"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.
“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.”
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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.”
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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.
Devlin Barrett & Matt Zapotosky report for the Washington Post:
A senior career Justice Department official has resigned in the wake of the Trump administration’s move to stop defending a key provision of the Affordable Care Act, a departure that highlights internal frustration generated by the decision, according to people familiar with the matter.
Joel McElvain, who has worked at the Justice Department for more than 20 years, submitted his resignation letter Friday, the morning after Attorney General Jeff Sessions notified Congress that the agency will not defend the ACA — the 2010 law known as Obamacare — against lawsuits brought by Republican-led states challenging its requirement that most Americans carry health insurance.
As a presidential candidate, Donald Trump campaigned on the promise of repealing Obamacare, but that effort faltered in Congress. Last year, lawmakers amended the law, nullifying the provision requiring people to carry insurance. That takes effect in 2019.
The Justice Department’s decision last week reversed years of legal work McElvain and the Justice Department had performed on the issue.
McElvain and his team were honored in 2013 with the Attorney General’s Award for exceptional service defending the legislation in court.A Justice Department spokeswoman confirmed his resignation takes effect in early July. McElvain declined to comment.
Those who know McElvain described him as an expert lawyer and a well-liked boss.
“This is the first I’m hearing it, and it’s a gut punch,” said one person who worked with McElvain for years and spoke on the condition of anonymity to discuss a sensitive personnel issue. “That will be a very big blow to the morale of the [agency’s] civil division, a really sad day for the Department of Justice and a loss for the country.”
Several colleagues said McElvain was in line to become director of the Justice Department’s federal programs branch, which handles complex government policy questions pending before the courts. It is not known for its politics but for the tenacity with which its lawyers defend the law — any law — passed by Congress.
“Joel is just phenomenal. He’s just such a terrific lawyer and a great person,” said a former Justice Department official who knows McElvain. “ . . . It’s a lot of institutional knowledge and a great deal of experience walking out the door.”
It was previously reported that shortly after the Justice Department reversed itself, McElvain and two other Justice Department lawyers who had been defending the ACA withdrew from a case pending in a Texas court.
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Read the rest of the article at the link.
I suspect that some stressed out U.S. Immigration Judges left this week’s so-called “training” conference (more like a “brainwashing session”) thinking about whether this also would be their future.
Sessions delivered a shockingly lawless and xenophobic lecture in which he abandoned the Due Process role of the Immigration Courts, trashed judicial independence, treated them like junior immigration enforcement officers, encouraged “worst judicial practices,” told them it’s “all about the numbers,” minimized the compelling human plight of asylum seekers, lied about EOIR statistics, and ordered them to follow his rewrite of established asylum law that essentially could make U.S. Immigration Judges members of a “shooting squad” sent out to execute women and children refugees from the Northern Triangle without Due Process.
Some must have also found being a “delegee” of the “Chief Official Child Abuser of the U.S.” at least somewhat troubling. Not a great way to round out a career with the pathetic remains of the once-proud DOJ (now widely regarded as a bastion of White Nationalism, legal incompetence, and overt political bias).
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.
TYSONS, Va. — As the nation’s immigration judges gathered here for training this week, Attorney General Jeff Sessions had a message: They needed to help “end the lawlessness that now exists in our immigration system.”
But to many of the judges, Mr. Sessions’s hard-line immigration agenda is increasingly standing in the way of their ability to mete out justice.
In interviews, some objected to quotas he imposed on them this spring of 700 cases per year, as well as his ban on a bureaucratic tool they used to reduce their caseloads. Others expressed concern about the impact his zero-tolerance policy on illegal immigration could have on their dockets, and his push for faster rulings. They viewed those together as leaving them at risk of creating a system that sacrifices due process for efficiency.
“Sessions is treating them like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts, which count more than 300 judges in their ranks and another two dozen or so on an immigration appeals board.
Mr. Sessions’s carrying out of his immigration agenda has reignited a long-running debate about the independence of immigration judges, who are part of the Justice Department, not the judicial branch. Some of the judges fear that they could be used to help fulfill the administration’s priorities, endangering their independence.
“The Justice Department is the premier law enforcement agency, but the role of law enforcement is different from that of a neutral court,” said Dana Leigh Marks, the president emeritus of the immigration judges’ union. She said the organization believes the time has come to separate immigration courts from the department.
. . . .
In a speech on Monday at the judges’ conference outside Washington, hosted by the Justice Department, Mr. Sessions asked them to look for inefficiencies to finish cases more quickly.
“We have to be very productive,” he said. “Volume is critical.”
Three judges said they were struck by his emphasis on speed, prosecutions and policy matters without acknowledgment of the need to balance those demands with ensuring due process for immigrants. They said they feared the focus on metrics and closing cases would make it harder to sort through complicated cases and easier to simply deny applications for entry into the United States.
Scores of attendees wore American flag pins in support of “judicial independence and integrity in our courts,” according to a note accompanying the pins.
Dozens of judges who gathered early Monday evening expressed anxiety over their treatment, according to one person present who was not authorized to share the details of the private meeting.
They said they lacked specifics on which cases would count toward their quotas. They pointed to Mr. Sessions’s ban on their use of administrative closure, the tool that effectively allowed them to close cases. And they worried that his zero-tolerance policy on illegal immigration would flood the system with new cases and make it hard for them to decrease the system backlog of about 700,000 cases.
The potential impact of Mr. Sessions’s zero-tolerance policy toward immigration has been of particular concern to judges who are already grappling with a large caseload. “It’s as if local police and prosecutors decided to prosecute every traffic ticket of anyone going 2 miles per hour over the speed limit and filled the court system with those cases,” Mr. Schmidt said.
Judges are also resigning in large numbers, Ms. Marks said, a pattern she expected to continue. As of last year, 39 percent of immigration judges were eligible for retirement, according to a study conducted by the Government Accountability Office. Many immigration judges were sworn in during a wave of hiring in the 1990s.
The Justice Department has said it is on pace to hire 100 more judges this year, and its data shows that the department has never filled every slot. Currently there are 336 judges out of the 484 authorized slots.
In a conference session on Tuesday afternoon with Mr. McHenry, one judge asked if they could delay disciplining judges on the attorney general’s directives about metrics and streamlining the system. The room erupted in applause, but the question went unanswered.
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Read Katie’s full article at the above link!
Immigration is an incredibly complex area of the law — often compared with the Tax Code. And, it almost certainly has more direct and potentially life-threatening and life-changing effects than does tax law (with due apologies to my tax lawyer colleagues). For better or worse, when they have an opportunity to get together at annual conferences (which aren’t necessarily held annually), most Immigration Judges love to “talk shop.”
Normally, you’d expect to hear things like questions about pending Supreme Court cases, the latest BIA precedent decision, immigration reform legislation, or how to constructively react to some of the criticism dished out by Circuit Courts, as well as sharing “best practices” to achieve fundamental fairness with efficiency.
But, while I was waiting in the lobby to meet my “dinner group” of some former colleagues, the “hall chatter” was all about things like “judicial dashboards,” “production quotas,” “what counts as a completion,” “docket rearrangement without consultation,” “required retraining” (sounded very much like a judicial version of the former Soviet “re-educaton camps”), “stress relief,” “not losing it in court,” “retirement estimates,” and, perhaps most tellingly “how can I remain true to my oath of office and job description without getting harassed, fired, or reassigned?”
Not much room for talk of law, Due Process, best methods and practices, and how to insure that folks, including the unrepresented, get the relief they might be entitled to under the immigration laws.
Appropriate for a judicial conference? Of course not! But, when your “keynote address” is delivered by a totally non-judicial Enforcement Cheerleader in a tone and with content more appropriate to a class of new Border Patrol officers than a group of supposedly independent, senior, quasi-judicial officers of the U.S. Government, that’s what you’re going to get. What must newly appointed U.S. Immigration Judges — some who gave up other good jobs to serve in these positions — have thought?
What made it even worse was the misuse of the judicial conference as a “platform” to release a “personal rewrite” by Sessions (although I suspect some outside group actually drafted it for him or gave him the outline) of established asylum principles in a way that dripped with overt hostility to legitimate asylum seekers, most of them desperate abused women, and was accompanied by unsupported statements about asylum fraud and bogus statistics that could have come right out of a “restrictionist group’s backgrounder.” The message to the judges was very clear — most asylum seekers are fraudsters, so you should cut corners, prejudge cases, look for any reason to deny asylum, preferably at the preliminary stage without wasting time on a full hearing, and crank out those denials to deter folks from fraudulently seeking refuge under our laws — or start looking for a new job!
From a legal, ethical, moral, and intellectual honesty standpoint, the Attorney General’s speech to the Immigration Judges was simply jaw-droppingly inappropriate! How is a quasi-judicial officer sworn to uphold the U.S. Constitution and charged by regulation with “exercising independent judgment” supposed to “negotiate” a system where the “boss” is basically saying “to heck with fairness, respect, and quality — just crank up the volume.”
Contrary to what Sessions said, DHS isn’t EOIR’s “partner.” No, DHS is a party in interest to every adversary proceeding in Immigration Court! They are legally entitled to no better treatment or consideration than any foreign national respondent, even an unrepresented one!
Indeed, the Due Process Clause of our Constitution applies to respondents but not to the DHS! The “founding fathers” weren’t trying to protect the rights of the Government under the Bill of Rights. They were seeking to protect individuals against Govenment overreach and abuses. Jeff Sessions is just the type of overbearing Government official that the founding fathers might have envisioned abusing the power and authority of his office.
“Rumored” assertions by some EOIR management officials that “we don’t care how you decide these cases” are patently absurd! Of course, Jeff Sessions cares about the results! He wants removal orders — fast and by the truckload!
He certainly wasn’t talking about racing through hundreds of thousands of cases to grant 43%-56% of the asylum cases that are decided on the merits, which is what should happen based on past performance had Sessions not reached in to “tilt” the law against asylum seekers and to use detention and family separation to coerce individuals into giving up potentially winnable claims. Anybody who perceived Sessions’s remarks to the judges on Monday as an encouragement to treat asylum applicants fairly, impartially, humanely, respectfully, and to insure that the generous interpretation of well-founded fear set forth by the Supremes in Cardoza-Fonseca was followed would need their head examined!
Even though immigrants, both legal and undocumented, forced and voluntary, built America and are primarily responsible for our success as a nation, I can’t remember ever hearing Jeff Sessions say anything kind or nice about any foreign national! Indeed, it’s hard to think of any public occasion when Sessions addressed immigration without providing some false narrative, ethnic slur, bogus or misleading statistic, denigrating the contributions of immigrants, dehumanizing them, or seeking to drum up xenophobia by touting false links between migrants and crime.
Sessions’s other message to the judges: By the way, folks, this backlog mess that we and our predecessors have created and are now intentionally aggravating by aimlessly reshuffling dockets, cranking up needless detention, poor enforcement policies, lousy management and hiring practices, absurdly inadequate technology, and attempting to use the Immigration Courts as “deterrents” is your fault (along with the respondents and their attorneys) because you don’t work hard enough or smart enough! You’re going to “take the fall” when we aren’t able to stop human migration by using the Immigration Court as an enforcement tool! We’re giving you “mission impossible,” and if you can’t carry it out, you’re not doing your job!
Congress — which is ultimately responsible for this mess — and the Article III Courts who have knowingly and intentionally swept the glaring Due Process deficiencies, stunning ethical conflicts, lack of quality control, and failure to consistently provide fundamental fairness under their “Ivory Tower carpets” for far too long are going to have to step up and put an end to this parody of justice or accept responsibility for the implosion of the Immigration Courts and Constitutional Due Process that are looming on the horizon.
One thing is for certain: You can’t run a Due Process, fundamentally fair court system under Jeff Sessions. He proved that this week — beyond any reasonable doubt! Anybody who doubts that, isn’t being reasonable — or isn’t paying attention!
DOJ:Sessions Remarks at EOIR Training: “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.”
From UC Hastings CGRS:
Tracking Court of Appeals Cases: CGRS has set up a system for tracking cases pending in the federal courts of appeals that may raise challenges to any ruling in Matter of A-B-. Depending on the scope of the AG’s forthcoming decision, this could include not only domestic violence claims but a range of other claims involving persecution by private actors. If you have a case on appeal that might fit this description, we kindly ask you to fill out this short survey.
Tracking Denials for Advocacy: In the event of a restrictive decision in A-B-, we will also be collecting information on compelling cases denied under A-B- at the Asylum Office and Immigration Court levels (not yet ripe for circuit court appeal) to highlight the devastating impact of the decision in the media and on the Hill. To report these outcomes if/when the time comes, please email us at CGRS-ABtracking@uchastings.edu.
In the meantime, contrary to commentary we have heard including from some Immigration Judges, Matter of A-R-C-G- remains good law. And we encourage you to continue bringing asylum claims involving domestic violence, documenting them well. To request assistance in your case and access to expert declarations and country conditions support, please fill out a request on our website here.
Reuters: U.S. authorities are transferring into federal prisons about 1,600 Immigration and Customs Enforcement (ICE) detainees, officials told Reuters on Thursday, in the first large-scale use of federal prisons to hold detainees amid a Trump administration crackdown on people entering the country illegally.
TRAC: The Immigration Court’s backlog keeps rising. As of the end of May 2018, the number of cases waiting decision reached an all-time high of 714,067. This compares with a court backlog of 542,411 cases at the end of January 2017 when President Trump assumed office. During his term the backlog has increased by almost a third (32%) with 171,656 more cases added.
TRAC: Federal criminal prosecutions of individuals apprehended by Customs and Border Protection (CBP) along the southwest border with Mexico jumped 30 percent in April 2018 over March figures. Since January, criminal prosecutions were up 60 percent, rising from 5,191 in January to 8,298 in April.
ICE released a statement after conducting a three-month review of detainers lodged with the New York City Police Department and the New York Department of Corrections. ICE purported to find that it prepared 440 detainers and nearly 40 individuals who were released from custody, reoffended.
NYT: The Trump administration’s practice of separating children from migrant families entering the United States violates their rights and international law, the United Nations human rights office said on Tuesday, urging an immediate halt to the practice. The administration angrily rejected what it called an ignorant attack by the United Nations human rights office and accused the global organization of hypocrisy.
WaPo: Although Seattle is some 1,500 miles north of the U.S.-Mexico border, the debate over family separations hit closer to home for the Evergreen State after dozens of undocumented immigrants were transferred last week to the Federal Detention Center in SeaTac, near Seattle-Tacoma International Airport. Nearly all of those migrants — 174 out of 206 — were women.
Pew: A new federal policy will allow federal agents to investigate, and possibly arrest and deport, families who step up to host children found at the border. It’s the latest in a series of enforcement actions by the Trump administration intended to discourage a new surge in unauthorized immigrants.
WaPo: A federal judge has given a last-minute reprieve to a New York restaurant worker who was fast-tracked for deportation this month after he showed up at an Army base with a delivery of pasta and the wrong type of ID.
AIC: More than 100 workers were arrested at a gardening and landscaping company in northern Ohio on Wednesday, marking another massive employment crackdown under the Trump administration.
AP: Some companies regret turning to Donald Trump’s personal attorney Michael Cohen for help, but a Florida immigration firm appears to have gotten nearly everything it wanted. When Nicholas Mastroianni II hooked up with Cohen last year, his business was threatened by a looming crackdown on a federal program offering foreigners visas if they invest in certain U.S. real estate projects. Cohen connected Mastroianni with a lobbying firm and, hundreds of thousands of dollars in payments later, Mastroianni appears to be in the clear.
A&J: Fresh off the FOIA press. Today, we received the following data on the total number of asylum grants and denials for each immigration judge from for each fiscal year from 2014 to 2018.
NY Court Update
SIJS Meeting: As an FYI, IJ Nelson apparently prompted DHS to de-designate a 6 year old UAC who lives with a parent/parents. Just a heads up to anyone with a UAC case before her.
CNN: The DOJ argued in a legal filing late Friday that the DACA policy is unlawful and is “an open-ended circumvention of immigration laws.” The DOJ’s filing was in response to a lawsuit brought by Texas Attorney General Ken Paxton on behalf of seven states to the United States District Court for the Southern District of Texas. The states argue that former President Barack Obama’s initial creation of DACA in 2012 violated the Constitution and federal law.
NBC: In a decision that made Mayor Jim Kenney break out into song and dance, a federal judge ruled that the Trump administration cannot cut off grants to Philadelphia over how the city deals with undocumented immigrants.
NYIC: The American Civil Liberties Union, New York Civil Liberties Union, and Arnold & Porter filed a federal lawsuit today on behalf of immigrants’ rights groups challenging the Trump administration’s plan to include a citizenship question on the 2020 census. The groups charge that Trump’s order intentionally discriminates against immigrants and thwarts the constitutional mandate to accurately count the U.S. population.
AIC: An immigrant who was forced through a fast-track deportation at the border involving these unlawful practices sued CBP on Thursday. His deportation was based on paperwork that included fabricated answers, and he was never given the opportunity to apply for asylum. The case, filed in the U.S. District Court for the Southern District of Florida, seeks to hold CBP accountable for its negligence and unlawful practices.
A district court found that ICE’s alleged practice of routinely separating immigrant families held in detention may violate the constitutional right to family integrity and rejected the government’s jurisdictional challenge under INA §242(a)(2)(B)(ii). (Ms. L.; et al., v. ICE, 6/6/18) AILA Doc. No. 18060800
The U.S. District Court for the Eastern District of Pennsylvania permanently enjoined the AG from rejecting the city’s FY2017 application for Byrne JAG funding or withholding JAG funding based on certification of compliance with 8 USC §1373. (City of Philadelphia v. Sessions, June 6, 2018) AILA Doc. No. 17092265
AILA and the American Immigration Council file a complaint with the DHS OIG, CRCL, ICE, and ICE’s Health Services Corps urging an investigation into the government’s longstanding and systemic failure to provide adequate medical and mental health care to immigrants detained at the Aurora Facility. AILA Doc. No. 18060430
The court granted petitions for review, after finding that IJs and the BIA erred by substantially relying on the fact that applicants for asylum and related relief testified during removal proceedings to certain details not included in their initial applications. (Gao v. Sessions, 5/25/18) AILA Doc. No. 18060833
The court granted the petitioner’s petition for panel rehearing and the opinion filed on 9/14/17, which held that Arizona Revised Statutes §13-1203(A)(1) is a crime of violence under 18 USC §16(a), was withdrawn. (Cornejo-Villagrana v. Sessions, 5/30/18) AILA Doc. No. 17091560
BIA remanded the record after finding that 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 provided aid to them. Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) AILA Doc. No. 18060730
BIA reopens for SIJS; encourages IJ to grant continuance (attached)
Cornell: BIA decision granting reopening for two children from Mexico so that they could file for one-parent SIJS. The decision contains some good language encouraging the IJ to grant a continuance. See attached.
USCIS announced that on 6/4/18, it began issuing redesigned Certificates of Citizenship and Naturalization. Forms N-550, N-578, N-570, N-560A, N-560AB, N-645, N-645A, and N-561 were redesigned to better deter alteration and fraud and to make these documents more secure. AILA Doc. No. 18060434
USCIS announced that current beneficiaries of Temporary Protected Status (TPS) under Honduras’ designation who want to maintain their status through the termination date of 1/5/20, must re-register between 6/5/18 and 8/6/18. Re-registration procedures have been published in the Federal Register. AILA Doc. No. 18060538
DHS proposed two changes that would apply to surety companies certified by the Department of the Treasury to underwrite immigration bonds and their administrative appeals process. Proposed amendments would change 8 CFR Part 103. Comments are due by 8/6/18. (83 FR 25951, 6/5/18) AILA Doc. No. 18060531
Attorney General Jeff Sessions announced that DOJ is allocating 311 new Assistant United States Attorneys to assist in priority areas, including 35 additional immigration prosecutors. This is the largest increase of new Assistant U.S. Attorney positions in decades.
Obtained via FOIA by Hoppock Law Firm, EOIR released records related to its EOIR case management strategy, “No Dark Courtrooms.” Special thanks to Matthew Hoppock.
AIC: June is Immigrant Heritage Month, and given the shrill and often negative rhetoric we hear around immigration, it seems more important than ever to take time to appreciate our immigration history and what newcomers bring to our nation and our lives.
The sci-fi writer William Gibson once said, “The future has arrived — it’s just not evenly distributed yet.” In America in 2018, the same could be said of authoritarianism.
Since Donald Trump was elected, there’s been a boom in best-selling books about the fragility of liberal democracy, including Madeleine Albright’s “Fascism: A Warning,” and Timothy Snyder’s “On Tyranny.” Many have noted that the president’s rhetoric abounds in classic fascist tropes, including the demonization of minorities and attempts to paint the press as treasonous. Trump is obviously more comfortable with despots like Russia’s Vladimir Putin than democrats like Canada’s Justin Trudeau.
We still talk about American fascism as a looming threat, something that could happen if we’re not vigilant. But for undocumented immigrants, it’s already here.
There are countless horror stories about what’s happening to immigrants under Trump. Just last week, we learned that a teenager from Iowa who had lived in America since he was 3 was killed shortly after his forced return to Mexico. This month, an Ecuadorean immigrant with an American citizen wife and a pending green card application was detained at a Brooklyn military base where he’d gone to deliver a pizza; a judge has temporarily halted his deportation, but he remains locked up. Immigration officers are boarding trains and buses and demanding that passengers show them their papers. On Monday, Attorney General Jeff Sessions decreed that most people fleeing domestic abuse or gang violence would no longer be eligible for asylum.
But what really makes Trump’s America feel like a rogue state is the administration’s policy of taking children from migrants caught crossing the border unlawfully, even if the parents immediately present themselves to the authorities to make asylum claims. “This is as bad as I’ve ever seen in 25 years of doing this work,” Lee Gelernt, deputy director of the A.C.L.U.’s Immigrants’ Rights Project, told me. “The little kids are literally being terrorized.”
Family separations began last year — immigrant advocates aren’t sure exactly when — and have ramped up with the administration’s new “zero tolerance” policy of prosecuting everyone who crosses the border without authorization. Over two weeks in May, more than 650 children were snatched from their parents.
. . . .
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Read the rest of Michelle’s article at the above link!
In case you haven’t noticed (and Trump supporters either haven’t, or have ignored it), everyone around Trump, including friends, family, business associates, political supporters, Cabinet members, allies, lawyers, campaign workers, former girlfriends and liaisons, is “expendable.” The only “non-expendable” person in Trump’s universe is, no surprise here, Trump.
And, like any authoritarian despot, he picks people off one by one or in vulnerable groups by isolating, bullying, demeaning, dehumanizing, and then destroying them while the others look on offering no help to the fallen and just thinking “glad it wasn’t me!”
But, when your time comes (and it well may, if we allow Trump to continue in office long enough) who will be there to stand up for you? Who will speak up for your rights? Indeed, what “rights” will you have after Trump, Sessions, Pence & Co have finished destroying our Constitution and stomping on the real rule of law to institute their White Nationalist Empire?
And what kind of country with what kind of people make terrorizing already traumatized kids a national policy?
Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Attorney General’s Decision in Matter of A-B-.
As former Immigration Judges with decades of experience at the trial and appellate level, we consider the Attorney General’s decision an affront to the rule of law. As former judges, we understand that in order to be fair, case law must develop through a process of impartial judicial analysis applying statute, regulations, case law, and other proper sources to the facts of the case.
The life-or-death consequences facing asylum applicants makes it extremely important to keep such analysis immune from the political considerations that appointed cabinet members are subject to.
The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a
particular social group was the culmination of a 15 year process through the immigration courts and BIA. The issue was certified by three different Attorneys General (one Democrat and two Republican), who all chose in the end to leave the final determination to the immigration judges and the BIA. The private bar, law enforcement agencies (including DHS), the BIA, and the circuit courts all agreed with this final determination.
What is more, a person who suffers persecution that is perpetrated by private parties whom their government cannot or will not control, is equally eligible for asylum protection under both US law and international refugee treaties.
For reasons understood only by himself, the Attorney General today erased an important legal development
that was universally agreed to be correct. 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. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications.
Sincerely,
Honorable Steven R. Abrams
Honorable Sarah M. Burr
Honorable Jeffrey S. Chase
Honorable Bruce J. Einhorn
Honorable Cecelia Espenoza
Honorable Noel Ferris
Honorable John F. Gossart, Jr.
Honorable William P. Joyce
Honorable Carol King
Honorable Elizabeth A. Lamb
Honorable Margaret McManus
Honorable Susan Roy
Honorable Lory D. Rosenberg
Honorable Paul W. Schmidt
Honorable Polly A. Webber
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List of Retired Immigration Judges and Former BIA Members
The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003- 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in
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immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues. The Honorable Elizabeth A. Lamb
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of
was appointed as an Immigration Judge in September 1995. She received
a Bachelor of Arts degree from the College of Mt. St. Vincent in 1968, and a Juris Doctorate in 1975 from St.
John’s University. From 1983 to 1995, she was in private practice in New York. Judge Lamb also served as an
adjunct professor at Manhattan Community College from 1990 to 1992. From 1987 to 1995, Judge Lamb
served as an attorney for the Archdiocese of New York as an immigration consultant. From 1980 to 1983, she
worked as senior equal employment attorney for the St. Regis Paper Company in West Mark, New York. From
1978 to 1980, Judge Lamb served as a lawyer for the New York State Division of Criminal Justice Services in
New York. She is a member of the New York Bar.
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the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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The AP already picked up our statement in this article:
U.S. Sen. Dianne Feinstein, a California Democrat, said the decision was “despicable and should be immediately reversed.” And 15 former immigration judges and Board of Immigration Appeals members signed a letter calling Sessions’ decision “an affront to the rule of law.”
“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. “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.”
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Also, I was quoted in this article by Alan Pyke posted yesterday in ThinkProgress:
The attorney general also took care to remind the judges that his decisions aren’t advice from a fellow lawyer but binding instructions from their one true boss. Though they are termed “judges” and wear robes behind a bench in court, the immigration judiciary is essentially a staff arm of the Attorney General rather than the independent arbiters that most envision when hearing their job titles.
Sessions’ frank expression of expectations was jarring to retired immigration judge Paul Schmidt. When attorneys general addressed the training conference in the past, Schmidt said, they stuck to the kind of collegial rah-rah stuff common to executives addressing underappreciated staff — but also stressed an expectation of careful, diligent, and independent professional conduct.
“I’ve never seen an AG come and basically tell the judges they’re part of the border enforcement effort. It’s outrageous,” Schmidt said. “Whether they’re inside DOJ or not, this is supposed to be an administrative court that exercises independent judgment and decisionmaking. And he’s reduced to to where they’re little enforcement officers running around carrying out the AG’s border policies.”
Sessions did go briefly off-book on Monday to offer one conciliatory note, looking up from his notes after calling the current backlog in immigration courts“unacceptable” to acknowledge that it’s been a tougher problem than he expected. “We thought we could get those numbers down, but they’re not going down yet,” Sessions said, before returning to his prepared remarks. He did not acknowledge that his own policies have contributed to the swelling of the backlog, which hit an all-time high in May.
Immigration court backlog hits all-time high, days before Sessions speech to immigration judges
Sessions is redrawing lines more tightly atop an already perversely narrow system.
A separate ruling last Friday helps underline the severity of the limits on traumatized migrants’ rights to seek protection in the United States. In a decision pertaining to the immigration courts’ handling of those accused of providing “material support” to terrorist organizations abroad, the Board of Immigration Appeals decided even labor compelled with death threats counts as grounds to bar someone from the United States.
The Salvadoran woman whose appeals gave rise to the case had been married to a sergeant in El Salvador’s army during a bloody civil war there. Guerrillas kidnapped the woman and her husband, made her watch as he dug his own grave and was shot dead, then made her wash clothes and do other menial chores for the rebel fighters while in captivity.
This clothes-washing and death-avoiding makes her, in the DOJ’s immigration overseers’ eyes, a terrorist no better than the unnamed group — presumably the Marxist-Leninist revolutionary Farabundo Martí National Liberation Front (FMNL) — who killed her husband in front of her and forced her into servitude.
The board denied her appeals and used the case to set a broader line across all immigration courts. Violently coerced labor while imprisoned by a terror organization will permanently bar you from crossing the U.S. border to seek protection. If you try it, we’ll send you back to your captors — presumably after first taking your kids away from you, pursuant to Sessions’ new policy mandating all immigrants crossing the border without documentation be referred to criminal court and thus separated from any minors who accompanied them.
This piece has been updated with additional context about Sessions’ immigration policies and further perspective from immigration policy experts.
Read Alan’s full analysis at the above link. According to many observers, the “small aside” by Sessions in the article is the closest he’s ever come to accepting responsibility for a mess that he, the Trump Administration, and the two previous Administrations actually have caused with their horrible and highly politicized mismanagement of the U.S Immigration Courts.
For the most part, the ever disingenuous Sessions, has tried to shift blame for his gross mismanagement to the victims: migrants (particularly asylum seekers); private attorneys (particularly those heroic attorneys performing pro bono); and the beleaguered, totally demoralized U.S. Immigration Judges themselves who have been stripped of dignity, wrongfully accused of laziness, and placed under inane, sophomoric, “performance standards” — incredibly developed by Sessions and other politicos and “Ivory tower” bureaucrats who have never themselves been Immigration Judges, have no idea what is happening in Immigration Court, and are driven entirely by political bias and/or a desire to keep their comfy jobs on the 5th floor of the DOJ or in the Falls Church Tower — well away from the results of the havoc they are wreaking on local Immigration Courts every day!
What a way to “manage” one of the nation’s largest and most important court systems! The real blame here goes to Congress which created this awful mess, yet has done nothing to remove this joke of a system from the toxic incompetence of the DOJ and create an independent court system where fairness, Due Process, quality, respect, and efficient, unbiased decision-making will be the hallmarks!
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UPDATE:
The fabulous Dan Kowalski @ LexisNexis also reminds me that our statement was the “banner, above the fold” headline on today’s bibdailyonline!
Here’s the link which also includes tons of other “great stuff” that Dan publishes!
(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.
On June 6, the BIA published its precedent decision in Matter of A-C-M-. As the Board seems to no longer issue precedent decisions en banc, the decision is that of a divided three-judge panel. The two-judge majority found the respondent to be barred from asylum eligibility because in 1990, she had been kidnaped by guerrillas in her native El Salvador, who after forcing her to undergo weapons training, made her do the group’s cooking, cleaning, and laundry while remaining its captive.
In 2011, an immigration judge granted the respondent’s application for cancellation of removal. The DHS appealed the decision to the BIA, which reversed the IJ’s grant, finding that the respondent was ineligible for cancellation under section 212(a)(3)(B)(i)(VIII), which makes inadmissible to the U.S. anyone who has received military-type training from a terrorist organization. The BIA stated in its 2014 decision that it found the guerrillas to be a terrorist organization at the time of the respondent’s abduction in 1990.
The case was remanded back to the immigration judge, where the respondent then applied for asylum, a relief from which she was not barred by the military training. However, the IJ ruled that she was ineligible for asylum under another subsection of the law, which bars anyone who commits “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” for either the commission of a terrorist activity, someone who has committed or is planning to commit a terrorist act, or to a terrorist organization or member of such organization.
The respondent in A-C-M- clearly wasn’t providing her labor by choice; she was forcibly abducted by the guerrillas and was then held against her will. However, the BIA decided in a 2016 decision, Matter of M-H-Z-, that there is no duress exception to the material support bar. Therefore, in the Board’s view, the involuntary nature of the labor was irrelevant.
In her well-reasoned dissent, Board Member Linda Wendtland acknowledged a critical question: “whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.” Note that the statutory language quoted above requires that the actor “knows or reasonably should know” that the support will aid a terrorist activity or organization.
The decision doesn’t name the guerrilla organization (presumably the FMLN). It also fails to mention when the Board itself concluded that the group had been a terrorist organization in 1990. The Board’s view of the guerrillas was not always so, as witnessed in its 1988 precedent decision in Matter of Maldonado-Cruz. The case involved an asylum-seeker from El Salvador who had been kidnaped by guerrillas in that country, given brief military training, and then forced to serve in the group’s military operations. He managed to escape, and legitimately feared that if returned to El Salvador, he would be killed by death squads the guerrillas dispatch to punish deserters.
The BIA denied asylum. In doing so, it expressed the following rationale: “It is entirely proper to apply a presumption that a guerrilla organization, as a military or para-military organization, has the need to control its members, to exercise discipline.” The Board noted that the guerrillas needed non-volunteer troops to fill out the military units required to fight against the government. It continued: “To keep them as cohesive fighting units they must impose discipline; and an important form of discipline…is the punishment of deserters.”
The Board’s language in Maldonado-Cruz really does not sound as if it is describing a terrorist organization. Frankly, it’s tone wouldn’t sound out of place in describing the penalties imposed by the Park Slope Food Coop towards members who miss their shifts. If the Board didn’t contemporaneously view the guerrillas as terrorists, why would they expect the respondent to have done so?
Judge Wendtland did not need to answer that question, because she convincingly argued that the respondent’s cooking and cleaning did not constitute “material support” under the statute. She is correct. Notice the examples of support contained in the statutory language: safe houses, funds, transportation, weapons, explosives, and training. All of these are of a quite different nature from cooking, cleaning, and doing laundry.
The respondent in A-C-M- was not someone whom Congress intended to exclude under the anti-terrorism provisions. She did not provide money or weapons to ISIS to carry out terrorist acts. To the contrary, she performed labor completely unrelated to any violent objective. She was forced to perform such labor – in the words of Judge Wendtland, “as a slave” – for a group whose terrorist nature was far from clear.
In adopting the two-member majority’s view, the Board has chosen an interpretation of the statute that turns Congressional intent on its head by punishing the victims of terrorism, and adds insult to injury by labeling these victims as terrorists themselves. Hopefully, the lone dissenting opinion will prevail on appeal.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
3rd-Generation Gangs and Political Opinion
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The BIA has a long-standing history of finding ways to construe the law and facts to deny protection to refugees from Central America, one of the most violent areas in the world for decades.
Judge Linda Wendtland is one of the few BIA jurists since the 2003 “Ashcroft Purge” to stand up to her colleagues and the Attorney General for the rights of Central American asylum seekers to fair treatment under the asylum laws.
As most of us familiar with Immigration Court and immigration enforcement know, the “material support” bar is very seldom used against real terrorists and security threats. Most caught up in its absurdly overbroad web are minor players — victims of persecution themselves or “freedom fighters” many of whom actually supported forces allied with or assisting the US Government.
Probably one of the biggest and most grotesque examples of “legislative overkill” in recent history. And, the BIA has made the situation much worse by construing the bar in the broadest, most draconian, and least reasonable way possible.
Moreover, the DHS waiver process is totally opaque compared with the Immigration Court process, thereby encouraging arbitrary and capricious decision-making that escapes any type of judicial review.
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE
Greetings. The Immigration Court’s backlog keeps rising. As of the end of May 2018, the number of cases waiting decision reached an all-time high of 714,067. This compares with a court backlog of 542,411 cases at the end of January 2017 when President Trump assumed office. During his term the backlog has increased by almost a third (32%) with 171,656 more cases added.
The pace of court filings has not increased – indeed, case filings are running slightly behind that of last year at this time. What appears to be driving the burgeoning backlog is the lengthening time it now takes to schedule hearings and complete proceedings in the face of the court’s over-crowded dockets.
For example, cases that ultimately result in a removal order are taking 28 percent longer to process than last year – up from 392 days to an average of 501 days – from the date of the Notice to Appear (NTA) to the date of the decision. And compared with the last full fiscal year of the Obama administration, cases resulting in removal take an average of 42 percent longer.
Decisions granting asylum or another type of relief now take over twice as long as removal decisions. Relief decisions this year on average took 1,064 days – up 17 percent – from last year.
Wait times in Houston, San Antonio, Chicago, Imperial (California), Denver, and Arlington (Virginia) now average over 1,400 days before an immigrant is even scheduled for a hearing on his or her case. At many hearing locations hearings are currently being scheduled beyond 2021 before an available slot on the docket is found.
To read the full report, including how long at each court hearing location current cases are waiting before their hearing is scheduled, go to:
In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through May 2018. For an index to the full list of TRAC’s immigration tools go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
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Wow! The “One Man Supreme Court” is also a “One Man Wrecking Crew” trying his best to bring down the entire U.S. justice system with his remarkable mix of bias, ignorance, cruelty, political grandstanding, and just plain old incompetence. To my knowledge, he’s never run anything larger than a modest sized U.S. Attorney’s Office, and not everyone who worked with him then was enamored by the way he handled that job. In fact, he was so bad that members of his own party his own party helped block him from a U.S. District Judge position because of his perceived racial bias and lack of ability to deal fairly with minorities.
All of this while, the GOP Congress just sits back and “ho hums” about the mess they have created and allowed to fester in the DOJ and their lack of meaningful oversight over Sessions’s destructive, often dishonest, actions and gross mismanagement!
And, destroying the U.S. Immigration Courts is by no means the last or least of his efforts. According to Richard Morosi’s “banner headline top story” in today’s Los Angeles Times, Sessions & Co have so overloaded the U.S. District Courts along the border with non-violent misdemeanor immigration offenders that those courts 1) don’t have time for more serious offenders, major fraudsters, and other real criminals; and 2) are abandoning their values and independence to produce what one former senior prosecutor, Charles La Bella, termed “turnstyle justice” (“not what the federal courts were meant to do”). It’s so horrible that one long-time U.S. District Judge has already quit because he couldn’t take the wanton wastefulness, stupidity, and inhumanity of it all. You can check out Morosi’s full article here: http://enewspaper.latimes.com/infinity/article_share.aspx?guid=aec32f3c-e756-4d4a-acbc-f7e451bd9d87
In other words, Sessions is compromising the actual safety and security of the United States and threatening the integrity of our U.S. Court System to indulge his own racist, xenophobic desire to punish “regular folks, dishwashers, landscapers . . .people who are coming to pick fruit or find menial work to send money back home.”
At least the Chief U.S. District Judge trying to deal with this mess has included defense attorneys along with judges and prosecutors in his new “case management committee.” Compare that with the Immigration Courts, where Sessions, his DOJ politicos, and administrative bureaucrats in Falls Church manage the cases from afar, based solely on political and enforcement considerations. The U.S. Immigration Judges who actually hear the cases, the hard-working (largely pro bono) defense attorneys, and even the local ICE prosecutors are effectively “frozen out” of the system for setting priorities and managing cases. I’ll wager that there is no other court system in the United States that attempts to operate in this bone-headed and obviously counterproductive manner!
Under Sessions, more judges = more backlog! That militates against Congress throwing any more judges, money, and personnel into this mess until the Immigration Courts are removed from the DOJ, a long, long overdue move.
How do you build more backlog with more judges? First, by demoralizing and effectively forcing out some of the most experienced and fairest judges and replacing them with “newbies,” Sessions reduces judicial legal expertise, productivity, and independence, at least in the short run.
Second, by trashing the very promising “prosecutorial discretion” program undertaken by ICE prosecutors with the encouragement and cooperation of the Immigration Judges, he forces “low priority” cases into the court system at the expense of the more difficult and complex cases that then get pushed to the end of the line. Astoundingly, Sessions’s recent legally flawed “beat down” of “Administrative Closing” virtually guarantees that several hundred thousand low priority “closed” cases will be returned to the courts’ active dockets in the near future, thus artificially pushing the backlog beyond 1,000,000!
This is known as “Aimless Docket Reshuffling.” It started under Obama, but has accelerated dramatically under Sessions. This is essentially what is happening with Sessions’s irresponsible prosecution of minor misdemeanants over in the U.S. District Courts along the border.
Third, and this jumped out from the TRAC report, it now takes much longer to complete cases, particularly asylum case and other cases granting relief, because they are all contested by ICE and Sessions is actively trying to “jack” the law against respondents, particularly asylum applicants. A wise Attorney General actually committed to the job of justice for all in America and responsible use of taxpayer-funded resources would work cooperatively with prosecutors, defense attorneys, and Immigration Judges within existing precedents favorable to asylum applicants to encourage “pretrial” of the many well-documented, meritorious asylum cases and other cases for relief (like cancellation of removal) now unnecessarily clogging the dockets so that they could be granted relief on “short-block dockets” by Immigration Judges. In other cases, they could be closed and removed from the docket to pursue alternative forms of relief at USCIS. This would be a great way of attacking the backlog without running over anyone’s Due Process rights! But, that’s not what Sessions is interested in.
Not only are asylum cases becoming unnecessarily complex and time-consuming under Sessions, but his apparent plan to intentionally misconstrue U.S. asylum law to disadvantage bona fide applicants in favor of his restrictionist agenda and personal biases against asylum seekers, women, and Central Americans is almost sure to result in many “losers” for the Government in the Courts of Appeals. This, in turn, is likely to result in massive returns for “do-overs” — just as happened during the Due Process disaster than occurred following the “Ashcroft Purge” of the BIA in 2003!
Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules
By Tal Kopan, CNN
She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.
The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.
According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”
Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.
But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.
Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.
“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.
Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”
Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.
“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”
For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.
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Judge slaps Sessions, feds over ‘sanctuary cities’
By: Tal Kopan, CNN
A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.
The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.
The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.
Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.
House GOP immigration negotiations continue ahead of key Thursday meeting
By: Tal Kopan and Lauren Fox, CNN
House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.
“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.
Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.
On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.
Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!
Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”
(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.”
