, has to say about “family” as a particular social group:”
The INA does not expressly define the term “particular social group,” but we have recently considered its meaning. See Lizama v. Holder,629 F.3d 440 (4th Cir. 2011).4 We there concluded that Chevron deference should be accorded to the BIA’s long-standing interpretation of “particular social group” as “a group of persons all of whom share a common, immutable characteristic,” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). See Lizama, 629 F.3d at 447. This “immutability” test, first articulated in the BIA’s seminal Acosta case, requires that group members share a characteristic that “the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” 19 I. & N. Dec. at 233.
The Crespins’ proposed group satisfies this test. Acosta itself identifies “kinship ties” as paradigmatically immutable, see id., and the BIA has since affirmed that family bonds are innate and unchangeable. See In re C-A, 23 I. & N. Dec. 951, 959 (BIA 2006); In re H-, 21 I. & N. Dec. 337, 342 (BIA 1996) (accepting “clan membership” as a particular social
[632 F.3d 125]
group because it was “inextricably linked to family ties”). Accordingly, every circuit to have considered the question has held that family ties can provide a basis for asylum. See Al-Ghorbani v. Holder,585 F.3d 980, 995 (6th Cir.2009); Ayele v. Holder,564 F.3d 862, 869 (7th Cir.2009); Jie Lin v. Ashcroft,377 F.3d 1014, 1028 (9th Cir.2004); Gebremichael v. INS,10 F.3d 28, 36 (1st Cir.1993). We agree; the family provides “a prototypical example of a `particular social group.'” Sanchez-Trujillo v. INS,801 F.2d 1571, 1576 (9th Cir. 1986).
The BIA committed legal error by concluding to the contrary. That error flowed from the fact that, as the Government concedes, the BIA’s removal order rejected a group different from that which the Crespins proposed. The BIA concluded that “those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses” does not constitute a cognizable social group. But the Crespins did not so contend. Rather, they maintained, and continue to maintain, that family members of those witnesses constitute such a group. The BIA later essentially admitted this error, acknowledging in its denial of Crespin’s motion to reconsider that it does “not dispute that family membership can give rise to membership in a particular social group under certain circumstances.” The BIA nonetheless affirmed its original order, asserting that the Crespins’ proposed social group was insufficiently “particular[ ]” because “anyone who testified against MS-13, as well as all of their family members, would potentially be included.” Again the BIA inaccurately characterized the Crespins’ proposed social group. Indeed, the Crespins’ proposed group excludes persons who merely testify against MS-13; the Crespins’ group instead encompasses only the relatives of such witnesses, testifying against MS-13, who suffer persecution on account of their family ties. The BIA never explained why this group stretches beyond the bounds of particularity.
Moreover, the precedent on which the BIA relied requires only that “the group have particular and well-defined boundaries” such that it constitutes a “discrete class of persons.” Matter of S-E-G-, 24 I. & N. Dec. 579, 582, 584 (BIA 2008). The family unit—centered here around the relationship between an uncle and his nephew—possesses boundaries that are at least as “particular and well-defined” as other groups whose members have qualified for asylum. See, e.g., Urbina-Mejia v. Holder, 597 F.3d 360, 365-66 (6th Cir.2010) (former gang members); Tapiero de Orejuela v. Gonzales,423 F.3d 666, 672 (7th Cir.2005) (“the educated, landowning class of cattle farmers”); Safaie v. INS,25 F.3d 636, 640 (8th Cir.1994) (“Iranian women who advocate women’s rights or who oppose Iranian customs relating to dress and behavior”), superseded by statute on other grounds, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as recognized in Rife v. Ashcroft,374 F.3d 606, 614 (8th Cir.2004).
Finally, the BIA opined that the proposed group lacked the requisite “social visibility” of a particular social group. This was also error.5 Indeed, the BIA itself has previously stated that “[s]ocial
[632 F.3d 126]
groups based on innate characteristics such as … family relationship are generally easily recognizable and understood by others to constitute social groups.” In re C-A, 23 I. & N. Dec. at 959. In fact, we can conceive of few groups more readily identifiable than the family. See Sanchez-Trujillo, 801 F.2d at 1576. This holds particularly true for Crespin’s family, given that Crespin and his uncle publicly cooperated with the prosecution of their relative’s murder.
In sum, the BIA’s conclusion that Crespin failed to demonstrate his membership in a “particular social group” was manifestly contrary to law.
Crespin-Valladares v. Holder, 632 F.3d 117, 124-26 (4th Cir. 2011).
Outrageously, Sessions is suggesting taking a position that has been held by the Article III Courts to be “manifestly contrary to law.” Could there be a clearer example of a “scofflaw?”
And, lets not forget the cause for which Sessions is prostituting himself and the law. Contrary to Sessions’s suggestion that these are just ordinary folks seeking a better life, he is actually proposing to summarily remove mostly women and children who face a specific, very real chance of rape, torture, beatings, and death because of their position, gender, and resistance to the forces perpetrating persecution in El Salvador who are closely aligned with or operate largely with impunity from the Government, in fact if not in the mythical version that Sessions portrays.
In plain terms, Jeff Sessions is advocating that we pass a potential “death sentence” on the most vulnerable among us without giving them a fair hearing or actually considering the many ways in which protections laws could be used to save their lives. Even if Sessions were legally correct (which he certainly isn’t) removing basically defenseless individuals to places where they face such a deadly future would be both cowardly and highly immoral.
Finally, as I have pointed out before, the real plan here, which will go into effect almost immediately, is to have USCIS Asylum, Officers and Immigration Judges who now are all considered “partners” in the enforcement mechanism by Sessions, deny almost all “credible fear” claims based on Sessions’s yet untested decision in Matter of A-B-. Therefore, unless the Article III Courts decide to enforce the Due Process Clause of the Constitution, a duty which to date they have fairly consistently shirked in connection with the “credible fear process,” most current and future arrivals will be shipped out without any access to the hearing process at all — in other words, without even a veneer of fairness, impartiality, and Due Process.
Advocates had better get busy with a better plan to get the illegal aspects of the “deportation express” before the Article IIIs. Otherwise, vulnerable women and children are going to be condemned to death and /or torture with no process at all! Think we’re not witnessing the “decline and fall” of our republic. Guess again!
What have we come to as a nation when a corrupt and biased individual like Sessions purports to “speak for America?”
Stand up for Due Process and human values! Oppose Jeff Sessions and his restrictionist agenda!
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Meanwhile, back at the ranch, “Midnight Writer” Tal reports on the GOP’s “DACA negotiations.”
House DACA deal in final stages: ‘Crossing the Ts’
By: Tal Kopan, CNN
Republican negotiations on a House immigration bill that would fix the Deferred Action for Childhood Arrivals program are in the final stages, key lawmakers said as they left a secretive meeting in the House basement on Wednesday.
Both moderates and conservatives are coming together on an outline of a bill brought on by weeks of negotiations behind closed doors, as leadership brought the two wings of the party together to avert rebellions on both sides.
After a breakthrough agreement on how to proceed Tuesday — and arm twisting by leadership — that cut off moderates’ efforts to buck leadership control of the floor, talks Wednesday centered around hammering out the details of the policy itself.
The progress in negotiations sets the stage for votes on immigration on the House floor next week, which will include a vote on a conservative proposal that is not believed to have the support to pass and a separate compromise being written that will stem from the negotiations currently in progress.
Though the bills’ fates are still unclear and it’s possible neither passes the House — let alone moves in the Senate — the prospect of Republicans having a debate and vote on the political third rail of immigration on the House floor the summer before midterm elections was unthinkable just months ago.
“We’re just doing the cleanup stuff from the negotiations that (Reps) Raul (Labrador) and Carlos (Curbelo) did yesterday,” said conservative Freedom Caucus Chairman Mark Meadows as he left member negotiations Wednesday. “So we’re just trying to dot our I’s and cross our T’s.”
“We’re just about there,” Curbelo said. “I think we’ll definitely see text this week.”
What’s in it
CNN has obtained a draft from a source close to the negotiations of the outline lawmakers are working from to write the bill, which, when described to Curbelo, was confirmed as largely still what they’re working on minus a few “details filled in.” The broader GOP conference was briefed on the toplines of the bill in a Wednesday morning meeting.
Sounds to me like another wasteful “legislative charade” on the way from the GOP. The only “Dreamer bill” that actually could pass both houses would be one pushed by a bipartisan group of legislators. But, GOP leadership has no interest in such a solution, nor does Trump.
Therefore, I predict that Dreamers will continue to “twist in the wind” while the Federal Courts ruminate about their fate.
(1)Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.
(2)An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.
(3)An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.
(4)If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.
(5)The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
(6)To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.
(7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
(8)An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.
(9)The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.
KEY QUOTES:
For these and other reasons, I vacate the Board’s decision and remand for further proceedings before the immigration judge consistent with this opinion. In so doing, I reiterate that an applicant for asylum on account of her membership in a purported particular social group must demonstrate: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control. See M-E-V-G-, 26 I&N Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8. Furthermore, when the applicant is the victim of private criminal activity, the analysis must also “consider whether government protection is available, internal relocation is possible, and persecution exists countrywide.” M-E-V- G-, 26 I&N Dec. at 243.
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.1 While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
1 Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(v) (requiring a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title [8 U.S.C. § 1158]”).
. . . .
A-R-C-G- was wrongly decided and should not have been issued as a precedential decision. DHS conceded almost all of the legal requirements necessary for a victim of private crime to qualify for asylum based on persecution on account of membership in a particular social group.8 To the extent that the Board examined the legal questions, its analysis lacked rigor and broke with the Board’s own precedents.
. . . .
When an asylum applicant makes inconsistent statements, the immigration judge is uniquely advantaged to determine the applicant’s credibility, and the Board may not substitute its own view of the evidence on appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 (2d Cir. 2006) (“[W]here the [immigration judge]’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the
asylum applicant about matters material to his claim of persecution, or on contradictory or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” (quotation omitted)). Under the REAL ID Act, “[t]here is no presumption of credibility” in favor of an asylum applicant. Pub. L. No. 109-13, div. B, §§ 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Furthermore, the identified inconsistencies do not have to be related to an applicant’s core asylum claim to support an adverse credibility determination: “Considering the totality of circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant’s or witness’s written and oral statements . . . , the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . , without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other factor.” Id. (emphasis added). “[O]missions, inconsistent statements, contradictory evidence, and inherently improbable testimony are appropriate bases for making an adverse credibility determination,” and the existence of “only a few” such issues can be sufficient to make an adverse credibility determination as to the applicant’s entire testimony regarding past persecution. Djadjou v. Holder, 662 F.3d 265, 273–74 (4th Cir. 2011).
. . . .
The Board also erred when it found that the respondent established the required nexus between the harm she suffered and her group membership. Whether a purported persecutor was motivated by an alien’s group affiliation “is a classic factual question,” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247–48 (4th Cir. 2017) (internal quotation marks omitted), which the Board may overturn only if “clearly erroneous.”
The Board stated that “the record indicates that the ex-husband abused [the respondent] from his position of perceived authority, as her ex-husband and the father of her children.” A-B- at *3. From this, the Board held, in a conclusory fashion, that the “record as a whole supports a finding that the respondent’s membership in the particular social group of ‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common’ is at least one central reason that he ex-husband abused her.” Id. While citing the standard of review, the Board did not apply it in summarily dismissing the immigration judge’s findings. Moreover, the Board’s legal analysis was deficient. The Board, required to find “clear error” of a factual finding, pointed to no record evidence that respondent’s husband mistreated her in any part “on account of” her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationship where they have children in common.” The Board cited no evidence that her husband knew any such social group existed, or that he persecuted wife for reasons unrelated to their relationship. There was simply no basis in the Board’s summary reasoning for overturning the immigration judge’s factual findings, much less finding them clearly erroneous.
The Board also erred when it overruled the immigration judge’s finding that the respondent failed to demonstrate that the government of El Salvador was unable or unwilling to protect her from her ex-husband. This inquiry too involved factual findings to which the Board did not give proper deference. No country provides its citizens with complete security from private criminal activity, and perfect protection is not required. In this case, the respondent not only reached out to police, but received various restraining orders and had him arrested on at least one occasion. See A-B- at *14–15 (Immig. Ct. Dec. 1, 2015).
For many reasons, domestic violence is a particularly difficult crime to prevent and prosecute, even in the United States, which dedicates significant
resources to combating domestic violence. See, e.g., Office of Justice Programs, U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence (2000). The persistence of domestic violence in El Salvador, however, does not establish that El Salvador was unable or unwilling to protect A-B- from her husband, any more than the persistence of domestic violence in the United States means that our government is unwilling or unable to protect victims of domestic violence. In short, the Board erred in finding, contrary to the record and the immigration judge’s findings, that El Salvador was unable or unwilling to protect A-B- and that she thus had no choice but to flee the country.
D.
The Board, immigration judges, and all asylum officers should consider the following points when evaluating an application for asylum. First, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA 2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration judge has a responsibility to “ensure that the specific social group being analyzed is included in his or her decision,” as it critical to the Board’s “appellate review that the proposed social group is clear and that the record is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The Board must also remember that it cannot sustain an asylum applicant’s appeal based on a newly articulated social group not presented before or analyzed by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly defined social group because the claim based on “membership in that narrowed social group” had not been raised below); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular social group raised for the first time on appeal).
Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum. Asylum applicants who have “not established past persecution . . . bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or government- sponsored.” 8 C.F.R. § 1208.13(b)(3)(i). An immigration judge, “in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution” if it is “found by a preponderance of the evidence” that “the applicant could avoid future
persecution by relocating to another part of the applicant’s country of nationality, . . . and under all the circumstances, it would be reasonable to expect the applicant to do so.” Id. § 1208.13(b)(1)(i). Beyond the standards that victims of private violence must meet in proving refugee status in the first instance, they face the additional challenge of showing that internal relocation is not an option (or in answering DHS’s evidence that relocation is possible). When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.
Finally, there are alternative proper and legal channels for seeking admission to the United States other than entering the country illegally and applying for asylum in a removal proceeding. The asylum statute “is but one provision in a larger web of immigration laws designed to address individuals in many different circumstances,” and “[t]o expand that statute beyond its obviously intended focus is to distort the entire immigration framework.”Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring). Aliens seeking a better life in America are welcome to take advantage of existing channels to obtain legal status before entering the country. In this case, A-B- entered the country illegally, and when initially apprehended by Border Patrol agents, she stated that her reason for entering the country was “to find work and reside” in the United States. Aliens seeking an improved quality of life should seek legal work authorization and residency status, instead of illegally entering the United States and claiming asylum.12
12 Asylum is a discretionary form of relief from removal, and an applicant bears the burden of proving not only statutory eligibility for asylum but that she also merits asylum as a matter of discretion. 8 U.S.C. §§ 1158(b)(1), 1229a(c)(4)(A)(ii); see also Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). Neither the immigration judge nor the Board addressed the issue of discretion regarding the respondent’s asylum application, and I decline to do so in the first instance. Nevertheless, I remind all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility under the INA. Relevant discretionary factors include, inter alia, the circumvention of orderly refugee procedures; whether the alien passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procedures were in fact available to help her in any country she passed through; whether she made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; and her living conditions, safety, and potential for long-term residency there. See Matter of Pula, 19 I&N Dec. 467, 473–74 (BIA 1987).
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As my former BIA colleague Judge Lory Rosenberg used to say “there are lots of ways to deny an asylum application.” Sessions runs through most them with a tone that clearly encourages Immigration Judges to “just find a way to say no as quickly as possible.”
Additionally, he’s basically directing Asylum Officers to find no “credible fear” in almost all domestic violence and gang-related cases, thus cutting off hearings without effective Article III judicial review under the current state of the law. That’s likely to speed up the “deportation railway.”
It’s likely that this decision also will fulfill Sessions’s dream of mass denials of asylum at the Immigration Judge stage that will be more or less summarily affirmed by the BIA. Any Immigration Judge who doesn’t “get” Session’s strong anti-asylum message would have to be pretty slow on the uptake.
It seemed totally disingenuous for Sessions to pontificate that individuals should go through the “legal immigration system” while publicly trashing legal immigrants as “job stealers” and favoring massive cuts to legal immigration. But, intellectual honesty has never been one of this Attorney General’s strong points.
The “asylum denial express” might have some difficulty in the Courts of Appeals, however. Not all such courts are eager to “rubber stamp” hasty denials. And, by encouraging Immigration Judges to look for “any reason to deny” to cut corners, and avoid having to analyze the entire case, Sessions is likely to end up with sloppy work and lots of Circuit Court remands for “do overs.” At a minimum, that’s going to add to the already out of control Immigration Court backlog.
Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training Program
Washington, DC
~
Monday, June 11, 2018
Remarks as prepared for delivery
Thank you, James, for that introduction, and thank you for your years of superb service to the Department as an SAUSA, at Main Justice, and now here at EOIR. James has been doing a fabulous job. He understands these issues, knows exactly what our challenges are, and is working steadfastly every day to meet them.
Thank you also to Katherine Reilly, Kate Sheehy, Chris Santoro, Edward So, David Neal, Chief Judge Keller, Lisa Ward, Jean King, Robin Sutman, and all of the leadership team.
It is good to be with you today.
Each one of you plays an important role in the administration of our immigration laws. Immigration judges are critical to ensuring that the Department of Justice carries out its responsibilities under the INA. You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently. As the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.
This responsibility seeks to ensure that our immigration system operates in a manner that is consistent with the laws enacted by Congress. As you know, the INA was established to ensure a rational system of immigration in the national interest.
Of course there are provisions in the INA, consent decrees, regulations, and court decisions where the commonsense enforceability of the plain intent of the INA has been made more difficult. That’s what you wrestle with frequently.
President Trump is correct: Congress needs to clarify a number of these matters. Without Congressional action, clarity and consistency for us is much more difficult.
Let’s be clear: we have a firm goal, and that is to end the lawlessness that now exists in our immigration system. This Department of Justice is committed to using every available resource to meet that goal. We will act strategically with our colleagues at DHS and across the government, and we will not hesitate to redeploy resources and alter policies to meet new challenges as they arise.
Last month, the Department of Homeland Security announced that it will begin to refer as close to 100 percent of illegal Southwest Border crossers as possible to the Department of Justice for prosecution. The Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross the Southwest border unlawfully, then we will prosecute you. It’s that simple.
If someone is smuggling illegal aliens across our Southwest border, then we will prosecute them. Period.
I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to detention centers near the border. That is about a 50 percent increase in the number of immigration judges who will be handling cases at the border.”
All of us should agree that, by definition, we ought to have zero illegal immigration in this country.
Each of us is a part of the Executive Branch, and it is our duty to “take care that the laws be faithfully executed.”
Ours is a public trust.
And the United States of America is not a vague idea. It is not just a landmass or an economy. Ours is a sovereign nation state with a constitution, laws, elections, and borders.
As you all well know, one of our major difficulties today is the asylum process.
The asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing. This is a large part of what has been accurately called, “catch and release”.
Beginning in 2009, more and more aliens who passed an initial USCIS credible fear review were released from custody into the United States pending a full hearing. Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.
The results are just what one would expect. The number of illegal entrants has surged. Credible fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined.
That’s because the vast majority of the current asylum claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by USCIS as a part of their initial screening.
Further illustrating this point, in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.
Now we all know that many of those crossing our border illegally are leaving difficult and dangerous situations. And we understand all are due proper respect and the proper legal process. But we cannot abandon legal discipline and sound legal concepts.
Under the INA, asylum is available for those who leave their home country because of persecution or fear on account of race, religion, nationality, or membership in a particular social group or political opinion. Asylum was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.
Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.
We have not acted hastily, but carefully. In my judgment, this is a correct interpretation of the law. It advances the original intent and purpose of the INA, and it will be your duty to carry out this ruling.
This decision will provide more clarity for you. It will help you to rule consistently and fairly.
The fact is we have a backlog of about 700,000 immigration cases, and it’s still growing. That’s more than triple what it was in 2009. This is not acceptable. We cannot allow it to continue.
At this time, when our immigration system and our immigration judges are under great stress, I am calling on you to use your best efforts and proper policies to enhance our effectiveness. To end the lawlessness and move to the virtuous cycle, we have to be very productive. Volume is critical. It just is. We ask you to evaluate your processes and disposition rates.
We ask each one of you to complete at least 700 cases a year. It’s about the average. We are all accountable. Setting this expectation is a rational management policy to ensure consistency, accountability, and efficiency in our immigration court system. Thank you for working every day to meet and exceed this goal. You can be sure that this administration and this Department of Justice supports you in this critically important and historic effort.
That’s why we are hiring more than 100 new immigration judges this calendar year. And we are actively working with our partners at DHS to ensure that we can deploy judges electronically and by video-teleconference where needed and to obtain appropriate courtroom facilities.
Let’s be clear. These actions will not end or reduce legal immigration. These actions will be directed at reducing illegal immigration. Only Congress can change legal immigration.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to come here. But they must do so according to law.
When we lose clarity or have decisions that hold out hope where a fair reading of the law gives none, we have cruelly hurt many people. As we resolutely strive to consistently and fairly enforce the law, we will be doing the right thing.
The world will know what our rules are, and great numbers will no longer undertake this dangerous journey. The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them.
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It’s all about numbers — volume over justice! What a total farce!
Sessions also lied about the low asylum grant rate. Of cases in which a merits decisions on asylum is actually rendered by an Immigration Judge after hearing, here are the actual asylum grant rates from the EOIR’s own website
Figure 16
Asylum Grant Rate
Grants
Denials
Grant Rate
FY 12
10,575
8,444
56%
FY 13
9,767
8,777
53%
FY 14
8,672
9,191
49%
FY 15
8,184
8,816
48%
FY 16
8,726
11,643
43%
In other words, for the last five years available, nearly half of the asylum applications actually decided on the merits were granted. And, that doesn’t even include individuals granted other types of protection such as withholding of removal and CAT after a merits hearing.
It’s a far cry from the bogus 20% figure Sessions used. In any event, it’s well established law that denial of an asylum application does not in any way show that it was “fraudulent” or “frivolous” as Sessions implies.
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As usual, the ever-amazing Tal Kopan was one of the first to “hit the net running” with her analysis of the Sessions speech to EOIR.
Jeff Sessions primed to overhaul asylum law
By Tal Kopan, CNN
Attorney General Jeff Sessions will announce a major decision that could impact thousands of asylum seekers from Central America on Monday — his latest move to use his unique authority to single-handedly reshape immigration law.
Sessions made the announcement at an annual training conference for the nation’s hundreds of immigration judges, telling them the decision would be coming and reminding them that they will be obligated to follow his interpretation of the law.
Though Sessions did not explicitly name the decision, it is widely expected to be a case involving asylum protections for domestic violence victims. Sessions referred the case to himself earlier this year and invited interested parties to submit briefs. In his remarks, Sessions implied he would be restricting the use of asylum for victims of crime, which would reverse previous court decisions and overrule a significant 2014 Board of Immigration Appeals decision that ruled Central American domestic violence victims who cannot escape their abusive partners can qualify under asylum law for protection in the US.
“Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world,” Sessions said, reiterating the particular requirements of asylum under the law. “Today I will be exercising the responsibility given to me under the (Immigration and Nationality Act), I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”
The ruling and announcement is the latest evidence of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
Sessions also reminded judges that his decision will be final, unless a federal appellate court were to overturn it on appeal.
In addition to impacting domestic violence victims, the case could also have large-scale implications for victims of other forms of crime and violence — rampant in Central America, where a majority of US asylum seekers at the southern border come from.
Related: Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
“In my judgment, this will be a correct interpretation of the law,” Sessions said. “It advances the original intent and purpose of the INA, and it will be your duty, of course, to carry that out.”
According to Tal, the National Association of Immigration Judges (“NAIJ”) immediately criticized Sessions’s overemphasis on numerical quotas that are actually still supposed to be the subject of “good faith” labor negotiations with the NAIJ before going into effect in the Fall.
Nevertheless, Tal’s longer article (linked above) would lead one to believe that many U.S Immigration Judges look forward their new well-defined role as an “asylum denial workforce” working as part of the law enforcement “team” to send vulnerable individuals, including children, back to death, rape, extortion, or constant beatings, in probable violation of international standards, as part of the DHS enforcement effort headed by Sessions.
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
Denying applications based on “precedents” intentionally misinterpreting the law will definitely make dockets move faster and might even allow some Immigration Judges to earn “gold stars” — and perhaps even recognition from the Chief Enforcer himself at next year’s conference — for exceeding their deportation quotas — at least until those pesky Article III Courts get involved.
We’ll see whether the Administration’s policies of intentional cruelty, criminal prosecution, child abuse, and sending folks back to places where their lives will be endangered without fairly considering their claims of protection works as a “deterrent” (never has in the past) or merely diminishes us as a society and a country.
As I always say, “We can diminish ourselves as a nation (and we are), but that won’t stop human migration.”
It’s a far cry from when the late Attorney General Janet Reno used to appear at Immigration Judge Conferences and urge us to do our duty to provide fairness, Due Process, and “equal justice for all.”
Stay tuned for the release of the AG’s decision and more reaction.
(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.
(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.
CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND
KEY QUOTES FROM MAJORITY:
The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.
KEY QUOTE FROM CONCURRING & DISSENTING OPINION:
In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.
Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.
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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?
The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”
Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant? Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result? And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.
This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?
We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.
Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!
International Association of Refugee and Migration Judges
America’s Chapter
Office of the Vice President
Alexandria, Virginia
June 6, 2018
Dear colleagues,
As those of you who know me well realize, since my retirement from the bench, there’s not much that can keep me away from Maine and Wisconsin in July and August! But, this year’s America’s Chapter Conference at the beautiful campus of Georgetown Law in D.C. is one of those exceptions.
As the Vice President of the International Association of Refugee and Migration Judges’ (IARMJ) Americas Chapter, I enthusiastically invite you to join me at the Americas Chapter Conference to be held in Washington, D.C., August 1-5, 2018.
As you may be aware, the IARMJ is a voluntary association of judges and quasi-judicial decision makers whose main purpose is to foster an understanding of the obligations created by the United Nations Convention Relating to the Status of Refugees. For instance, this includes supporting capacity building initiatives and the sharing of best practices with nascent refugee determination systems in the Americas to help develop expertise and practices around the world, in accordance with international legal instruments and standards. Then Chief U.S. Immigration Judge (now BIA Appellate Immigration Judge) Michael J. Creppy and I were among the founding members of the IARLJ (the original name of the IARJM) in Warsaw, Poland, two decades ago. As you might expect, my signature is scrawled large across the bottom of the original articles!
The conference will begin with two days of pre-conference workshops, followed by two days of plenary sessions, and a capstone program examining law and justice at the United States Holocaust Memorial Museum on day five. Expert speakers at this event will include, in addition to internationally renowned academics and specialists, representatives from the United Nations High Commissioner for Refugees, the Immigration and Refugee Board of Canada, the United States Citizenship and Immigration Services – Asylum Division as well as other government entities and NGOs.
This August, the Americas Chapter seeks to examine the theme of resilience in our asylum systems through an in-depth legal analysis and discussion of various topics, including trauma-informed adjudications techniques, the real-world impact of heavy workloads and humanitarian caseloads on adjudicators, the impact of bias on adjudicative decisions and how lessons learned from recent migration surges can help to inform the creation of more resilient legal protection systems and processes.
Participation is open worldwide, and we aim to invite asylum and refugee judges, quasi-judicial decision makers and tribunal members at all levels. I am thus writing to request your support to both attend this special and timely Conference and to help us promote participation at the Conference, among current and retired U.S. Immigration Judges, BIA Appellate Immigration Judges, and Article III Federal Judges at all levels.
This will be a unique opportunity to make asylum judges throughout the world aware of the challenges that we are facing here in the United States and to share notes with them on how to effectively adhere to the principles enunciated in the 1952 Geneva Convention Relating to the Status of Refugees.
ociation of Refugee Please find attached a draft version of the agenda for your reference. I encourage you to visit our website at https://www.iarlj.org/events/event/56-iarlj-americas-chapter-conference for updated conference information, including registration details. If you have any questions or require further assistance, please do not hesitate to contact the following email: iarmjamericaschapter@gmail.com.
I look forward to seeing you at Georgetown Law in August!
Friends, there has NEVER been a more important time for this Conference and this terrific organization dedicated to promoting professionalism, respect, fairness, Due Process, and international understanding in interpreting and applying the 1952 Convention on the Status of Refugees — the most important international accord in the timeless history of refugees! Meetings like this don’t come to the United States often. Don’t miss this opportunity for a special, one-of-a-kind experience with your peers from elsewhere!
IMPORTANT NOTE: Although we would, of course, love to have you join our organization and will have a favorable membership rate for new members, membership in the IARMJ is not required to attend this conference!
Sessions, Justice Department take lead as public face of Trump’s immigration policy
By: Tal Kopan, CNN
If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.
“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.
“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”
Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”
Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”
In President Trump’s many vocal pronouncements about stopping illegal immigration, one solution he promoted during the campaign has been conspicuously missing — a requirement that employers check whether workers are legal.
Eight states require nearly all employers to use the federal government’s online E-Verify tool for new hires, but efforts to expand the mandate to all states have stalled, despite polls showing widespread support and studies showing that it reduces unauthorized workers.
The campaign for a national mandate has withered amid what appears to be a more pressing problem — a historic labor shortage that has businesses across the country desperate for workers at restaurants, on farms and in other low-wage jobs.
The urgency around that shortage was clear at a congressional hearing last week when senators pressed Homeland Security Secretary Kirstjen Nielsen on additional visas for seasonal foreign workers.
“There’s not one manufacturing plant in Wisconsin, not one dairy farm, not one resort that can hire enough people,” said Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee.
With the unemployment rate at a 17-year low and the Trump administration cracking down on foreign workers, lawmakers are reluctant to champion a measure that could exacerbate the labor shortage and hurt business constituents — even one that is popular among a broad swath of Americans.
Despite his administration’s “Hire American” stance, Trump and the GOP leadership have gone quiet on mandating E-Verify, draining momentum from a top policy goal of grass-roots Republicans.
. . . .
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Two problems that I can see:
The Trump/GOP bogus position that we don’t need more immigrant labor, which would point toward a program both a) legalizing undocumented workers already here; and 2) expanding (not contracting) future legal immigration opportunities;
“E-Verify” depends heavily on timely action by USCIS to grant extensions of stay and renew work authorizations. But, under Trump, Cissna, Nielsen, and Sessions, USCIS has eliminated customer service to both migrants and U.S. employers from their mission and joined the “mindless enforcement bureaucracy.”
When immigration policy decisions are based on bias and prejudice rather than facts, bad things are going to happen. Whatever might be done to fix our broken immigration system is highly unlikely to happen under the Trump White Nationalists.
A Montana woman said she plans to take legal action after a Border Patrol agent detained and questioned her and a friend — both U.S. citizens — when he overheard them speaking Spanish at a gas station.
The incident occurred early Wednesday morning at a convenience store in Havre, Mont., a town in the northern part of the state, near the border with Canada.
Ana Suda said she and her friend, Mimi Hernandez, were making a midnight run to the store to pick up eggs and milk. Both are Mexican American and speak fluent Spanish, and they had exchanged some words in Spanish while waiting in line to pay when a uniformed Border Patrol agent interrupted them, Suda said.
“We were just talking, and then I was going to pay,” Suda told The Washington Post. “I looked up [and saw the agent], and then after that, he just requested my ID. I looked at him like, ‘Are you serious?’ He’s like, ‘Yeah, very serious.’ ”
Suda said she felt uncomfortable and began recording the encounter with her cellphone after they had moved into the parking lot. In the video Suda recorded, she asks the agent why he is detaining them, and he says it is specifically because he heard them speaking Spanish.
“Ma’am, the reason I asked you for your ID is because I came in here, and I saw that you guys are speaking Spanish, which is very unheard of up here,” the agent can be heard saying in the video.
Suda asks whether they are being racially profiled; the agent says no.
“It has nothing to do with that,” the agent tells her. “It’s the fact that it has to do with you guys speaking Spanish in the store, in a state where it’s predominantly English-speaking.”
Suda, 37, was born in El Paso and raised across the border in Ciudad Juarez, Mexico, but has spent much of her adult life moving around the United States with her husband and young daughter. Hernandez is originally from central California, Suda said.
Despite explaining this to the agent and showing him their IDs, Suda said, he kept them in the parking lot for 35 to 40 minutes. Though no one raised their voices in the video, Suda said she and Hernandez were left shaken and upset by the encounter, which ended around 1 a.m.
“I was so embarrassed … being outside in the gas station, and everybody’s looking at you like you’re doing something wrong. I don’t think speaking Spanish is something criminal, you know?” Suda said. “My friend, she started crying. She didn’t stop crying in the truck. And I told her, we are not doing anything wrong.”
When she got home, Suda posted on Facebook about what had taken place at the gas station. She said her shock began to give way to sadness in the following days, after some local news outlets reported the incident, and her 7-year-old daughter asked whether the video meant they should no longer speak Spanish in public.
“She speaks Spanish, and she speaks English,” Suda said. “When she saw the video, she was like, ‘Mom, we can’t speak Spanish anymore?’ I said ‘No. You be proud. You are smart. You speak two languages.’ This is more for her.”
A representative from U.S. Customs and Border Protection told The Post the agency is reviewing the incident to ensure all appropriate policies were followed. Border Patrol agents are trained to decide to question individuals based on a variety of factors, the agency added.
“U.S. Customs and Border Protection agents and officers are committed to treating everyone with professionalism, dignity and respect while enforcing the laws of the United States,” the agency said. “Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.”
Havre is a rural town with a population of about 10,000, about 35 miles south of the U.S.-Canada border. Border Patrol agents have broad authority to operate within 100 miles of any U.S. border, though they cannot initiate stops without reasonable suspicion of an immigration violation or crime.
Suda said she is used to seeing Border Patrol agents in Havre because it’s so close to Canada, especially at gas stations, but had never been stopped before.
“It’s a nice town. I don’t think it’s a confrontational [population] here,” Suda said. “But now I feel like if I speak Spanish, somebody is going to say something to me. It’s different after something like this because you start thinking and thinking.”
Suda said she plans to contact the American Civil Liberties Union to seek legal guidance. ACLU representatives did not immediately respond to a request for comment Sunday.
“I just don’t want this to happen anymore,” Suda said. “I want people to know they have the right to speak whatever language they want. I think that’s the most important part, to help somebody else.”
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Nobody’s rights are safe in the Age of Trump, Sessions, & Nielsen. Harm to one is harm to all! Join the New Due Process Army and fight to protect the Due Process and other Constitutional rights of everyone in America!
(CNN)President Donald Trump seemed to float a new idea about border control during a tax reform roundtable in Ohio.
The President was in the midst of criticizing Democrats during a riff about border security when he slipped in the idea that people might “have to think about closing up the country.”
“They don’t want the wall, but we’re going to get the wall, even if we have to think about closing up the country for a while,” Trump said. “We’re going to get the wall. We have no choice. We have absolutely no choice. And we’re going to get tremendous security in our country.”
Trump then mentioned the notion a second time, saying, “And we may have to close up our country to get this straight, because we either have a country or we don’t. And you can’t allow people to pour into our country the way they’re doing.”
It was not immediately clear what Trump meant by the remarks. CNN has reached out to the White House for comment.
Democratic Rep. Pramila Jayapal of Washington said Saturday in an interview with CNN’s Ana Cabrera that Trump “is absolutely out of his mind to think that is any kind of a reasonable solution for our economy or compassionate or in line with our values.”
“This President has done everything he can every time he’s in trouble to turn around and try to turn it against immigrants, and it really deeply saddens me,” Jayapal said.
. . .
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Read the full article at the link.
Ironically, building the wall would do nothing to stop individuals from appearing at U.S. ports of entry and applying for asylum as they are completely entitled to do under both U.S. law and international conventions to which we are party. Indeed, that’s what almost all the remaining members of the “intentionally overhyped by Trump Caravan” did. Moreover the wall is unlikely to stop professional smugglers who can easily outsmart any physical barriers. At best, it might further enrich smugglers and kill more migrants by allowing smugglers to charge more money for more dangerous crossings.
On the other hand, a robust system for granting refugee status in the Northern Triangle and a fairer and more efficient asylum system for those who apply at the port of entry would almost certainly reduce the number of unlawful border crossings, while saving lives, and allowing the Border Patrol to allocate resources more toward drug smuggling and others who might actually threaten the security of the U.S. And a larger, more robust, and more realistic legal work visa program would also dramatically decrease unlawful border crossings.
Crab crisis: Md. seafood industry loses 40 percent of workforce in visa lottery
Celia Serna, a guest worker at the J.M. Clayton processing plant in Cambridge, Md., picks crabs. (Lloyd Fox/Baltimore Sun)
By , Scott DanceMay 3 at 6:35 PM
Maryland’s seafood industry is in crisis: Nearly half of the Eastern Shore’s crab houses have no workers to pick the meat sold in restaurants and supermarkets.
They failed to get visas for their mostly Mexican workforce, including many women who have been coming north to Maryland for crab season for as long as two decades. The Trump administration for the first time awarded them this year in a lottery, instead of on a first-come, first-served basis.
“This is going to cause the price of crabmeat to go out of sight,” said Harry Phillips, owner of Russell Hall Seafood on Hooper’s Island. “There’s not going to be hardly any Maryland crabmeat. . . . It looks like it’s a matter of time before they’re going to shut all of us down.”
Visa shortages have been a perennial issue for the crab industry since the last generations of Eastern Shore women who once picked crabmeat aged out of the tedious seasonal work. In the 1980s, crab houses started bringing workers from Mexico through a program that lets them live and work in the United States during the warmer months and then return to Mexico in the winter, when watermen are prohibited from crabbing.
But crab house owners say these are the most dire circumstances they have faced. They hope federal immigration officials issue more visas in response to skyrocketing demand for seasonal foreign workers. But if they have to compete in another lottery, they say, they worry there won’t be enough workers to fill their facilities.
“Companies that have been relying on this system for 25 years suddenly have no workers,” said Bill Sieling, director of the Chesapeake Bay Seafood Industries Association. “It’s totally unfair and irrational, really.”
The crisis is hitting just as crab season begins. Watermen were allowed to start dropping crab pots into the Chesapeake and its tributaries on April 1, but with cold weather through the month, crabs were slow to emerge from hibernation.
As temperatures rise, this year’s crop of crustaceans is now emerging.
It’s unclear whether or how quickly the problem could be resolved or what effect it could have on crab prices this year. Many of the crabs sold in Maryland come from the Carolinas and Louisiana, and some meat comes from Asia and Venezuela. But a premium is placed on local meat, with a state program called True Blue to identify and market Maryland crabs.
Crab processors theorized that a drastically reduced supply from a shortage of workers could send the price of picked meat skyrocketing. But it could lower the price of steamed crabs, flooding the market with many of the female and undersize crabs that would otherwise get picked.
“We need these processing plants to keep the market running smooth,” said Bryan Hall of G.W. Hall and Sons on Hooper’s Island.
G.W. Hall was able to get the 30 visas it applied for, but Hall says he doesn’t feel fortunate.
“I got them, but I don’t feel right having them,” he said. “It’s not right for me to have them and my fellow people who I deal with not to have them. They depend on them just as much as I do, and they’ve got families to feed just as much as I do.”
Maryland’s 20 licensed crab processors typically employ some 500 foreign workers each season, from April to November, through the H-2B visa program, Sieling said. The visas are for seasonal workers in nonagricultural jobs. Pickers are paid by the pound of meat they produce, and the most productive ones make up to $500 a week.
“Nobody wants to do manual labor anymore,” Sieling said. “It’s just a very, very tight labor market right now, particularly in industries that are seasonal.”
But in February, Sieling said, applications for about 200 of those visas were denied. That leaves women used to making an annual pilgrimage to Maryland stuck at home, with limited options to feed their families.
“Our families depend on us, and going to the United States is the best option because here in Mexico it is very difficult to find a job, and apart from that, you face the risk of so much crime,” Anayeni Chavarria Ponce, a crab picker from the Mexican state of Hidalgo, said via text message in Spanish. “Not to mention you can’t reach a salary even to buy the basics.”
Federal labor officials said there was “unprecedented” demand for H-2B visas in January. They received applications for 81,000 foreign workers when only 33,000 visas were available for work from April through September. The visas have become increasingly desirable over the past five years as overall U.S. unemployment falls.
In the second part of a two-step visa application process, U.S. Citizenship and Immigration Services received applications to bring some 47,000 workers into the United States for that six-month period. Because there were so many requests, officials decided to award visas by lottery.
Congress included a provision in the $1.3 trillion spending plan it approved in March that authorizes federal immigration officials to issue more H-2B visas. The crab industry is expecting a lottery for 15,000 more to be announced sometime this month. But a spokesman for the federal immigration agency said he had no information about whether or how many new visas might be permitted.
Maryland Gov. Larry Hogan (R) requested that the federal government “take immediate action” to raise the visa cap in a recent letter to the secretaries of homeland security and labor.
“Many of these businesses operate in rural parts of our state and have relied on guest workers for decades,” he wrote. “They will be forced to shut their doors or start importing crab meat if this issue is not addressed immediately.”
The industry has been in a position of begging for mercy in the past, often to powerful former senator Barbara A. Mikulski. The senior Democrat intervened in the early 2000s when northern ski resorts and Florida landscapers were scooping up visas before Maryland crab houses had a chance to apply. She championed a change that divided the annual 66,000-visa allowance into two semiannual allotments.
Now, businesses are asking President Trump for help, in the hope that the guest worker program doesn’t get lost in the administration’s efforts to tighten immigration policies.
“This is not an immigration issue,” said Morgan Tolley, general manager of A.E. Phillips & Son on Hooper’s Island. “They come here, abide by rules, they pay their state and federal taxes, their social security taxes, and they send the majority of their money home to support their family. They are a very important part of our local economies.”
Tolley said he supports the president and trusts that he has businesses’ interests at heart, but Tolley is skeptical and disappointed with the administration’s changes to the visa program.
“I voted for Donald Trump, and I’d vote for President Trump again,” he said. “But I think in small rural towns in America, we’re getting the short end of the stick on labor.”
Waterside communities such as Hooper’s Island are left hoping this visa scare, like others, will pass — and not be the final blow to their industry.
“Nobody’s ever been closed down,” Harry Phillips said. “No doubt there’s been some threats and there’s been some times we’ve been a little late getting them. But we’ve always gotten them.”
— Baltimore Sun
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Pretty depressing. Even when confronted with direct evidence of the stupidity of their own votes, and the irrationality of the Trump GOP’s bias and restrictionist positions on legal immigration, these folks are still in denial. Can’t connect the dots. I guess that’s how democracies disappear.
Maybe guys like Jeff Sessions and Tom Cotton will go out and do some ‘pickin for these employers. Who needs foreign workers? They take all these really great jobs that every American wants! Why, I’ll bet almost every kid over at TC Williams High here in Alexandria aspires to be a seasonal crab picker after graduation! And, the truth is that picking crabs is actually skilled work that arrogant, out of touch, White GOP politicos couldn’t actually do very well. Guys like Sessions & Cotton would last 10 minutes max on the line.
Eli Hager of The Marshall Project in the NY Times:
On April 4, the White House posted a fact sheet on its website warning that legal “loopholes” were allowing tens of thousands of immigrant children who entered the country on their own to remain in the United States.
The next day, another post went up: “Loopholes in Child Trafficking Laws Put Victims — and American Citizens — At Risk.”
And the same week, the Administration for Children and Families, a division of the Department of Health and Human Services not normally known for its politics, announced that it “joins the President in calling for Congress to close dangerous loopholes.”
Over the past month, the Trump administration has taken aim at a set of child protection laws created to protect young people who cross into the United States without a parent or guardian, perhaps aided by smugglers. The administration now sees some of these same youths as a threat, and is portraying the laws as “loopholes” that are preventing the quick deportation of teenagers involved in gangs.
The campaign is aimed at Capitol Hill, but the Trump administration is not waiting for legislation: In a series of at least a dozen moves across multiple federal agencies, it has begun to curtail legal protections for unaccompanied children who cross the border. Many of these safeguards were created by a 2008 law that provided protections for children who might otherwise be forced into labor or prostitution.
The young people affected by the administration’s measures have been fleeing deadly gang violence in Central America since 2014, when civil strife erupted in the region. They are a less politically shielded group of young people than the so-called “Dreamers,” most of whom came to this country as toddlers with their parents.
The new directives appear aimed at detaining more of these youths after their arrival and speeding deportation back to their home countries — where they may face violent reprisals from gangs or other forms of abuse.
“It has been national law and policy that as adults we look out for children,” said Eve Stotland, director of legal services for The Door, a youth advocacy organization in New York. “No longer.”
Endangered Central American Children
Among the many new directives, the State Department in November gave just 24 hours’ notice to endangered children in Guatemala, Honduras and El Salvador before canceling a program through which they could apply for asylum in the United States before getting to the border. About 2,700 of them who had already been approved and were awaiting travel arrangements were forced to stay behind in the troubled region.
The Department of Homeland Security, meanwhile, has sharply cut back on granting a special legal status for immigrant juveniles who have been abused, neglected or abandoned; the program dropped from a 78 percent approval rate in 2016 to 54 percent last year, according to statistics compiled by U.S. Citizenship and Immigration Services. In New York, Texas and elsewhere, the agency in recent months has also begun revoking this protection for children who had already won it, according to legal aid organizations in the states.
The Justice Department has also issued legal clarification for courts and prosecutors about revoking “unaccompanied child” status, which allows minors to have their cases heard in a non-adversarial setting rather than in immigration court with a prosecutor contesting them. (The White House has said that it intends to remove this protection altogether, but has not yet done so.)
And the Office of Refugee Resettlement, which provides social services to vulnerable immigrant youth, is now placing all children with any gang-related history in secure detention instead of foster care, whether or not they have ever been arrested or charged with a crime, according to an August memo to the President’s Domestic Policy Council.
“It’s law enforcement mission creep, and our office is ill-prepared for it,” said Robert Carey, who was director of the refugee agency under President Barack Obama.
A Focus on Gangs
The Trump administration has said that its actions are necessary to stem the tide of violent crime. It has focused on teenagers belonging to or associated with the Salvadoran-American street gang MS-13, which has been linked by the police since 2016 to at least 25 homicides on Long Island — a testing ground for many of the president’s new policies.
About 99 of the more than 475 people arrested in the New York City area during ICE raids for gang members had come to the U.S. as unaccompanied children, a representative for the agency said.
To fortify the “loophole” narrative, official announcements of these ICE actions often point out that a number of those arrested were in the process of applying for various forms of child protection.
Yet 30 of 35 teenagers rounded up during these ICE raids last year and who later filed a class-action lawsuit have subsequently been released because the gang allegations against them were thin, according to the ACLU. And the Sacramento Bee reported that a juvenile detention center in California recently cut back its contract with the federal government and complained that too many immigrant teens were being sent there with no evidence of gang affiliation.
The refugee agency acknowledged in its August memo to the White House that only 1.6 percent of all children in its care have any gang history.
“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.
“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.
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Read the complete article at the link.
Yes, folks, it’s way past time to use the correct term for the Trump Administration’s outrageous, and in many cases illegal, policies directed against primarily Hispanic migrant children: “Child Abuse!”
I met many of these kids and families coming through my court over the years. While there were a tiny number of “bad actors” (which the DHS did a good job of discovering) the vast, vast majority were nothing like what Trump, Sessions and others are describing. They actually much better represented “true American values,” courage, and the “American work ethic” than do Trump and his valueless cronies.
That’s right folks! OUR U.S. Government is using racist-inspired lies to conduct a war against Hispanic children and to illegally return many of them to deadly and life threatening situations! Bad things happen to nations that let bullies and cowards bully, demean, and harm children!
The Trump Administration’s abuse of migrant children and their legal and Constitutional rights could be taken right out of a State Department Country Report on human rights abuses in a Third World Dictatorship. Is this they way YOU want to be remembered by history?
No, Constitutional and statutory protections for children are NOT “loopholes.” What kind of human beings speak such trash? The Trump Administration’s response to the “rule of law” when, as is often the case, it doesn’t fit their White Nationalist agenda is always to tell lies, rail against it, and look for ways around it.
Stand up against the lawless behavior and immoral actions of Trump, Sessions, and the rest of their “hate crew!” Join the “New Due Process Army” and fight against the Trump Administration’s erosion of our national values, morality, and the true “rule of law” (which is there to protect migrants and the rest of us from abuse at the hands of our Government).
Harm to the most vulnerable among us is harm to all!
Paige St. John & Joel Rubin report for the LA Times;
Immigration officers in the United States operate under a cardinal rule: Keep your hands off Americans. But Immigration and Customs Enforcement agents repeatedly target U.S. citizens for deportation by mistake, making wrongful arrests based on incomplete government records, bad data and lax investigations, according to a Times review of federal lawsuits, internal ICE documents and interviews.
Since 2012, ICE has released from its custody more than 1,480 people after investigating their citizenship claims, according to agency figures. And a Times review of Department of Justice records and interviews with immigration attorneys uncovered hundreds of additional cases in the country’s immigration courts in which people were forced to prove they are Americans and sometimes spent months or even years in detention.
Victims include a landscaper snatched in a Home Depot parking lot in Rialto and held for days despite his son’s attempts to show agents the man’s U.S. passport; a New York resident locked up for more than three years fighting deportation efforts after a federal agent mistook his father for someone who wasn’t a U.S. citizen; and a Rhode Island housekeeper mistakenly targeted twice, resulting in her spending a night in prison the second time even though her husband had brought her U.S. passport to a court hearing.
They and others described the panic and feeling of powerlessness that set in as agents took them into custody without explanation and ignored their claims of citizenship.
The wrongful arrests account for a small fraction of the more than 100,000 arrests ICE makes each year, and it’s unclear whether the Trump administration’s aggressive push to increase deportations will lead to more mistakes. But the detentions of U.S. citizens amount to an unsettling type of collateral damage in the government’s effort to remove undocumented or unwanted immigrants.
The errors reveal flaws in the way ICE identifies people for deportation, including its reliance on databases that are incomplete and plagued by mistakes. The wrongful arrests also highlight a presumption that pervades U.S. immigration agencies and courts that those born outside the United States are not here legally unless electronic records show otherwise. And when mistakes are not quickly remedied, citizens are forced into an immigration court system where they must fight to prove they should not be removed from the country, often without the help of an attorney.
The Times found that the two groups most vulnerable to becoming mistaken ICE targets are the children of immigrants and citizens born outside the country.
Matthew Albence, the head of ICE’s Enforcement and Removal Operations, declined to be interviewed but said in a written statement that investigating citizen claims can be a complex task involving searches of electronic and paper records as well as personal interviews. He said ICE updates records when errors are found and agents arrest only those they have probable cause to suspect are eligible for deportation.
“U.S. Immigration and Customs Enforcement takes very seriously any and all assertions that an individual detained in its custody may be a U.S. citizen,” he said.
But The Times’ review of federal documents and lawsuits turned up cases in which Americans were arrested based on mistakes or cursory ICE investigations and some who were repeatedly targeted because the government failed to update its records. Immigration lawyers said federal agents rarely conduct interviews before making arrests and getting ICE to correct its records is difficult.
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Read the complete, very scary, story at the link.
Just more support for my position that DHS should not be given any additional agent positions until they account for how they are using (and in too many cases misusing) their current positions. If there is anything that the Trumpsters have clearly shown it’s their total disdain for the Constitution and laws of the U.S. except as they might advance and protect the parochial interests of Trump and his supporters.
There is little doubt that the Trump/Sessions/Miller/Homan crew see DHS as “Internal Security Police” — largely beyond anyone’s control — that they will use for partisan political purposes. The case for the ultimate abolition of ICE in its current form and leadership looks stronger all the time.
And, as usual these days, Congress is AWOL while this Administration undermines American democracy.
Now, a REAL Attorney General might be concerned about getting to the bottom of this lawless behavior affecting the rights of U.S. citizens. But, White Nationalist Jeff Sessions is too busy creating false narratives, demonizing immigrants, and undermining the rights of Hispanic Americans, LGBTQ Americans, and African-Americans to be bothered with fundamental violations of Constitutional rights particularly where the victims aren’t White Guys. Jim Crow lives! And all of us should be worried about where he will strike next.
TIJUANA, Mexico — The American president, a former real estate mogul, does not want Byron Garcia in the United States. But the Honduran teenager was too busy building his own hotel empire this week to worry much about that.
Vermont Avenue and Connecticut Avenue were his. Now he was looking to move up-market.
The mini-Monopoly board on the dusty floor of the migrant shelter was small, but it fit well in the small space beside the tents. His older sister, Carolina, rolled a 2 and landed on Oriental Avenue.
“That’ll be $500,” said Garcia, 15, gleefully extending his hand. “I love this game!”
Garcia is coming to America on Sunday. Or maybe not. His mother, Orfa Marin, 33, isn’t sure it will be a good day to walk up to the border crossing and tell a U.S. officer that her family needs asylum. She knows President Trump wants to stop them.
Marin and her three children are among the 300 or so remaining members of the migrant caravan who have arrived here at the end of a month-long geographic and political odyssey, a trip that has piqued Trump’s Twitter anger and opened new cracks in U.S.-Mexico relations.
Central American migrant children play Monopoly at the Movimiento Juventud 2000 shelter on April 26, 2018 in Tijuana, Mexico. (Carolyn Van Houten/The Washington Post)
The organizers of the caravan say they are planning to hold a rally Sunday at Friendship Park, the international park where a 15-foot border fence splits the beach. From there, activists and attorneys plan to lead a group of the migrants to the U.S. port of entry at San Ysidro, Calif., where they will approach U.S. Customs and Border Protection officers and formally request asylum.
. . . .
Trump has ordered U.S. soldiers to deploy and Homeland Security officials to block the migrants. But the diminished version of the caravan that has arrived here, mostly women and children, has only underscored its meekness.
Migrant families arrive on a bus at the Ejercito de Salvacion shelter on April 26, 2018 in Tijuana, Mexico after driving from Mexicali, Mexico. (Carolyn Van Houten/The Washington Post)
The families are drained after weeks of travel, coughing children and pinto beans. They have crowded here into shelters in the city’s squalid north end, where the sidewalks are smeared with dog droppings and skimpily dressed women hand out drink promotions among the strip clubs and brothels. The tall American border fence is two blocks away.
Children play on the sidewalks outside the shelters, the boredom broken whenever a car with donations arrives to drop off clothes and toys.
Central Americans migrants in Mexico have long been treated as a kind of renewable natural resource, ripe for exploitation by thieves, predators and politicians. The geopolitical importance attached to this particular group was a sign to many here that the U.S. president had recognized an opportunity, too.
“We’re not terrorists or bad people,” Marin said.
Regardless of its size, Trump officials have measured this caravan in symbolic terms, as an egregious example of the “loophole” they want to shut and an immigration system whose generosity is being abused, they say, by hundreds of thousands of Central Americas trying to dupe it.
. . . .
“These people have no option but to seek refuge in another country, and they have every right to seek asylum, they have decided to face the consequences and to be strong in demanding what is their right,” said Leonard Olsen, 26, a law student and one of several caravan organizers from the United States. He wore a tattered Philadelphia Eagles cap and arrived in Tijuana on Thursday with a busload of women and children.
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I can understand why guys like Trump, Sessions, Nielsen, and Homan would be scared by mothers with talented kids who show the kind of courage, honesty, humanity, and respect for law that they themselves so conspicuously lack.
Without 5th Amendment protections, who would join the Trump Administration?
The nation’s top immigration and border officials are urging Homeland Security Secretary Kirstjen Nielsen to detain and prosecute all parents caught crossing the Mexican border illegally with their children, a stark change in policy that would result in the separation of families that until now have mostly been kept together.
If approved, the zero-tolerance measure could split up thousands of families, although officials say they would not prosecute those who turn themselves in at legal ports of entry and claim asylum. More than 20,000 of the 30,000 migrants who sought asylum during the first quarter — the period from October-December — of the current fiscal year crossed the border illegally.
In a memorandum that outlines the proposal and was obtained by The Washington Post, officials say that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings. Most parents now caught crossing the border illegally with their children are quickly released to await civil deportation hearings.
The memo sent to Nielsen on Monday — and signed by acting Director of Immigration and Customs Enforcement Thomas Homan, Director of Citizenship and Immigration Services L. Francis Cissna and Customs and Border Protection Commissioner Kevin K. McAleenan — said attempted crossings by parents with children increased to nearly 700 a day last week, the highest level since 2016. The officials predicted that the number will continue to rise if Nielsen does not act.
Lee Gelernt, an attorney with the American Civil Liberties Union who has filed a federal lawsuit in California over earlier instances of family separations at the border, said the proposal would make “children as young as 2 and 3 years old pawns in a cruel public policy experiment.”
. . . .
Philip G. Schrag, a Georgetown law professor and asylum expert, said that expanding the forced separation of parents and children could cause severe psychological harm to families that ultimately might have legal grounds under federal asylum law to remain in the United States permanently.
“I think it’s absolutely wrenching psychologically and terrible for both the children and the parents,” he said. “What are we doing to those children psychologically that will haunt us years down the road if they become Americans?”
Federal officials say asylum applications have skyrocketed in recent years, raising concerns about fraud. Advocates for immigrants say those seeking asylum have legitimate claims under federal law and are fleeing some of the world’s most dangerous countries.
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Read Maria’s complete article at the link.
I associate myself completely with the remarks of my good friend and Georgetown Law colleague Professor Phil Schrag. Cruelty to children is stupid, counterproductive — children are our future — and morally wrong. It will definitely haunt us as a country for generations to come. It’s largely what I said before about the misguided policies of the Obama Administration. But, as with many things, the Trump Administration takes every dumb and wrong immigration policy of the past and multiplies it.
