"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.
“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?
These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.
Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.
Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.
Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.
And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.
Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”
But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.
The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.
Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.
. . . .
Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.
Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”
Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.
“Will President Trump’s assault on the norms underpinning constitutional democracy permanently alter American political life?
On a daily basis, Trump tests the willingness of the public to accept a president who lies as a matter of routine. So far, Trump has persuaded a large swath of America to swallow what he feeds them.
. . . .
As Sasha Polakow-Suransky, the author of “Go Back to Where You Came From: The Backlash Against Immigration and the Fate of Western Democracy,” warns in The New York Review of Books:
Liberal democracies are better equipped than authoritarian states to grapple with the inevitable conflicts that arise in diverse societies, including the threat of terrorist violence. But they also contain the seeds of their own destruction: if they fail to deal with these challenges and allow xenophobic populists to hijack the public debate, then the votes of frustrated and disaffected citizens will increasingly go to the anti-immigrant right, societies will become less open, nativist parties will grow more powerful, and racist rhetoric that promotes a narrow and exclusionary sense of national identity will be legitimized.
The threat to democracy posed by the current outbreak of populist nationalism has become a matter of concern for both scholars and ordinary citizens. The central topic at a conference at Yale earlier this month was “How Do Democracies Fall Apart,” and the subject will be taken up again in November at a Stanford conference called “Global Populisms: A Threat to Democracy?”
I contacted several of the participants at the Yale gathering and was struck by their anxiety over the future prospects of democratic governance.
One of the most insightful was Adam Przeworski, a political scientist at N.Y.U., who has written, but not yet published, his own analysis of current events under the title “What’s Happening.”
First and foremost, Przeworski stresses,
there is nothing “undemocratic” about the electoral victory of Donald Trump or the rise of anti-establishment parties in Europe.
These parties and candidates, he points out:
Do not advocate replacing elections by some other way of selecting rulers. They are ugly — most people view racism and xenophobia as ugly — but these parties do campaign under the slogan of returning to ‘the people’ the power usurped by elites, which they see as strengthening democracy. In the words of a Trump advertisement, “Our movement is about replacing a failed and corrupt political establishment with a new government controlled by you, the American people.”
In support of Przeworski’s argument, it is clear that the success of the Trump campaign in winning the Republican nomination was the result of a classic democratic insurgency: the Republican electorate’s rejection of its party’s establishment.
The danger in the United States, in Przeworski’s view, is the possibility that the Trump administration will use the power of the presidency to undermine the procedures and institutions essential to the operation of democracy:
That the incumbent administration would intimidate hostile media and create a propaganda machine of its own, that it would politicize the security agencies, that it would harass political opponents, that it would use state power to reward sympathetic private firms, that it would selectively enforce laws, that it would provoke foreign conflicts to monger fear, that it would rig elections.
Przeworski believes that
such a scenario would not be unprecedented. The United States has a long history of waves of political repression: the “Red Scare” of 1917-20, the internment of Japanese citizens during World War II, the McCarthy period, the Nixon presidency.
Along similar lines, Anna Grzymala-Busse, a political scientist at Stanford, replied by email to my inquiry:
My big worry is not simply that formal institutions have been eroded, but that the informal norms that underpin them are even more important and even more fragile. Norms of transparency, conflict of interest, civil discourse, respect for the opposition and freedom of the press, and equal treatment of citizens are all consistently undermined, and without these the formal institutions become brittle.
Trump, in Grzymala-Busse’s assessment, “articulates a classic populist message that we see in Europe: the elite establishment is a collusive cartel uninterested in the problems of ‘the people,’” and, she continued, he has begun to follow the path of European populist leaders:
Much of Trump’s language and actions are also familiar: there is a standard authoritarian populist template, developed in Hungary and faithfully followed in Poland and in Turkey: first, go after the courts, then the media, then the civil society, churches, universities.
The attacks on the courts, media and universities
are not simply the ravings of a lunatic, but an established strategy for undermining democratic oversight and discrediting the opposition.
Trump takes his own particular combination of ignorance, bluster and malice, and sets it off like a nuclear bomb of misinformation. The fallout spreads throughout the country, and no volume of corrections and fact checks can stop it. It wasn’t even part of a thought-out strategy, just a loathsome impulse that found its way out of the president’s mouth to spread far and wide.
Trump’s recklessness is disturbing enough on its own. But what makes it especially threatening is that much of the public — well beyond the 40 percent of the electorate that has shown itself to be unshakable in its devotion to the president — seems to be slowly accommodating itself to its daily dose of the Trump reality show, accepting the rhetorical violence that Trump inflicts on basic standards of truth as the new normal.”
*********************************************
Read Edsall’s full, much longer, article at the link.
An immigration policy based on xenophobia, racism, and White Nationalism, rather than on any rational, generally accepted socio-economic analysis, is at the heart of the Trump–Bannon-Sessions-Miller attack on America’s democratic institutions. As I said earlier today, “The Trump Administration, and its ‘fellow travelers’ among GOP politicos and voters, is the biggest threat to our national security and the future of American Democracy.”
“A decline in emergency room visits and calls to the police isn’t good news; people are just afraid to ask for help. A domestic abuser will threaten to call Immigration and Customs Enforcement if his spouse threatens to call the cops. A social worker at Las Americas, a public high school for immigrants in Houston, told me despair has set in. Instead of helping families cope with living in the nation’s fourth-largest city, she helps them plan for “when you are deported how can you stay alive the longest.” The students tell her: “Nobody wants me. I have no home.”
They are not wrong; the point of the federal and state legislation is to make Texas so uncomfortable for the undocumented that they move on. I suppose this makes sense if, say, you are constantly faced with competition from the far right, which every Republican, including Gov. Greg Abbott, is. Or if you have seen the growing Latino majority in Texas and know that it isn’t securely nestled in the Republican fold.
But it doesn’t make sense if you are looking at a state whose work force was shrinking even before the devastation of Hurricane Harvey. The people who came to rebuild New Orleans after Hurricane Katrina aren’t feeling the love here. Why should they?
“There are 47 other states that would love to see Texans fall on their butts,” Stan Marek, who has been in construction for years here, told me. Unless we have fair and sane immigration reform, like the “ID and Tax” plan many business leaders here support because it offers fair wages and work-visa status, our immigrants will vote with their feet, and businesses will follow.
That’s the price for trading a welcome mat for an ankle bracelet.
Mimi Swartz, an executive editor at Texas Monthly, is a contributing opinion writer.”
A microcosm of the bias-driven stupidity of the whole Trump-GOP Restrictionist “gonzo” immigration enforcement program. What would really be fitting is if the loss of immigrant population and the businesses that depend on them eventually cost Texas some of those extra Congressional seats that they swiped from the Northeast as a result of undocumented residents and then proceeded to gerrymander to “lock out” Latinos from getting their “fair share of the pie.” Not to mention that the anti-Latino bias in the Texas GOP is in derogation of Supreme Court precedent, which holds that even those state residents without legal status or otherwise ineligible to vote, are entitled to have their interests represented by their legislators (hence the rationale for allowing extra representatives for undocumented population). “Fat chance” in Texas! The Texas GOP routinely ignores the interests its Latino U.S. citizens as well as its Latino non-citizen residents.
“A form of legal immigration status will expire soon for 300,000 Haitians and Central Americans residing legally in the United States, some for nearly two decades, but the Trump administration has given little indication it plans to renew the benefit.
The immigrants have been allowed to live and work in the United States under a program called Temporary Protected Status (TPS) that shields some migrants from deportation if their nations are stricken by natural disasters, civil wars or other calamities.
Permission to stay must be periodically renewed by the Department of Homeland Security, and in the coming weeks, the agency will decide the fate of about 195,000 Salvadorans, 57,000 Hondurans, 50,000 Haitians and 2,550 Nicaraguans. Once the protections lapse, those immigrantswould be subject to deportation.
Their predicament is not as well known as the “Dreamers” who have been allowed to stay under the Deferred Action for Childhood Arrivals (DACA), the program that Trump is canceling. But an end to TPS protections could have wide-ranging consequences, especially in cities such as Los Angeles, Miami, Houston and Washington, where many of the beneficiaries and their U.S.-born children reside.
Democratic lawmakers and advocacy groups are urging the administration to extend the TPS protections, warning that the humanitarian and economic costs of expelling so many long-term U.S. residents would be steep.
Moreover, they say, the countries remain crippled by violence, disease and poverty, and the abrupt loss of the cash remittance payments the immigrants send from the United States would deal a heavy blow to those nations’ feeble economies.
. . . .
But like the DACA debate, the TPS decision has become a proxy for a broader argument about immigration and the enforcement of U.S. laws. The Trump administration has been signaling it wants to break with its predecessors and appears to want to make a statement, said Doris Meissner, the top immigration official under the Clinton administration,
“The deeper point is they don’t want people here from other countries for humanitarian reasons,” said Meissner, now a senior fellow at the Migration Policy Institute in Washington. “They don’t see these various elements of immigration policy as particularly positive for the U.S., or as a broader expression of our values and image in the world.”
*************************************************
Read the complete article at the link.
Sending folks who are living here legally back to countries in turmoil is a terrible idea, from a humanitarian and a practical standpoint. What would make sense is to offer them some type of legal status. As I’ve pointed out before, even if TPS is revoked, few of these folks are going anywhere soon. With more than 630,000 pending cases in U.S. Immigration Court and the Administration pledged to mindlessly throw many more into the morass, few current TPS holders would be likely to get merits hearings before the end of Trump’s current term.
This is an Administration largely devoid of humanitarian instincts and commitments. Not so much common sense and practicality either.
“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.
. . . .
Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”
**********************************************
Read Stern’s complete article at the above link.
Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!
HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES (FULL DISCLOSURE: I am a Retired Member of the NAIJ)
NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017
“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.
Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.
THE SOLUTION
While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court
system….” xviii
The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.
6
NAIJ CONCERNS RE QUOTAS
AILA Doc. No 17102062. (Posted 10/20/17)
We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.
We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.
Thank you.
FOR ADDITIONAL INFORMATION, CONTACT
THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th Floor
Los Angeles, CA 90014 (310)709-3580 ashleytabaddor@gmail.com www.naij-usa.org
Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges
“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.
16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.
17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)
18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”
Read this entire memorandum at the following link:
Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?
In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.
As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.
“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.
The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.
If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.
“It’s a miracle that I am alive to tell this story,” the supervisor said.
Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.
“They ran from the police because they were terrified,” she said. “They panicked.”
A truce ends
President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.
“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.
The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.
On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.
Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.
The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.
The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”
The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.
Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.
The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.
“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.
The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.
“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”
This is only a small part of a lengthy article which is available at the above link.
This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.
“Attorney General Jeff Sessions Delivers Remarks About Carrying Out the President’s Immigration Priorities
Austin, TX
~
Friday, October 20, 2017
Remarks as prepared for delivery
Thank you for that kind introduction Richard. You’ve been a crime fighter here in this office for over three decades. Thank you for your dedicated service.
I would also like to thank and recognize our selfless and dedicated law enforcement here who put their lives on the line every and who run toward danger for the benefit of us all.
On behalf of President Trump, it is an honor to be here with you all – with the selfless and courageous men and women of law enforcement. President Trump and this Department of Justice understand your mission. The President has directed us to support that mission and support you. And we are committed to doing that.
Donald Trump ran for office as a law-and-order candidate and now he is governing as a law-and-order President. Under his strong leadership, we are finally getting serious about crime and the rule of law. And we are finally getting serious about illegal immigration.
We have the most generous immigration laws in the world. And for decades we have always pulled back from effective enforcement.
But earlier this month, the President released his principles for fixing our immigration system. Let me just say: they are a breath of fresh air. For decades, the American people have been begging and pleading with our elected officials for an immigration system that is lawful and that serves our national interest. Now we have a President who leads.
The principles he laid out deal with every aspect of our immigration problems—everything from border security to interior enforcement to closing loopholes in our asylum program. It’s the kind of bold agenda that the American people have been waiting for. It is reasonable and it will work. And this is a critical point: this is not hopeless; it can be done!
First of all, the President is determined to finally build a wall at our Southern border. This will make it harder for illegal aliens to break into this country. For many, they will decide not to come illegally. But more importantly, the wall will send a message to the world that we enforce our laws. It sends a message: finally we mean it.
And to better do that, President Trump has proposed hiring more than 10,000 new ICE officers, 1,000 new ICE attorneys, 300 new prosecutors, and nearly 400 new immigration judges. He has proposed switching to a more merit-based system of immigration like they have in Canada. That means welcoming the best and the brightest but turning away gang members, fraudsters, drunk drivers, and child abusers. This merit-based system would better serve our national interest because it would benefit the American people. That’s what this agenda is all about. We can’t accept everybody—only people who will flourish.
And that’s why the President supports mandating the use of the E-verify system, which is an internet based system that allows employers to verify that those they hire are authorized to work in the United States.
Under the President’s plan, it would be illegal to discriminate against American workers in favor of foreign workers.
We need this agenda. And Texans know that better than just about anybody.
I’m sure everyone in this room remembers Houston police officer Kevin Will. An illegal alien who had been deported twice drove drunk and hit Officer Will at about 90 miles per hour. Officer Will’s last words were telling someone to get out of the way of the car. He died protecting innocent people. And when he died, his wife was pregnant with their first child.
The open-borders lobby talks a lot about kids—those who are here unlawfully. But open-borders policies aren’t even in their interest either. After the previous administration announced the Deferred Action for Childhood Arrivals—or DACA—policy in 2012, the number of unaccompanied children coming here nearly doubled in one year. The next year, it doubled again.
I doubt that was a coincidence. DACA encouraged potentially tens of thousands of vulnerable children to make the dangerous journey North. That had terrible humanitarian consequences—and Texans know that firsthand.
Earlier this month, Border Patrol arrested two young men who had benefitted from DACA, for allegedly attempting to smuggle illegal aliens into Laredo.
Just a few days later, another beneficiary of DACA was charged with the murder of an 18-year old girl. In total, 2,000 DACA recipients have had their status withdrawn.
The President wants to stop the incentives for vulnerable children to come here illegally. He began to do that last month when he ended the DACA policy.
The President has also laid out a plan to close loopholes that are being exploited in our asylum program.
Under the previous Administration, the federal government began releasing illegal aliens who claimed to be too afraid to return home. Unsurprisingly, the number of these claims skyrocketed nearly 20-fold in eight years from 5,000 in 2009 to 94,000 now. And after their release, many of these people simply disappeared.
It’s too easy to defraud our system right now—and President Trump is going to fix that. The President’s plan to close the loopholes will stop the incentive for false asylum claims.
President Trump is also confronting the state and local jurisdictions that have undertaken to undo our immigration laws through so-called “sanctuary policies.”
Such policies undermine the moral authority of law and undermine the safety of the jurisdictions that adopt them. Police are forced to release criminal aliens back into the community—no matter what their crimes. Think about that: Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place. They should—according to law and common sense—be processed and deported.
These policies hinder the work of federal law enforcement; they’re contrary to the rule of law, and they have serious consequences for the law-abiding Texans.
Earlier this month, an illegal alien in Kansas pled guilty to reckless driving that killed a law enforcement officer conducting a traffic stop. He tested for a blood alcohol content twice the legal limit. The officer who was killed—Deputy Brandon Collins—had two young daughters.
The illegal alien who killed Deputy Collins had already been arrested twice for driving-related offenses—including a previous drunk driving conviction. Clearly, he had been in police custody, but no one turned him over to ICE.
The politicians behind “sanctuary” policies say that forcing police officers to release criminal aliens back onto the streets will somehow increase community trust.
But that does not make sense to me. Would releasing someone who had been arrested numerous times into your community give you more confidence in law enforcement?
Would learning that a local district attorney actually charges illegal aliens with less serious crimes than Americans to evade federal deportation make you believe they are trying to make your neighborhood safer? Would forcing federal officers to track down criminal aliens on your street instead of safely in the jails make you believe we value your community?
We all know law enforcement is not the problem. You risk your lives each day in service of the law and the people you protect. Cooperation, mutual respect is critical. Disrespecting our law enforcement officers in their lawful duties in unacceptable.
The problem is the policies that tie your hands.
Yet, rather than reconsider their policies, sanctuary jurisdictions feign outrage when they lose federal funds as a direct result of actions designed to nullify plain federal law. Some have even decided to go to court so that they can keep receiving taxpayer-funded grants while continuing to impede federal immigration enforcement. We intent to fight this resolutely.
We cannot continue giving federal grants to cities that actively undermine the safety of federal law officers and intentionally frustrate efforts to reduce crime in their own cities.
These jurisdictions that knowingly, willfully, and purposefully release criminal aliens back into their communities are sacrificing the lives and safety of American citizens in the pursuit of an extreme open borders policy. It’s extreme and open borders because if a jurisdiction won’t deport someone who enters illegally and then commits another crime then who will they deport.
This isn’t just a bad policy. It’s a direct challenge to the laws of the United States. It places the lives of our fine law enforcement officers at risk and I cannot and will not accept this increased risk because certain politicians want to make a statement.
Our duty is to protect public safety and protect taxpayer dollars and I plan to fulfill those duties.
The vast majority of Americans oppose “sanctuary” policies. According to one poll, 80 percent of Americans believe that cities should turn over criminal aliens to immigration officials.
The American people are not asking too much, and neither is the Department of Justice. Federal law enforcement wants to work with our partners at the state and local level. We want to keep our citizens safe.
Fortunately, in President Trump, we have strong leadership that is making a difference.
Since he took office, border crossings have plummeted by nearly a quarter—even as our economy has been booming. This past fiscal year, Border Patrol conducted half of the number of arrests as the previous one, and one-fifth of the number of arrests they made a decade ago.
Now, someone might say, that decline is because they’re just not catching people. But that’s just not true.
Border Patrol’s tactics and their technology have been refined and are only getting better. The Department of Homeland Security believes that they are catching a greater share of illegal aliens than ever—more than four out of five.
So the data show clearly: President Trump’s leadership is making a difference. Would-be lawbreakers know that we are restoring the rule of law and enforcing our immigration laws again.
And under President Trump’s immigration principles, the Departments of Justice and Homeland Security will stop rewarding sanctuary cities with taxpayer dollars.
If these cities want to receive law enforcement grants, then they should stop impeding federal law enforcement.
In Texas, you have taken a leadership role on this issue.
I want to commend the state legislature for passing Senate Bill Four with strong majorities in both chambers, and thank Governor Abbott for signing it into law.
I am well aware that this law has its critics. And I am more than familiar with their line of criticism. But the facts of the case are clearly on Texas’ side.
Earlier this month, the Department of Justice filed an amicus brief in this case. We believe that the outcome is important not just to the state of Texas, but to the national interest. The integrity of our immigration laws is not a local issue—it is a national issue.
I am confident that Texas will prevail in court. But I would urge every so-called “sanctuary” jurisdiction to reconsider their policies. So-called “sanctuary” policies risk the safety of good law enforcement officers and the safety of the neighborhoods that need their protection the most. There are lives and livelihoods at stake.
If we work together, we can make our country safer for all our residents—native born and lawful immigrant alike. Working together requires ending “sanctuary” policies.
The Department of Justice is determined to reduce crime. We will not concede a single block or street corner in the United States to lawlessness. Nor will we tolerate the loss of innocent life because a handful of jurisdictions believe they are above the law.
And so to all the law enforcement here—federal, state, and local—thank you for all that you do. President Trump is grateful; I am grateful, and the entire Department of Justice is grateful for your service. We have your back and you have our thanks.
Thank you, and God bless you.”
********************************************
Sessions is proposing to make the U.S. Immigration Court the largest, and certainly most “out of control” Federal Judiciary. And he also wants 10,000 more agents for the Internal Security Police (a/k/a/ DHS) that also runs the American Gulag. Sure sounds like a prescription for turning America into something like “Putinia.” That’s the White Nationalist blueprint and why they are so cozy with repressive, non-democratic rulers like Putin.
I’m exhausted for the week. Going to let someone else come up with all the numbers and studies showing how bogus Sessions’s “Alien Crime Wave” and attempt to falsely link DACA to an increase in kids fleeing gang violence to save their lives.
REALITY CHECK: At some point this grandiose plan for endless personnel and resources devoted largely to keeping needed workers and legitimate refugees out of the U.S. will have to be approved by Congress. And, it promises to be a “Budget Buster.”
“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.
But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.
Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.
This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.
. . . .
In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.
Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.
Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.
If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.
Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.
Expedited removal proceedings are not used for unaccompanied alien children.
Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.
ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.
Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”
***********************************
Read Nolan’s full article over on The Hill at the above link.
I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.
I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..
Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!
Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.
The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.
As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.
For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:
Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.
Here’s a link to the full Castro opinion and my previous blog on the decision:
I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.
The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.
Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.
Mark Joseph Stern and Perry Grossman report for Slate:
“JURISPRUDENCE
THE LAW, LAWYERS, AND THE COURT.OCT. 19 2017 6:32 PM
Trump’s Dred Scott
In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time.
By Perry Grossman and Mark Joseph Stern
Jeff Sessions and Roger B. Taney
Attorney General Jeff Sessions, left, and Chief Justice Roger B. Taney
Saul Loeb/Getty Images and Library of Congress
Throughout his presidential campaign, Donald Trump maligned undocumented immigrants as violent criminals and sexual predators who deserved to be rounded up and deported. Once in office, Trump transformed this rhetoric into policy, implementing a nationwide crackdown on immigrant communities. Now, the president’s dehumanizing disparagement of undocumented people has now seeped into his administration’s legal positions. This week, the Department of Justice is arguing in court that undocumented, unaccompanied minors have no right to abortions—and that undocumented immigrants may have no constitutional rights at all. This argument does not only contravene Supreme Court precedent. It also draws upon an inhuman notion of constitutional liberty most notoriously espoused in Dred Scott v. Sandford.
The Justice Department’s radical new theory arose out of a disturbing case in Texas that revolves around a 17-year-old referred to as Jane Doe in court filings. Doe arrived in the United States several months ago, unaccompanied by her parents and lacking documentation. She was placed in a federally funded Texas shelter, at which point she learned she was pregnant. Doe requested an abortion, but under state law, minors cannot receive the procedure without either parental consent or judicial approval. So Doe obtained what’s known as a judicial bypass and asked permission to attend a state-mandated counseling session before undergoing the procedure.
Her shelter refused to allow her to attend that counseling session, citing federal regulations promulgated by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that federally funded shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director. A Trump appointee and longtime anti-abortion activist, Lloyd has refused to allow minors to access abortion services. Instead, he has directed shelters to take these women to “crisis pregnancy centers,” which “counsel” them not to get abortions. At least once, Lloyd himself called a pregnant minor to talk her out of terminating her pregnancy. If a minor still wants to get an abortion after navigating these obstacles, ORR instructs its shelters to block her from attending her appointment.
Doe’s shelter followed these guidelines, taking her to a crisis pregnancy center and calling her mother to tell her Doe was pregnant. But Doe persisted, and in October, her court-appointed attorneys filed suit along with the American Civil Liberties Union in a federal district court in Washington, where ORR is headquartered. Doe argues that ORR’s rules violate her constitutional rights by placing an undue burden on her access to abortion.
On Wednesday, U.S. District Judge Tanya Chutkan held a hearing in the case. While defending the government, Department of Justice attorney Scott Stewart strongly implied that undocumented women do not have a right to abortion. Here, Stewart was echoing an amicus brief filed by the Texas attorney general’s office, which proclaimed that “unlawfully present aliens” living in the United States have no constitutional right to abortion access. Chutkan then asked Stewart whether Doe has any constitutional rights; Stewart declined to make that “concession.”
Chutkan ruled against the government and issued a temporary restraining order guaranteeing Doe the ability to terminate her pregnancy. (She is currently 15 weeks pregnant, and abortion is illegal after 20 weeks in Texas.) The DOJ appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which will hear arguments in the case on Friday morning. In its motion, the agency argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to let a minor go to an abortion clinic. It also claimed that, even if undocumented minors have a constitutional right to abortion care, the administration was not unduly burdening that right, because minors who want to terminate their pregnancies can leave the country. This argument is merely another way of stating that women like Doe have no right to an abortion in the United States.
By excluding undocumented immigrants from the protections of Planned Parenthood v. Casey, the Trump administration is essentially asserting that they do not qualify as “person[s]” under the Due Process Clauses of the Fifth and 14th Amendments. The Supreme Court has ruled that the liberty component of the Due Process Clause protects a woman’s right to terminate her pregnancy without a substantial obstacle. If arbitrary regulations that severely burden clinics qualify as such an unconstitutional obstacle, as the Supreme Court has held, then surely self-deportation does as well. Thus, the sole plausible interpretation of the DOJ’s posture is that the Due Process Clause does not protect undocumented women like Doe. Put simply, undocumented women are not people for constitutional purposes.
If the government can force Doe to carry her pregnancy to term, what can’t it do?
This theory parallels the Supreme Court’s most infamous ruling. Dred Scott was a black man born into slavery who moved with his “master” from a slave state to a free state. Upon his master’s death, Scott sued for his freedom. In 1857, Chief Justice Roger B. Taney—a virulent racist whose statue was removed from the grounds of the Maryland State House in August—wrote an opinion dismissing Scott’s suit. Taney held that black people were not “persons” based on the language of the Constitution and that Scott, as a black man, therefore had no right to sue in the federal courts. Black men, Taney wrote, were “so far inferior” to whites that they had “no rights which the white man was bound to respect.”
Following the Civil War, Dred Scott was overturned by the 13th and 14th Amendments. These amendments ensured that everyone born in the United States would be a citizen. They also granted all “person[s]”—not just citizens—due process and equal protection under the law. Trump has already raised the specter of Dred Scott through his call to end birthright citizenship, the constitutional command that lay at the heart of the Civil War amendments. Now his administration is invoking the decision again in its attempt to deprive undocumented immigrants of their personhood under the Constitution.
The government has rarely alleged that undocumented immigrants may be deprived of rights protected by the liberty component of due process, what’s also known as “substantive” due process. Its few attempts have been unsuccessful. In 2003, the Bush administration argued that substantive due process does not apply to immigrants who reside in the country illegally. The 6th U.S. Circuit Court of Appeals, sitting en banc, emphatically rejected this claim, explaining
If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. … [W]e do not believe that our Constitution could permit persons living in the United States—whether they can be admitted for permanent residence or not—to be subjected to any government action without limit.
Perhaps recognizing the extremism of its argument, the Trump administration has left open the possibility that undocumented immigrants are entitled to some unspecified “minimal standards” of constitutional protection. But if those minimal standards don’t include the basic right to bodily autonomy, then the 6th Circuit’s query still stands. If the government can force Doe to carry her pregnancy to term against her will, what can’t it do? The administration’s attempt to exert complete control over Doe’s reproductive system is a straightforward deprivation of constitutional liberty that opens the door to equally egregious future abuses.
On Friday morning, the Justice Department will return to court once more to argue, in effect, that Jane Doe is not a “person” worthy of due process protections. It might as well cite Dred Scott for the proposition that the government may strip undocumented immigrants of their constitutionally protected liberty. The 14th Amendment was designed to end such capricious discrimination against individuals living in the United States. But to the Trump administration, immigrants like Doe aren’t even people—just possessions of the state, awaiting deportation.”
************************************
Just when you think that Gonzo Apocalypto can’t sink any lower, he manages to achieve new depths!
THE BIG IDEA: Jeff Sessions was the personification of a hostile witness whenever a Democratic lawmaker questioned him during a contentious five-hour oversight hearing on Wednesday.
The attorney general set the tone early in his first appearance before the Senate Judiciary Committee since his January confirmation. “I can neither assert executive privilege nor can I disclose today the content of my confidential conversations with the president,” Sessions said in his opening statement.
There were several yes-or-no questions that should have been easy for Sessions to answer, but he refused. Sometimes what someone will not say is more interesting than what they do.
THE SPECIAL COUNSEL:
— Sessions said he has not been interviewed by special counsel Robert S. Mueller III. But has his team requested an interview? “I don’t think so,” the attorney general told Sen. Richard Blumenthal (D-Conn.), reflecting the cautiousness he showed all day. “I don’t know … I don’t want to come in here and be trapped. … I will check and let you know.” Later, Sessions announced: “My staff handed me a note that I have not been asked for an interview at this point.”
— The attorney general declined to express personal confidence in Mueller, a former FBI director: “I think he will produce the work in a way he thinks is correct and history will judge,” Sessions said.
— He also declined to say whether he would resign if President Trump tried to fire Mueller. Sessions said getting rid of Mueller would be up to Deputy Attorney General Rod Rosenstein because he has recused himself. (Rosenstein was interviewed by Mueller’s team this summer.)
Sessions says he can’t disclose ‘confidential conversations’ with Trump
“THE CLOUD”:
— Sessions declined to discuss anything the president told him before firing James Comey. He pointedly refused to answer multiple questions about whether Trump told him that getting rid of the FBI director would “lift the cloud” of the Russia investigation. “I do not confirm or deny the existence of any communication with the president,” Sessions replied. Yet he didn’t hesitate to defend the president’s dubious rationale for axing Comey, which was the former FBI director’s alleged mishandling of the Hillary Clinton email investigation.
— If Trump hadn’t mentioned “the cloud,” why not just say so? In sworn testimony this June, Comey recounted a phone call he received from Trump at the FBI on March 30: “He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ … He finished by stressing ‘the cloud’ was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.”
Trump called again on April 11 to ask for an update on when Comey was going to announce publicly that he was not personally under investigation. “I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back,” the former FBI director said. “He replied that ‘the cloud’ was getting in the way of his ability to do his job. … That was the last time I spoke with President Trump.”
— Sessions also would not say whether he was aware of Trump’s draft letter detailing some of the real reasons that he wanted to remove Comey, which Mueller has been reviewing.
Donald Trump and Joe Arpaio campaign together in Iowa last year. (Mary Altaffer/Associated Press)
PARDONS:
— Can the president pardon someone under investigation by Mueller before they’ve been charged? “Well, the pardon power is quite broad,” Sessions replied. “I have not studied it. I don’t know whether that would be appropriate or not, frankly.” Pressed further, he added later: “My understanding is a pardon can be issued before a conviction has occurred.” (He said that he’d like to reply with more detail in writing. That was one of his go-to lines throughout the day, though Democrats have complained for months that the Justice Department doesn’t respond to their letters.)
— Could the president pardon himself? Sessions again said he hadn’t studied the issue.
— Did Trump discuss pardoning Arizona sheriff Joe Arpaio with Sessions before he announced it? “I cannot comment on the private conversations I’ve had with the president,” he replied.
— What was the process that led to Arpaio’s pardon? “I don’t know that I remember or I know it precisely,” Sessions dodged.
Sessions: ‘I don’t know that I can make a blanket commitment’ to not jail reporters
JAILING REPORTERS:
— Will he commit to not putting reporters in jail for doing their jobs? “Well, I don’t know that I can make a blanket commitment to that effect,” Sessions replied to Sen. Amy Klobuchar (D-Minn.). “But I would say this: We have not taken any aggressive action against the media at this point. But we have matters that involve the most serious national security issues, that put our country at risk, and we will utilize the authorities that we have, legally and constitutionally, if we have to.”
Durbin slams Sessions for wanting safer cities, withholding police grants
LGBT DISCRIMINATION:
— Two weeks ago, Sessions sent a memo to all federal agencies on “protections for religious liberty.” Sen. Dick Durbin (D-Ill.) asked about it: “Could a Social Security Administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?”
After four seconds of silence, Sessions replied: “That is something I have never thought would arise, but I would have to give you a written answer to that, if you don’t mind.”
Durbin followed up: Would the guidance Sessions released permit a federal contractor to “refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”
“I’m not sure that is covered by it,” Sessions said, “but I will look.”
“The questions were hardly out of left field — or unfamiliar to the Justice Department,” BuzzFeed notes, adding that the Justice Department has been declining to answer them for weeks.
— The evasiveness played out on a host of other policy questions:
Did Sessions talk with the Texas attorney general about DACA before convincing Trump to end the program? He said such a conversation, if it happened, would be tantamount to “work product” and thus privileged.
Is there any evidence to support Trump’s claim on Monday that the Cuban government was behind the sonic attacks on U.S. diplomats in Havana? “I’m just not able to comment,” Sessions replied.
— Democrats noted that Sessions, when he was a member of the committee, would never have tolerated one of Barack Obama’s appointees being so evasive.
— Republicans mostly rallied to Sessions’s defense. Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, noted that Eric Holder refused to turn over documents relating to the Fast and Furious program by asserting executive privilege. Though, Grassley added, “The American people have a right to know why (Comey) was fired.”
Jeff Sessions testifies. (Chip Somodevilla/Getty Images)
Sessions stumbles through questions about communicating with Russia
RUSSIA CONTACTS:
— The main headline out of the hearing is that the nation’s chief law enforcement officer is still getting his story straight on his interactions with the Russians: “Sessions offered a slightly new wrinkle Wednesday, asserting that he may have discussed Trump campaign policy positions in his 2016 conversations with (Ambassador Sergey) Kislyak,” Matt Zapotosky, Sari Horwitz and Devlin Barrett report. “The attorney general said it was ‘possible’ that ‘some comment was made about what Trump’s positions were,’ though he also said, ‘I don’t think there was any discussion about the details of the campaign.’ … The Post reported in July that Kislyak reported back to his superiors in the Kremlin that the two had discussed campaign-related matters, including policy issues important to Moscow. Sessions has previously said he did not ‘recall any specific political discussions’ …”
— Another significant admission: Sen. Ben Sasse (R-Neb.) asked whether the U.S. government is doing enough to prevent Russian interference in future elections. “We’re not,” Sessions responded.
— In the testiest exchange of the day, Sen. Al Franken (D-Minn.) sparred with Sessions over whether he told the truth during his confirmation hearing:
Al Franken Cross-Examines Jeff Sessions On Lying About Russian Meeting
HOW IT’S PLAYING:
— On the left:
Slate: “Jeff Sessions Is Using Phony Executive Privilege to Shield Trump, and GOP Senators Are Letting Him.”
Esquire: “Jeff Sessions Is Not Donald Trump’s Lawyer. And that suggestion could be a license for corruption.”
Mother Jones: “Justice Department Has Communicated With Controversial Election Commission, Sessions Confirms. The revelation fuels concerns over voter suppression efforts and could raise legal questions.”
The Nation: “Jeff Sessions Keeps Lying to the Senate. Sessions once claimed he never met with the Russians. Well, sorta, kinda, maybe. It depends…”
Gonzo would have been a “perfect fit” in the Nixon Administration which gave birth to the term, “stonewalling!”
Let’s see, Gonzo’s “progressed” from saying under oath that he had no contact whatsoever with any Russians during the campaign, to later “clarifying” that he met with none other than the Russian Ambassador during the campaign (while at least implying that these meetings were in his capacity as a Senator, not a campaign official), to saying that he “may have discussed Trump campaign policy positions in his 2016 conversations with (Ambassador Sergey) Kislyak.”Gosh, that sounds to me like enough to sustain an “adverse credibility finding” in U.S. Immigration Court if said by an immigrant!
But, Gonzo says it’s all the fault of bullies like Sen. Al Franken for springing “trick” questions on him. After all, who would have thought that a major figure in the Trump Campaign (one of his earliest, most vocal, and proudest supporters) would be asked nasty questions about the Russia probe?
Gonzo basically refused to discuss the dark implications of his war on LGBTQ Americans, while allowing as how he might target reporters in the future (this Dude recently made speeches on the First Amendment?) if necessary to stop national security leaks.
And, on DACA, Tal Kopan reports for CNN:
“Attorney General Jeff Sessions told senators they have an “opportunity to do something historic” on immigration on Wednesday as he was pressed repeatedly on the administration’s move to terminate a popular protection for young undocumented immigrants.
“We have got to have more than just an amnesty,” Sessions said in his opening remarks. “We need a good improvement in the illegality that’s going on, and there is an opportunity right now, I’m telling you, an opportunity to do something historic.”
Despite multiple follow-ups, Sessions did not diverge much from the remarks, repeatedly telling lawmakers the future of the Deferred Action for Childhood Arrivals program was in their hands.
Testifying before the Senate judiciary committee, the longtime immigration hardliner was asked by senators from both parties about the administration’s plans for DACA, which President Donald Trump has opted to end, citing Sessions’ recommendation.
. . . .
Sessions did not lay out details of what the administration may want to do for the Obama-era program, which protects young undocumented immigrants brought to the US as children from deportation. Sessions has long railed against the program and once again expressed his belief that the executive action was unconstitutional.
Illinois Democratic Sen. Dick Durbin, though, who has pursued legislation that would offer DACA-like protections for nearly two decades, pressed Sessions on how he could recommend to Trump that the program is unconstitutional and would be found the same in the courts when the Justice Department still maintains a 2014 Office of Legal Counsel memo on its website that found DACA would be constitutional.
“I believe this is accurate, that the so-called approval of DACA by OLC, Office of Legal Counsel, was based on the caveat or the requirement that any action that’s taken be done on an individual basis,” Sessions said, then appeared to mix up court precedent on the issue.
Sessions said a court had struck down the program because individual decisions were not made, but was seemingly referring to a decision made about an expansion of the program to parents. Courts have not found DACA to be unconstitutional to date.
Durbin noted that each DACA applicant is evaluated individually. All go through background checks before receiving the two-year permits.
Growing frustrated at Session’s answers, Durbin referenced his former colleague’s past on the other side of the dais. “I believe this is just about the moment that Sen. Sessions would have blown up,” Durbin said.
Later in the hearing, Hawaii Democratic Sen. Mazie Hirono, also a lawyer, asked Sessions if he considered any due process or “bait and switch” issues in recommending the program be ended, since DACA recipients willingly gave the Department of Homeland Security their information in exchange for protection when the program was created. Sessions said he didn’t believe it was discussed.
“It’s a valid issue,” Sessions said. “You’re right to raise it.”
But when Hirono pressed Sessions on what might happen to the individuals covered under the program if it ends in six months, Sessions deflected.
“The answer to that is in your hands,” he said. “Congress has the ability to deal with this problem in any number of ways.” He reiterated he did not support “simply an amnesty” without additional anti-illegal immigration measures, but said “if we work together, something can be done on that.”
In other words, Sessions continued to assert his conclusory, essentially “law free” position that DACA is unconstitutional. He didn’t even know which case he was wtalking about (and it’s not that he didn’t have any idea that Durbin and others were going to quiz him on DACA). At the same time, he can’t bring himself to acknowledge that the DACA young people have been a great boon to the US and to our economy and that they deserve a path to citizenship. Indeed, if Gonzo had his way and the “Dreamers” were actually removed from the US, it would actually “TANK” our economy by reducing our GNP by nearly one-half trillion dollars! See CNBC, John W. Schoen, “DACA deportations could cost US economy more than $400 billion,” available at this link:
And, Gonzo goes on to press his absurd demand that any relief from “Dreamers” be “offset” by Trump’s “off the wall” immigration restrictionist program. Dreamers are contributing over $400 billion to our GNP, so what’s there to “offset?” We should be happy to have them as permanent members of our society.
No, the real problem here is that the Dreamers and their families (who also are contributing to our society and economy) should have been screened and admitted through our legal immigration system. The solution isn’t to extract a “penalty” from the Dreamers, but rather to expand our legal immigration system so that future Dreamers and their hard-working productive families can be properly screened and legally admitted into the United States in the first place!
That Gonzo, others in the Administration, and the “restrictionist wing” of the GOP keep pushing in exactly the opposite direction is truly reprehensible. The real “national debate” that we should be having on immigration is how to get Dreamers and other law-abiding undocumented residents on a track to full integration into our society, how many MORE legal immigrants we should admit each year, and how we should select them to achieve the most both for our country’s future and for those vibrant, hard-working, and much-needed future immigrants that we should be attracting! Legal immigration is a good thing, to be valued and welcomed! It’s NOT something to be feared and restricted as Gonzo and his cronies would have us believe! And, by converting most of the flow of “undocumented migrants” into “legal immigrants” we would reduce the need for DHS enforcement directed at the immigrant community. Those resources could be redirected at removing the “real bad guys.”
“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum
by JASON DZUBOW on OCTOBER 17, 2017
In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.
Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.
While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”
Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”
First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.
Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.
And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.
None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.
The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.
The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.
Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.
Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.
These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.
I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”
****************************************
Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.
Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.
Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.
“A federal judge in Maryland early Wednesday issued a second halt on the latest version of President Trump’s travel ban, asserting that the president’s own comments on the campaign trail and on Twitter convinced him that the directive was akin to an unconstitutional Muslim ban.
U.S. District Judge Theodore D. Chuang issued a somewhat less complete halt on the ban than his counterpart in Hawaii did a day earlier, blocking the administration from enforcing the directive only on those who lacked a “bona fide” relationship with a person or entity in the United States, such as family members or some type of professional or other engagement in the United States.
But in some ways, Chuang’s ruling was more personally cutting to Trump, as he said the president’s own words cast his latest attempt to impose a travel blockade as the “inextricable re-animation of the twice-enjoined Muslim ban.”
Omar Jadwat, who directs of the ACLU’s Immigrants’ Rights Project and represented those suing in Maryland over the ban, said: “Like the two versions before it, President Trump’s latest travel ban is still a Muslim ban at its core. And like the two before it, this one is going down to defeat in the courts.”
The third iteration of Trump’s travel ban had been set to go fully into effect early Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Even before Chuang’s ruling, though, a federal judge in Hawaii stopped it — at least temporarily — for all of the countries except North Korea and Venezuela.
That judge, Derrick K. Watson, blocked the administration from enforcing the measure on anyone from the six countries, not just those with a “bona fide” U.S. tie. But his ruling did not address whether Trump’s intent in imposing the directive was to discriminate against Muslims. He said the president had merely exceeded the authority Congress had given him in immigration law.
The Justice Department already had vowed to appeal Watson’s ruling, which the White House said “undercuts the President’s efforts to keep the American people safe and enforce minimum security standards for entry into the United States.” Both Watson’s temporary restraining order and Chuang’s preliminary injunction are also interim measures, meant to maintain the status quo as the parties continue to argue the case.
The administration had cast the new measure as one that was necessary for national security, implemented only after officials conducted an extensive review of the information they needed to vet those coming to the United States. Those countries that were either unwilling or unable to produce such information even after negotiation, officials have said, were included on the banned list.
“These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation,” the White House said after Watson’s ruling. “We are therefore confident that the Judiciary will ultimately uphold the President’s lawful and necessary action and swiftly restore its vital protections for the safety of the American people.”
Like Watson’s order, Chuang’s 91-page ruling also found Trump had exceeded his authority under immigration law, but only partially.
The order — which has “no specified end date and no requirement of renewal” — violated a nondiscrimination provision in the law in that it blocked immigrants to the United States based on their nationality, Chuang wrote.
But Chuang said he could not determine, as Watson did, that Trump had violated a different part of federal immigration law requiring him to find entry of certain nonimmigrant travelers would be “detrimental” to U.S. interests before blocking them.
Chuang instead based much of his ruling on his assessment that Trump intended to ban Muslims, and thus his order had run afoul of the Establishment Clause of the Constitution. When Trump was a presidential candidate in December 2015, Chuang wrote, he had promised a “complete shutdown of Muslims entering the United States,” and all of his comments since then seemed to indicate his various travel bans were meant to fulfill that promise.
After his second ban was blocked, Chuang wrote, Trump described the measure as a “watered down version” of his initial measure, adding, “we ought go back to the first one and go all the way, which is what I wanted to do in the first place.” The president had then revoked and replaced his first travel ban, which had also been held up in court.
In August, with courts still weighing the second version, Chuang noted that Trump “endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to ‘study what General Pershing . . . did to terrorists when caught.’ ”
In September, as authorities worked on a new directive, Trump wrote on Twitter “the travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!”
Chuang had pressed challengers at a hearing this week on what the government would have to do to make the new ban legal, and he noted in his ruling that the new directive had changed from the previous iterations. The government, for example, had undertaken a review process before inking the new measure, and had added two non-Muslim majority countries to the banned list.
But Chuang wrote that he was unmoved that government had simply relied on the results of their review, and instead believed they made “certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations.” He wrote that the government offered “no evidence, even in the form of classified information submitted to the Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities,” and asserted that even the new measure “generally resembles President Trump’s earlier description of the Muslim ban.”
“The ‘initial’ announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms,” Chuang wrote.
The suits in federal court in Maryland had been brought by 23 advocacy groups and seven people who said they would be negatively impacted by the new ban.”
************************************************
Yes, the Trump Administration might ultimately prevail on appeal on this one. But, that won’t change the fact that they are “losers.” And, a country that chooses biased, incompetent, and petty leadership like this is also a “Big Loser.”
Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017).
BIA HEADNOTE:
“Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.”
BIA PANEL: Appellate Immigration Judges COLE, PAULEY, and WENDTLAND.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
SAFE AT HOME: Sandra Gutierrez fled from Honduras with her children after receiving death threats from gangs and was granted asylum by Judge Dalin Holyoak in 2016. She now lives in Oakland, California, where she takes English classes and works as a janitor. REUTERS/Stephen Lam
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
“GROSS DISPARITIES”
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
Video: High-stakes game of chance in U.S. immigration courts
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
HEADING NORTH: Many Central Americans who sought safety in the United States during the 2014 migrant crisis caught a ride through Mexico on the freight train nicknamed “The Beast,” shown here chugging through Oaxaca state. REUTERS/Jose de Jesus Cortes
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
MEAN STREETS: Gang graffiti covers buildings in Tegucigalpa, the Honduran capital, where rampant violence has prompted thousands of people in recent years to seek asylum in the United States. REUTERS/Jorge Cabrera
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
Reade Levinson
Heavy Odds
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
