"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.
Whatever happened to the “promise of Kasinga? How have Sessions & Barr attacked the international refugee definition? Does international law have any meaning for the U.S. today? All this and more in 15 minutes!
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See the “premier offering” from the “Courtside Video” broadcasting from our redesigned studio!
Thanks so much, Jason, for inviting me to do this! I hope your students find it useful! And, remember, I’m always available to answer questions at “Courtside.”
The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.
“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”
An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”
“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”
New roles
Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.
McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.
They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.
EOIR said its office first proposed that designation in 2000.
“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.
True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.
“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.
Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.
Faster hiring process
In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.
The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.
McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.
In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.
The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.
“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.
Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”
According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.
EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.
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Read Tanvi’s full article at the link.
Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!
The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.
There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!
What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.
Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”
Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.
Even with tons of “undue deference” given to the BIAby the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.
The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”
INTERESTING HISTORICAL FOOTNOTE:The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.
Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:
Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:
April 28, 2020 HUMAN RIGHTS
Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul
The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
by Hon. Mimi Tsankov
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“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”
—Senator Sheldon Whitehouse
So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.
The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).
It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.
One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).
An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.
Thomas Cizauskas from Flickr
Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.
These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).
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Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.
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Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩⚖️👍🏼
The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.
These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.
While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!
Due Process Forever! Complicit Courts & Star Chambers, Never!
This November, vote like your life depends on it! Because it does!
Two things stand out about this outcome: first, the remarkable philosophical flexibility of the Court’s conservatives when their political allies appear before them. The case is only the latestinstance in which they have tacitly endorsed some of the president’s more aggressive legal arguments, legitimizing his use of anti-immigrant fearmongering as public policy.
As Professor Nancy Morawetz detailed at the ImmigrationProf Blog, the majority reached its conclusion by selectively applying rules for analyzing vague laws—rules that, if applied to Barton’s case, might have led to a different result. Conservative judges often argue for resolving ambiguities by focusing on the plain meaning of statutory text. As a result, they are supposedly reluctant to assume that any statutory language is redundant or superfluous. (When the Wisconsin Supreme Court’s conservatives decided Democratic Governor Tony Evers couldn’t postpone in-person voting during the COVID-19 pandemic, for example, they leaned heavily on this principle.) But here, the majority’s reasoning required treating part of the text as redundant. Kavanaugh barely bothered to address this divergence from prevailing conservative judicial philosophy: He simply stated that “redundancies are common in statutory drafting,” and that in this case, “the better overall reading of the statute contains some redundancy.”
“That is not the argument you would expect from the conservative wing of the Court,” Professor Morawetz wrote. “It is hard to walk away without the sense that there are different statutory interpretation rules at work for those who are powerful and those who are not.”
The majority and dissenting opinions also contrast sharply in the extent to which the justices considered the impact of their decision on Barton, his family, and other people like Barton whose fates this case determined. The majority begins with a recitation of his involvement with the criminal legal system, noting his convictions “on three separate occasions spanning 12 years.” Later, Kavanaugh takes care to name the substances—methamphetamine, cocaine, and marijuana—involved in the drug arrests, and describes the gun and assault convictions using lurid, cinematic language, explaining that Barton and a friend “shot up” an ex-girlfriend’s house. (This phrase is decidedly not a legal term of art.) Read together, these rhetorical flourishes evoke a familiar stereotype: a scary, drug-involved career criminal who is liable to start shooting at any moment.
The Barton described in Sotomayor’s dissent, which all four liberal justices signed, sounds like a different person altogether. She carefully lays out the facts of Barton’s early life, personal challenges, and subsequent accomplishments—valuable context that Kavanaugh and company conspicuously omitted. (The details about his background included in the beginning of this article come primarily from her opinion.) For example, it was Barton’s friend, Sotomayor notes, who actually fired at the ex-girlfriend’s house. In court, Barton testified that he didn’t know the friend even had a gun, let alone planned to shoot it.
The rest of the dissent fills in more of the blanks left by the majority. She writes about Barton’s stints in boot camp and rehab, and praises him for getting his GED diploma, graduating from college, and leading “a law-abiding life.” She notes that his drug convictions were for possession, not distribution, and linked them to his since-resolved dependency. She frames Barton’s three convictions against the backdrop of his 30 years in the United States, not the 12-year period in which they occurred. And she quotes the immigration judge who evaluated Barton’s initial application for mercy and badly wanted to approve it; he “is clearly rehabilitated,” the judge said, and his family “relies on him and would suffer hardship” if he were deported.
At every juncture, Sotomayor emphasizes the real-world implications of what the conservatives presented as a rather dry question of statutory interpretation: By the time immigration authorities put Andre Barton in removal proceedings, every member of his immediate family was living in America. Deporting him deprives his family of its primary provider, and sends him off to a country he hasn’t seen in decades.
Not until the very end of Kavanaugh’s opinion does he begin to grapple with the stakes of the case before him. “Removal of a lawful permanent resident … is a wrenching process, especially in light of the consequences for family members,” he wrote. “Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States.”
Just as quickly as he began to acknowledge Barton’s humanity, though, Kavanaugh returned to emphasizing the length of Barton’s rap sheet and the gravity of his transgressions. Congress chose to provide for the deportation of immigrants who commit “serious crimes,” he reasons, and to cut off those with “substantial criminal records” from the possibility of relief; the law, he writes, does not extend leniency to someone who “has amassed a criminal record of this kind.” Put differently, the Court’s conservatives are not responsible for what happened to Andre Barton; Barton, in their telling, did this to himself.
The exact words the justices use while resolving arcane questions about obscure immigration statutes may not seem significant. But when the choice the Court ultimately makes is so callously indifferent to the plight of vulnerable people, framing becomes a critical tool for defending their deliberative process. The decision in Barton v. Barr enables an unapologetically anti-immigrant president to deport longtime legal residents over events that took place years ago, breaking up families and depriving children of their parents and parents of their children. Kavanaugh knows this perfectly well; he acknowledges as much in his opinion. By sketching a two-dimensional portrait of Andre Barton as a dangerous ex-con and ignoring decades of growth and development since, Kavanaugh and the conservatives quietly absolve themselves of any moral obligation to think about it.
Jay Willis is a senior contributor at The Appeal.
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Read Jay’s complete article at the link.
Yup. No surprise to readers of Courtside.
While, as usual, I was willing to give J.R. and his merry band the “benefit of the doubt,” presuming at least some modicum of intellectual honesty and human decency regardless of philosophical disposition, I’ve been “onto” the judicial, intellectual, and moral fraud going on at our highest Court for some time now.
Yeah, on a few occasions (see, e.g., Pereira, Guerrero-Lasprilla) some members of “The Five” have had no choice but to recognize that there was no possible way to justify some aspects of the Administration’s vendetta against immigrants and asylum seekers. But, on the big questions, from the bogus “Travel Ban,” to the cruel, inhuman, and clearly illegal and unconstitutional “Let ’Em Die in Mexico” Program, to the illegal White Nationalist scheme to misapply “public charge” grounds to attack the health and welfare of ethnic communities, “The Five” have been out front on the White Nationalist movement to “Dred Scottify” and dehumanize “the other.”
To be fair, the BIA decision here Matter of Jurado-Delgado, 24 I&N Dec. 24 I&N Dec. 29 (BIA 2006), originated years ago, in the “Post-Ashcroft-Purge-Era” of the BIA, during the Bush II Administration. But, all that shows is that the BIA’s drift away from the most fair and humane interpretations of the immigration laws and toward “enforcement friendly jurisprudence,” has been going on for the last two decades, across three different Administrations. However, under Trump, Sessions, Whitaker, & now Barr that “drift” has now become a “mad dash to the bottom.”
Thanks to folks like Jay Willis, Professor Nancy Morawetz, and other lawyers, commentators, and journalists, history will not let the “J.R. Five” escape unscathed for their corrupt backing of “The New Jim Crow.”
Due Process Forever! Jim Crow & Complicit Supremes, Never!
Malathi Nayak Reporter Bloomberg NewsHon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.
With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.
“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”
While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.
The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.
‘Hobbesian Choice’
U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.
Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.
But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.
“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.
The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”
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Read the rest of the article at the link.
Nice quotes from Judges Tabaddor and Chase!
Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!
Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.
And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.
But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.
Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?
Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!
They arrive 24 hours a day in the Mexican border city of Reynosa, groups of men, women and children deported by the United States. Each time, at the edge of the international bridge, Ricardo Calderón Macias and his team get ready.
They put on masks and gloves. They prepare their thermometers and health forms. They wonder, sometimes aloud: Will anyone in this group test positive?
“We’re worried that eventually, with these deportations, we’re all going to get infected,” said Calderón, the regional director of the Tamaulipas state immigration institute.
Since the coronavirus struck the United States, immigration authorities have deported dozens of infected migrants, leaving governments and nonprofits across Mexico, Central America and the Caribbean struggling to respond.
[[Public health experts: Coronavirus could overwhelm the developing world]]
When some countries resisted continued deportations, U.S. officials said they would screen migrants slated for removal. But they did not commit to administering coronavirus tests. In many instances, the screenings, which consist primarily of taking a person’s temperature, have failed to detect cases. Even though overall deportations declined this month, the United States has returned thousands of people across the Western Hemisphere in April.
President Trump said late Monday he would “suspend immigration” to the United States. Even before that announcement, officials in the region were concerned about the deportations. Guatemala’s health minister spoke this month of the worrying number of infected deportees sent from the United States — the “Wuhan of the Americas,” he said.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
Mexicans just deported from the United States walk toward a repatriation building in Matamoros. (Veronica Cardenas/Reuters)
Mexico’s Tamaulipas state, across the Rio Grande from the southern tip of Texas, is receiving roughly 100 deportees per day, officials there say. In some cases, repatriation workers have noticed that deportees are visibly sick as they arrive. Those deportations are blamed for at least one new outbreak in a Mexican migrant shelter.
On Monday, the Mexican government asked the U.S. Department of Homeland Security to test deportees for the virus, but DHS has not committed to doing so, according to a Mexican official with knowledge of the conversations who spoke on the condition of anonymity to describe diplomatic talks.
In Guatemala, at least 50 deportees have tested positive, about 17 percent of the country’s total confirmed cases. Three-quarters of passengers on a deportation flight to Guatemala City last month were infected, according to the country’s Health Ministry. Guatemalan officials said last week they would suspend returns from the United States.
[[Coronavirus outbreaks at Mexico’s hospitals raise alarm, protests]]
In Haiti, the poorest country in the Western Hemisphere, three people sent back from the United States in early April have tested positive, officials said. The country has 62 ventilators for 11 million people. The Trump administration reportedly was planning another deportation flight to Haiti this week.
“Rather than be deported where they face serious harm if they fall ill and risk infecting thousands of others, they should be released from detention into the care of their friends and families so that they may safely quarantine,” a coalition of 164 human rights and religious organizations said in an open letter pleading for suspension of deportations.
Health workers carry supplies delivered by family members to a temporary shelter for Guatemalan citizens deported from the United States in Guatemala City. (Moises Castillo/AP)
In Mexico over the past week, two deportees tested positive for the virus. Calderón’s team spotted a deportee in Reynosa who was visibly ill, with a dry cough, red eyes and a fever. They wondered how the man, who arrived from Atlanta, had made it through U.S. health screenings.
A second man was deported to Nuevo Laredo from Houston “without knowing he was a carrier of the virus,” the Tamaulipas state government said in a statement, and was sent to a migrant shelter in the city.
That case apparently prompted an outbreak in the shelter, Casa del Migrante Nazareth; 14 others have since tested positive.
“The risk we face is bringing a massive contagion into our own country,” said Raúl Cardenas, the city manager of Nuevo Laredo. “We’re mortified that these deportations are continuing.”
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Read the rest of the article at the link.
Not only are Trump’s immigration diversions racist and inappropriate, they are dangerous and threaten unnecessarily to spread the pandemic. Unwilling and unable to address the real needs of the American people during the pandemic (see, e.g., tests, aid to states, speaking truth, encouraging compliance with “best practices”) Trump diverts our resources on controversial and counterproductive measures while diminishing our national humanity and surrendering our world leadership.
This November, Vote ‘Em Out. End The Deadly ☠️ Trump/GOP Clown Show 🤡!
April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonderthe “Chief Clown” needs to shift attention to “the usual suspects.”
Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.
Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.
Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.
Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.
Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.
The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.
According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.
While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.
WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.
House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”
“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.
Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.
Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”
. . . .
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Read Rebecca’s full article at the link.
Due Process Forever. The White Nationalist Kakistocracy Never!
NEW YORK — Dr. P. has to be reminded to take breaks during her 12-hour emergency-room shifts — to drink water so she doesn’t get dehydrated; to go to the bathroom; even just to breathe for a few minutes alone, unencumbered by layers of sweaty, suffocating personal protective equipment.
It can be hard to remember to pause because there’s too much to do. Too many patients, everywhere, wheezing and gasping for air. Even before the ER was overwhelmed, she had been reluctant to step away. In mid-March, as patients were surging into emergency departments, she requested to cancel some scheduled time off.
“I asked to keep working, rather than just sit at home and do nothing,” she said. “It’s a helpless feeling sitting at home, knowing that things are getting worse at the hospital.”
But if the Supreme Court lets the Trump administration have its way, she might have to stop her lifesaving work, permanently.
[[Full coverage of the coronavirus pandemic]]
P. is a “dreamer,” one of the 825,000unauthorized immigrants brought to the United States as children who have received protection under the Deferred Action for Childhood Arrivals program. (I’m using only her last initial because she fears attracting attention to her family, which is still undocumented.)
DACA, created by the Obama administration in 2012, shields these young immigrants from deportation and allows them to work. An estimated 29,000 are health-care workers like P. and on the front lines of the coronavirus pandemic.
After the Trump administration announced in 2017 that it planned to terminate the program, one of the more prescient outcries came from the medical community. In a Supreme Court filing, a consortium of medical colleges and aligned groups warned that the industry depends heavily on not just immigrant workers but specifically on DACA recipients, and that ending DACA would weaken the country’s ability to respond to the next pandemic.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
For now, those who had DACA protections before the legal battles began are able to continue renewing them while the courts deliberate. For people such as P. — and the patients who rely on her care — this has been a godsend, if an imperfect one given her career choice.
The education and training required to become a doctor are an exceptionally long undertaking, and DACA offers only two years of protections before renewal is required (though it was never guaranteed). There was always a chance she might not be able to actually practice medicine after years of schooling and taking on hundreds of thousands of dollars in student debt.
Still, P. committed herself to finding a way to become a doctor. She applied for and received DACA status, completed college (in three years, to save money) and persuaded a highly ranked medical school to give its first-ever slot to a dreamer.
She’s in her first year of residency in emergency medicine. Each day, after she takes off her protective gear and attempts to wash off both “the virus and the fear,” she goes home and worries about whether she will be allowed to complete her residency. Losing DACA would mean losing her ability to repay her loans, treat desperate patients, even stay in the only country she has ever known. She’s been here since age 2.
She’s on edge, waiting for the Supreme Court to decide whether the way the Trump administration ended DACA was lawful. Tremendous uncertainty surrounds the range of possible outcomes, from no changes at all to every DACA recipient losing protections immediately. In oral arguments last fall, Chief Justice John G. Roberts Jr. suggested terminating DACA would result in dreamers losing their work authorization but that deportation was not at issue; Trump administration officials have since made clear they are, in fact, reopening removal proceedings.
. . . .
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Read the forested of Catherine’s article at the link.
The lower Federal Courts unanimously did the right thing here by protecting the Dreamers from irrational Executive overreach based on an invidious racially-tainted White Nationalist agenda and a transparently bogus legal rationale. There was no reason for the Supremes to even take the case. Dismissing the Government’s poorly reasoned, bad faith case against the Dreamers should be a “no brainer” for the Supremes. The lower court decisions provide numerous solid reasons for doing so.
Nevertheless, to date, J.R. and his GOP colleagues have yet to find a White Nationalist immigration policy by the Trump regime that they didn’t “greenlight.” If, as expected, they do it again here, the results for both America and the Dreamers will be horrendous.
ICE Releases 8 of 14 Petitioners 24 Hours After RMIAN & Advocates File Lawsuit To Order Release of Medically-Vulnerable People in ICE Custody
In just 24 hours, ICE released 8 of the 14 petitioners in the lawsuit. All 8 are women living with HIV.
April 15, 2020
Denver — After the lawsuit filed by Arnold & Porter, the National Immigration Project of the National Lawyers Guild (NIPNLG), and the Rocky Mountain Immigrant Advocacy Network (RMIAN) for the release of 14 medically-vulnerable people in civil immigration detention at the Aurora ICE Processing Center in Colorado yesterday, ICE officials released 8 of the 14 petitioners within 24 hours.
The 8 people released from immigration detention are all people living with HIV. “RMIAN is elated to see the release of these eight resilient women” says Laura Lunn of the Rocky Mountain Immigrant Advocacy Network. “Yesterday, our clients were trapped in a cage that stripped them of any autonomy over their personal safety and wellbeing. Today, these women are finally able to protect themselves. It is astonishing the difference a day – and a federal lawsuit – makes.”
RMIAN Social Service Project, along with many community organizations, including the American Friends Service Committee, Casa de Paz, the Santa Fe Dreamers Project, and Las Americas, are receiving the women upon release and providing food, housing, and travel assistance. Jordan Garcia, Colorado Program Director of the American Friends Service Committee states, “COVID-19 unmasks how caging people threatens public health. As a society, we cannot treat anyone as expendable. Today we are relieved and heartened that these women were released into the hand of caring community, who can make sure that their needs are taken care of. We hope that more members of our community can be released in the coming days and weeks.”
“This is a great result for many of our clients, but our work is not done” said Tim Macdonald, pro bono counsel at Arnold & Porter. Co-counsel in the case will continue to fight for release of the 6 petitioners who remain detained, all of whom have medical vulnerabilities that make them especially susceptible to serious illness or death should they contract COVID-19. Adrienne Boyd, also of Arnold & Porter, urged, “There is no reason for ICE to continue to detain our remaining clients. Their lives are on the line and they should be released as soon as possible.”
The lawsuit fits into a broader movement of litigation around the country asking federal judges to order release of vulnerable people detained in ICE custody in response to ICE inaction in the midst of the COVID pandemic. Sirine Shebaya, of the National Immigration Project of the National Lawyers Guild, explains, “We are thrilled that our 8 clients have been released after the filing of this lawsuit. But it should not have taken emergency litigation to achieve this outcome. Their quick release shows that ICE is fully capable of releasing people, and is aware of the special vulnerabilities affecting many of those it is currently detaining, but is not taking the actions it should unless compelled to do so. That is the same pattern we are seeing across the country—a refusal to acknowledge the extreme emergency and the immediate need to release persons who are detained so they can safely self-isolate during this difficult time.”
Co-counsel’s emergency filing urges the court to take up the case on an expedited basis, in light of the grave harm that could befall the people detained at any moment.
The lawsuit cites the severe risk the COVID-19 pandemic poses to the health and safety of the petitioners, who all have serious medical vulnerabilities. The ICE detention facility in Aurora, Colorado has failed to put in place CDC-recommended preventive measures, and is unable to provide adequate medical care in the event of an outbreak at the facility.
Detained people do not have personal protective equipment or cleaning supplies other than a generic bath bar and spray solution. Five staff members who work in the facility have tested positive for the virus, and several dorm units in the facility were placed under quarantine. Given the presence of the virus among the facility staff, attorneys say it is reasonable to suspect that detained individuals have already been exposed and that serious illness or death is inevitable for many immigrants and asylum seekers confined in the facility.
The clients included in this group all experience serious health issues, including respiratory illness, diabetes, high blood pressure, heart conditions, cancer, asthma, and otherwise severely compromised immune systems. One petitioner has a history of cancer, is living with only one lung, and has chronic asthma, yet she is unable to control her contact with the outside world given that she is currently detained. Attorneys say coronavirus quarantines have exacerbated the already dire conditions in the ICE facility.
Co-counsel in the case are Timothy Macdonald, Adrienne Boyd, Katie Custer, and Sarah Grey of Arnold & Porter, Sirine Shebaya, Khaled Alrabe, and Amber Qureshi of the National Immigration Project of the National Lawyers Guild, and Laura Lunn of the Rocky Mountain Immigrant Advocacy Network.
——
The case is Codner v. Choate and was filed in federal district court in Denver on April 14, 2020.
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As the current system flounders, wastes resources, and threatens lives, let’s imagine what a better system would look like.
Article I Independent Immigration Court
Appellate Division issues nationwide precedent requiring release of most vulnerable detainees who are not dangerous and can be safely placed in communities consistent with best health guidance;
Immigration Courts use Televideo technology and e-filingto safely hold bond hearings and insure DHS compliance with criteria in individual cases on expedited basis;
Contempt authority available to insure that DHS officials and attorneys comply with legal requirements for release in good faith;
Article III review available for the limited number of individual cases that can’t be resolved by Article I Immigration Court.
Jacqueline Thomsen Courts Reporter National Law Journal
DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’
Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.
Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.
. . . .
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Those will full access can go over to the NLJ for Jacqueline’s complete article.
With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C.
I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic.
And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.
What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards.
Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.
With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.
How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️
Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:
MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.
Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.
But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.
Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.
But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.
“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”
In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.
The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.
A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.
The U.S. Department of Homeland Security did not respond to requests for comment.
. . . .
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Read the rest of the article at the link.
For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.
Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t.
Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering theTrump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.
Due Process Forever! Malicious Incompetence Never!
The novel coronavirus has been particularly harsh on immigrants. After facing years of harassment and persecution from the Trump administration, the 11 million undocumented immigrants living in the United States have now been left unprotected, unable to receive aid from the government’s historic stimulus package, even though they pay billions of dollars in taxes every year
Local and state officials, especially those in immigrant-friendly states such as California, are scrambling to find a way to help their undocumented communities, but it might not be enough. Without appropriate federal support, prompt access to more effective unemployment benefits or paid sick leave for those in need, many communities could be devastated. Left with the agonizing decision of going to work in the midst of a pandemic that requires strict limits on public movement or see their livelihood disappear, many undocumented people are already risking their health.
[Full coverage of the coronavirus pandemic]
This is a travesty. Undocumented immigrants are productive members of society who deserve all the care afforded to others.Even this administration has deemed workers who harvest and process the country’s food supply as essential, asking them to keep their “normal work schedule” during the crisis. “It’s like suddenly they realized we are here contributing,” Nancy Silva, an immigrant from Mexico who works in the fields of Southern California, told the New York Times. “Contributing” is an understatement. The immigrant workforce is critical for a significant number of industries in the United States.
In June, I interviewed John Rosenow, a Wisconsin dairy farmer who has relied on Mexican immigrants for years. “Our industry doesn’t exist without immigrant labor,” he told me. “Eighty percent of the milk in Wisconsin is harvested by immigrants. If you took the immigrants away, way over half of the farms would go out of business.” Wisconsin’s dairy industry is not alone in its dependence on immigrant labor. Indeed, almost 20 percent of food processing workers and more than 36 percent of agricultural workers are undocumented. The health-care industry relies heavily on immigrants as well,as do the country’s construction and service businesses.
. . . .
Martínez worries that a protracted economic crisis could worsen the nativist backlash against immigration. “If things continue this way,” he said, “we could see further restrictions on work or entrepreneur visas, no matter the obvious contributions we all make to the economy.”
The United States will be worse for it, both morally and economically.
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Read the complete op-ed at the link.
The well-being of the United States as a whole has never been a part of the Trump agenda. Nor is it for the White Nationalist restrictionists who promote his immigration agenda. Their agenda is based largely on racist myths and preconceived false narratives about the dangers of the “other.”
But, in any emergency creating an economic downturn there will be a race to find “scapegoats.” Indeed, essentially “caught red-handed and in full view in failure,” Trump is desperately looking to shift the blame elsewhere for his Administration’s poor initial response and lack of planning. “With great power comes no responsibility” could be his motto.
The nativists are already toting out their shopworn arguments that the pandemic should be an excuse and justification for yet harsher and more restrictive immigration measures. The rest of us need to fight back against their counterproductive nonsense.
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
. . . .
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Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
ENSHRINED IN law for four decades, the system that allows persecuted migrants to seek refuge in the United States has survived sustained assaults since the Trump administration took office. Now Mr. Trump, having weaponized a public health crisis to ignore long-established statutes, rules and procedures, has finally managed to crush it.
For the past three weeks, virtually every category of migrant without papers has been turned back at legal ports of entry along the southern border or expelled immediately upon apprehension by border agents; 10,000 have been thrown out so far in the crisis. They include minors who may have been trafficked and asylum seekers, individually or in families, who may face persecution in their home countries. Immigration courts are suspended, deportation procedures have been ditched, and due process is a thing of the past.
For years, President Trump has disparaged unauthorized migrants as disease carriers, with paltry evidence. Now he justifies the brutal measures, imposed March 21, by insisting that in the midst of a pandemic, migrants could ignite a “perfect storm” of contagion that would endanger border agents, the health-care system and the public. “Left unchecked,” he warned, they could even “cripple our immigration system” — the very immigration system he has tried by every means to dismantle since taking office.
[[Full coverage of the coronavirus pandemic]]
The evidence for that is, so far, scant; a hundred times more people have tested positive for the coronavirus in the United States than in Mexico, El Salvador, Honduras and Guatemala combined — the countries of the overwhelming majority of migrants at the southern border. That adds weight to the suspicion that Mr. Trump, contemptuous of what he calls “the worst immigration laws ever,” is obliterating them through the legally dubious means of a health emergency measure enacted in 1944.
It is reasonable in the face of this pandemic to exercise extreme caution in screening those who are admitted to the United States, and even barring most foreign travelers from Western Europe and China, some of the world’s most ravaged regions. It’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.
Mr. Trump had severely tightened asylum procedures before the pandemic but had not, and could not, expunge the possibility that migrants with reasonable asylum claims could apply and be heard in court. Respecting those asylum procedures, like respecting civil liberties, presents few challenges during prosperity and peacetime. It is more difficult, and requires political courage, when the country is reeling economically, and on what amounts to a war footing, as it is today.
Yet it is precisely in times of emergency that any country faces its most severe tests — ones that call into question the nation’s essential character and values. It shames itself when it fails to live up to those qualities and values, as the United States did when it forcibly imprisoned more than 100,000 Japanese Americans in internment camps during World War II. That is what Mr. Trump is doing now by betraying this country’s long tradition as a beacon to those fleeing oppression.
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Four decades of progress, uneven and imperfect as it was, in implementing the Refugee Act of 1980 undone in less than four years. Notably, Trump obliterated the Act without Congressional participation. Also, he took advantage of the Supremes failure to force the Executive to comply with the letter and spirit of its landmark 1987 decision in INS v. Cardoza-Fonseca establishing a generous, humanitarian reading of the “well-founded fear” standard for asylum seekers under the Refugee Act of 1980. When the Executive can simply eliminate laws he doesn’t like without Congress and without effective resistance from the Supremes, democracy is definitely on the ropes.
The “mainstream media” is finally picking up on what the “New Due Process Army” and Courtside have been saying for the better part of three years. And, the dissolution of American democracy started with the assault on immigration and refugee laws. But, it won’t end there unless we vote the regime out in November and start rebuilding an America that honors Due Process, the rule of law,competency, and the dignity and rights of all humans.
Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!
