"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
(CNN)A federal judge in California on Monday flatly rejected the Justice Department’s attempt to modify a decades-old settlement agreement that limits the length of time and conditions under which US officials may detain immigrant children.
The Justice Department had asked US District Judge Dolly Gee to modify what’s known as the Flores settlement to give the Trump administration maximum flexibility to detain families not only until their criminal proceedings conclude, but also through the end of any asylum proceedings, which could drag on for many months.
In a strongly worded order, Gee added that there was no basis for the change, calling it “procedurally improper and wholly without merit.”
“It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well-established principles of law.
“Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount,” Gee wrote.
Gee said that “absolutely nothing prevents Defendants from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion.”
CNN has reached out to the Justice Department for comment.
A federal judge on Monday dismissed most of the Trump administration’s lawsuit seeking to knock down a series of California immigration laws, delivering a major blow to the Justice Department’s efforts to crack down on so-called sanctuary states.
U.S. District Judge John Mendez tossed out the part of the lawsuit seeking to invalidate Senate Bill 54, which limits cooperation between local and state law enforcement and federal immigration enforcement. He also dismissed an effort to block another law — Assembly Bill 103 — which allows the California attorney general to review and report on immigrant detention facilities.
Mendez also tossed out part of the lawsuit against Assembly Bill 405, which sought to limit private employers’ cooperation with federal immigration enforcement.
Mendez’s dismissals mean that California will be able to continue limiting its cooperation with federal immigration enforcement.
In dismissing the Justice Department’s case against the two laws, Mendez rejected the Trump administration’s argument that only the federal government has the final say on immigration enforcement and regulation under the U.S. Constitution’s Supremacy Clause.
“[T]he Court does not find any indication in the cited federal statutes that Congress intended for States to have no oversight over detention facilities operating within their borders,” Mendez wrote.
The Justice Department first brought the lawsuit against California in March, arguing that the sanctuary laws effectively hindered federal efforts to enforce immigration policies.
But Mendez rejected that argument, writing in his rejection of the Trump administration’s injunction request last week that “refusing to help is not the same as impeding.”
California Attorney General Xavier Becerra, whose office is charged with defending the state against the lawsuit, celebrated the dismissals on Monday, saying that it upheld California’s right to determine how best to protect its residents’ privacy and security.
“Today’s decision is a victory for our State’s ability to safeguard the privacy, safety, and constitutional rights of all of our people,” he said in a statement. “Though the Trump Administration may continue to attack a state like California and its ability to make its own laws, we will continue to protect our constitutional authority to protect our residents and the rule of law.”
A spokesperson for the Justice Department did not immediately respond to The Hill’s request for comment.
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My question: When are Federal Judges going to start holding Sessions and his ethically challenged gang of scofflaw lawyers from the DOJ in contempt and referring them for bar disciplinary proceedings for continuously abusing their offices by burdening the Federal Courts with meritless, largely frivolous litigation? Even worse, the litigation is driven by racism — an inherently objectionable basis!
Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?
The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.
DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.
Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.
And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.
So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.
A precedent for a solution
Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.
We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.
How our two-track asylum system works
To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.
A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.
Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.
That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.
Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”
For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).
Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)
In the 1990s the system was also overwhelmed. We brought it back under control.
Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.
That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.
Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.
Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.
Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.
But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).
To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).
Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.
These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.
Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.
The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.
With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.
A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.
Concrete steps to fix the problems
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.Joe Raedle/Getty Images
There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:
1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.
But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.
This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.
This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.
2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.
Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.
In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)
Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.
The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.
Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.
Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.
To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.
3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.
A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.
The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.
But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.
Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.
But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.Orlando Estrada/AFP/Getty Images
4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.
It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.
In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.
That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.
These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.
The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.
Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.
Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.
MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL
By Paul Wickham Schmidt
As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.
David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.
David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).
Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.
The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!
With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.
Don’t Blame The Victims.
With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.
Let Judges Run The Courts.
The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.
Protection Not Rejection.
Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.
Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.
No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.
Detention Isn’t The Answer.
Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.
Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.
I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.
But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.
No, I Don’t Have All the Answers.
But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.
But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.
It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.
IN LATE June, Alex Azar, secretary of Health and Human Services, assured migrant parents whose children had been snatched away by U.S. border officials that there was “no reason” they could not find their toddlers, tweeners and teenagers. Then it turned out that Mr. Azar’s department, which is in charge of the children’s placements and welfare, doesn’t have a firm idea of how many of those children it has under its purview. Or where all their parents are (or even whether they remain in custody). Or how parents and children might find each other, or be rejoined.
On Thursday Mr. Azar was back with more rosy assurances, this time that the government would meet a court-imposed deadline to reunite those children with their parents — by Tuesday in the case of 100 or so kids under the age of 5, and by July 26 for older minors. A day later it turned out the government was begging the court for more time.
Mr. Azar blamed the judiciary for setting what he called an “extreme” deadline to reunify families. Yet as details emerged of the chaotic scramble undertaken by Trump administration officials to reunify families, it is apparent that what is really “extreme” is the government’s bungling in the handling of separated families — a classic example of radical estrangement between the bureaucracy’s left and right hands.
A jaw-dropping report in the New York Times detailed how officials at U.S. Customs and Border Protection deleted records that would have enabled officials to connect parents with the children that had been removed from them. No apparent malice impelled their decision; rather, it was an act of administrative convenience, or incompetence, that led them to believe that, since parents and children were separated, they should be assigned separate case file numbers — with nothing to connect them.
The result is Third World-style government dysfunction that combines the original sin of an unspeakably cruel policy with the follow-on ineptitude of uncoordinated agencies unable to foresee the predictable consequences of their decisions — in this case, the inevitability that children and parents, once sundered, would need at some point to be reconnected.
Now, faced with the deadline for reuniting parents and children set June 26 by Judge Dana Sabraw of U.S. District Court in San Diego, hundreds of government employees were set to work through the weekend poring over records to fix what the Trump administration broke by its sudden and heedless proclamation in May of “zero tolerance” for undocumented immigrants, and the family separations that immediately followed.
Mr. Azar, following the White House’s lead, insisted any “confusion” was the fault of the courts and a “broken immigration system.” In fact, the confusion was entirely of the administration’s own making. The secretary expressed concern in the event officials lacked time to vet the adults to whom it would turn over children. Yet there was no such concern about the children’s welfare, nor the lasting psychological harm they would suffer, when the government callously tore them away from their parents.
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Is this really happening in the United States of America in 2018? Are racist-inspired, cruel, human rights atrocities how we want to be remembered as a nation at this point in our history? Did we learn nothing from the death of Dr. King and seemingly (but apparently not really) moving by the “Jim Crow Era?” What excuse could we possibly have for allowing 21st Century “Jim Crows” like Trump, Sessions, & Miller to run our country when we should know better?
It’s interesting and somewhat satisfying to see that the “mainstream media” are now picking up the descriptive terms for the Trump Administration and their overt racism, unnecessary cruelty, and incompetence that “bloggers” like Jason Dzubow (“The Asylumist”), Hon. Jeffrey Chase (jeffreyschase.com), and me have been using for some time now!
The most important task right now: Hold this cruel, racist, and irresponsible Administration accountable for the unconscionable mess they have manufactured!
Don’t let them blame the victims!
Don’t let them blame the courts!
Don’t let them blame asylum laws!
Don’t let them blame lawyers!
Don’t let them blame Democrats!
Don’t let them blame Obama!
Don’t let them blame International Treaties!
Hold the Trump Administration & Its Minions Fully Accountable For Their Actions!
ERO shouldn’t terrorize anyone, but it has to be able to arrest deportable aliens where they can be found.
The main reason for wanting to abolish ICE is likely to prevent undocumented aliens who are here for a better life from being deported.
But if ICE were to be abolished, its responsibilities would be assigned to another agency and Trump would require the new agency to implement the same policies.
Trump’s enforcement policies
President Barack Obama focused his immigration enforcement programprimarily on aliens who had been convicted of crimes in the United States, had been caught near the border after an illegal entry, or had returned unlawfully after being deported.
Once an undocumented alien had succeeded in crossing the border without being apprehended, he did not have to worry about being deported unless he was convicted of a serious crime. He was home free.
This created a “home free magnet” which encouraged more undocumented aliens to come and do whatever they had to do to cross the border.
“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”
He directed DHS “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”
Nevertheless, he prioritized removing aliens who are inadmissibleon criminal and related grounds, on security and related grounds, and for misrepresentations, or who are deportable for criminal offenses or on security and related grounds, and removable aliens who:
Have been convicted of any criminal offense;
Have been charged with any criminal offense, where such charge has not been resolved;
Have committed acts that constitute a criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter or government application;
Have abused any program related to receipt of public benefits;
Are subject to a final order of removal but have not left the United States; or
In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sanctuary policies prevent local police departments from turning inmates over to ERO when they are released from custody, so ERO is spending more of its time looking for deportable aliens in communities. This resulted in arresting 40,000 noncriminal aliens in FY 2017.
But ERO should not be engaging in improper behavior to make these or any other arrests.
If you see an ICE officer doing something improper, report him. This is far more likely to improve the situation than calling for the abolishment of ICE.
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Go on over to The Hill at the link for Nolan’s complete article.
I agree with Nolan that ICE isn’t going anywhere under Trump.
I also agree that the essential functions of ICE will still need to be performed, regardless of the ultimate fate of the organization.
I think it’s great that the “Abolish ICE Movement” has focused more attention on the cruel, unnecessary, and highly counterproductive enforcement and prosecutorial policies of ICE under Trump.
Indeed, the counterproductive nature of the Trump/Sessions immigration enforcement is a major reason why a group of Senior ICE Agents who actually perform real law enforcement functions — anti-smuggling, anti-human trafficking, immigration fraud, anti-terrorism — want to ditch the ICE label, because they know it’s inhibiting cooperation with other agencies and communities and thereby diminishing real law enforcement.
Most true law enforcement professionals that I have known don’t want to be associated with a group that glorifies cruelty and de-humanizes ordinary people. Having ICE on your resume today wouldn’t be a plus for most folks interested in a legitimate law enforcement career.
While the “essential functions” of ICE will continue, lots of today’s ICE enforcement has little to do with “essential enforcement.” The latter would be targeted at criminals, fraudsters, spouse abusers, traffickers, and recent arrivals who don’t have applications pending.
The lack of any semblance of common sense and responsibility in ICE’s abusive refusal to exercise prosecutorial discretion and actually putting properly closed cases back on the docket is a major contributor to the absolute mess in today’s Immigration Courts.
It’s also a reason why the Immigration Court mess is unlikely to be solved until Congress, the courts, and/or some future Executive force some fundamental changes in ICE enforcement and prosecutorial policies to reflect the same type of prudent, respectful, and realistic use of judicial time and prosecutorial discretion that is employed, to some extent, by every other major law enforcement agency in the U.S.
It never hurts to complain. I’m a big fan of making a “running record” of misconduct.
But, in the Trump Administration a record is about all you’ll get. Nothing is going to be done to correct misconduct because misconduct comes from the top.
My experience with ICE Chief Counsel’s Office in Arlington was highly positive. The attorneys were overwhelmingly fair, smart, responsive, respectful, and part of the “team” with the private, bar, the courts, and the interpreters that made the justice system work in Arlington in the past.
Indeed, working with the Arlington Chief Counsel’s Office made me proud to have led the major reorganization that established the forerunner to the “Modern Chief Counsel System” at the “Legacy INS” during the Carter and Reagan Administrations. The Arlington Chief Counsel’s Office was exactly what former General Counsels Dave Crosland, Mike Inman, Regional Counsel Bill Odencrantz, and I had envisioned when we planned and carried out the reorganization (over considerable internal opposition, I might add).
My overall experiences with the officers of ICE and it’s forerunner INS Investigations were positive. I found and worked with plenty of capable, dedicated, professional, and humane officers during my decades of dealing with immigration enforcement in some form or another.
All of that suggests that the major problems in ICE have arisen almost entirely under the Trump Administration. That’s because of truly horrible leadership from the top down.
ICE won’t improve until we get “regime change.” When that happens, ICE will have to be reorganized, reinvented, and “rebranded.” Professional management — one that pays particular attention to its relationship to local communities — must be reestablished. Sane enforcement and prosecutorial discretion policies will have to be reinstated.
My experiences with ICE suggest that the right people to lead an “ICE-type” agency in the future are likely already somewhere in ICE. They just aren’t in the right leadership and management positions. Maybe they will all quit before the end of the Trump Administration If not, they could serve as a “professional core” for rebuilding and reforming ICE.
I’m skeptical that so-called “Catch and Release” has a significant effect on what’s happening on the Southern Border.
In the first place, the current situation is “a self-created crisis” initiated by Trump & Sessions. Otherwise it’s pretty much normal migration.
Seeking asylum at the border isn’t “illegal migration” at all. It’s asserting an internationally recognized right. Detention and family separation are not appropriate responses to individuals seeking in good faith to exercise their rights.
In any event, the primary drivers of migration outside the visa system are: 1) unmet needs of the U.S. labor market, and 2) political, social, and economic conditions in foreign countries. So-called “Catch and Release” has no established effect on either of these “drivers.” See, e.g.,https://www.migrationpolicy.org/news/crisis-border-not-numbers.
After a month of outrage at the cruelty of President Trump’s “zero tolerance” policy, last week we saw a stream of confounding and divergent statements on immigration: The president suggested depriving undocumented migrants of due process; Attorney General Jeff Sessions insisted that every adult who crossed illegally would be prosecuted; and the commissioner of Customs and Border Protection announced that families would once again be released together to await trial. Meanwhile, thousands of separated children and their parents remain trapped in a web of shelters and detention facilities run by nonprofit groups and private prison, security and defense companies.
It is important to understand that the crisis of separation manufactured by the Trump administration is only the most visibly abhorrent manifestation of a decades-long project to create a “state of exception” along our southern border.
This concept was used by the Italian philosopher Giorgio Agamben in the aftermath of Sept. 11 to describe the states of emergency declared by governments to suspend or diminish rights and protections. In April, when the president deployed National Guard troops to the border (an action also taken by his two predecessors), he declared that “the situation at the border has now reached a point of crisis.” In fact, despite recent upticks, border crossings remained at historic lows and the border was more secure than ever — though we might ask, secure for whom?
For most Americans, what happens on the border remains out of sight and out of mind. But in the immigration enforcement community, the militarization of the border has given rise to a culture imbued with the language and tactics of war.
Border agents refer to migrants as “criminals,” “aliens,” “illegals,” “bodies” or “toncs” (possibly an acronym for “temporarily out of native country” or “territory of origin not known” — or a reference to the sound of a Maglite hitting a migrant’s skull). They are equipped with drones, helicopters, infrared cameras, radar, ground sensors and explosion-resistant vehicles. But their most deadly tool is geographic — the desert itself.
“Prevention Through Deterrence” came to define border enforcement in the 1990s, when the Border Patrol cracked down on migrant crossings in cities like El Paso. Walls were built, budgets ballooned and scores of new agents were hired to patrol border towns. Everywhere else, it was assumed, the hostile desert would do the dirty work of deterring crossers, away from the public eye.
. . . .
Such defenses also gloss over the patrol’s casual brutality: I have witnessed agents scattering migrant groups in remote areas and destroying their water supplies, acts that have also been extensively documented by humanitarian groups.
The principle of deterrence is behind the current administration’s zero-tolerance policy. In an interview with Laura Ingraham on Fox News, Mr. Sessions, pressed on whether children were being separated from parents to deter crossers, conceded, “Yes, hopefully people will get the message.”
Administration officials have claimed that even this policy is “humanitarian,” in part because it may dissuade future migrants from bringing their children on the dangerous journey.
This ignores decades of proof that no matter what version of hell migrants are made to pass through at the border, they will endure it to escape far more tangible threats of violence in their home countries, to reunite with family or to secure some semblance of economic stability.
Policymakers also ignore that new enforcement measures almost always strengthen cartel-aligned human trafficking networks, giving them cause to increase their smuggling fees and push vulnerable migrants to make riskier crossings to avoid detection.
Jason De León, the director of the Undocumented Migration Project, argues that the government sees undocumented migrants as people “whose lives have no political or social value” and “whose deaths are of little consequence.”
This devaluation of migrant life is not just rhetorical: CNN recently revealed that the Border Patrol has been undercounting migrant deaths, failing to include more than 500 in its official tally of more than 6,000 deaths over 16 years — a literal erasure of lives.
The logic of deterrence is not unlike that of war: It has transformed the border into a state of exception where some of the most vulnerable people on earth face death and disappearance and where children are torn from their parents to send the message You are not safe here. In this sense, the situation at the border has reached a point of crisis — not one of criminality but of disregard for human life.
We cannot return to indifference. In the aftermath of our nation’s outcry against family separation, it is vital that we direct our outrage toward the violent policies that enabled it.
Francisco Cantú, a former Border Patrol agent, is the author of “The Line Becomes a River: Dispatches From the Border.”
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Read Cantu’s full article at the above link.
BTW, when I was at the “Legacy INS” I was told the “Maglite hitting the migrant’s skull” version of the Border Patrol’s definition of “toncs.”
Cantu confirms what I have said many times on this blog. Far from keeping us safer, the cruel, inhuman, dishonest, and racist policies of Trump & Sessions actually “strengthen cartel-aligned human trafficking networks,” thereby making us markedly less safe. They also degrade us as a nation and as human beings by essentially assisting in the deaths of desperate and vulnerable refugees who are only required to use the cartels in the first place because of the willful failures, incompetence, dishonesty, and immorality of our Government officials administering refugee and asylum programs!
Focus on this ugly truth: Under Trump, Sessions, Miller, and their White Nationalist buddies, our government sees undocumented migrants as people “’whose lives have no political or social value’ and ‘whose deaths are of little consequence.'”
Celebrate July 4 by “just saying no” to the Trump regime! Join the New Due Process Army, and stop the ugliness of Trump, Sessions, Miller, and their White Nationalist cabal! Channel your outrage into saving the lives of the most vulnerable among us and resisting the Trump kakistocracy! Restore the optimistic, progressive, inclusive, idealistic vision of America set forth by our Founding Fathers in their Declaration of Independence!
A federal judge in Washington on Monday ordered the U.S. government to immediately release or grant hearings to more than 1,000 asylum seekers who have been jailed for months or years without individualized case reviews, dealing a blow to the Trump administration’s crackdown on migrants.
U.S. District Judge James E. Boasberg of Washington said U.S. Immigration and Customs Enforcement ignored its own policy stating that asylum applicants who establish a “credible fear” of persecution in their native country must be granted a court hearing within seven days or released.
He granted a preliminary injunction preventing the government from carrying out blanket detentions of asylum seekers at five large U.S. field offices, including those currently held, pending resolution of the lawsuit.
The American Civil Liberties Union and other groups sued in March after finding detention rates at the offices surged to 96 percent in the first eight months after President Trump took office in 2017, up from less than 10 percent in 2013.
The ACLU says the mass imprisonment of people seeking refuge while awaiting immigration court hearings stems from policies promoted by Trump and Attorney General Jeff Sessions that amount to a deterrent to using the asylum provision. The policy, the ACLU argued, unlawfully denies asylum seekers as a group based on only one of the factors used to assess the danger an individual poses: how long they have been in the United States.
“As the events of recent months make clear, the question of how this nation will treat those who come to our shores seeking refuge generates enormous debate,” Boasberg wrote in a 38-page opinion, an allusion to the administration’s family-separation policy recently implemented and then abandoned amid international condemnation.
“This Opinion does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum seekers, ICE must now ensure that such protections are realized,” Boasberg said.
The lawsuit was filed on behalf of nine detained asylum seekers from Haiti, Venezuela and other countries who were initially determined to have credible stories and have been jailed for up to two years awaiting a hearing before an immigration judge, lawyers said. Two have been granted asylum and released since the case was filed in March, said attorneys with the ACLU and the Covington & Burling law firm.
The court action named the Department of Homeland Security and its sub-agency ICE, which detains immigrants, and the Justice Department, which runs the immigration courts where immigrants can seek bond hearings.
. . . .
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Read Hsu’s full report at the link!
Lies, illegal actions, and human rights abuses have become a way of life for Trump & Sessions. Notably, EOIR has also joined this “Unholy Alliance.” Just more reasons why 1) we need an Article I Immigration Court; 2) we need regime change through the ballot box this Fall!
Once again, what I have been saying all along has been proved correct. There isn’t a problem with the legal structure of U.S. asylum and protection laws. There is a huge problem with the way our dishonest, immoral, White Nationalist regime abuses those laws and tramples on the rights of individual asylum seekers!
Perhaps Trump’s “no due process” approach is the best solution if persecution claims can be considered outside of the United States.
Letting them apply here isn’t working well.
As of April 2017, the average wait for a hearing was 670 days, and the immigration court backlog has increased since then. It was 714,067 cases in May 2018.
It isn’t possible to enforce the immigration laws if deportable aliens can’t be put in removal proceedings, and the judges are being pressed to spend less time on cases, which puts due process in jeopardy.
We need a politically acceptable way to reduce the number of asylum applicants to a manageable level.
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Go on over to The Hill at the link to read Nolan’s complete article!
I agree with Nolan’s observation that pushing Immigration Judges to schedule more cases and spend less time on them puts due process in jeopardy. I also can see that Sessions intends to reduce asylum grant rates to about 0% by totally distorting the system until it is impossible for virtually anyone actually needing protection to get it.
As I have stated before, the problem isn’t the asylum law. The problem is the way Trump and Sessions have distorted and perverted asylum law and the Constitutional right to Due Process.
Asylum law is designed to protect individuals fleeing from persecution. We haven’t even begun to test the limits of our ability to give refuge. Indeed, at the time of the world’s greatest need, and our own prosperity, we have disgracefully turned our backs on accepting anything approaching a fair share of the world’s desperate refugees. We should be ashamed of ourselves as a nation! Refugees of all types bring great things to our nation and help us prosper. But, even if they didn’t, that wouldn’t lessen our moral and humanitarian obligations to accept our fair and more generous share of the world’s refugees.
And never forget that the backlog and the waiting times have little or nothing to do with fault on the part of asylum applicants.Many of them have also been unfairly screwed by the mess that Congress, the DOJ, DHS, and politicos have made of the Immigration Court system.
The backlog is almost entirely the result of “Aimless Docket Reshuffling” which has been kicked into high gear under Sessions, exceptionally poor choices in docket management and bad prosecutorial decisions by DHS, and years of neglect and understaffing by Congress, as well as stunningly incompetent management of the Immigration Courts by the DOJ under the last three Administrations.
Here’s the truth that Trump and the restrictionists don’t want to deal with:
SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change!
By Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.
The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.
That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.
And the reasonable solutions are readily available under today’s U.S. legal system:
Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.
Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).
Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.
Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.
Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.
Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.
If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.
Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).
My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.
ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).
As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”
That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.
PWS
06-23-18
I also take note of how EOIR under Sessions has disingenuously manipulated the asylum adjudication numbers to support a false narrative that most asylum claims are meritless.
The only “real ” number is a comparison of asylum grants to denials, not grants to the total number of cases involving asylum applications including the substantial number that were never decided on the merits. The fact that a case is disposed of in some other manner does not mean that the asylum application was meritless; it just means that the case was disposed of in another way.
Here are the “real” numbers from EOIR’s own Statistics Yearbook, before they were dishonestly manipulated under Sessions’s instructions to support his false claims about asylum seekers:
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 2016, the “real” grant rate was 38%. Even under Sessions in the partial FY 2018, the merits grant rate is 35%. That’s by no means negligible — one in three! And, remember folks, this is with asylum law that was already badly skewed against applicants, particularly those from the Northern Triangle with potentially bona fide claims. (But, admittedly, before Sessions recent rewriting of asylum law to improperly deny asylum and essentially impose death sentences or torture on vulnerable women fleeing from the Northern Triangle.)
And, in my experience, the vast majority of denied asylum seekers had legitimate fears of harm upon return that should have entitled them to some protection; they just didn’t fit our unrealistically and intentionally restrictive interpretations. By no means does denial of an asylum claim mean that the claim was frivolous!
The real question we should be asking is that with the refugee situation in the world getting worse and with continually deteriorating conditions in the Northern Triangle, how do asylum merits grant rates drop from 56% and 53% as recently as FY 2011 & 2012 to 35% in 2018? What those numbers really suggests is large-scale problematic behavior and improper influence within the DOJ and the Immigration Judges who are denying far, far too many of these claims. Some of that includes use of coercive detention in out-of-the-way locations and depriving individuals of a fair opportunity to be represented by counsel, as well as a number of BIA decisions (even before Sessions’s Matter of A-B- atrocity) specifically designed to promote unfairness and more asylum denials.
There is no “southern border crisis,” other than the unnecessary humanitarian crisis that Trump and Sessions created by abusing children. Nor is there a problem with our asylum laws except for the intentional failure of our Government to apply them in a legal, fair, and Constitutional manner. But, there is a White Nationalist, racism problem clearly manifesting itself in our immoral and scofflaw national leadership.
Everyone committed to fairness, Due Process, and maintaining America as a country of humane values should fiercely resist, in every way possible, suggestions by Trump, Sessions, and some in the GOP to further abuse Due Process and eliminate the already limited rights of the most vulnerable among us!
We need to say focused on the real threats to our national security and continued existence as a democratic republic: Trump, Sessions, and their cohorts and enablers!
The immigration system, if you believe President Trump and Attorney General Jeff Sessions, is rife with fraud and abuse. And while Trump’s administration is hostile to all immigrants, it’s people seeking asylum whom he and his advisers most scorn. Sessions says “dirty immigration lawyers ” push their clients to make “fake claims” to trigger court proceedings that might allow them to stay in the United States. He seems to see the entire concept of asylum as a “loophole.”
Trump declared last weekend on Twitter that we should send migrants out of the country “with no Judges or Court Cases.” He says immigration laws are a “joke” and that it’s “ridiculous ” that people who appear at the border seeking asylum can’t immediately be sent back to where they came from.
In reality, immigrants who seek asylum are not criminals, even though they are now being charged as such. Their lawyers are simply giving them basic information. And the “zero tolerance” policy that led the administration for a time to separate children from their parents at the U.S.-Mexico border shows how radically Trump wants to change laws and practices, developed over decades, to provide a haven for people fleeing persecution and weed out undeserving claims. As it happens, most of those seeking admission at our southern border are not economic migrants seeking a better life but instead asylum seekers fleeing for their lives.
Sessions is going to extraordinary lengths to break the system that distinguishes between asylum claims with merit and ones that should be denied. He has categorically declared that some people who used to be eligible for asylum, such as survivors of domestic abuse or gang violence, no longer are.
As an asylum lawyer over the past decade, I have represented women fleeing domestic violence, forced marriage, rape, genital cutting and more. I have represented girls forced into relationships with gang members and boys fleeing recruitment into gangs at gunpoint. I have represented lesbian, gay and transgender individuals from all over the world seeking protection from persecution by their communities or governments. A couple of months ago, my immigration clinic at the University of the District of Columbia School of Law represented a Honduran woman whose partner raped her twice daily, beat her while pregnant and bashed her head against a wall. She tried to escape within Honduras and even to El Salvador seven times, but each time, her partner found her and threatened her life. Her calls to the police were ignored. Ultimately, she fled to save her life, and an immigration judge granted her protection in April before Sessions changed the law. Thousands more in her situation may be categorically denied protection.
Seeking asylum in the United States has never been easy, by design. But under Trump, it’s become arbitrarily harder — and impossible for some. Even before the 2016 election, border officials claiming allegiance to Trump began turning back asylum seekers in greater numbers. I recall clients who said a border official told them: “There is no asylum. Trump is going to be president, and you’ll all be sent home.” Since his inauguration, problems in the asylum system have only increased.
The first challenge for asylum seekers is just being able to apply. They must either be at the border or within the United States to claim protection — they cannot seek asylum from outside. Some enter the country with a tourist, study or work visa, but these are difficult to obtain. Others approach the U.S. border and ask for protection, or cross the border without permission and are detained by immigration officials before filing their asylum applications.
Under international law and a Clinton-era U.S. law known as “expedited removal,” officials must screen all individuals they encounter around the border for potential asylum claims. If someone indicates she is afraid to return to her home country, border officials must refer her to an asylum officer for a “credible fear” interview to decide whether she is eligible for asylum. Legally, the Border Patrol simply makes a referral for the interview; however, border agents without appropriate training are increasingly taking the law into their own hands. In early 2017, for example, Human Rights First documented 125 cases of Border Patrol agents unlawfully turning back asylum seekers. Lately, border officers tell asylum seekers to “come back later,” turning away one family nine times. This violates our legal obligation under Article 33 of the Refugee Convention and under our own Refugee Act not to return an asylum seeker to a place where she faces a threat to her life or freedom.
A “zero tolerance” policy is particularly problematic for asylum seekers. The Refugee Convention states that nations shall not penalize asylum seekers for irregular entry. Indeed, since 1987 , the Board of Immigration Appeals, our highest immigration tribunal has directed immigration judges to forgive irregular entry because of the circumstances of seeking asylum.
But asylum standards are becoming more restrictive. In June, Sessions reversed a grant of asylum for a Salvadoran woman fleeing domestic violence, single-handedly undoing two decades of progress for gender-based asylum claims. He also changed the standard for asylum to require not only that the government in a migrant’s home country is unwilling or unable to protect the asylum seeker from harm, but also that the government is actively condoning persecution by nonstate actors — a higher bar for applicants to meet. Asylum claims should be adjudicated on a case-by-case basis, but Sessions’s order states that generally, those fleeing domestic violence or gang violence will not pass a credible-fear interview. The Justice Department has already circulated preliminary guidance to asylum officers to use the decision in future cases.
The credible-fear interview is only the first step for asylum seekers. Next, they must present their case before an immigration judge and face an experienced prosecutor on the other side. An asylum seeker will probably wait several years for that day in court, given the backlog of more than 700,000 cases pending before the approximately 350 immigration judges. Most of the applicants won’t have lawyers: Immigrants in detention are represented only 14 percent of the time, and overall only 37 percent of immigrants have representation in their legal cases. Although asylum grant rates vary wildly depending on the judge or asylum officer, in the past decade, between 15 and 44 percent of claims were approved.
Trump’s family separation policy led to widespread mobilization of new advocates and voices expressing outrage and calling for reform. But this is no time to look away. Asylum claims must be decided on their individual merits, not with technicalities or categorical bars. Lives are at stake.
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The Government violates asylum seekers’ rights at ports of entry.
Then the Government “criminalizes” asylum seekers who cross the border seeking to exercise their legal rights.
Courts and prosecutors are tied up on abusive, wasteful, racially motivated misdemeanor prosecutions of asylum seekers.
Real criminals like drug traffickers therefore go unprosecuted because the Government is too busy persecuting asylum seekers.
The Government manipulates asylum laws and leans on its “captive” Immigration Courts to deny asylum seekers their legal rights.
Meanwhile, the real culprits who are responsible for these racist-inspired attacks on our legal system and the human dignity of asylum applicants not only go unpunished but are the leaders of our Government.
Had enough of our Government’s disgraceful conduct? Join the New Due Process Army to fight for the rights of vulnerable asylum seekers. Harm to the least among us is harm to all!
Jessica Yanez leads Yanez Immigration Law in Greensboro, NC.
Here’s her bio:
About Attorney Yañez
Attorney Yañez earned a Bachelor’s of Arts Degree in Spanish from UNC Greensboro and her Juris Doctor Degree from Elon University School of Law.
Since founding her practice in 2012, she and her team of legal assistants have assisted individuals from approximately 40 different countries in a broad range of immigration matters including family-based petitions, waivers, consular processing, removal defense, U visas, VAWA, naturalization and asylum cases.
In 2016, Attorney Yañez became a NC Board Certified Specialist in Immigration Law. For more information about the benefits of hiring a Board-Certified Specialist, click here: http://www.nclawspecialists.gov/for-the-public/the-benefit-of-hiring-a-specialist/#standards.
Attorney Yañez also serves an Adjunct Professor of immigration law at Elon University School of Law.
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Here is Sally Kidd, National Correspondent for Hearst News:
Judge Roger Harris, Me, Judge Thomas Snow, & Judge John Milo Bryant (“The Non-Conformist”) head out to lunch on my last day at the Arlington Immigration Court, June 30, 2016
‘Just be a kid, OK?’: Inside children’s immigration hearings
By: Tal Kopan, CNN
As each immigrant child took their seat in his courtroom for their hearing, Judge John M. Bryant started the same way.
“How are you doing today?” he’d ask.
“Muy bien,” most would answer.
In a span of about 45 minutes, Bryant — an immigration judge in Arlington, Virginia — checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.
The day was known as a “master calendar hearing” — a swift introduction in court and the beginning of court proceedings for immigrants facing deportation.
The children had largely been in the country for some time, each fighting in court for the right to stay.
But though the immigration courts have long dealt with immigrant children, even those barely school age or younger, their turn through the unique, stand-alone immigration courts is getting new attention as the government’s “zero tolerance” border policy has sent thousands more children into the system without their parents.
The hearings were observed by six Democratic members of Congress: Whip Steny Hoyer of Maryland; Rep. Don Beyer, whose Virginia district includes the court; Congressional Hispanic Caucus Chairwoman Rep. Michelle Lujan Grisham of New Mexico; and Reps. Pete Aguilar, Nanette Diaz Barragán and Norma Torres, all of California.
At a news conference afterward, Beyer called the session “One of the best-case scenarios of a master calendar hearing, a sympathetic judge with kids with lawyers.”
The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.
“We know that in vast numbers of cases, there is not proper representation,” Hoyer said, adding that some kids are “not old enough to spell their own names, let alone represent themselves in court.”
In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in. One, a boy named José who had just finished ninth grade, was there for his second check-in and for his full asylum hearing received a court date of May 11, 2021 — likely to be just as he is finishing high school in the US.
The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and father, though Rodolfo’s case was being heard by itself. As he did with most of the children, Bryant asked Rodolfo if he was in school, translated by an interpreter via headphones provided to every immigrant facing the court.
“Hoy?” Rodolfo asked, confused — “Today?”
Bryant cheerfully prompted Rodolfo about what grade he had finished — kindergarten — and his teacher’s name — Ms. Dani. Bryant said he still remembered his own kindergarten teacher, Ms. Sweeney, from many years prior. “Hasta luego,” Bryant told Rodolfo, giving him a next court date of May 30, 2019.
While all the children in Bryant’s courtroom on this afternoon had attorneys, the Arlington Immigration Court is not typical of the country, where closer to 1-in-3 children are represented in court. Bryant was also generous with the continuances requested by attorneys as they waited to hear from the government on applications for other visas for the children, despite uniform opposition by the government attorney in court.
“Mr. Wagner, your turn,” Bryant joked at one point to the government attorney present, who dutifully recited the government’s opposition to granting continuances solely on the basis of waiting to hear back on a visa application. Bryant than immediately picked a day on his calendar for the immigrant and attorney to return.
One attorney for a 12-year-old girl, Rosemary, who was there with her mother, said they had applied for a Special Immigrant Juvenile visa, which is for minors who have been abused, abandoned or neglected by a parent. Bryant asked the attorney if the application was before a “sweet or sour judge.”
“I think it’s going to be a problem. It may have to be appealed,” the attorney replied.
The judge granted them a court date on February 28 of next year.
“Have a nice summer,” he said to the girl. “Just be a kid, OK?”
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“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!
No trace of the Jeff Sessions’s paranoia, xenophobia, bias, child abuse, and de-humanization of migrants here. It’s like one would expect a “real” U.S. Court to be run! Sadly, that’s not what’s happening in the rest of the country. Just ask folks in Charlotte, Atlanta, Stewart, Ga., or Houston how they are treated by Immigration Judges. It’s ugly, abusive, well documented, highly inappropriate, and needs to end!
Even more outrageously, rather than building on and replicating successful judicial models like Arlington, Sessions has actually adopted some of the worst imaginable “judicial” practices, encouraged bias, and has actually endorsed and empowered the actions of some of the most clearly biased and anti-immigrant, anti-asylum Immigraton Judges in the system. It’s a simply unacceptable waste of taxpayer money and abuse of our legal system by someone incapable of fulfilling his oath of office.
Imagine, with judges actually in control, lawyers for the respondents, time to prepare and file applications, empathy, courtesy, knowledge, kindness, concern for fairness, efficiency, and giving ICE’s obstructionist “rote objections” and other dilatory tactics encouraged and enabled by this Administration exactly the short shrift they so richly deserve, the U.S. Immigration Courts could potentially fulfill their original vision of “becoming the world’s best tribunals, guaranteeing fairness and due process for all.”
And, ICE could be once again required to function in the same highly-professional, courteous, collegial, respectful, and helpful manner that they did in Arlington during the last Administration. It’s disgraceful that rudeness and unfairness have become the norm under Trump. Things like that used to get even Government lawyers fired, disbarred, or disciplined. Now they appear to win kudos.
And, having dockets run by experienced judicial professionals like Judge Bryant with the help of professional staff responsible to him and his colleagues would promote fairness, quality, and efficiency over the “Amateur Night at the Bijou” atmosphere created by a biased, politicized, and totally incompetent Department of Justice and carried out by agency bureaucrats who aren’t judges themselves and are not qualified to administer a major court system.
Why not design a system “built for success” rather one that is built for failure and constant crisis? A well-functioning court system where “Due Process and Quality Are Job One” and which serves as a “level playing field” would actually help DHS Enforcement as well as the immigrants whose lives depend upon it.Fairness and Due Process are good for everyone. It’s also what our Constitution requires! Play the game fairly and professionally and let the chips fall where they may, rather than trying to “game the system” to tilt everything toward enforcement.
But, it’s not going to happen until either 1) Congress creates an independent U.S. Immigration Court, or 2) the Article III Courts finally step up to the plate, put an end to this travesty, remove the DOJ from its totally improper and unethical supervisory role, and place the Immigration Courts under a court-appointed “Special Master” to manage them with the goal of Due Process and judicial efficiency until Congress reorganizes them outside of the Executive Branch! Otherwise, the Article IIIs will have to do the job that Sessions won’t let the Immigration Courts perform!
Compare Judge Bryant’s professional performance with the “judicial meat processing plant/Due Process Denial Factory” being operated by U.S. Magistrate Judge Peter Ormsby on the Southern Border as described by Karen Tumulty of the Washington Post in my post from yesterday:
Who is the “real” judge here? It doesn’t take a “rocket scientist” to answer that one! Just some judges with the backbone, courage, and integrity not to “go along to get along” with Sessions’s assault on the integrity and independence of our justice system.
When Magistrate Judge Peter E. Ormsby stepped into the federal courtroom here Tuesday morning, 75 defendants rose to their feet.
Their ankles were shackled, and they wore headsets through which the proceedings would be translated into Spanish. In the hallway, just beyond the door, was a pile of handcuffs that had been removed before they entered the courtroom.
Most of the defendants appeared dressed in the same filthy, sweat-saturated clothes they had been wearing two days before, when they were apprehended crossing the Rio Grande aboard rafts.
In all but 11 of their cases, this criminal misdemeanor was the first time they had ever been found to have violated U.S. law.
Ormsby informed them his was not an immigration court. Many had already signed away their rights to further proceedings and had orders for what is known as “expedited removal.” They had done that before the 17 lawyers of the public defender’s office had met with any of them for the first time, just hours before.
The next two hours would see each one of them plead guilty and be sentenced, most to time already served.
With few exceptions, each case would be dealt with in under 75 seconds.
This was just the morning docket. It is what President Trump’s “zero tolerance” policy looks like here, where busloads of recently detained migrants roll up to the federal courthouse several times a day. Ormsby invited me and a handful of other observers there to sit in the jury box, because there was no room anywhere else.
The president contends that even this assembly-line version of justice is more than what those caught entering the country illegally should get.
“We cannot allow all of these people to invade our Country,” Trump tweeted Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
On that latter point, the president is correct — but it is for the reverse of the reasoning he offers. His zero-tolerance policy is putting even more stress on a legal system that already gives migrants far less than their day in court.
The outcome for many might be different if they had fuller access to the legal system, to which they are entitled in theory if not practice, and given an opportunity to make their case to stay in this country.
Trump has mocked proposals for adding to the number of immigration judges, who handle separate proceedings for those who want to remain.
“We have thousands of judges already,” he has claimed. That is incorrect. The number actually stands at fewer than 350 across the country. They are facing a backlog of more than 700,000 cases.
Just as critical as the scarcity of judges is the fact that so few migrants ever have a chance to consult an attorney.
Only about 14 percent of those who are detained have access to counsel, says American Bar Association President Hilarie Bass, who was here from Miami. She added that migrant adults with lawyers win slightly more than half their cases and get to stay in this country, while 9 out of 10 of those without representation lose and are deported.
For unaccompanied children, the disparity in outcomes is even greater. As Bass noted: “How can you ask a 12-year-old to walk into court and make a case for themselves?”
Under Trump’s zero-tolerance policy, more migrants are being prosecuted and deported on the border, rather than being sent to other parts of the country where they can await trial while staying with relatives or others who can take them in. That has compounded the challenge, because it adds to the backlog in this region and makes it more difficult for migrants to find lawyers.
In the current crisis, platoons of lawyers are arriving weekly to volunteer their services, but there are not nearly enough, says Kimi Jackson, director of the South Texas Pro Bono Asylum Representation Project. “What we need most here are Spanish-speaking immigration attorneys, particularly ones who can stay a little longer.” The need will remain for the foreseeable future, long after the journalists and cameras have moved on to the next story.
And even if help comes, it will be too late for most of those who appeared before Ormsby. As he worked his way through their cases, he expressed sympathy for the circumstances of poverty and violence that brought them from dangerous places in Honduras and El Salvador and Mexico to his courtroom. He wished them and their families well and urged them to go through the process of coming to the United States legally.
“Seeing the type of people you appear to be,” the magistrate added, “I hope that you will be successful with that.”
But everyone there knew that was a wish, and one unlikely to come true.
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Mostly first offenders who didn’t belong in criminal court anyway.
Why would nonviolent first offenders be shackled in court?
Anybody understand what they are pleading guilty to?
Everybody understand that they have a right to a full trial at which the Government would have to prove guilt?
Anybody understand what a port of entry is?
Anybody just looking for an officer to apply for asylum?
Anybody realize there are strong legal arguments that criminal sanctions can’t be invoked against good faith asylum seekers under international treaties to which the U.S. is party?
Anybody know the name of their court-appointed lawyer?
Anybody have a chance to speak with their lawyer in private in Spanish?
Anybody have a “know your rights” presentation about the immigration system?
Anybody know what a “credible fear” interview is, how to request one from the DHS, and how to get review of a denial?
Anybody know that asylum applicants who pass credible fear can request bond?
Anybody understand the consequences of a conviction?
Anybody pressured to plead guilty to get their kids back or get out of detention?
Anybody know how the asylum process works and how to apply?
Anybody know how important lawyers are for asylum seekers and how to get in touch with local pro bono lawyers?
Anybody separated from kids?
Anybody know that the Government has been ordered by a more conscientious Federal Judge to reunite families?
We’ll probably never know the answers, because that might have exceeded Judge Ormsby’s 75 second attention span and cut into his productivity stats.
I’ve commented before on the Judge Ormsby’s judicial performance (or lack thereof).
Judge Ormsby should be in line for a Jeff Sessions “Volume Is Everything — Due Process Is Nothing” award! He appears to be just the type of subservient judicial toady Trump & McConnell would love to have on the Supremes. And, I wouldn’t let the U.S. District Judges who are in charge of this judicial farce off the hook either.
Someday, the true history of the abuses of human values, human rights, and our Constitution now going on at our border under a White Nationalist regime will be written. And the “go along to get along” crowd will be held accountable for their conduct; by the judgment of history, if not by the law.
Looking for clarity on the law and latest policies affecting children and families separated at the border? Professor Andrew Schoenholtz and Michelle Brané (L’94) of the Women’s Refugee Commission will discuss the status of reunifying families, what’s driving migration and where the administration’s zero-tolerance policy goes from here. Watch the conversation live on Georgetown Law’s Facebook page 10:00 AM today!
Andy & Michelle are long-time friends and two of the “best ever.” Andy (co-author of Refugee Roulette) is my colleague at Georgetown Law these days, and Michelle worked at the BIA as an Honors Program Attorneys during my tenure as BIA Chair.
Start your day with a breath of fresh air and some much-needed truth about refugees, migrants, the law, and how we are treating the most vulnerable among us.
Attorney General Sessions Delivers Remarks to the Criminal Justice Legal Foundation
Los Angeles, CA
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Tuesday, June 26, 2018
Remarks as prepared for delivery
Thank you, Richmond for that kind introduction and thank you for your leadership at the Foundation, the Federalist Society, and Kirkland Ellis. I’m told that your daughter is an AUSA—congratulations on that, as well.
I want to thank Governor Wilson, U.S. Attorneys Nick Hanna and Adam Braverman, District Attorneys Greg Totten, Summer Stephen, our former District Attorneys Steve Cooley and Ed Jagels. And congratulations to our new District Attorneys-Elect Cynthia Zimmer and Jeannine Pacioni. And thank you to John Cox for being here as well.
I especially want to thank President Rushford for his remarks and Legal Director Kent Scheidegger for this organization’s strong support for crime victims, for law enforcement, and for the Department of Justice in both the courtroom and in the public arena.
You stand up for the idea that we can bring down our crime rates through smart policies and more sophisticated policing. That is exactly right. You know as well as I do that crime rates aren’t like the tides—we can make a difference.
On behalf of President Donald Trump, I especially want to thank you all for your strong voice in speaking out for the enforcement of our immigration laws.
This is a decisive issue. As the President often says, “a country without borders is not a country.” I don’t know why that is so hard for some people to understand.
In the United States, we have the most generous immigration laws in the world. We take 1.1 million people on a path to citizenship every year. Another 700,000 come here to take jobs. Another half a million come here to take spots in our colleges and universities.
These are generous laws.
And yet, when we enforce them, we get attacked in the media by the so-called elites and their special interests.
I am convinced that the people of this country support these efforts. In the 2016 election, voters said loud and clear that they wanted a lawful system of immigration that serves the national interest. They said we’ve waited long enough.
I believe that this is one of the main reasons that President Trump won. He promised to tackle this crisis that had been ignored or made worse by so many before him. And now he’s doing exactly what the American people asked him to do.
Yet it seems like these same people who have been passing the buck on this crisis for decades haven’t learned anything. They’re still pushing the same old agenda.
They are fighting desperately to stop the good and decent wishes of the American people from being carried out.
They don’t like it when we deport people—even criminal aliens. They don’t like it when we stop people at the border—even those smuggling children. They don’t like interior enforcement and they don’t like work place enforcement. No matter what we do, they complain.
From coast to coast—perhaps especially on this coast—there are politicians who think that having any border at all is mean-spirited, unkind, or even bigoted.
The vice-chairman of the Democratic National Committee recently wore a t-shirt that says “I don’t believe in borders.” I wonder what his neighbors think about that.
The name of the group that organized the Caravan to stampede our borders is “People Without Borders.”
The Attorney General of this state, Xavier Becerra says that “there’s really no difference between my parents and [illegal] immigrants except a piece of paper.” Paperwork, meaning compliance with our law, is important. And it’s a shame that I must say this to the top law enforcement official in California.
Last week a candidate for governor of New York said that we should “abolish ICE,” which she calls “a terrorist organization.” And she’s got 25 percent support in the latest primary polls.
A few months ago, I paid a visit to Sacramento. You may have heard about it. While I was there, the Mayor of Oakland called illegal aliens “law-abiding Oaklanders.” By definition, of course, that is not true.
In 2013, Hillary Clinton reportedly said in one secret speech, “My dream is a hemispheric common market, with open trade and open borders.” This is the presidential nominee of a major political party.
And these are just the explicit, overt examples. There are plenty of other examples of politicians who want to sound like moderates but whose votes and actions evidence a radical open borders agenda – not lawfulness. Apparently, even the libertarian CATO institute is in this camp.
The rhetoric we hear from the other side on this issue—as on so many others—has become radicalized. We hear views on television today that are on the lunatic fringe. And what is perhaps more galling is the hypocrisy. These same people live in gated communities and are featured at events where you have to have an ID even to hear them speak.
And if you try to scale their fence, believe me, they’ll be only too happy to have you arrested and separated from your family.
They want borders in their lives but not yours and not the American people’s. This is why the American people are sick of the lip service and the hypocrisy. They are sick of the politicians who abandon their promises as soon as the mainstream media criticizes them. They’ve seen it for decades. And now they are supporting a President who is on their side.
President Trump has been quite sensible. He made a generous offer to those who oppose this in Congress. He offered to give DACA recipients legal status if we can build a wall, close the maddening loopholes in our legal system, and switch from chain migration and the visa lottery to a merit-based system.
Their refusal of this offer should be baffling to any objective observer.
He simply asked that they agree to a serious solution to the problem. Why wouldn’t you want to end the illegality?
On Wednesday, President Trump ordered this administration to ensure that when we apprehend illegal aliens at the border and hold them for criminal prosecution and to adjudicate their immigration claims, we do what we can to keep families together.
How did the open borders crowd respond?
No. Now they don’t want them held or deported at all.
Does that surprise you?
When they win, they make demands. And when they lose, they make demands. I think there’s a lesson in that.
We know which side of the debate is radical.
The so-called elites will always find an excuse to attack President Trump. They will not be satisfied as long as we are enforcing our borders.
As long as there is any immigration enforcement, they will oppose any effective limits.
But in spite of the critics, we are following the President’s executive order—and the President is listening to the American people.
On Thursday, the Department of Justice filed a request—right here in the Central District of California to modify the terms of the Flores consent decree, which is what keeps us from detaining alien children with their parents for more than 20 days while their asylum cases are pending. We are asking the court to let ICE detain illegal alien children together with their parent or legal guardian in family residential facilities.
This consent decree—and case law right here in California that has expanded it—has had disastrous consequences for illegal alien children.
In 2015, the Department of Justice under President Obama also tried to modify the consent decree for this exact reason. But it was blocked. And so the word got out that if you crossed our border illegally you would not be detained as long as you brought a child with you.
The results won’t surprise you. The number of people illegally crossing our border with children went up dramatically. In 2013, there were 15,000. This year we’re on pace for 88,000—a five-fold increase in five years.
And we know how well ‘catch and release’ worked. Last year there were 40,000 removal orders issued for people that didn’t show up for their hearings.
And it’s no wonder: our broken immigration laws are telling people that they can come here illegally. So why wait in line?
If we don’t fix our laws, then the flow of illegal immigration is not going to stop—and with it, the gangs, the drug cartels, and the human trafficking, including of children.
That’s why the President made clear that we are going to do everything in our power to avoid separating families—but we are still going to work to prosecute all of those who come here illegally.
By definition, we ought to have zero illegal immigration in this country. But we have more than 1 million illegal aliens just in the Los Angeles area. It is widely estimated that there are more illegal aliens in California than there are people in New Mexico.
There is no other area of American law with this level of illegality.
This is a big group of people. Too many of them have committed crimes here. By definition, every one of those crimes is preventable.
Thousands of illegal aliens are sitting in California jails that you pay for. 39,000 are in federal prisons. Another 16,000 are in custody of the U.S. Marshals.
Those are people who had to be tracked down and arrested by our law enforcement—every time, putting them in potentially dangerous situations.
In this city, Americans have been victimized countless times by people who shouldn’t even be here.
Here are just a few of the people arrested by ICE just this month for crimes that would have been prevented with effective border enforcement:
a gang member who had been convicted of rape,
a man convicted of assault with intent to commit rape, and
a man convicted of assaulting an officer, beating his wife, and assault with a deadly weapon.
I could go on and on. These are the kind of people that sanctuary politicians want to keep in California. This is who they want to give sanctuary to.
The open borders politicians say they’re being compassionate. But where is their compassion for that rape victim? How do they explain to her that her attack happened because of their so-called compassion for her rapist.
Consider the rise of sanctuary policies.
It may sound nice, but these are de facto open borders policies. At their root, they are essentially a rejection of all immigration law.
Think about it. Under sanctuary policies, someone who illegally crosses the border on a Monday and arrives in Sacramento or San Francisco on Wednesday is home free—never to be removed.
Police are often forced to release criminal aliens back into the community—no matter the crime. Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place.
That has real consequences.
ICE tells us that they are able to locate only about 6 percent of the criminals they ask sanctuary jurisdictions to turn over. The other 94 percent are walking free and often on their way to their next victim.
If they won’t allow us to deport someone who enters illegally and then commits another crime—who will they agree to deport? Sadly, we know the answer to this. Nobody.
And that sends a message around the world. People in developing nations don’t know the laws on our books. But they see what we do. And so do the gangs and drug cartels. They see whether we deport criminals or not. They see whether we have a border wall or not. They see whether we reward illegal aliens with benefits or not.
That’s why, under President Trump’s leadership, the Department of Justice is working to end sanctuary policies. In March, we sued the state of California over their sanctuary laws. And you’ve stood by us all the way. Thank you for your strong amicus brief and thank you for your strong support.
I am confident that together we are going to win that case. It has been settled since 1819 that a state cannot actively attempt to undermine the execution of federal law or discriminate against the federal government.
The American people are with us on this issue. One poll last year showed that 80 percent of the American people oppose sanctuary policies. Most cities are not sanctuary cities.
We have also supported the state of Texas in its efforts to ban sanctuary cities. And since I became Attorney General, we have filed briefs to defend state or local law enforcement in about thirty cases. A number of courts have ruled in these cases that state or local cooperation with federal immigration enforcement efforts does not violate federal law.
We have stopped rewarding sanctuary cities with taxpayer dollars. If sanctuary cities want to receive federal law enforcement grants, then they should stop impeding federal law enforcement. That is not too much to ask.
This is the Trump era. We are enforcing our laws again. We know whose side we’re on: we’re on the side of police, and we’re on the side of the American people.
The radical open border crowd should declare whose side they are on.
But we are resolute. We are going to keep fighting. With President Trump and with your strong support for police and for the rule of law, I am confident that we will turn the tide and keep the American people safe.
That a Government official supposedly charged with protecting justice for everyone in America — NOT just citizens or GOP voters— and who took an oath to uphold the Constitution would make such an outrageously biased statement in public and not be booed off the stage shows just how empowered “White Nationalist Nation” has become under Trump, Sessions, and Miller.
Don’t expect any help from Chief Justice Roberts and his gang over at the Supremes.
And no, “Gonzo Apocalyoto,” most of us fighting to uphold the Constitution, the rule of law, international law, human values, and to defend human dignity against you and your “Fat Cat” cronies like Trump and GOP “bankrollers,” do not live in gated communities and usually you can hear us speak for free. You choose not to listen to the true “voices of virtue.”
Just a brief fact check: The majority of American voters didn’t want Donald Trump to be their President — the Electoral College elected him, even though millions more American voters would have preferred his opponent.
Also, why is Gonzo allowed to go around spreading the clear untruth that immigrants, both legal and undocumented, are a major source of crime? It’s been proven untrue over and over. And, when you discard “bogus crimes” such as misdemeanor illegal entry and traffic violations, migrants of all types are significantly more law-abiding than native-born Americans.
Indeed, the vulnerable women and children refugees from the Northern Triangle that Gonzo is harming and persecuting are actually fleeing from severe violence — a “low-grade war zone” as described by NBC correspondent Richard Engel — that Gonzo and his group of scofflaws encourage and feed by falsely characterizing them as “mere economic migrants,” telling them to get in a “nonexistent line” to migrate legally, intentionally skewing and misconstruing asylum law against them, and basically telling them to “join the gangs, cooperate with them, or die — we really don’t value your lives at all.” How sick is that? About as sick as abusing little children and asylum seekers.
Trump fumes over immigration courts Sessions has focused on
By: Tal Kopan, CNN
President Donald Trump in recent days has fumed about the immigration courts that handle cases of people seeking entry into the US.
But Trump’s fixation on the courts and the judges who staff them flies in the face of what his attorney general has been trying to do to reshape the courts to align with the President’s vision, including hiring more immigration judges and restricting asylum laws.
The President tweeted that those stopped at the border should be simply told they can’t enter, rather than going through the system.
“When somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came,” Trump tweeted on Saturday.
Press secretary Sarah Sanders told reporters Monday that “virtually all Americans” agree that drawn-out court proceedings don’t make sense for migrants who enter the country illegally. Trump, she said, “would certainly like to see more expedited removal.”
“Just because you don’t see a judge doesn’t mean you aren’t receiving due process,” she said.
The immigration courts decide whether immigrants have a legal right to stay in the US or should be deported — and those cases include people arriving at the border as well people from the interior of the US, who may or may not have had legal status at some point.
But Trump’s suggestion has several problems, including the fact that there are fewer than 350 immigration judges nationwide and the Justice Department has budgeted for only 100 more.
In addition, the suggestion that the immigration courts could be done away with altogether would likely fly in the face of the Constitution and a host of domestic and international laws that bestow rights on everyone in the US and crossing the border, regardless of whether they are citizens.
There is no Due Process without an impartial decision maker (lots of doubt as to whether any Immigration Judge working for Jeff Sessions can be considered “impartial”).
Jeff Sessions has nothing to do with virtue. His disingenuous, racist, White Nationalist policies are the polar opposite of “virtue.”
As the Supreme Court has said, Due Process takes time — sometimes a lot, sometimes less.
Trump’s outrageous proposals violate our Constitution, our statutory law, and two international conventions to which we are party.
There is no crisis for the United States, except the unnecessary one that Trump and Sessions have created with their lawless behavior.
But, there is a crisis in the Northern Triangle for which we are at least partially responsible.
The stakes for the refugees are literally life or death — Trump and Sessions’s dehumanizing rhetoric is beyond disgusting.
Even those who fail to qualify for protection after full hearings likely face rape, torture, extortion, severe beatings, mutilation, or death upon return. We actually should be protecting more, not fewer, of them.
BALTIMORE, Md. ― Aracely Martinez Yanez, 33, knows she’s one of the lucky ones. A deep scar that carves a line through her scalp, from crown to cheek, is proof of that fortune.
She got lucky when her abusive partner shot her point-blank in the head, and she survived.
She got lucky when she escaped her tiny village in Honduras. Local villagers blamed her for her partner’s death; he killed himself and their two young sons after he shot her.
She got lucky when she wasn’t harmed as she made the treacherous 2,000-mile journey to America.
And she got luckiest of all when she was granted asylum after she got here.
If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.
Domestic abuse of the kind experienced by Martinez Yanez is endemic in Central America. In Honduras, few services for victims exist, and perpetrators are almost never held criminally responsible. One woman is killed every 16 hours there, according to Honduras’ Center for Women’s Rights.
For many victims, the United States is their best shot at staying alive.
While the exact numbers are not available, immigration lawyers have estimated that the Trump administration’s decision could invalidate tens of thousands of pending asylum claims from women fleeing domestic violence. Advocates warn it will be used to turn women away at the border, even if they have credible asylum claims.
“This administration is trying to close the door to refugees,” said Archi Pyati, chief of policy at Tahirih Justice Center, a nonprofit organization that works with immigrant women and girls who have survived gender-based violence. They represented Martinez Yanez in her asylum case. Travel bans, increased detention and family separation are all being used as tools to deter individuals from coming here, Pyati said.
Still, that will not stop women from coming. Because there are thousands of women just like Martinez Yanez, and their stories are just as harrowing.
CHERYL DIAZ MEYER FOR HUFFPOST
Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photograph of her murdered sons: Daniel, 4, and Juancito, 6.
A Violent Start
Martinez Yanez grew up in a tiny village in Honduras with her parents and seven siblings. Her family made a living by selling homemade horchata, a sweet drink made from milky rice, and jugo de marañon, cashew juice. They also sold fresh tortillas out of their house. Her childhood was simple and happy.
But after she turned 15, a man in her village named Sorto became obsessed with her. At her cousin’s wedding, he tried to dance with her. She pushed him off: He was 15 years her senior, and gave her the creeps. A few days later, Martinez Yanez said, he waited outside her house with a gun and kidnapped her. He took her to a mountain and raped her repeatedly.
“I wanted to die,” she told HuffPost through an interpreter at her home in Baltimore on Tuesday. “I felt dirty. He said that I was his woman, and that I would not belong to anyone else.” As she told her story, she rubbed her legs up and down, physically uncomfortable as she recalled the terrible things that had happened to her.
Over the next six years, she said, Sorto went on to rape and beat her whenever he pleased. In the eyes of the village, she was his woman, just like he said. She got pregnant immediately, giving birth to her first son, Juancito, at 16, and her second son, Daniel, at 18. Sorto would come and go from the village, as he had a wife and children in El Salvador. But when he wasn’t there, she said she was watched by his family.
As for help, there were no police in her village, she said. She had seen what happened to other women who traveled to the closest city to report abuse: It made things worse. The police did nothing, and the abuser would inevitably find out.
“I felt like I was worthless, like I had no value,” she said.
A few years after her sons were born, she became friends with a local barber who cut her children’s hair. He was sweet and respectful, nothing like Sorto, she said. They began a secret relationship. Sorto had been gone from the village for a few years, and Martinez Yanez hoped she was free of him. Then she got pregnant. Scared that Sorto would find out, she fled to San Pedro Sula, a city in the north of the country. She didn’t tell anyone where she had gone.
But Sorto found her anyway. He called her on the phone and told her if she did not come back to the village within the next 24 hours, he would kill her family, she said. Martinez Yanez got on the next bus back.
A few days after she returned, she said, Sorto told her that he was taking her and their two boys to the river. He brought a hunting rifle with him. The family walked through the mountainside. Martinez Yanez recalled handing her children some sticks to play with, and crouching on the ground with them. Then she felt the rifle pressing into her head. The rest is a blank.
Sorto shot her in the back of the head, and killed her two sons, before shooting himself. Juancito was 6, Daniel was 4. Somehow, Martinez Yanez, five months pregnant, survived. She was hospitalized for months and had to relearn to walk and talk. She is still deaf in one ear, and has numbness down one side of her body.
When she returned home to the village, she said, people threw rocks at her and called her names. Someone fired a gun into her house. Someone else tried to run her over with a bicycle. The community blamed her for the killings because she had tried to leave Sorto, she explained. His family wanted to avenge his death.
“The whole village was against me,” she said. “Children, adults. I couldn’t go anywhere by myself.”
A few months later she gave birth to a girl, Emely, but she was overwhelmed with stress. On top of grieving the death of her two sons, learning to live with a traumatic brain injury, and caring for her newborn, she was constantly worried about being killed by people in her village.
It was too much. She eventually fled to Tegucigalpa, the capital of Honduras, but Sorto’s family found her there too, she said. In a last-ditch effort to save Martinez Yanez’s life, her family paid over $7,000, an enormous sum for the family, to a coyote, a person who helps smuggle people across the border to the U.S. Emely, who was now 2, had to stay behind. They couldn’t afford to send her, too.
Martinez Yanez made the heartbreaking decision to go alone.
The Journey To Freedom
She left in the middle of the night, traveling with a group of four or five people. They were transported in a van for part of the trip, and then in taxis.
There was very little to eat or drink, she said, and she barely slept. Her stomach was upset and she suffered from debilitating headaches. In Mexico, she almost turned back.
“I missed my parents and my daughter so much,” she said. “But the threats and the conditions that I knew were waiting for me in my village gave me the motivation to continue to the U.S. to be safe.”
It took them two weeks to get to the U.S. border. Then they waited two days before attempting to cross, she said. She was terrified that she would be caught by immigration officials and sent back. She crossed the border illegally in February 2009, and went to her uncle’s house in Houston, Texas, before traveling on to Annapolis, Maryland, where her brother lived.
Women like Aracely are saving their own lives.Kristen Strain, a lawyer who worked on Martinez Yanez’s asylum case.
Martinez Yanez didn’t know that she could apply for asylum as a domestic violence victim until a few years later, when she sought medical care for her head injury in Maryland. There, she was referred to Tahirih Justice Center.
Kristen Strain, an attorney who worked on her case, wrote the legal brief arguing that Martinez Yanez should be granted asylum.
Generally, applicants must show that the persecution they have suffered is on account of one of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. Strain successfully argued that being a female victim of severe gender-based violence in Honduras counted as a particular social group for purposes of obtaining asylum.
“There simply aren’t laws in place that protect women like Aracely,” she said. “They have no recourse. It is accepted in their communities that women can be treated like men’s property.”
She said it took over a year to gather all the evidence for Martinez Yanez’s claim, which included a neurological evaluation, medical documents, news stories from Honduran papers about the shooting, dozens of interviews, and statements from friends and family in Honduras to corroborate her story.
“It is not as if it’s easy,” Strain said. “In addition to having to physically get here, which is harrowing and dangerous, women have to navigate a complex legal system that is difficult to understand, especially when they don’t speak the language. It’s hard for them to even know what their rights are, let alone find an attorney who can advocate for them.”
“Women like Aracely are saving their own lives,” she went on.
Martinez Yanez was granted asylum in 2013. Her daughter, Emely, was allowed to join her in 2014. While they talked on the phone regularly, the mother and daughter had not seen each other for five years.
CHERYL DIAZ MEYER FOR HUFFPOST
Martinez Yanez watches her daughters play outside the family’s Baltimore apartment.
A New Life
In her Baltimore home, more than 3,000 miles from the tiny village in Honduras where she was raised, Martinez Yanez likes to be surrounded by photos. They remind her of those she had to leave behind.
There’s one of her sister graduating college. Another of her parents beaming happily.
And then, hanging in the entrance to the kitchen, is a photograph of her with her two deceased sons. It is the only picture she owns of them. She brought it with her when she fled Honduras. When she spoke to HuffPost about her sons, she cried. She still doesn’t understand why they were killed.
Since she’s been in the U.S., Martinez Yanez has expanded her family. Emely, who is 11, now has two sisters: Gabriela, 7, and Alyson, 4.
“I’m very fortunate to be able to have my daughters with me,” she said. “I can’t ask for anything better to happen. I am so happy with my life.”
Martinez Yanez still struggles with the repercussions of being shot in the head. She is forgetful and can get confused easily. She said she has to put every appointment she has in her phone with an alarm, otherwise she’ll miss it.
She said she was grateful that she was granted asylum, and heartbroken for other women who may not have the same opportunity she did.
“I just feel so sad that other women in my situation, or even in worse situations than mine will not be allowed in the country anymore,” she said. “Here, I don’t have to hide or run away from anyone.”
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In my years at the Arlington Immigration Court, I had many well-documented, deserving cases like this. In those days, the ICE Office of Chief Counsel in Arlington followed the so-called “Martin Brief” in which DHS urged the BIA to recognize domestic violence as a proper basis for asylum under certain circumstances long before the BIA actually got around to deciding A-R-C-G-. Because the applicants were almost never held in detention, they were able to get top–flight pro bono representation from NGOs, Law School Clinics, Human Rights First, and “Big Law” Firms serving pro bono.
The cases were so well documented that they often could be “pre-tried” between counsel before the individual hearing date. The parties then often jointly asked me to set an earlier “short block hearing” (one hour or less) where the evidence could be introduced, discussed, and abbreviated testimony taken. At the end of those hearings, the parties jointly moved me for a grant of asylum.
So, without the interference of the DOJ politicos, here was an actual working system that helped get deserving cases granted and off the docket, conserved judicial resources, saved time, saved lives, and complied completely with Due Process. In other words, a smashing Immigration Court and U.S. system of justice “success story” by any rational measure!
That has all been disgracefully dismantled by Sessions. Now, following his perversion of the law in Matter of A-B-, He’s encouraging DHS and Immigration Judges to deny such cases without even hearing the testimony (even though every one of these individuals easily should qualify for the lesser relief of protection under the Convention Against Torture). That’s almost certain to result in appeals, prolonged litigation in the Courts of Appeals, and ultimately return of most cases to the Immigration Courts for full hearings and fair consideration.
At some point, not only is A-R-C-G- likely to be reinstated, but it is likely to be expanded to what is really the fundamental basis for these claims — gender as a qualifying “Particular Social Group.” It’s undeniably immutable/fundamental, particularized, socially distinct and clearly the basis for much of the persecution in today’s world!
In the meantime, however, those who don’t have the luxury of great pro bono representation, lack an attentive Circuit Court of Appeals, or who can’t get through the “credible fear interview” as it has now been “rigged for denial” by Sessions will likely be unlawfully returned to their home countries to suffer abuse, torture, and a lifetime of torment or death, along with those cute little kids in the pictures we’re seeing.
The White Nationalist, neo-Nazi regime of Trump, Sessions, and their enablers will be one of the most horrible and disgusting periods in our history. History will neither forget nor treat kindly those who failed to stand up to the racists and child abusers running and ruining our Government, and destroying many innocent lives in the process.
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