"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.
Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.
The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.
This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.
Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.
“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.
Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”
Here are the biggest ways Sessions is attacking the immigration courts:
It’s now much more difficult to apply for asylum
In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.
Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.
In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, toldMother Jones when the decision was first announced.
A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.
Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”
Judges have less control over their case loads …
This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.
Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.
The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.
… and will have to move through them more quickly
In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.
The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.
“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”
It’s harder for them to reschedule cases
On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.
Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.
And as more judges retire, Sessions gets to staff up
Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”
Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.
What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”
Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.
Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.
Under Sessions, he says, the immigration court “has become a deportation railway.”
Sent from my iPad
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Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.
For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.
Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.
Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.
He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.
That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.
Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.
Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!
Texas judge says he’ll likely kill DACA — but not yet
Washington (CNN)A federal judge on Friday hinted he will likely invalidate the Deferred Action for Childhood Arrivals program in the future — but for now the program can continue to operate.
The ruling was an unexpected, albeit temporary, reprieve for the program, which President Donald Trump opted to end almost exactly a year ago.
Texas-based District Judge Andrew Hanen wrote Friday that he believes DACA is likely illegal and ultimately will fail to survive a challenge before his court. DACA is an Obama-era program that protects young undocumented immigrants who came to the US as children from deportation.
But despite that — and despite finding that the continuation of DACA could harm the eight states and two governors who challenged the program — Hanen decided not to issue a ruling that would have immediately blocked DACA’s continuation.
Since Trump sought to end DACA last September, the program’s future has been in doubt. Members of Congress largely say they want to preserve the program legislatively, but have failed to pass anything in two opportunities to do so. In the meantime, three federal courts have sustained the program.
While Hanen rebuffed the red states’ request to end DACA immediately, his inclination to invalidate the program eventually contributes to what experts expect to be a fast track to the Supreme Court in the coming year.
Hanen said that there were two issues that required him to deny the request to immediately halt the program: One was timeliness. He found that because Texas and its coalition of states waited more than five years after the implementation of DACA, even as it challenged a related program, to file this suit, that it lost some of its ability to claim damages were immediately harmful and thus required an immediate response.
In addition, Hanen ruled that though the states could prove they were harmed by the continuation of DACA, mainly in costs of benefits to recipients, the potential consequences of ending DACA immediately were more harmful.
Three federal judges have blocked the administration from ending DACA as it tried to do last September, ordering the Department of Homeland Security to continue renewing permits under the program.
But Hanen was widely expected to be unfavorable to DACA, as he had previously prevented a similar, expanded program from ever going into effect under the Obama administration.
The new case challenging the DACA program, instituted in 2012, drew heavily from that decision Hanen made on the 2014 expansion of the program and creation of a similar program for undocumented parents of Americans.
Hanen said in his Friday ruling that he largely agreed, and DACA was likely to be illegal under the same reasoning as that expansion.
But one major difference prevented him from immediately halting the program — the fact that it was already in effect.
“Here, the egg has been scrambled,” Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”
But in his 117-page decision, Hanen was clear that he did not intend his ruling to be interpreted as good news for the future of DACA, at least long term.
He said the popularity of the program was not relevant to whether it had been legally created — the crux of the challenge to it.
“DACA is a popular program and one that Conress should consider saving,” Hanen wrote. Nevertheless, “this court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”
Texas Attorney General Ken Paxton, who led the challenge to DACA, hailed the ruling in a statement, despite it being an interim loss in court.
“We’re now very confident that DACA will soon meet the same fate as the Obama-era Deferred Action for Parents of Americans program, which the courts blocked after I led another state coalition challenging its constitutionality,” Paxton said. “Our lawsuit is vital to restoring the rule of law to our nation’s immigration system.”
Hanen’s ruling Friday defuses the threat to DACA for some time. In a separate order, Hanen took the unusual step of making it possible to appeal his denial of an immediate halt to the program, and gave the parties three weeks to figure out next steps before the case moves to its next phase.
The Department of Justice declined to defend DACA in the lawsuit, but did ask Hanen to limit the effect of any ruling he may have issued.
Spokesman Devin O’Malley said in a statement that Hanen had agreed DACA is unlawful, “as the Justice Department has consistently argued,” and said the department was “pleased” with the decision.
In the administration’s stead, DACA was defended by the pro-immigrant advocacy and legal organization MALDEF and the state of New Jersey.
In a statement Friday, MALDEF hailed the ruling but noted it still believes DACA to be legal.
“While MALDEF continues to disagree adamantly with the judge’s views on the legality of DACA under the Administrative Procedures Act (APA), and on whether the state of Texas even has standing — as required by the Constitution — to challenge DACA, today’s court decision appropriately leaves DACA in place with respect to over 100,000 Texans and hundreds of thousands of others nationwide,” said Thomas A. Saenz, president and general counsel of MALDEF.
This story has been updated.
CNN’s Ariane de Vogue and Jason Morris contributed to this report.
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It’s not clear to me that Judge Hanen can kill the program even if he finds it illegal, given the contrary findings and injunctions already in effect from several other U.S. District Judges. Indeed, there are several cases already pending in the DC Circuit and the Ninth Circuit that cold moot the whole issue. It’s the kind of mess we get into when Congress abdicates its duty to legislate.
Associate professor at Morgan State University and politics editor for the Root
August 15
Omarosa Manigault Newman — who once declared that “every critic, every detractor will have to bow down to President Trump” — evolved from mentee to frenemy to antagonist before her nonstop media blitz promoting her new post-White House tell-all, during which she’s touted the existence of a recording of Trump using the n-word. It’s all sent the White House scrambling, with the president tweetingMonday that “I don’t have that word in my vocabulary, and never have.” Press secretary Sarah Huckabee Sanders told reporters Tuesday she “can’t guarantee” Americans will never hear audio of Trump using the slur.
It doesn’t matter.
Trump is a racist. That doesn’t hinge on whether he uttered one particular epithet, no matter how ugly it is. It’s about the totality of his presidency, and after 18 months you can see his racial animus throughout his policy initiatives whether you hear it on tape or not.
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Over the course of his career, well before he took office, Trump’s antipathy toward people of color has been plainly evident. In the ’70s, his real estate company was the subject of a federal investigation that found his employees had secretly marked the paperwork of minority apartment rental applicants with codes such as “C” for “colored.” After black and Latino teenagers were charged with sexually assaulting a white woman in Central Park, he took out full-page ads in New York City newspapers calling for the return of the death penalty. He never backtracked or apologized when the teenagers’ convictions were overturned. He championed birtherism, and wouldn’t disavow the conspiracy theory that President Barack Obama was born in Kenya until the end of his 2016 presidential campaign. As president, he’s targeted African American athletes for criticism, whether it’s ranting, “Get that son of a bitch off the field,” in reference to professional football players silently protesting police brutality or tweeting that:
Calling African American Rep. Maxine Waters (D-Calif.) a “low IQ person” is now a routine bit at his political rallies. He was quoted referring to Haiti, El Salvador and various African nations as “shithole” countries. He announced his campaign in 2015 by referring to Mexican immigrants as “rapists.” Later that year, he called for the United States to implement a “total and complete” Muslim ban.
After taking office, he hired xenophobes such as Stephen Miller — an architect of the ban, whose hostility toward immigrants is so stark, and hypocritical, that his uncle excoriated him this week in an essay for Politico Magazine, writing of Miller and Trump that “they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human.”
I could go on. The point is that Trump’s view of nonwhites is out in the open. As Slate’s Christina Cauterucci notes, there’s every reason “to believe that an n-word tape wouldn’t torpedo Trump’s presidency”; there’s no indication his supporters “will turn against him because he used a racial slur.” Trump’s words and deeds over time have demonstrated his racism — it doesn’t hinge on being outed, Paula Deen-style, by a tape of him using the word. Racism hardly ever does.
I’m not saying it would be okay for Trump to use any variation of the n-word — in jest, in anger, singing along to the lyrics of a song, with or without the hard “R.” But the feverish speculation about whether he ever deployed the term wrongly implies that a verdict on his racist character turns on its use. What matters more about Trump are the positions he’s taken and the policy choices he’s made that harm communities of color. In his first year as president, Trump evolved from mere interpersonal racist to racist enabler when he proclaimed there were “very fine people, on both sides” when white supremacists and anti-racist protesters converged in Charlottesville last year. Jeff Sessions, a senator from Alabama who, three decades ago, was denieda federal judgeship by the Republican-controlled Senate Judiciary Committee over concerns that he was a racist, was installed by Trump as attorney general.
Since assuming that role, Sessions has worked to undermine consent decrees meant to restrain racially abusive police departments and explicitly articulated the administration’s intent to use family separation to deter immigration. The Department of Education, under Secretary Betsy DeVos, is dismissing hundreds of civil rights complaints, supposedly in the name of efficiency. Trump hired Manigault Newman as a liaison to black constituent groups based on their reality TV relationship and, according to him, her willingness to say “GREAT things” about him, despite almost universal criticism of her appointment and subsequent work by African American Republicans and Democrats.
Being a racist — which entails belief in a fixed racial hierarchy and the power to act upon that belief in commerce, government or social spaces — is not now, and never has been, about one word or one slip of the tongue. It is about the ability of those in power to use public and private resources to enforce a racial hierarchy, whether that means having black people arrested for sitting in Starbucks, refusing to hire or promote qualified black job applicants or staffing a presidential administration with people who tolerate or encourage white nationalists. Trump’s statements and his approach to governance suggest he believes in a set racial hierarchy, and the possible existence of a hyped tape doesn’t change that. So far, and as far as I know, no one’s produced audio of white nationalist participants in last Sunday’s Unite the Right 2 rally in Washington using the n-word. Presumably, by the logic of some Trump defenders, that would mean there’s no proof they’re racist, either.
If American public discourse on race continues to revolve around a game of “gotcha,” with sentiments and smoking guns, divorced from an acknowledgment of how racists use their power, we won’t make any progress, during this administration or any other.
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Johnson states a simple truth that some don’t want to acknowledge. But, racist anti-immigrant, anti-Muslim, anti-refugee, anti-Mexican American, xenophobic “dog whistles” were at the heart of Trump’s campaign and remain at the heart of his policies, particularly on immigration, refugees, and law enforcement.
Does that mean that the majority of Americans who don’t endorse racism don’t need to deal with the fact that Trump is President and that Sessions and Miller are exercising outsized control over our justice system? Or that today’s Trumpist GOP isn’t your grandparents’ GOP (in my case, my parents’ GOP) and, although they might occasionally mutter a few insincere “tisk, tisk’s,” are firmly committed to enabling Trump and his racist policies including, of course, voter disenfranchisement. Of course not. Just think of how African-Americans, Hispanics, and liberals had to deal in practical terms with Southern political power in the age of Jim Crow (which is basically the “Age of Jeff Sessions”).
But, it is essential for us to know and acknowledge who and what we are dealing with and not to let political expediency totally obscure the harsh truth. Trump is a racist. And, that sad but true fact will continue to influence all of his policies for as long as he remains in office. Indeed, “Exhibit 1,” is the failure of the GOP to achieve “no-brainer” Dreamer protection over the last two years and the stubborn insistence of Sessions and others in the GOP to keep tying up our courts with bogus attempts to terminate already limited protections for those who aren’t going anywhere in the first place.
The privatization of ICE detention centers has exacerbated the problems the bureau faces and has given considerable fodder to media exposes of abuses. The DHS Office of Inspector General recently released a scathing report on failures of the private contractors to comply with detention standards. It’s time to restructure the responsibilities to administer detention and removal policies more humanely.
To its credit, ICE also performs critical assignments that include investigating foreign nationals who violate the laws. The main categories of crimes its agents investigate are suspected terrorism, criminal acts, suspected fraudulent activities (i.e., possessing or manufacturing fraudulent immigration documents) and suspected smuggling and trafficking of foreign nationals. ICE investigators are housed in the Homeland Security Investigations (HSI) component and are among those who would dismantle ICE.
If ICE is not at the border performing critical background checks and national security screenings, who does? First, the State Department consular officers screen all foreign nationals requesting a visa, employing biometric technologies along with biographic background checks. In some high-risk consulates abroad, ICE assists in national security screenings. Then, DHS Customs and Border Protection (CBP) inspectors examine all foreign nationals who seek admission to the United States at ports of entry. CBP inspectors and consular officials partner with the National Counterterrorism Center (NCTC) to utilize the Terrorist Identities Datamart Environment on known and suspected terrorists and terrorist groups.
They also check the background of all foreign nationals in biometric and biographic databases such the FBI’s Integrated Automated Fingerprint Identification System. Improvements in intelligence-gathering, along with advances in technologies and inter-agency sharing, have greatly enhanced the rigor of our national security screenings.
The most effective policy for interior immigration enforcement would be one prioritizing “quality of life” enforcement. As I have written elsewhere, it would be aimed at protecting U.S. residents from the deleterious and criminal aspects of immigration. Foremost, it would involve the investigation and removal of foreign nationals who have been convicted of crimes and who are deportable, thus maintaining the important activities of the current ICE investigators.
“Quality of life” enforcement, furthermore, would prioritize investigations of specific work sites for wage, hour and safety violations, sweatshop conditions and trafficking in persons — all illegal activities to which unauthorized workers are vulnerable. “Quality of life” enforcement also would encompass stringent labor market tests (e.g., labor certifications and attestations) to ensure that U.S. workers are not adversely affected by the recruitment of foreign workers, as well as reliable employment verification systems. Many of these functions once were performed by the Department of Labor (DOL), before funding cuts gutted its enforcement duties.
Prioritizing these functions likely would go a long way toward curbing unauthorized migration. Whether DOL or a revamped immigration enforcement be the lead on “quality of life” measures remains a key management question. There is a strong case for re-establishing DOL’s traditional role in protecting U.S. workers and certifying the hiring of foreign workers. Given the critical role that ICE investigators play, it is imperative that they be housed in an agency that provides them with adequate support. These are finer points that can be resolved as the functions are reorganized.
Including a multi-pronged agency or agencies charged with ensuring “quality of life” immigration enforcement measures as part of a package of immigration reforms would only increase the strong public support (roughly two-thirds favor) for comprehensive immigration reform. Good policy. Good politics.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. She is writing a book about the legislative drive to end race- and nationality-based immigration.
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Hit the above link to read Ruth’s entire article over at The Hill.
I believe that both Nolan Rappaport and I have previously noted the importance of better wage and hour enforcement in preventing employer abuse of both the legal and extra-legal immigration systems. Sure make lots more sense than “busting” hard-working, productive members of our community who have the bad fortune to be here without documents in an era of irrational enforcement!
There are lots of “smart immigration enforcement” options out there. Although the Obama Administration for the most part screwed up immigration policy, toward the end they actually were coming around to some of the “smart enforcement” initiatives, particularly with DACA at USCIS and more consistent and widespread use of prosecutorial discretion (“PD”) at ICE.
Naturally, the Trump Administration abandoned all of the “smart” initiatives started by the Obama Administration and instead doubled down on every cruel, ineffective, and just plain stupid policy from the past. But, that’s because it’s never been about law enforcement or developing a rational immigration policy. It’s really all about racism and White Nationalism. This Administration, representing a minority of Americans, has absolutely no interest in democracy or governing for the common good.
That’s why it’s critical for the rest of us, who want no part of White Nationalist Nation, to begin the process for “regime change” at the ballot box this Fall! And, in the meantime, join the New Due Process Army and fight the horrible excesses and intentionally ugly policies of the Trumpsters!
Michael Scherer & Josh Dawsey report for the Washington Post:
President Trump has calculated that he will gain political leverage in congressional negotiations by continuing to enforce a policy he claims to hate — separating immigrant parents from their young children at the southern border, according to White House officials.
On Friday, Trump suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include funding a border wall, tightening the rules for border enforcement and curbing legal entry. He also is intent on pushing members of his party to vote for a compromise measure that would achieve those long-standing priorities.
Trump’s public acknowledgment that he was willing to let the policy continue as he pursued his political goals came as the president once again blamed Democrats for a policy enacted and touted by his own administration.
“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda,” he tweeted. After listing his demands in any immigration bill, he added, “Go for it! WIN!”
The attempt to gain advantage from a practice the American Academy of Pediatrics describes as causing children “irreparable harm” sets up a high-stakes gambit for Trump, whose political career has long benefited from harsh rhetoric on immigration.
Democrats have latched onto the issue and vowed to fight in the court of public opinion, with leaders planning trips to the border to highlight the stories of separated families, already the focus of news media attention. Democratic candidates running for vulnerable Republican seats also have begun to make the harsh treatment of children a centerpiece of their campaigns.
The policy has cracked Trump’s usually united conservative base, with a wide array of religious leaders and groups denouncing it. The U.S. Conference of Catholic Bishops and the Southern Baptist Convention issued statements critical of the practice.
The Rev. Samuel Rodriguez, who delivered a prayer at Trump’s inauguration, signed a letter calling the practice “horrible.” Pastor Franklin Graham of Samaritan’s Purse, a vocal supporter of the president’s who has brushed aside past Trump controversies, called it “terrible” and “disgraceful.”
Besides increasing the odds of a broader immigration bill, senior Trump strategists believe that the child separation policy will deter the flow of migrant families across the border. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security. The figure is the only one released by the goverment.
“The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” a White House official said. “The thinking in the building is to force people to the table.”
Trump reinforced that notion Friday morning at the White House when he suggested Democrats alone had the power to alter the policy.
“I hate the children being taken away,” Trump said.
The president used a similar strategy last year as he sought to gain approval for his immigration demands by using the lure of protection for young immigrants brought to the United States as children. That effort, which ran counter to Trump’s earlier promise to sign a bipartisan bill protecting the young immigrants, foundered in Congress.
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The current policy resulted from a decision made in April by Attorney General Jeff Sessions to prosecute all migrants who cross the border, including those with young children. Those migrants had avoided detention during the administrations of George W. Bush and Barack Obama. Because of a 1997 court settlement that bars children from being imprisoned with parents, Justice Department officials now say they have no choice but to isolate the children.
Sessions and White House press secretary Sarah Huckabee Sanders have defended the policy as a sound, and biblical, decision to enforce the law.
“The previous administration wouldn’t prosecute illegal aliens who entered the country with children,” Sessions said Thursday in Fort Wayne, Ind., citing biblical advice to follow laws. “It was de facto open borders.”
The biblical underpinnings have been challenged by religious leaders.
“There’s definitely a groundswell of opposition from virtually every corner of the Christian community,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “People are able to understand immediately the drive of parents to protect their child and to understand the horror of splitting up vulnerable children from their parents.”
Yet several key Trump administration officials support the family separation policy, including Chief of Staff John F. Kelly, Homeland Security Secretary Kirstjen Nielsen and senior adviser Stephen Miller, a vocal supporter of stricter immigration laws.
Some senior officials think Democrats will be pressured by the policy to cut an immigration deal.
“If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can,” said a second White House official.
Others have argued that the main benefit of the policy is deterrence. Miller has said internally that the child separations will bring the numbers down at the border, a goal that Trump wants to achieve. Miller and Marc Short, the White House director of legislative affairs, have argued that immigration legislation is unlikely to pass this summer, officials said.
“The side effect of zero tolerance is that fewer people will come up illegally, and fewer minors would be put in danger,” said a third senior administration official. “What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?”
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Please read the complete article at the link.
So, the choice is ““What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?” Not really!
The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.
Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.
Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks rally want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.
My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.
Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.
Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.
The thing we will not be able to do is to halt human migration solely by law enforcement actions taken at “our end” of the chain. That is, unless we wish to establish a “Stalinist type state” that is so grim and repressive that nobody wants to come any more.
Kids as human pawns. Child abuse as policy. Dreamers as hostages. Jesus told us to do it. It’s the Democrats fault. I really hate to let Jeff abuse children, but I have no choice. Refugee women fleeing gang controlled states reduced to human scum who should just accept their beatings and rape and get in the non-existent line for legal immigration that we want to eliminate. That is, if they actually live long enough to get in the non-existent line, which is unlikely. Biased judges cheering the chance to sign death warrants for the most vulnerable among us. Courts clogged with refugees being prosecuted for seeking refuge while being pressured by seizure of their children into giving up rights.
Once again, I’ve been proved right: We are actively diminishing ourselves as a nation every day; but, it isn’t stopping, and won’t in the long run stop, human migration. Sure, there is a natural ebb and flow that responds in some minor ways to our futile attempts to stop it. Sort of like throwing up man-made sand bars to stop beach erosion. Works for a few months or even years, but eventually the inevitable forces of nature win out. It sure seems to me that it would be smarter to work with the flow of the river and turn it to our advantage, rather than trying to make it reverse course — an exercise in futility that only serves to diminish the humanity of each of us.
“Group Leader” Hon. Jeffrey Chase forwards these items:
Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:
Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
. . . .
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”
The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
. . . .
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)
Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”
Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!
Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.
An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.
In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune. Different views are one thing; overt bias and lack of empathy is another.
Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.
A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”
Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”
But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.
US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.
Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.
“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”
To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”
That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.
Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges
Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.
The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.
Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.
“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”
Therefore, she adds, they should be structured “like a traditional court.”
Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.
Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.
Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.
“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.
Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.
“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”
Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.
Sessions’ decision will make it even harder.
In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”
The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court. At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.
Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.
According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.
Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”
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Here’s another one from Bea Bischoff at Slate:
How the attorney general is abusing a rarely used provision to rewrite legal precedent.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.
On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.
During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.
Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.
Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.
A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.
During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.
Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.
Sessions trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerablewomen.
After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.
The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.
Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.
Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.
On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.
The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.
In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.
As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.
The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.
While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.
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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.
I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.
A few problems, though:
Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!
There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.
House DACA talks prepare to enter new high-stakes stage
By Tal Kopan and Lauren Fox, CNN
A rebellion by moderate House Republicans to force an immigration vote is widely expected to succeed this week, pushing members in at least one chamber of Congress to address one of the most hot-button topics in American politics months before the midterm elections and against the wishes of GOP leadership.
The final congressional signatures are likely to be added to a proposal in the next 36 hours that would bypass the wishes of House Speaker Paul Ryan and his deputies and ensure moderates a vote on immigration later this month.
But there’s a catch.
Moderates say they will continue to negotiate with party leadership and conservatives — even if they get enough support to force their own vote — in hopes that a different, Republican-only immigration deal can spare the party leaders from an embarrassing and free-wheeling debate on the floor expected to benefit a bipartisan deal heavily supported by Democrats, while still delivering the immigration vote moderates need.
The House Republican infighting on this issue highlights how divisive immigration is to Republicans in Congress, particularly on questions of whether to support a pathway to citizenship for some undocumented immigrants as well as what to pair with it beyond a border wall, including substantial changes to the legal immigration system. The fight has also tested the power of leadership keeping moderates and conservatives at the negotiating table for weeks even while progress has seemed slow to nonexistent.
But as for staving off at least one key development, leadership’s time appears to be up.
The fireworks are expected to begin Tuesday. That’s the day members of the House return to Washington from the weekend and thus can physically sign a discharge petition, a rarely used and rarely successful House procedural maneuver that forces a vote on a bill (or in this case a series of bills) if half of House members sign on. It is also the last day the petition’s organizers believe they have to get all the signatures if they want to hold the series of immigration votes before the end of the month.
Given Sessions’s daily, indeed nearly hourly, assaults on the law, the Constitution, and human values, sometimes it’s hard to remember that other stuff is going on.
Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules
By Tal Kopan, CNN
She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.
The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.
According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”
Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.
But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.
Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.
“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.
Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”
Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.
“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”
For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.
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Judge slaps Sessions, feds over ‘sanctuary cities’
By: Tal Kopan, CNN
A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.
The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.
The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.
Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.
House GOP immigration negotiations continue ahead of key Thursday meeting
By: Tal Kopan and Lauren Fox, CNN
House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.
“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.
Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.
On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.
Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!
Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”
Sessions, Justice Department take lead as public face of Trump’s immigration policy
By: Tal Kopan, CNN
If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.
“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.
“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”
Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”
Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”
Here’s a “reprise” of a previous March 2018 post from Nolan in The Hill explaining how the Special Immigrant Juvenile (“SIJ”) provisions of the I&N Act could be used to facilitate a compromise solution for “Dreamers.” It certainly would be “worth a look” by both sides!
Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes
By Lauren Fox and Tal Kopan, CNN
Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.
At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.
On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.
According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.
Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.
Trump calls for sweeping changes to US immigration legal process
By: Allie Malloy and Tal Kopan, CNN
President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.
“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.
“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.
Trump also questioned the process of immigrants going through the court system at all.
“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.
The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.
Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.
“I guess he has no belief in due process and the Constitution,” Lofgren said.
Comments run counter to Justice policies
At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.
To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!
House Speaker Paul Ryan in a closed-door meeting on Wednesday sought to discourage fellow Republicans from signing a measure that would force an immigration vote, members leaving the meeting said.
The pitch from Ryan to his party colleagues came as he faces an uprising from moderate GOP members who say time is running out for him to come up with a solution on immigration, adding they are tired of waiting for action.
Rep. Bill Flores paraphrased the speaker as telling Republicans to “quit messing around with the discharge petition” and that it’s “not a path to success.”
“He just said a discharge petition is not a path to success if you really want to do something on immigration,” Flores told reporters.
Other members and Flores said Ryan told his colleagues that he met with President Donald Trump the day before and that leadership and the White House were working on a plan that could ultimately pass both chambers of Congress and get the President’s signature. But he did not offer specifics, the lawmakers added.
A group of moderate Republicans are backing a plan to bypass GOP leaders by forcing a floor vote on four competing bills to preserve the Obama-era DACA program, which protected young undocumented immigrants who came to the US as children. Trump has decided to end the program, though it’s currently tied up in the courts.
The move, called a discharge petition, currently has 18 Republican supporters. If 25 GOP members and all House Democrats sign the petition, it would force the vote.
Ryan in his weekly news conference similarly did not offer specifics on the plan, saying his team is “working on it.”
Lawmakers who support DACA say they ‘already have the votes’ to force House debate
By: Tal Kopan, CNN
An effort to force a House vote on immigration didn’t pick up any new supporters Tuesday night, but its backers say they are already sure it will reach enough signatures to hit the floor.
“We are extremely confident we already have the votes,” Republican Rep. Jeff Denham of California said as he walked onto the House floor for the first votes of the week, which was the first opportunity lawmakers had to sign the measure since last week.
He walked into the Capitol with Republican Rep. Carlos Curbelo of Florida, who filed the so-called discharge petition on Denham’s rule, which brings a floor vote on the Deferred Action for Childhood Arrivals policy. DACA protected young undocumented immigrants who came to the US as children, but President Donald Trump has decided to end it, though courts have temporarily paused that plan.
The two lawmakers are leading the charge among a group of moderate Republicans who are bucking their party leadership to push forward the petition, which circumvents leadership and the committee process.
If the petition can pick up 25 Republican signatures and those of every Democrat in the House, leadership would be forced to call four bills to the floor that address DACA. It currently has support from 18 Republicans and one Democrat, who signed earlier than the rest of her party last week because she expected to be out all of this week. The petition’s backers still expect to hit the number of signatures this week.
Denham’s rule would provide for debate and votes on four different immigration-related bills. One would be a bipartisan compromise, one would be a hardline bill supported by conservatives, one would be a Democratic bill to authorize just a version of the DACA program into law and one is completely up to House Speaker Paul Ryan — leaving him free to choose any bill.
Leadership, however, is whipping against the measure, asking moderates to not sign it and emphasizing the importance of House Republicans keeping control of legislation and solving the problem on their terms, according to a Republican leadership aide.
On Tuesday, House Speaker Paul Ryan, R-Wisconsin, and Majority Leader Kevin McCarthy, R-California, traveled to the White House “to continue the conversation about addressing our broken immigration system,” Ryan’s spokeswoman AshLee Strong said in a statement.
DHS secretary defends separating families at the border
By Tal Kopan, CNN
Homeland Security Secretary Kirstjen Nielsen on Tuesday defended an agency policy that will result in more families being separated at the border, saying, under a barrage of questions at a Senate hearing, that similar separations happen in the US “every day.”
But Nielsen also agreed with senators that more must be done to protect the children who either come to the US without their parents or are separated from them.
Nielsen was testifying Tuesday at a Senate Homeland Security and Governmental Affairs Committee hearing, where lawmakers on both sides of the aisle raised concerns about what happens to immigrant children who end up in the custody of DHS, who — by law — transfers such minors to the custody of Health and Human Services within two days.
“Once you start taking these children, please, I don’t think any record should reflect that somehow, you are confident or anybody is confident that they’re being placed in a safe and secure environment,” said Sen. Claire McCaskill, the top Democrat on the committee.
Nielsen said the department has recently instituted a policy that it will refer everyone caught crossing the border illegally for prosecution, even if they are claiming they deserve asylum or have small children. Any parents who are prosecuted as a result will be separated from their children in the process.
Nielsen said similar things happen in the criminal courts in the US “every day.”
Re DACA: I’d never estimate the ability of the Freedom Caucus, Chairman Goodlatte, GOP restrictionists, and the White House to throw a monkey wrench in any sensible DACA resolution.
RE Kiddie Detention (a/k/a “Government Sponsored Child Abuse”):
Sorry KN, but this isn’t really what happens “every day in criminal courts in the U.S.”
Most first time misdemeanor offenders are either:
Not charged at all;
Sent to a pretrial diversion; or
Released on recognizance or a minimal bond.
Most criminal court judges in the US try very hard to avoidsituations where children have to be placed in government custody, for both cost and humanitarian reasons.
In one criminal case that actually was involved with, the sentencing judge made it a point to sentence the husband and wife, who both were convicted, to serve their terms consecutively so that the children would not be without parental custody and supervision.
Just another of the many examples of the Trump Administration “working to the lowest common denominator” rather than trying to use the power of the Federal government to elevate standards.
According to other reports in today’s news, the DHS is working to place migrant children on U.S. Military Bases. Wow, what a colossal abuse of both the justice system and the purpose of military bases!
KN and her sycophant colleagues will not be able to escape the judgment of history for what they are doing.
Also, kids have long memories. Look at what happened to all of the Catholic priests and their superiors who thought that they would be able to avoid responsibility for child abuse!
Helpless, abused kids eventually grow up to be angry, empowered, and motivated adults who will seek to expose and bring to justice their abusers and tormentors!
Here’s how lawmakers could force a DACA vote in the House
By Tal Kopan, CNN
A group of GOP moderates’ move to try force a DACA debate on the floor still has several hurdles to clear before they potentially reach any votes.
As of Thursday morning, 17 Republicans signed onto the petition. If all 193 Democrats join them, which is a possibility but not a given, they would still need eight more Republicans in order to hit 218 — a majority of the House.
One of the major driving forces of the effort, California Republican Rep. Jeff Denham, told CNN’s Ashley Killough Wednesday that he is confident in the effort and has asked Democrats to hold off on signing for now to avoid it looking like a Democratic bill.
The key questions:
Can it get enough votes?
It’s quite possible. There are a number of moderates who want to see action on this and conservatives could be wooed as a way to bring the hardline bill from Rep. Bob Goodlatte, R-Virginia, and others to the floor, which GOP leadership has been sitting on because it lacks the votes.
One source told CNN their sense is leadership is concerned this petition could very well succeed.
Then what?
According to the authors of this effort, a discharged bill can be considered on the second and fourth Mondays that the House is in session, and signatures must be completed seven legislative days in advance. Based on the calendar, the earliest this could likely come together appears to be June.
House Speaker Paul Ryan could also opt to call it for floor time on his own.
Rather a surprising development in my view. I suppose it’s a helpful reminder that not all Republicans are like Sessions, Tom Cotton, Steven Miller, Steve King, Bob Goodlatte, Mike Pence, and Donald Trump. Except, how do decent human beings remain in a party that accepts, normalizes, and too often enables the likes of the foregoing? Seems like when “push comes to shove” Republicans usually line up behind the “worst of the worst.”
Republicans seek enough signatures to force DACA vote in House
By Tal Kopan, CNN
A group of Republicans are making good on their threat to attempt to force an immigration floor vote in the House — potentially paving the way for a showdown among proposals to save the Deferred Action for Childhood Arrivals program.
The lawmakers on Tuesday signed what’s known as a discharge petition — a procedural maneuver that can bring legislation to the House floor if it is signed by a majority of House members regardless of whether it has moved through committee, as is traditionally the case for most legislation. If the petition were to pick up enough supporters, it would set up a floor debate on four different immigration measures as early as June.
The move is unusual for members of the majority party, who are effectively going around House Speaker Paul Ryan to set up a vote on legislation that GOP leadership has refused to call to the floor for a vote. Still, the members insist they are making an effort to be deferential to leadership, by leaving one bill open to the speaker’s choosing.
The effort is being spearheaded by three moderate Republicans who have long been vocal about trying to save DACA, a program that protected young undocumented immigrants who came to the US as children — Reps. Will Hurd of Texas, Jeff Denham of California, and Carlos Curbelo of Florida. Curbelo officially introduced the petition Wednesday morning.
In an exclusive interview with CNN, the three moderates said the goal was to have a long overdue immigration debate without a predetermined outcome.
“This institution should be driven by courage, not by cowardice, and the goal should not be to suppress members from pursuing their legislative goals, it should be to empower each member, and that’s what we’re trying to do,” Curbelo said. “The goal is to empower each member of the House, including the speaker, to advance the solution that each member believes is the best one for this challenge and to try to gain supporters for that solution. So this is not in defiance of anyone.”
Looks like “Speaker Paul” — his real work of robbing the poor and middle classes to benefit the rich done — is losing his always tenuous grip on the House GOP. And, screwing around with unnecessary issues like trying to fire the House Chaplain didn’t help.
