"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.
Nearly 300 pages into Bob Woodward’s new book, Fear: Trump in the White House, a West Wing aide named Zach Fuentes cautions fellow staffers. With depressingly familiar words, Fuentes informs his colleagues, “He’s not a detail guy. Never put more than one page in front of him. Even if he’ll glance at it, he’s not going to read the whole thing. Make sure you underline or put in bold the main points … you’ll have 30 seconds to talk to him. If you haven’t grabbed his attention, he won’t focus.” Some subjects, such as the military, do engage him, but the overwhelming picture is worrying and dire. Still, one could finish this passage and feel at least slightly relieved that people like Fuentes are aware of the reigning deficiencies in the White House, and doing their best to mitigate them.
Fuentes is merely an assistant to John Kelly, the White House chief of staff, but Kelly and James Mattis, the secretary of defense, are presented throughout Woodward’s book as being cognizant of the president’s extreme limitations and authoritarian instincts, and rather boldly willing to push back against their boss. This is why it’s probably worth mentioning that Fuentes wasn’t talking about Donald Trump; no, he was talking about John Kelly. And Woodward’s book—which arrived at around the same time as the already infamous, still-currently anonymous New York Times op-edabout the men and women in the executive branch supposedly working to protect America from Donald Trump—is as much a portrait of the craven, ineffective, and counterproductive group of “adults” surrounding Trump as it is a more predictable look into the president’s shortcomings. It’s not entirely clear how aware Woodward is of what he has revealed about the people he’s quoting at length. (Sources tend to come off well in his books.) But intentionally or not, Fear will make plain to the last optimist that, just as Republicans in Congress are unlikely to save us, neither are the relative grown-ups in the Trump administration.
Is Woodward the last optimist? He quite obviously believes that Trump is unfit to be president, but a reader can’t quite shake the sense that he somehow thinks maybe, just maybe, things could be different with the right coaching or incentives. Fear is a book full of stories about Trump being contained; his instincts being thwarted; his worst qualities being slightly minimized by people who claim to be afraid of what would happen if they weren’t there. “It’s not what we did for the country,” former Trump economic adviser Gary Cohn says early on. “It’s what we saved him from doing.” Quotes like this aim to settle the ethical debate—which has been going on from the start of the Trump presidency—over whether anyone should be working for a bigoted and corrupt president with no respect for democracy, even if they are planning to, in that most tiresome phrase, contain his worst impulses. But that conversation has obscured the more pressing question of what those supposedly well-intentioned individuals can actually accomplish from the inside. Even allowing for the self-serving nature of the accounts that Woodward offers here, the answer appears to be: not much.
Indeed, the near-misses Woodward writes about feel particularly insubstantial, in part because very few of these aides and appointees seem to really grasp the nature of the man they are serving (no matter how much they talk about his stupidity and recklessness), and in part because Trump himself is so clueless and aimless that he rarely seems to follow through on his worst ideas anyway. (The terrible things he has followed through on, such as various immigration policies, are not really discussed at length, and on these matters a good chunk of his staff appear to agree with him.) Moreover, many of these aides are tasked with—or see their roles as—not preventing policy decisions, but instead as putting the nicest, non-Trumpy face on Trumpism; the ethics of this deserves its own debate.
Fear will make plain to the last optimist that, just as Republicans in Congress are unlikely to save us, neither are the relative grown-ups in the Trump administration.
Perhaps the biggest non-hinge moment in the book occurs in July 2017, six months after Trump has taken office and two years since he emerged as a presidential candidate by offering his thoughts on Mexican rapists. “Mattis and Gary Cohn had several quiet conversations about The Big Problem: The president did not understand the importance of allies overseas, the value of diplomacy or the relationship between the military, the economy, and intelligence partnerships with foreign governments.” The two men decide to meet to “develop an action plan,” which consists of getting the president in the Tank, “the Pentagon’s secure meeting room for the Joint Chiefs of Staff,” because it might “focus him.” But when they do, and succeed in telling him about the value of allies and diplomacy, Trump ignores them and proceeds to rant and rave on a variety of subjects. The meeting wraps up after accomplishing precisely nothing. (This is the event that caused Rex Tillerson to call Trump a “fucking moron.”)
What remains astonishing about the meeting is not that Trump is an idiot. It’s that Mattis and Cohn seemed to have hopes for their plan, believing they could use the sit-down to really turn a corner. The book is so full of scenes like this because the people around Trump seem to have less feel for the president than a politically astute person who spends 20 minutes a day reading the newspaper. It’s not that hard to grasp that Trump’s authoritarian leanings condition him to distrust democratic allies; nor is it a secret that he has utter contempt for America’s intelligence agencies. An earlier passage in the book has Mattis telling a NATO-skeptical Trump that, “If you didn’t have NATO, you’d have to invent it” and “there’s no way Russia could win a war if they took on NATO,” which left me wondering if Mattis could have chosen an argument that would be less likely to appeal to the president, and why anyone who has paid even glancing attention to Trump’s behavior toward Russia would think it would be effective.
Woodward conveys all this in his typically matter-of-fact style, with dialogue heavy-scenes, and with his sources sounding reasonable and frustrated. He rarely tips his hand or offers critiques of those who talked to him, but his narrative does allow for them to come across as ill-equipped. Take former national security adviser H.R. McMaster, who Woodward presents as a thoughtful enough guy simply unwilling or unable to contain his pedantic lecturing style, even though it is clearly irking the president. This leads McMaster to get involved in stupid, inevitably doomed spats stemming from Trump’s childishness, including one over precisely where the president and the Indian prime minister will dine that is too dreary to recount. Of course, McMaster doesn’t last long, in large part because of this type of nonsense; meanwhile, he can’t get along with Mattis or Tillerson, two other guys who apparently pride(d) themselves on being the last line of defense. And yet, they do everything they possibly can to undermine McMaster, and make his job more difficult. “McMaster considered Mattis and Tillerson ‘the team of two’ and found himself outside their orbit, which was exactly the way they wanted it,” Woodward writes. Now the national security adviser is John Bolton. Good job, everyone.
The story in the book about Mattis that has gotten the most attention concerns his decision to quietly counter Trump on Syria after the president reportedly screamed “let’s fucking kill him” over the phone about Bashar al-Assad. According to Woodward, Mattis hung up and stated to an aide, “We’re not going to do any of that. We’re going to be much more measured.” A victory for common sense, you might say. A couple pages later, we read that “Trump had stepped back from his initial desire to kill Assad.” But did he step back or just forget? Immediately afterward, Trump asks McMaster for some Syria hypotheticals, which McMaster can’t answer because he is being ignored by Mattis and Tillerson. Thankfully, Woodward concludes, “Trump soon forgot his questions.” It’s certainly possible that Mattis or Tillerson or McMaster stopped Trump from doing something truly terrible or illegal over the past nearly 20 months, but if so we are not told what it was. Despite all the self-aggrandizing quotes from the so-called moderating influences in the White House, the upshot of Woodward’s own reporting is that if we end up riding out this term free of a foreign policy catastrophe, it is more likely to be the result of Trump’s incuriosity and short attention span than a bold act of bravery by one of the grown-ups.
The possible exception is Cohn’s already famous decision to steal a paper from Trump’s desk that would have removed the United States from a trade deal with South Korea, and thus possibly impacted national security by undermining the Washington-Seoul alliance. This at least counts as a staff member taking strong action, although, as Woodward acknowledges, it’s “an administrative coup d’etat,” and neither Woodward nor Cohn (quoted as saying, “got to protect the country”) convincingly show that the stakes were high enough to warrant such a step. Tellingly, and predictably, Trump keeps bringing the pact up but can’t seem to remember that he was just about to pull out of the deal, which makes you wonder if he was really on the verge of doing so.
Photo illustration by Slate. Photo by Michael Kovac/Getty Images for Vanity Fair.
Nevertheless, there is a strong argument to be made that someone like Mattis should stay in his job, and the person who wants to see him resign in protest is braver than I am. But the case to keep working in the Trump administration is much weaker if your job isn’t a matter of life and death, and some of the examples in the book meant to highlight the good deeds of the people around Trump are extremely thin. After Trump’s disgraceful response to Charlottesville, staff secretary Rob Porter apparently cajoled the president into giving a less grotesque speech about what occurred. Porter, who appears to be Woodward’s biggest source and therefore comes across relatively well—his resignation after allegations of domestic abuse is afforded less than a page—“felt it was a moment of victory, of actually doing some good for the country. He had served the president well. This made the endless hours of nonstop work worth it.” Naturally, within a day, Trump had backtracked and surprised precisely no one by making clear that he doesn’t actually have a problem with Nazis, leaving Porter feeling that “Charlottesville was the breaking point” and wondering “if trying to repair [racial divisions] after Charlottesville was almost a lost cause.”
Unless Woodward is winking at readers with that “lost cause” reference, he doesn’t betray any acknowledgement of how absurd Porter’s musings seem, coming as they did years or months after birtherism, blatant bigotry, and a ban on certain Muslims from being allowed to enter the country. Nor does it ever seem to occur to Porter—or Gary Cohn, whose supposedly tortured post-Charlottesville dilemma is afforded considerable space—that Trump is a racist; that he will continue putting into effect racist policies; and that focusing, as the people around Trump do, on ensuring that the words of his speeches are inoffensive is really just a way of helping Trump politically so he can carry out his policies with less opposition.
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Read the rest of Chotiner’s article at the above link.
It’s painfully clear that the white (almost all) men surrounding Trump don’t have much real problem with his overt bigotry, racism, immorality, misogyny, and lawlessness except when revealing it gets in the way of their policies.
After all, it’s important to the country that we have more tax breaks for the rich, less health care for the general populace, dirtier air, polluted rivers and lakes, fewer National monuments, more black lung, reduced worker protections, fewer voters of color, almost no refugees, only white immigrants, more abused children, a generation of young people who are barred from reaching their full potential, dumber schools, religious bigotry and hate speech, homophobia, a subservient, non-professional Civil Service and Foreign Service composed of political hacks, more racial and religious resentment, less free press, etc.
These dudes don’t really want to change the toxic agenda that is destroying our democracy. No, they just want to make sure that Trump’s stunning incompetence and unsuitability for office is mitigated enough that they can carry out their nasty anti-democratic policies without his interference. That’s what passes for “courage” and “true patriotism” in today’s GOP.
The only way to save our republic is to throw every Republican out of office and force the party to either ditch its White Nationalist base or split into two parties — a legitimate conservative opposition party and a far right White Nationalist party.
Trump is the end product of a GOP that just doesn’t believe in 21st Century America as a diverse, multi-racial, multi-cultural nation of immigrants and the strength and power that gives all of us. We need regime change. This November is the time to start that process at the ballot box! Don’t wait until it’s too late!
Dan De Luce and Julia Edwards Ainsley report for NBC News:
WASHINGTON — The Trump administration has consistently sought to exaggerate the potential security threat posed by refugees and dismissed an intelligence assessment last year that showed refugeesdid not present a significant threat to the U.S., three former senior officials told NBC News.
Hard-liners in the administration then issued their own report this year that several former officials and rights groups say misstates the evidence and inflates the threat posed by people born outside the U.S.
At a meeting in September 2017 with senior officials discussing refugee admissions, a representative from the National Counterterrorism Center came ready to present a report that analyzed the possible risks presented by refugees entering the country.
But before he could discuss the report, Associate Attorney General Rachel Brand dismissed the report, saying her boss, Attorney General Jeff Sessions, would not be guided by its findings.
“We read that. The attorney general doesn’t agree with the conclusions of that report,” she said, according to two officials familiar with the meeting, including one who was in the room at the time.
Brand’s blunt veto of the intelligence assessment shocked career civil servants at the interagency meeting, which seemed to expose a bid to supplant facts and expertise with an ideological agenda. Her response also amounted to a rejection of her own department’s view, as the FBI, part of the Justice Department, had contributed to the assessment.
“She just dismissed them,” said the former official who attended the meeting.
The intelligence assessment was “inappropriately discredited as a result of that exchange,” said the ex-official. The episode made clear that “you weren’t able to have an honest conversation about the risk.”
A current DHS official defended the administration’s response to the intelligence assessment, saying immigration policy in the Trump administration does not rely solely on “historical data about terrorism trends,” but rather “is an all-of-the-above approach that looks at every single pathway that we think it is possible for a terrorist to come into the United States.”
A spokeswoman for DHS said, “If we only look at what terrorists have done in the past, we will never be able to prevent future attacks … We cannot let dangerous individuals slip through the cracks and exploit our refugee program, which is why we have implemented security enhancements that would prevent such violent individuals from reaching our shores, while still upholding our humanitarian ideals.”
The Justice Department did not respond to a request for comment in time for publication.
Following the dismissal of the assessment, anti-immigration hard-liners in the administration clashed with civil servants about how to portray the possible threat from refugees in documents drafted for inter-agency discussions, former officials said. In the end, the president’s decision last year to lower the ceiling for refugee admissions to 45,000 did not refer to security threats, but cited staffing shortages at DHS as the rationale. But once the decision was issued, the White House released a public statement that suggested the president’s decision was driven mainly by security concerns and said “some refugees” admitted into the country had posed a threat to public safety.
An Afghan refugee sleeps on the ground while another looks out a window in an abandoned warehouse where they and other migrants took refuge in Belgrade, Serbia, on Feb. 1, 2017.Muhammed Muheisen / AP file
“President Donald J. Trump is taking the responsible approach to promote the safety of the American people,” said the Sept. 29 statement.
Political appointees in the Trump administration then wrote a new report a few months later that seemed to contradict the view of the country’s spy agencies.
In a press release at the time, DHS Secretary Kirstjen Nielsen said the report showed the need for tougher screening of travelers entering the country and served as “a clear reminder of why we cannot continue to rely on immigration policy based on pre-9/11 thinking that leaves us woefully vulnerable to foreign-born terrorists.”
But the report is being challenged in court by several former officials and rights groups who say it inflates the threat posed by people born outside the U.S. Two lawsuits filed in Massachusetts and California allege the report improperly excludes incidents committed by domestic terrorists, like white supremacists, and wrongfully includes a significant number of naturalized U.S. citizens and foreigners who committed crimes overseas and were brought to the United States for the purpose of standing trial.
Associate Attorney General Rachel Brand speaks during the opening of the summit on Efforts to Combat Human Trafficking at Department of Justice in Washington, on Feb. 2, 2018.Jose Luis Magana / AP file
Mary McCord, former assistant attorney general of the Justice Department’s National Security Division, which prosecutes terrorism charges, said the January 2018 report is “unfortunately both over-inclusive and under-inclusive.”
“The result is a report that presents an inaccurate picture of the threat of terrorism in the United States,” McCord said.
When the report was released in January 2018, Trump tweeted that it showed the need to move away from “random chain migration and lottery system, to one that is merit based” because it showed that “the nearly 3 in 4 individuals convicted of terrorism-related charges are foreign-born.”
But the report only focuses on international terrorism, which is defined as a crime committed on behalf of a foreign terrorist organization. The document excludes domestic terrorism committed by groups such as white supremacists or anti-government militias, which are more likely to be supported by those born in the U.S.
Because of the way the terrorism statute is written, those who support domestic organizations like anti-government or white supremacists groups cannot be charged with terrorism, even if the groups they support have committed crimes. Only supporters of foreign terrorist organizations designated by the State Department can be charged with “material support” of terrorism.
Still, Trump has repeatedly stated that the overwhelming majority of terrorists in the United States came from overseas, even before the 2018 report.
In his first speech to Congress in February 2017, Trump said that the “vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our own country.”
Benjamin Wittes, a senior fellow at the Brookings Institution, MSNBC legal analyst and editor-in-chief of the Lawfare blog, took issue with that statement and sued the Justice Department to provide documents that backed up the president’s claim. But the Department was unable to locate any records.
“There are a lot of domestic terrorism cases, and they are generally not committed by people born abroad. To the extent that those cases were excluded — white supremacist violence, anti-abortion terrorism and militia violence — the inquiry is grossly biased,” Wittes wrote on Lawfare.
Wittes said that almost 100, or about a quarter, of the 402 individuals listed as foreign-born terrorists committed their crimes overseas and were brought to the U.S. to face trial.
White House senior adviser Stephen Miller at roundtable discussion on California immigration policy at the White House on May 16.Evan Vucci / AP file
During her time in government as the chief of the Refugee Affairs Division at U.S. Citizenship and Immigration Services, Barbara Strack said her staff worked diligently to thoroughly vet refugees for any possible terrorist links. But she said there was no information she came across that indicated refugees posed a significant security threat.
“I did not see evidence that refugees presented an elevated national security risk compared to other categories of travelers to the United States,” she told NBC News.
The administration must decide by the end of the month how many refugees to allow in the country in the next fiscal year. Trump’s senior adviser, Stephen Miller, known for his hawkish stance on immigration, has been pushing for a drastic reduction in the ceiling.
The cap was set at 45,000 last year, but the number of refugees allowed in the country has fallen far below that ceiling, with only about 20,000 resettled in the United States since October 2017. Rights advocates and former officials accuse the White House of intentionally slowing down the bureaucratic process to keep the numbers down, overloading the FBI and other government agencies with duplicative procedures.
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This level of total intellectual dishonesty, overt racism, and policy driven solely by a White Nationalist philosophy and political agenda by an Attorney General is unprecedented in my experience at the DOJ.
If you remember, Brand escaped to a “soft landing” in the private sector earlier this year. One of my theories is that she was trying to protect herself and her reputation for a future Federal Judgeship. If and when that happens, I hope that those serving on the Senate Judiciary Committee will remember her completely sleazy role in carrying Sessions’s racist-polluted water on this one. Someone with no respect for facts, the law, humanity, or professional expertise definitely does not deserve to be on the Federal Bench!
And for Pete’s sake don’t credit Sessions with any integrity whatsoever in not resigning under pressure from our “Mussolini Wannabe.” He’s not “protecting” the Mueller investigation or anything else worthy in the DOJ. In fact, he has wholly politicized the DOJ and taken it down into the gutter. The reason he “hangs on” is not because he respects the Constitution or rule of law. Clearly, he doesn’t! No, it’s because he wants to do as much damage to civil rights and people of color as he can during his toxic tenure.
Make no mistake, that damage he has done, as has been reported elsewhere, is very substantial. It has set the goals that Dr. Martin Luther King and others fought for and even gave their lives for back by decades. Despicable!
Sessions’s White-Nationalist driven lies and false narratives about refugees are described above. For the truth about refugees and immigrants and all of the great things they have done and continue to do for our country, see my recent post at https://wp.me/p8eeJm-313.
By now, I assume everyone has read the explosive “Anonymous NY Times Op-Ed” (linked above) that confirmed 1) what everyone already knew about Trump’s total incompetence for office, and 2) the widely rumored but heretofore not previously confirmed existence of an organized “resistance” to Trump within his own senior staff. While many will take heart from the latter, count me out.
What a bad dream! So, now, as a result of the gutless GOP and their supporters, we have the unelected, self-proclaimed “real conservatives” unilaterally deciding which Trump programs are “worthy” — like tax breaks for the rich or eliminating environmental protections — and which are “unworthy” — like, presumably starting a gratuitous nuclear war or handing the country over to Putin.
Is this really an acceptable solution to this GOP/White Nationalist created problem?
What about taking our country back at the ballot box from the anti-American Trump base? What about “outing” these self-proclaimed “saviors” and confronting the GOP with the need to initiate some “removal proceedings” against Trump?
What these “internal resisters” really are doing is putting their own egos over the good of the country. They need to resign, tell what they know, and demand action to remove Trump immediately.
Time to vote every Republican out of office.
Yes, Trump’s removal would result in the ascension of
“Mike the Terrible” Pence to the office of President. Under normal circumstances that would be an unparalleled national disaster in its own right. But, obviously, these aren’t normal times.
Some actually are speculating that “Mikie” is the “Deep Bloat” here. Seems unlikely given his record of sycophancy; on the other hand, he’s the one guy Trump can’t fire. And, stranger things have happened — like Trump being inflicted on us in the first place.
In the meantime, join the New Due Process Army and fight Trumpist White Nationalism in all of its insidious forms.
Just hours after Michael Cohen, Donald Trump’s former personal lawyer, pled guilty to violating campaign-finance law on behalf of an unnamed political candidate in 2016, and Paul Manafort, his former campaign manager, was convicted of eight counts of financial fraud, Trump was firmly ensconced in the safe space of a political rally in West Virginia, greeted by comforting chants of “Lock her up!” For the next few hours, the president studiously avoided mentioning the two men who may very well have thrown his political future into jeopardy, freewheeling instead about “no collusion” before a crowd that would accept—and even repeat—virtually anything he said. Yet even as the president pontificated, his right-wing allies found themselves in the uncomfortable position of being forced to fill his silence. Blindsided by not one, but twodamning convictions, they did the only thing they could: everything. “There are a lot of lines of defense that are being wheeled out right now,” Right Wing Watch’s Jared Holt observed to me. “It feels very much like throwing things at the wall and seeing what sticks.”
On cue, the right’s public-facing side pulled out every single pro-Trump defense it had concocted over the past two years. Within an hour of the verdicts breaking, The Five’s Greg Gutfeld was aggressively dismissing Cohen and Manafort as “two men who most Americans don’t know their names.” Fox Business’s Maria Bartiromowent after Hillary Clinton, saying Tuesday morning that Robert Mueller’s probe had no legitimacy unless the former Democratic presidential candidate was likewise investigated for the infamous Steele dossier. A shrewder group of Republicans converged on the seeming lack of Russia-related convictions in the Manafort trial, putting their disavowals on hold: “Thus far, there have yet to be any charges or convictions for colluding with the Russian government by any member of the Trump campaign,” Senator Lindsey Graham said in a statement, in one of the more measured defenses coming out of the Republican Party. The line made its way into the official G.O.P. defense, according to notes that a surrogate texted to reporter Josh Dawsey.
A less artful group of Trump supporters deployed a different line of logic: if the Manafort convictions carried no mention of Russia, then the media’s Russia-meddling narrative was, ipso facto, false, and Trump was therefore innocent (never mind the fact that a second Manafort trial, centering around the former G.O.P. operative’s extensive work in Russia and the Ukraine, is set to begin in D.C. in less than a month). “So all this legal activity strange I see no ‘Russian collusion’ in any breaking news,” tweetedMatt Schlapp, chairman of the American Conservative Union and the husband of White House communications director Mercedes Schlapp. “Odd.” Still others, said Holt, went further off the deep end, asserting that the Justice Department was being “run as part of a conspiracy theory,” and the trial wasn’t proof of the “Russian hacking narrative’s” veracity.
Almost simultaneously, a large segment of Trump’s diehard, MAGA-oriented allies began pushing the story of Mollie Tibbetts, a college student who was allegedly murdered by an undocumented immigrant. The lead story on Fox News’s home page was dedicated exclusively to the case, as was Breitbart’s, while MAGA wunderkinds Charlie Kirk,Candace Owens, and Tomi Lahren all tweeted that Tibbetts’s story ought to be top-line news, and lamented the “liberal media’s” preoccupation with Manafort and Cohen.
Fox and Friends simply ignored the convictions altogether in favor of discussing Tibbetts, along with kneeling N.F.L. protesters, and Andrew Cuomo’s recent gaffes. Though the outpouring could be read as spontaneous, it could not have come at a more convenient time—as former speaker Newt Gingrichput it to Axios, “If Mollie Tibbetts is a household name by October, Democrats will be in deep trouble. If we can be blocked by Manafort-Cohen, etc., then G.O.P. could lose [the House] badly.”
Behind the scenes, Republicans reportedly wrung their hands, increasingly concerned that the two cases, and Cohen’s in particular, could herald the president’s doom. “The verdict in the Manafort trial isn’t nearly as worrisome to me as the Cohen agreement and the Cohen statement,” former Trump adviser Michael Caputotold Politico. “It’s probably the worst thing so far in this whole investigation stage of the presidency.” “There was political momentum building to wrap up the Mueller probe soon,” a former administration official fretted to the outlet. “At the very least, in the short term, these two developments will pretty significantly bolster the office of the special counsel and people’s perceptions of it.” The perception, it seems, is widespread:
Nearly a dozen people close to the president, including current and former White House aides, acknowledged that Tuesday was one of the darkest days of Trump’s year and a half in office. And they worried that the revelations—even if they are unrelated to allegations of collusion with Russia—could lend new credence to the Mueller probe, even after the president’s allies spent months undercutting public faith in the investigation.
A close Trump friend confessed to Axios that they are “a bit concern[ed] about what he would do fully backed into a corner.” And a “usually buoyant outside West Wing adviser” read the tea leaves, noting, “Booming economy, robust bull market, troops in harm’s way but not in a large-scale war. And yet the president is enmeshed in a series of scandals and controversies . . . and that is before the Dems in the House start with the investigations.”
But by Wednesday morning, the G.O.P.’s fearless leader had returned from West Virginia and thrown himself back into the fray, making it clear what he wanted his followers to do: hail Manafort as a “brave man” who escaped 10 counts but fell victim to the Russia “witch hunt;” and jeer Cohen, the bad lawyer who pled guilty to things that were “not a crime.” “Whenever Trump tweets out what could be perceived as the official response, that tends to take over,” Holt said. “I wouldn’t be surprised to see if that becomes the primary line of defense.”
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There’s only going to be one “right side of history” on this one. And, Trump and his supporters won’t be on it.
The Trump administration is quietly partnering with a government it publicly accuses of killing its own people, in an effort to speed up the deportation of Nicaraguan citizens, the Guardian can reveal.
The partnership between Immigration and Customs Enforcement and the government of Nicaragua’s president, Daniel Ortega, began a week before mass protests erupted in the Central American country, and it continues despite a war of words between Washington and Managua.
This week, the White House press secretary, Sarah Sanders, declared the Ortega government responsible for “indiscriminate violence” that has left scores dead and thousands injured since protests began three months ago. “The United States stands with the people of Nicaragua,” she said.
“Enhancing cooperation with our foreign partners to streamline and improve the removal process is a key part of enforcing our immigration laws and protecting our homeland,” Ice’s assistant director Marlen Piñeiro said in a press releaseannouncing the deal.
Under the agreement, Ice provides training for “authorized foreign partners” on how to access the US’s electronic travel document system, a database of foreign nationals that includes biographic and biometric information that its partners can use to identify their citizens.
The system allows the Nicaraguan government to upload travel documents that Ice agents can then print out “at detention facilities or field offices”.
. . . .
Read the rest of the article at the link.
Ever wonder why the “Abolish ICE” movement is going more “mainstream” and picking up steam? ICE does perform valuable law enforcement functions. That’s exactly why a dissident group of ICE Agents engaged in real law enforcement are seeking a split.
However, too much of what ICE does today on the so-called “civil side” is anywhere from “misguided and wasteful” to “counterproductive and damaging to our country.”
Yes, somebody does need to perform ICE’s functions. But no, they don’t have to be performed the way ICE is performing them now.
Interestingly, under Trump we now support leftist governments in persecution just as long as the victims are Hispanic (or I assume Muslim, African, or any non-white or non-Christian population) and they get killed before they can get to the US to claim asylum. Or, they get killed after we deny them protection and return them to danger.
Either way, folks should take a close look of what America has come to represent under Trump, Sessions, and the White Nationalists.
History and our grandchildren will ultimately hold us accountable for Trump’s destruction of America and disrespect for human rights, even if it is improperly being “normalized” in today’s topsy turvy world.
The U.S. is the only member of the United Nations (UN) that did not participate in the entire 18-month process for the development of a , which is supposed to be formally adopted in December.
The process began when the UN hosted a summit in New York on September 19, 2016, to discuss a more humane way to handle large movements of migrants. Barack Obama was the president then. At the end of the summit, all 193 member states signed the New York Declaration for Refugees and Migrants, a 24-page document that provided a blueprint for the establishment of the compact for migrants (and a separate compact for refugees).
The declaration included numerous provisions that were inconsistent with U.S. immigration policy and the Trump administration’s immigration principles. Consequently, the Trump administration ended U.S. participation.
Ambassador Nikki Haley, the U.S. representative to the UN, explained in a press release that, “The global approach in the New York Declaration is simply not compatible with U.S. sovereignty.” America decides how best to control its borders and who will be allowed to enter.
The Trump administration was right. The compact is a collective commitment to achieve 23 objectives for safe, orderly, and regular migration. Although it addresses problems that need to be resolved, some its proposed solutions would weaken U.S. border security and others would usurp congressional control over the nation’s immigration laws.
Meanwhile, Alina Inayeh, Director of the Bucharest Office, German Marshall Fund of the United States. writes in a Facebook post:
. . . .
This ideology of authoritarian patriarchy rejects any constraint on the ruler at home or the state abroad. Mr Trump and Mr Putin support a return to an era of unfettered state sovereignty. They would dismantle international and supranational organisations of all kinds and return to multipolar “Great Power” politics, in which alliances shift and are transactional. As Mr Trump has said, America’s allies can be “foes” on some issues and “friends” on others, without any overarching loyalties based on niceties like a shared commitment to liberal democracy.
Above all, nations would not be subject to globalist dictates about how they should treat the people within their borders. They would control and protect their definition of national purity.
From this vantage point, Nato and the EU are intolerable exemplars of the “liberal international order” — an order built in support of a set of anti-nationalist values that were encapsulated in the Universal Declaration of Human Rights. The preamble to the North Atlantic Treaty reaffirms the parties’ “faith in the purposes and principles of the Charter of the United Nations,” including the universal principles of “democracy, individual liberty and the rule of law”.
Similarly, the EU proclaims as “fundamental values”, and indeed requirements for membership in the union, “respect for human dignity and human rights, freedom, democracy, equality and the rule of law”. Not national dignity and rights, but human.
The Russian president may indeed have some kind of hold over Mr Trump, as former CIA director John Brennan has suggested. But opposition to the current international order does not require a scene out of a spy novel. The extreme right of the Republican party has been exaggerating the danger of the UN for decades. Mr Trump is only taking their views mainstream.
A 2017 poll shows more than half of Republicans say the US and Russia should work more closely together. That is still less than 20 per cent of the population, but they are “America first-ers”, the would-be architects of a new world. And they are reaching out to Britain-firsters, Hungary-firsters, France-firsters, Israel-firsters — wherever nationalists are to be found. They seek a return to the rules of the 19th century.
And why not? The post-second-world-war order is just 70 years old — a blip in the history of multi-polar diplomacy. The Soviet Union lasted 70 years. It collapsed but Russia endures. The EU could collapse and European countries would endure. Nato could collapse and transatlantic relations would endure, on a bilateral and plurilateral basis.
It is incumbent upon those of us who see an arc of progress bending towards peace and universal human rights to appreciate the full scope of the threat posed to our 20th-century global architecture. Our response has to be more than defending the status quo. We must begin sketching an affirmative counter-vision of state and non-state institutions that empower their members more than they constrain them and solve problems effectively together.
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Read the complete articles at the respective links above.
HERE’S FORMER INS COMMISSIONER DORIS MEISSNER’S PROFESSIONAL BIO:
Doris Meissner
Senior Fellow and Director, U.S. Immigration Policy Program
Doris Meissner, former Commissioner of the U.S. Immigration and Naturalization Service (INS), is a Senior Fellow at MPI, where she directs the Institute’s U.S. immigration policy work.
Her responsibilities focus in particular on the role of immigration in America’s future and on administering the nation’s immigration laws, systems, and government agencies. Her work and expertise also include immigration and politics, immigration enforcement, border control, cooperation with other countries, and immigration and national security. She has authored and coauthored numerous reports, articles, and op-eds and is frequently quoted in the media. She served as Director of MPI’s Independent Task Force on Immigration and America’s Future, a bipartisan group of distinguished leaders. The group’s report and recommendations address how to harness the advantages of immigration for a 21st century economy and society.
From 1993-2000, she served in the Clinton administration as Commissioner of the INS, then a bureau in the U.S. Department of Justice. Her accomplishments included reforming the nation’s asylum system; creating new strategies for managing U.S. borders; improving naturalization and other services for immigrants; shaping new responses to migration and humanitarian emergencies; strengthening cooperation and joint initiatives with Mexico, Canada, and other countries; and managing growth that doubled the agency’s personnel and tripled its budget.
She first joined the Justice Department in 1973 as a White House Fellow and Special Assistant to the Attorney General. She served in various senior policy posts until 1981, when she became Acting Commissioner of the INS and then Executive Associate Commissioner, the third-ranking post in the agency. In 1986, she joined the Carnegie Endowment for International Peace as a Senior Associate. Ms. Meissner created the Endowment’s Immigration Policy Project, which evolved into the Migration Policy Institute in 2001.
Ms. Meissner’s board memberships include CARE-USA and the Wisconsin Alumni Research Foundation. She is a member of the Council on Foreign Relations, the Inter-American Dialogue, the Pacific Council on International Diplomacy, the National Academy of Public Administration, the Administrative Conference of the United States, and the Constitution Society.
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Colleagues:
My good friend and colleague Ross Pattee, Executive Director of the Immigration & Refugee Board of Canada just told me that the “Canadian Delegation” to the upcoming IARMJ conference will be 30 strong!
Never in my lifetime has the role of Immigration Judges and other judges involved in asylum, refugee, and immigration adjudication been more in the news or more important than now! We all know the stress, tension, and pressure, as well as excitement, that comes from such constant public attention.
Now is the perfect time to take a few days off from the bench to share notes, helpful suggestions, best practices, and otherwise get to know and appreciate your colleagues performing similar functions elsewhere in the world. Knowing that “you are not alone” and that many others share and are dealing with the same challenges as you are has been one of the best features of IRMJ membership and participation for me throughout the years. You’ll also be learning from, and in dialogue with, world-class speakers and scholars, like my long-time friend and “fellow Badger” Doris Meissner, in one of the best legal learning environments in America — the facilities at Georgetown Law.
As one of the original “founding members” of the IARMJ, I know that it has been many years since we have had an event of this magnitude and caliber here in the United States. Who knows when another such opportunity will come our way?
I sincerely hope that you can and will join me and my colleagues from the IARMJ in August.
President Donald Trump meets with President Vladimir Putin of Russia at the G-20 Summit, in Hamburg, Germany, in July 2017. CreditEvan Vucci/Associated Press
Put aside whatever suspicions you may have about whether Donald Trump will be directly implicated in the Russia investigation.
Trump is right now, before our eyes and those of the world, committing an unbelievable and unforgivable crime against this country. It is his failure to defend.
The intelligence community long ago concluded that Russia attacked our election in 2016 with the express intention of damaging Hillary Clinton and assisting Trump.
“In 2016, cyber actors affiliated with the Russian Government conducted an unprecedented, coordinated cyber campaign against state election infrastructure. Russian actors scanned databases for vulnerabilities, attempted intrusions, and in a small number of cases successfully penetrated a voter registration database. This activity was part of a larger campaign to prepare to undermine confidence in the voting process.”
And this is not simply a thing that happened once. This is a thing that is still happening and will continue to happen. As Director of National Intelligence Dan Coats told the committee in February, “Persistent and disruptive cyberoperations will continue against the United States and our European allies using elections as opportunities to undermine democracy.” As he put it, “Frankly, the United States is under attack.”
The Robert Mueller investigation is looking into this, trying to figure out what exactly happened in 2016, who all was involved, which laws were broken and who will be charged and tried.
“Special counsel Robert Mueller’s team has either indicted or gotten guilty pleas from 32 people and three companies — that we know of. That group is composed of four former Trump advisers, 26 Russian nationals, three Russian companies, one California man, and one London-based lawyer. Five of these people (including three former Trump aides) have already pleaded guilty.”
Twelve of those indictments came last week with a disturbingly detailed account of what the Russians did. As The New York Times put it:
“From phishing attacks to gain access to Democratic operatives, to money laundering, to attempts to break into state elections boards, the indictment details a vigorous and complex effort by Russia’s top military intelligence service to sabotage the campaign of Mr. Trump’s Democratic rival, Hillary Clinton.”
Whether or not Trump himself or anyone in his orbit personally colluded or conspired with the Russians about their interference is something Mueller will no doubt disclose at some point, but there remains one incontrovertible truth: In 2016, Russia, a hostile foreign adversary, attacked the United States of America.
We know that they did it. We have proof. The F.B.I. is trying to hold people accountable for it.
And yet Trump, the president whom the Constitution establishes as the commander in chief, has repeatedly waffled on whether Russia conducted the attack and has refused to forcefully rebuke them for it, let alone punish them for it.
In March, the White House, under pressure from Congress, seemed to somewhat reluctantly impose some sanctions on Russia for its crimes. As CNN reported that month, Congress almost unanimously passed the Countering America’s Adversaries Through Sanctions Act last summer, “hoping to pressure Trump into punishing Russia for its election interference.” But as the network pointed out:
“Trump signed the bill reluctantly in August, claiming it impinged upon his executive powers and could dampen his attempts to improve ties with Moscow.”
Instead, Trump has repeatedly attacked the investigation as a witch hunt.
Just last week at a joint press conference with British Prime Minister Theresa May, Trump said:
“I think I would have a very good relationship with Putin if we spend time together. After watching the rigged witch-hunt yesterday, I think it really hurts our country and our relationship with Russia. I hope we can have a good relationship with Russia.”
Now Trump is set to pursue just such a relationship as he meets one-on-one with the Russian president, Vladimir Putin, on Monday in Finland. As Trump said earlier this month at a rally:
“Will he be prepared? Will he be prepared? And I might even end up having a good relationship, but they’re going, ‘Will President Trump be prepared? You know, President Putin is K.G.B. and this and that.’ You know what? Putin’s fine. He’s fine. We’re all fine. We’re people.”
Actually, none of this is fine. None of it! Trump should be directing all resources at his disposal to punish Russia for the attacks and prevent future ones. But he is not.
America’s commander wants to be chummy with the enemy who committed the crime. Trump is more concerned with protecting his presidency and validating his election than he is in protecting this country.
This is an incredible, unprecedented moment. America is being betrayed by its own president. America is under attack and its president absolutely refuses to defend it.
Simply put, Trump is a traitor and may well be treasonous.
Charles M. Blow has been an Op-Ed columnist since 2008. His column appears every Monday and Thursday. He joined The Times in 1994 and was previously the graphics director. He also wrote the book “Fire Shut Up in My Bones.” @CharlesMBlow•Facebook
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Yup! Bogusly claiming that desperate refugees are a threat to our national security, failing to protect us, and in fact enabling and furthering the actual existential threats to our security from Putin. That’s Trump and his “fellow traveler” supporters!
Remember all oft he nonsense about the “Kobach Commission” and their bogus search for almost nonexistent “undocumented voters?” Compare all the pontificating about the “integrity of our election process” with the Administration’s “shrug off” of hard evidence that a foreign power actually did attempt to interfere in our elections with the purpose of sowing discord and electing Trump?
Trump makes enemies out of our friends, creates non-existent enemies, and treats our country’s enemies as if they were our friends!
‘National Socialist,’ circa 1935; photograph by August Sander from his People of the Twentieth Century. A new collection of his portraits, August Sander: Persecuted/Persecutors, will be published by Steidl this fall.
Liberal democracy has enjoyed much better days. Vladimir Putin has entrenched authoritarian rule and is firmly in charge of a resurgent Russia. In global influence, China may have surpassed the United States, and Chinese president Xi Jinping is now empowered to remain in office indefinitely. In light of recent turns toward authoritarianism in Turkey, Poland, Hungary, and the Philippines, there is widespread talk of a “democratic recession.” In the United States, President Donald Trump may not be sufficiently committed to constitutional principles of democratic government.
In such a time, we might be tempted to try to learn something from earlier turns toward authoritarianism, particularly the triumphant rise of the Nazis in Germany in the 1930s. The problem is that Nazism was so horrifying and so barbaric that for many people in nations where authoritarianism is now achieving a foothold, it is hard to see parallels between Hitler’s regime and their own governments. Many accounts of the Nazi period depict a barely imaginable series of events, a nation gone mad. That makes it easy to take comfort in the thought that it can’t happen again.
But some depictions of Hitler’s rise are more intimate and personal. They focus less on well-known leaders, significant events, state propaganda, murders, and war, and more on the details of individual lives. They help explain how people can not only participate in dreadful things but also stand by quietly and live fairly ordinary days in the midst of them. They offer lessons for people who now live with genuine horrors, and also for those to whom horrors may never come but who live in nations where democratic practices and norms are under severe pressure.
Milton Mayer’s 1955 classic They Thought They Were Free, recently republished with an afterword by the Cambridge historian Richard J. Evans, was one of the first accounts of ordinary life under Nazism. Dotted with humor and written with an improbably light touch, it provides a jarring contrast with Sebastian Haffner’s devastating, unfinished 1939 memoir, Defying Hitler, which gives a moment-by-moment, you-are-there feeling to Hitler’s rise. (The manuscript was discovered by Haffner’s son after the author’s death and published in 2000 in Germany, where it became an immediate sensation.)* A much broader perspective comes from Konrad Jarausch’s Broken Lives, an effort to reconstruct the experience of Germans across the entire twentieth century. What distinguishes the three books is their sense of intimacy. They do not focus on historic figures making transformative decisions. They explore how ordinary people attempted to navigate their lives under terrible conditions.
Haffner’s real name was Raimund Pretzel. (He used a pseudonym so as not to endanger his family while in exile in England.) He was a journalist, not a historian or political theorist, but he interrupts his riveting narrative to tackle a broad question: “What is history, and where does it take place?” He objects that most works of history give “the impression that no more than a few dozen people are involved, who happen to be ‘at the helm of the ship of state’ and whose deeds and decisions form what is called history.” In his view, that’s wrong. What matters are “we anonymous others” who are not just “pawns in the chess game,” because the “most powerful dictators, ministers, and generals are powerless against the simultaneous mass decisions taken individually and almost unconsciously by the population at large.” Haffner insists on the importance of investigating “some very peculiar, very revealing, mental processes and experiences,” involving “the private lives, emotions and thoughts of individual Germans.”
Mayer had the same aim. An American journalist of German descent, he tried to meet with Hitler in 1935. He failed, but he did travel widely in Nazi Germany. Stunned to discover a mass movement rather than a tyranny of a diabolical few, he concluded that his real interest was not in Hitler but in people like himself, to whom “something had happened that had not (or at least not yet) happened to me and my fellow-countrymen.” In 1951, he returned to Germany to find out what had made Nazism possible.
In They Thought They Were Free, Mayer decided to focus on ten people, different in many respects but with one characteristic in common: they had all been members of the Nazi Party. Eventually they agreed to talk, accepting his explanation that he hoped to enable the people of his nation to have a better understanding of Germany. Mayer was truthful about that and about nearly everything else. But he did not tell them that he was a Jew.
In the late 1930s—the period that most interested Mayer—his subjects were working as a janitor, a soldier, a cabinetmaker, an office manager, a baker, a bill collector, an inspector, a high school teacher, and a police officer. One had been a high school student. All were male. None of them occupied positions of leadership or influence. All of them referred to themselves as “wir kleine Leute, we little people.” They lived in Marburg, a university town on the river Lahn, not far from Frankfurt.
Mayer talked with them over the course of a year, under informal conditions—coffee, meals, and long, relaxed evenings. He became friends with each (and throughout he refers to them as such). As he put it, with evident surprise, “I liked them. I couldn’t help it.” They could be ironic, funny, and self-deprecating. Most of them enjoyed a joke that originated in Nazi Germany: “What is an Aryan? An Aryan is a man who is tall like Hitler, blond like Goebbels, and lithe like Göring.” They also could be wise. Speaking of the views of ordinary people under Hitler, one of them asked:
Opposition? How would anybody know? How would anybody know what somebody else opposes or doesn’t oppose? That a man says he opposes or doesn’t oppose depends upon the circumstances, where, and when, and to whom, and just how he says it. And then you must still guess why he says what he says.
When Mayer returned home, he was afraid for his own country. He felt “that it was not German Man that I had met, but Man,” and that under the right conditions, he could well have turned out as his German friends did. He learned that Nazism took over Germany not “by subversion from within, but with a whoop and a holler.” Many Germans “wanted it; they got it; and they liked it.”
Mayer’s most stunning conclusion is that with one partial exception (the teacher), none of his subjects “saw Nazism as we—you and I—saw it in any respect.” Where most of us understand Nazism as a form of tyranny, Mayer’s subjects “did not know before 1933 that Nazism was evil. They did not know between 1933 and 1945 that it was evil. And they do not know it now.” Seven years after the war, they looked back on the period from 1933 to 1939 as the best time of their lives.
Mayer suggests that even when tyrannical governments do horrific things, outsiders tend to exaggerate their effects on the actual experiences of most citizens, who focus on their own lives and “the sights which meet them in their daily rounds.” Nazism made things better for the people Mayer interviewed, not (as many think) because it restored some lost national pride but because it improved daily life. Germans had jobs and better housing. They were able to vacation in Norway or Spain through the “Strength Through Joy” program. Fewer people were hungry or cold, and the sick were more likely to receive treatment. The blessings of the New Order, as it was called, seemed to be enjoyed by “everybody.”
. . . .
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Read the complete article at the link.
As a historical footnote, I crossed paths with Cass Sunstein at the DOJ during the Carter Administration in 1980-81, when he was an attorney in the Office of Legal Counsel and I was the Acting General Counsel/Deputy General Counsel of the “Legacy INS.” About all I remember is that: 1) he was brilliant, 2) he wrote really well; 3) everyone had him pegged as among “the most likely to succeed;” and 4) we both had lots, lots more hair then.
I agree with pretty much everything Sunstein says. Except for one major point. I don’t think “it can happen here.” It is happening here!
Cass says “Thus far, President Trump has been more bark than bite.” Really! With all due respect, that seems like a view directly from the “Ivory Tower.”
Ask U.S. citizens children whose parents have been deported for no rational reason without any consideration of what will happen to those left behind; ask those children intentionally abused and probably damaged for life by the likes of Jeff Sessions; ask communities that have been terrorized by the Homan-led “ICE Gestapo” that strikes terror, performs few if any “real” law enforcement functions these days, while insuring that whole segments of the population are “easy marks” for crime and abuse; ask women and children refugees from Central American who are essentially being railroaded back to the “death camps” from which they fled by the noxious White Nationalist racists Trump, Miller, & Sessions, with the assistance of morally vapid sycophants like Nielsen and Kelly, without even the semblance of due process; ask Dreamers who are slurred by the always disingenuous Sessions while being held as hostages by Trump, and hung out to dry by the GOP Congress; ask the kids and families being held in the “New American Gulag” established by Sessions — combined with his intentional distortion of asylum law, they are basically being held in concentration camps waiting to be shipped off to death camps in the Northern Triangle! And we haven’t even gotten to Sessions’s absolutely outrageous, lawless, unconstitutional, and totally immoral plan to rewrite asylum law so that nobody who needs protection actually gets it! Or how about not taking any Syrian refugees, even though they are dying in refugee camps awaiting resettlement every day. Just because the actual deaths, rapes, torture, US-caused human trafficking, and other unspeakable abuses take place outside our national boundaries doesn’t mean that we aren’t just as responsible for them as the fat & happy Burghers of the Third Reich!
I wrote about Sunstein’s timely, yet totally disturbing, article in my response to a comment from my good friend, colleague, and fellow member of the “Gang of Retired Immigration Judges,” Judge Gus Villageliu in response to one of his “right on” comments today. Here’s what I said:
There is a great article by Professor Cass Sunstein about the parallels between Nazism and Trumpism. The key: Germans who supported Hitler were fat, happy, and satisfied with their lives under Nazism and were willfully indifferent to the torture and suffering of their fellow human beings. They happily accepted the Nazi propaganda that Jews were either traitors or had voluntarily left the country after being fairly compensated for their property. Even after the war, some ordinary Germans looked back on the 1933-39 era of Nazi rule as the best time of their lives.
Another key observation by Sunstein: resistance is never futile and every individual act of resistance, no matter how small or insignificant it might seem at the time, is important. The little acts and persistence add up over time.
In my view, they also establish an important record for historians and future generations. I want my grandchildren, great-grandchildren, and great-great-grandchildren to know where I stood in the era of Trump, Sessions, Miller & the rest of the White Nationalist neo-Nazis and their utterly disgusting perversion of Western Judeo-Christian values!
Due Process, tolerance, courage, standing up for the less fortunate, and recognizing the human rights and dignity of every person are eternal values that are always worth fighting for!
Join the New Due Process Army. Resist the White Nationalist Regime every step of the way. Force “go along to get along” courts (like the Supremes) to face up to the horrible immorality of their appeasement of the cruel, inhuman, and illegal actions of the Trump Administration. Write the historical record that even the Trumpsters and their followers won’t be able to escape so that we might never, ever again have a Neo-Nazi revival like the Trump Administration!
The Department of Justice, under Attorney General Jeff Sessions, is drafting a plan that would totally overhaul asylum policy in the United States.
Under the plan, people would be barred from getting asylum if they came into the US between ports of entry and were prosecuted for illegal entry. It would also add presumptions that would make it extremely difficult for Central Americans to qualify for asylum, and codify — in an even more restrictive form — an opinion written by Sessions in June that attempted to restrict asylum for victims of domestic and gang violence.
Vox has confirmed that the regulation is in the process of being evaluated, and has seen a copy of a draft of the regulation.
When the regulation is ready, it will be published in the Federal Register as a notice of proposed rulemaking, with 90 days for the public to comment before it’s enacted as a final regulation.
The version Vox saw may change before it’s finalized, or even before the proposal is published in the Federal Register. (The Department of Justice declined to comment.)
But as it exists now, the proposal is a sweeping and thorough revamp of asylum — tightening the screws throughout the asylum process.
One source familiar with the asylum process but not authorized to speak on the record described the proposed changes as “the most severe restrictions on asylum since at least 1965” — when the law that created the current legal immigration system was passed — and “possibly even further back.”
The Immigration and Nationality Act gives the attorney general, along with the Department of Homeland Security, discretion over asylum standards — saying that the government “may grant asylum” to an applicant who they determine meets the definition of a refugee. But the proposed regulation would make it nearly impossible for Central Americans, including families, to earn the government’s approval.
It would eliminate the path that thousands of Central Americans, including families, take every month to seek asylum in the US: entering between ports of entry and presenting themselves to Border Patrol agents. It would make it all but impossible for victims of domestic or gang violence to qualify for asylum — going even further than a June decision from Sessions that sought to limit asylum access for those groups. It would create a presumption against Central Americans who travel through Mexico on their way to the US.
Anyone convicted of entering the US illegally would become ineligible for asylum
What happens under current policy: Under the Trump administration’s “zero tolerance” initiative, all migrants who cross between ports of entry and are apprehended by Border Patrol are supposed to be criminally prosecuted for illegal entry.
That arrest can delay a person’s claim of asylum, but it doesn’t derail it. An asylum-seeker may not get their initial screening interview, which determines whether they’ll be allowed to file an asylum application and get a hearing, until after they’ve been prosecuted and convicted. And they definitely won’t get approved for asylum before their criminal conviction.
But the conviction for illegal entry doesn’t affect the asylum claim; as Customs and Border Protection puts it, the two are on “parallel tracks.”
What would happen under the new plan: The proposed regulation would bar anyone from getting asylum if they’d been convicted of illegal entry or illegal reentry. That means people who asked for asylum when they were apprehended at the border, but were prosecuted first, would get denied asylum.
In effect, under this new regulation, combined with the zero-tolerance prosecution initiative, no one would be able to come to the US and get asylum unless they presented themselves at a port of entry. Many asylum-seekers simply don’t have that option. Smugglers often prevent asylum-seekers from using official ports of entry, and many of those who do come to ports of entry are being forced to wait days or weeks, after being told there’s no room to process them right now. And asylum-seekers who come to ports of entry are often required to stay in immigration detention without bond until their case is complete.
The administration would almost certainly get sued over this provision if it ended up included in the finalized regulation. The Department of Justice (DOJ) has the power to bar people from getting asylum (or other forms of relief from deportation) if they’ve committed “particularly serious crimes.” While there’s no definition of seriousness in the law, lawyers and immigration advocates would likely challenge the idea that illegal entry, a misdemeanor, is “particularly serious.”
But even if that provision is struck down or eliminated by the courts, another proposal in the draft regulation could have much the same effect. It would instruct immigration judges to consider how the asylum-seeker got into the US, and treat it as a significant factor in whether or not to grant asylum (since asylum-seekers have to show they deserve “favorable discretion” from the judge). So even if people who crossed between ports of entry weren’t officially banned from getting asylum, they would have a very hard time winning their cases in practice.
If adopted, the regulation, combined with the zero tolerance initiative, would allow the administration to set up assembly-line justice for asylum seekers, including families, entering the US. People who entered between official ports would be held by the Department of Homeland Security, prosecuted for illegal entry, convicted, then have their asylum applications denied and get deported.
While the Trump administration is currently trying to win the power to detain families for more than 20 days, if this regulation were enacted, they might not even need to. They could deny most asylum claims and deport the claimants within that time.
Victims of domestic or gang violence would be all but banned from asylum
What happens under current policy: US law limits asylum to people who are persecuted because of their race, religion, political opinions, nationality, or membership in a particular social group.
The government has been wrestling for decades with that last classification — what exactly counts as a “particular social group”? — and with whether someone is “persecuted” if they’re victimized by someone other than the government. These questions are key to the fate of many of the Central Americans (including children and families) who have come to the US to seek asylum in recent years, many of whom are claiming asylum based on domestic violence or gang victimization in their home countries.
In June, with a sweeping ruling overturning a case from the Board of Immigration Appeals, Sessions attempted to narrow the circumstances in which someone fleeing domestic or gang violence could qualify for asylum in the US — saying that, generally, victims of domestic or gang violence wouldn’t be eligible for asylum based on their victimization.
As I reported last week, though, US Citizenship and Immigration Services (USCIS) has been cautious in implementing Sessions’s opinion. Most notably, while Sessions decreed that his ruling overturned any precedent that contradicted it, USCIS only told asylum officers to stop using the one precedent decision Sessions explicitly named as moot.
It looks like the DOJ may be trying to use regulation to accomplish the same goal — with even narrower definitions of “persecuted” and “particular social group.”
What would happen under the plan: The proposed regulation would add several restrictions to what could constitute a particular social group: a family, for example, wouldn’t be a social group unless the family had a visible national presence. Interpersonal violence or crime victimization, similarly, wouldn’t be the basis for social group membership unless they were happening on a national scale. Having been recruited by a gang would be explicitly prohibited as grounds for an asylum claim.
To qualify for asylum, an applicant would have to show that the people who persecuted her were also persecuting others on the same basis. Human-rights lawyers worry this could disqualify many legitimate asylum claims. One lawyer raises the example of a gay man in Russia who suffers a violent homophobic attack: Under the proposal, “this would not be persecution on account of sexual orientation unless you could prove that these attackers had previously persecuted other gay men.”
An asylum-seeker would be required to provide an exact definition of her “particular social group” when she was applying for asylum. And she wouldn’t be allowed to appeal a denial, or reopen a claim, on the basis of any group she hadn’t originally named.
It’s extremely difficult for anyone other than a trained immigration lawyer to know exactly what does and doesn’t count as a particular social group eligible for asylum. Under the proposed regulation, however, an asylum-seeker who didn’t know the precise nature of the basis for her persecution would be assumed to not really be a victim of persecution at all.
This standard wouldn’t just apply to final approvals or denials of asylum. The initial step for an asylee is what’s called a “credible fear” screening, during which an asylum officer decides whether the person has a credible fear of going back to their home country. The proposed rule would tighten standards for those, too.
Immigration lawyers and border advocates were already extremely concerned that Sessions’s May ruling would cause asylum officers to radically hike the standards for passing the screening interview (though the USCIS memo posted by Vox suggests that might not be the case just yet). If this regulation were finalized, however, it seems very possible that many people who are currently given the opportunity to apply for asylum would be turned away before they got the chance.
Central Americans would be penalized for not seeking asylum in Mexico
What happens under current policy: Many asylum seekers are Central Americans who come through Mexico to seek asylum in the US. The US is not allowed to simply turn them back and force them to seek asylum in Mexico instead. (The Trump administration is trying to get Mexico to sign a “safe third country” agreement that would allow them to do this, but Mexico appears unenthusiastic.) But the proposed regulation would make it a lot easier to deny their asylum claims based on not having sought asylum in Mexico first.
What would happen under the plan: Under the proposed rule, the government would generally withhold “favorable discretion” (and, therefore, deny the asylum claim) for anyone who had spent more than two weeks in another country en route to the US without seeking asylum there, or who had traveled through more than one country on the way to the US.
Many Central Americans, especially if they take the train through Mexico or travel on foot, take more than two weeks to travel through Mexico. And asylum-seekers from Honduras and El Salvador cross through Guatemala and Mexico to get to the US — meaning that they would almost certainly not earn the “favorable discretion” required to get their asylum claim approved.
Tightening the screws on the entire asylum process
The proposed regulation is extremely broad, with a lot more provisions — all of which would make it much harder for people to seek and get asylum. Some of the remaining ideas in the proposed draft include:
Limiting appeals for asylum-seekers who fail their screening interviews. Under current law, if an asylum-seeker fails her initial “credible fear” interview with an asylum officer, she can appeal for a judge to review her claim with fresh eyes — ignoring the fact that the asylum officer hadn’t found it a credible claim. Under the proposed regulation, judges would only be able to approve a credible-fear claim on appeal if there was clear evidence that the asylum officer had screwed up.
Rejecting incomplete applications first and letting them get completed later. Instead of returning incomplete asylum applications to the applicant and asking her to complete it, the government would reject the application. The applicant would still have 60 days to complete and resubmit the application before it was officially denied, but it’s not clear how applicants would be told about that — or whether they’d read beyond the word “rejected.”
Allowing judges to put evidence into the record on their own. The proposal would allow immigration judges considering asylum cases to unilaterally insert any information from credible sources into the record (as long as both the prosecutor and defense were informed). This provision would make it much easier for judges to insert information claiming that an asylum-seeker’s home country isn’t as dangerous for him as he claims — since asylum cases often hinge on whether there’s anywhere safe in the home country the asylum-seeker could live instead of the US.
Immigrants could be barred from asylum based on traffic offenses… In addition to the new prohibitions on asylum for immigration-specific crimes, the regulation would ban any applicant who’d been convicted of two or three misdemeanors (depending on what they were) from getting asylum.
This would have the biggest impact on unauthorized immigrants living in the US who get arrested and put in deportation proceedings, but ask for asylum to avert their deportation. (Under asylum law, someone can ask for asylum at any point within their first year of living in the US.)
In immigration policy, traffic offenses like driving without a license often don’t count as misdemeanors because in many states unauthorized immigrants aren’t allowed to get licenses. But the draft regulation makes clear that if driving without a license is a misdemeanor in the jurisdiction in question, it counts toward ineligibility.
…and blue states can’t fix eligibility by expunging immigrants’ records. Some Democratic state officials (most notably Gov. Jerry Brown in California) have started to use the pardon power to clear the criminal records of immigrants facing deportation. This regulation would do an end-run around that strategy.
Convictions that had been expunged or otherwise modified after the fact would still count as convictions if there was any evidence that the criminal record had been altered for immigration purposes. In other words, if Brown tried to expunge a record to make someone eligible for asylum, the fact that that’s why he did it would prevent it from stopping their deportation.
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WOW!
WHO WOULD HAVE THOUGHT THAT ADOLF HITLER WOULD LOSE WORLD WAR II, YET HAVE HIS DIRECT IDEOLOGICAL DESCENDANTS IN CONTROL OF THE UNITED STATES OF AMERICA 73 YEARS LATER?
Seems to me that we’re witnessing the end of the U.S. as a democratic republic and the beginning of a Nazi-style, White Nationalist, racist authoritarian regime that, with the help of a complacent Supreme Court led by a spineless Chief Justice and his group of GOP appointed sycophants, is basically tearing up our Constitution, spitting on it, and dismantling our democratic institutions before our eyes.
I do have to admit, however, that becoming a neo-Nazi, White Nationalist totalitarian state is likely to diminish our attractiveness as a destination for immigrants and anyone else: The “Stalin theory” of immigration control. And, I suppose that once the kids have been disposed of by returning them to death in the Northern Triangle, Trump & Sessions will use the cages to keep the rest of us in.
The New Due Process Army might be the last defender of our Constitution and human values!
The sci-fi writer William Gibson once said, “The future has arrived — it’s just not evenly distributed yet.” In America in 2018, the same could be said of authoritarianism.
Since Donald Trump was elected, there’s been a boom in best-selling books about the fragility of liberal democracy, including Madeleine Albright’s “Fascism: A Warning,” and Timothy Snyder’s “On Tyranny.” Many have noted that the president’s rhetoric abounds in classic fascist tropes, including the demonization of minorities and attempts to paint the press as treasonous. Trump is obviously more comfortable with despots like Russia’s Vladimir Putin than democrats like Canada’s Justin Trudeau.
We still talk about American fascism as a looming threat, something that could happen if we’re not vigilant. But for undocumented immigrants, it’s already here.
There are countless horror stories about what’s happening to immigrants under Trump. Just last week, we learned that a teenager from Iowa who had lived in America since he was 3 was killed shortly after his forced return to Mexico. This month, an Ecuadorean immigrant with an American citizen wife and a pending green card application was detained at a Brooklyn military base where he’d gone to deliver a pizza; a judge has temporarily halted his deportation, but he remains locked up. Immigration officers are boarding trains and buses and demanding that passengers show them their papers. On Monday, Attorney General Jeff Sessions decreed that most people fleeing domestic abuse or gang violence would no longer be eligible for asylum.
But what really makes Trump’s America feel like a rogue state is the administration’s policy of taking children from migrants caught crossing the border unlawfully, even if the parents immediately present themselves to the authorities to make asylum claims. “This is as bad as I’ve ever seen in 25 years of doing this work,” Lee Gelernt, deputy director of the A.C.L.U.’s Immigrants’ Rights Project, told me. “The little kids are literally being terrorized.”
Family separations began last year — immigrant advocates aren’t sure exactly when — and have ramped up with the administration’s new “zero tolerance” policy of prosecuting everyone who crosses the border without authorization. Over two weeks in May, more than 650 children were snatched from their parents.
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Read the rest of Michelle’s article at the above link!
In case you haven’t noticed (and Trump supporters either haven’t, or have ignored it), everyone around Trump, including friends, family, business associates, political supporters, Cabinet members, allies, lawyers, campaign workers, former girlfriends and liaisons, is “expendable.” The only “non-expendable” person in Trump’s universe is, no surprise here, Trump.
And, like any authoritarian despot, he picks people off one by one or in vulnerable groups by isolating, bullying, demeaning, dehumanizing, and then destroying them while the others look on offering no help to the fallen and just thinking “glad it wasn’t me!”
But, when your time comes (and it well may, if we allow Trump to continue in office long enough) who will be there to stand up for you? Who will speak up for your rights? Indeed, what “rights” will you have after Trump, Sessions, Pence & Co have finished destroying our Constitution and stomping on the real rule of law to institute their White Nationalist Empire?
And what kind of country with what kind of people make terrorizing already traumatized kids a national policy?
One of the great under-reported stories of the Trump era is the extent to which the toxicity of the current administration has made high-level government appointments—once among the nation’s most prestigious vocations, and a stepping stone to more lucrative careers—virtually radioactive. John Kelly is said to be hard-pressed to fill out the ranks; State Department departures amount to “a hit on personnel that lasts a decade,” per one former official; and in policy areas from international trade to negotiations with North Korea, Donald Trump’sWhite House has failed to attract much-needed expertise. Perhaps nowhere is this more true than at the Justice Department, where 500 days into Trump’s term, his administration is still struggling to fill top spots. According to a Wall Street Journalreport published Tuesday, the White House has failed to persuade at least three people to accept the traditionally plum position of associate attorney general, the No. 3 job at the D.O.J., prompting an official pause to the search.
Given the recusal of Attorney General Jeff Sessions and the perilous position of Deputy Attorney General Rod Rosenstein, whoever fills the spot could realistically find themselves overseeing Robert Mueller’s probe into the Trump campaign’s ties to Russia. The possibility has already (reportedly) scared away one associate A.G.: Rachel Brand, who left the role in February for an executive position at Walmart, told officials the job was too good to pass up. But sources close to Brand told NBC News that she was “frustrated by vacancies at the department and feared she would be asked to oversee the Russia investigation.” (A Justice Department spokeswoman pushed back on the report, calling it “false and frankly ridiculous.”) Two other candidates, attorneys Helgi Walker and Kate Todd— both veterans of the George W. Bush administration and Clarence Thomas clerkships—turned down the job, sources told the Journal, though their motivations for doing so are unclear. Nor is the No. 3 spot the only D.O.J. position the White House has failed to fill: according to the Journal, at least five high-profile units at the Justice Department still don’t have permanent, politically appointed leaders, including the criminal, civil, and tax divisions.
In a few cases, the Trump administration’s picks have been stalled in the confirmation process—the heads of both the criminal and civil units were named a year ago, for instance, but still haven’t been scheduled for a Senate vote. Per the Journal, the Russia probe is at play here, too: Democrats are “pressing nominees about how they would handle the probe should they become involved in it,” and Republicans, too, have been slow to push for a vote.
The pall of the Russia probe hangs equally heavy over current D.O.J. officials, who are constantly dodging attacks from the president over their own roles. Trump has repeatedly and publicly admonished Sessions over his recusal; in his latest attack, Trump blamed the top lawyer for the probe’s indefinite timeline. “The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself . . . I would have quickly picked someone else. So much time and money wasted, so many lives ruined,” Trump tweeted, adding, “Sessions knew better than most that there was No Collusion!” The Trump-Sessions relationship has reportedly deteriorated to the point that Trump refuses to say the former Alabama senator’s name out loud, a practice his stop aides have also picked up:
Trump’s fury with Sessions is so ever-present it has taken to darkening his moods even during otherwise happy moments. On Thursday, Trump was on Air Force One returning from a trip to Texas, reveling in both a successful day of fundraising and the heads-up he had received from economic adviser Larry Kudlow that the next day’s jobs report would be positive.
But when an aide mentioned Sessions, Trump abruptly ended the conversation and unmuted the television in his office broadcasting Fox News, dismissing the staffer to resume watching cable, according to a person familiar with the exchange.
Rosenstein, too, has been a frequent presidential punching bag. While Trump has targeted Sessions for his “original sin” of recusal, the deputy attorney general is the one responsible for appointing Mueller in the first place, not to mention for signing off on the F.B.I. raid of Michael Cohen. He’s battled with Trump allies over D.O.J. document requests and has come under scrutiny for the role he played in James Comey’s firing: on Tuesday, Senator Lindsey Graham told reporters that Rosenstein should be a key witness in the obstruction of justice aspect of the investigation, considering he penned a letter recommending Comey’s dismissal on the grounds that the former F.B.I. director mishandled the probe into Hillary Clinton’s e-mails. Graham also sent the D.A.G. a letter questioning Rosenstein’s oversight of the investigation late last month.
The White House’s struggle to fill out the ranks would result in an unusual situation should Rosenstein recuse himself, resign, or be fired—all possible outcomes. With Jesse Panuccio serving in an acting capacity as the associate attorney general, the responsibility of overseeing the Russia probe would likely fall to Solicitor General Noel Francisco. Typically, Francisco’s job is to argue on the government’s behalf in cases that go before the Supreme Court. And while it’s unclear how Francisco would treat the role, what’s much less ambiguous is how Trump would want him to treat it. “When you look at the I.R.S. scandal, when you look at the guns for whatever, when you look at all of the tremendous, aah, real problems they had, not made-up problems like Russian collusion, these were real problems,” Trump toldThe New York Times. “When you look at the things that they did, and Holder protected the president. And I have great respect for that, I’ll be honest.”
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Gee, I remember how totally excited I was the day I got my job offer to serve as a GS-11 Attorney Adviser at the BIA under the DOJ Honors Program in 1973. Short of family events, it was one of the most exciting and satisfying events of my life. Who would have thought that 45 years later the once-proud DOJ would be run by a Jim Crow wannabe working for a White Nationalist regime?
Most of the “vibes” that I get are that everyone eligible or nearly eligible for retirement at the DOJ is getting those retirement estimates updated. Better hurry, though, before Trump & the GOP Know Nothings put the finishing touches on their plan to destroy the retirement system, the merit Civil Service, and return to the “good old days” of the spoils system where jobs could be handed out to political cronies and sycophants who could be hired and fired at will. And, of course, anyone with the integrity to stand up to these political hacks could be unceremoniously fired on the spot to make way for the kakistocracy.
Just like destroying the Constitution disingenuously is called “restoring the rule of law” in the Trump Administration, replacing the merit-based career Civil Service with a sycophantic kakistocracy is what disingenuously is termed “promoting accountability.”
International Association of Refugee and Migration Judges
America’s Chapter
Office of the Vice President
Alexandria, Virginia
June 6, 2018
Dear colleagues,
As those of you who know me well realize, since my retirement from the bench, there’s not much that can keep me away from Maine and Wisconsin in July and August! But, this year’s America’s Chapter Conference at the beautiful campus of Georgetown Law in D.C. is one of those exceptions.
As the Vice President of the International Association of Refugee and Migration Judges’ (IARMJ) Americas Chapter, I enthusiastically invite you to join me at the Americas Chapter Conference to be held in Washington, D.C., August 1-5, 2018.
As you may be aware, the IARMJ is a voluntary association of judges and quasi-judicial decision makers whose main purpose is to foster an understanding of the obligations created by the United Nations Convention Relating to the Status of Refugees. For instance, this includes supporting capacity building initiatives and the sharing of best practices with nascent refugee determination systems in the Americas to help develop expertise and practices around the world, in accordance with international legal instruments and standards. Then Chief U.S. Immigration Judge (now BIA Appellate Immigration Judge) Michael J. Creppy and I were among the founding members of the IARLJ (the original name of the IARJM) in Warsaw, Poland, two decades ago. As you might expect, my signature is scrawled large across the bottom of the original articles!
The conference will begin with two days of pre-conference workshops, followed by two days of plenary sessions, and a capstone program examining law and justice at the United States Holocaust Memorial Museum on day five. Expert speakers at this event will include, in addition to internationally renowned academics and specialists, representatives from the United Nations High Commissioner for Refugees, the Immigration and Refugee Board of Canada, the United States Citizenship and Immigration Services – Asylum Division as well as other government entities and NGOs.
This August, the Americas Chapter seeks to examine the theme of resilience in our asylum systems through an in-depth legal analysis and discussion of various topics, including trauma-informed adjudications techniques, the real-world impact of heavy workloads and humanitarian caseloads on adjudicators, the impact of bias on adjudicative decisions and how lessons learned from recent migration surges can help to inform the creation of more resilient legal protection systems and processes.
Participation is open worldwide, and we aim to invite asylum and refugee judges, quasi-judicial decision makers and tribunal members at all levels. I am thus writing to request your support to both attend this special and timely Conference and to help us promote participation at the Conference, among current and retired U.S. Immigration Judges, BIA Appellate Immigration Judges, and Article III Federal Judges at all levels.
This will be a unique opportunity to make asylum judges throughout the world aware of the challenges that we are facing here in the United States and to share notes with them on how to effectively adhere to the principles enunciated in the 1952 Geneva Convention Relating to the Status of Refugees.
ociation of Refugee Please find attached a draft version of the agenda for your reference. I encourage you to visit our website at https://www.iarlj.org/events/event/56-iarlj-americas-chapter-conference for updated conference information, including registration details. If you have any questions or require further assistance, please do not hesitate to contact the following email: iarmjamericaschapter@gmail.com.
I look forward to seeing you at Georgetown Law in August!
Friends, there has NEVER been a more important time for this Conference and this terrific organization dedicated to promoting professionalism, respect, fairness, Due Process, and international understanding in interpreting and applying the 1952 Convention on the Status of Refugees — the most important international accord in the timeless history of refugees! Meetings like this don’t come to the United States often. Don’t miss this opportunity for a special, one-of-a-kind experience with your peers from elsewhere!
IMPORTANT NOTE: Although we would, of course, love to have you join our organization and will have a favorable membership rate for new members, membership in the IARMJ is not required to attend this conference!
Hong Fei Gao v. Sessions, 2d Cir., May 25, 2018, published
PANEL: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*
Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.
OPINION BY: JUDGE CHIN
SUMMARY OF HOLDING (From Decision):
These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility.
On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.
KEY QUOTE:
For cases filed after May 11, 2005, the effective date of the REAL ID Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as theʹtotality of the circumstancesʹ establishes that an asylum applicant is not credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The agency may base a credibility finding on an asylum applicantʹs ʺdemeanor, candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the consistency among his written statements, oral statements, and other record evidence; and ʺany inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even where the agency ʺrelies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations based on omissions following the REAL ID Act.
First, although the REAL ID Act authorizes an IJ to rely on ʺanyinconsistency or omission in making an adverse credibility determination,ʺ even one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not give an IJ free rein. The REAL ID Act does not erase our obligation to assess whether the agency has provided ʺspecific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.ʺ). Thus, although IJs may rely on non‐material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight. A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting thatʺtrivial inconsistencies that under the total circumstances have no bearing on a petitionerʹs veracity should not form the basis of an adverse credibility determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ forʺfail[ing] to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other handʺ).3
Second, although ʺ[a] lacuna in an applicantʹs testimony or omission in a document submitted to corroborate the applicantʹs testimony . . . can serve as a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at 166 n.3, we also recognize that ʺasylum applicants are not required to list every incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹsʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to find that one seeking asylum must state in his or her application every incident of persecution lest the applicant have his or her credibility questioned if the incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S., 663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in generalʺomissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility determination where petitionerʹs ʺasylum application did not simply omit incidents of persecution. . . . [but rather] described the same incidents of persecution differentlyʺ).
An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy.
Although the federal evidentiary rules do not apply in immigration proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is nonetheless instructive to analogize the use of omissions in adverse credibility determinations to the use of a witnessʹs prior silence for impeachment. In the latter context, we have indicated that ʺ[w]here the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition, the probative value of a witnessʹs prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.ʺ(emphasis added)). In the immigration context, in assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.
Finally, the REAL ID Act requires IJs to evaluate each inconsistency or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐established rule that review of an agencyʹs adverse credibility determination ʺis conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin, 534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the manner in which it hangs together with other evidenceʺ (citation omitted)); accord Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even outright lies ‐‐ must be weighed in light of their significance to the total context of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127 (2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v. U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.ʺ).
II. Application
In light of the foregoing principles, we conclude that in both cases, the IJs and the BIA erred by substantially relying on certain inconsistencies and omissions that had no tendency to show that petitioners fabricated their claims when considered in light of the totality of the circumstances and in the context of the record as a whole. Because we cannot confidently predict that the IJs would have adhered to their adverse credibility determinations absent these erroneous bases, we remand for further evaluation.
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So, while Jeff Sessions is busy with a “nuclear attack” on asylum law and Constitutional Due Process, some U.S. Immigration Judges and BIA Appellate Immigration Judges are equally busy just mis-applying well-established legal standards to screw asylum seekers.
Rather than looking at the record as a whole, as required by law, and giving asylum seekers the “benefit of the doubt,” too many Immigration Judges and BIA Judges are playing “gotcha” with the law — using minor or irrelevant variances in testimony or minor gaps in proof to justify bogus adverse credibility findings and asylum denials. Obviously, as backlogs stretch out, the problems inherent in “fly-specking” an applicant’s testimony about events many years in the past increases. That’s one of the reasons why Sessions’s insane bid to shove more properly administratively closed removal cases back onto “active dockets,” and to discourage the further removal of “low priority” cases from active dockets, is totally and intentionally destructive to an already failing court system.
The REAL ID ACT was effective in 2005, well over a decade ago. So, its proper application is not “rocket science.” It’s “Immigration Judging 101.”
Yet unfair applications of the law to wrongfully discredit and deny asylum seekers persists in the Immigration Courts and seems to breeze through at least some BIA “Panels” without critical review or analysis. I put “Panels” in quotes because all too often these days the appellate review is conducted by a “Panel of One” judge.
And since the BIA Appellate Immigration Judges now come almost exclusively from Government backgrounds, they are very likely to share some of the same “blind spots” as to the reality of presenting an affirmative asylum application in Immigration Court. If any of them have done it (and most haven’t), it was decades ago when conditions and the law were very different. They all too often draw inferences and reach conclusions that any competent immigration practitioner would know are way out of line with reality.
How are these endemic problems affecting fairness and Constitutional Due Process in the Immigration Courts, and potentially destroying and endangering lives of asylum applicants, solved by cranking up judicial productivity, trying to reverse long-standing precedents that aid asylum seekers pursuing legal protections, and making biased public anti-asylum statements? How is justice and Due Process served by gratuitously attacking immigration lawyers and disingenuously seeking to eliminate laws that provide the already meager and inadequate protections that asylum seekers now have? Yet this is precisely what Sessions’s program is!
The Immigration Court system needs reform to guarantee unbiased, high quality, fair treatment of asylum seekers and other individuals fighting for their very lives. Jeff Sessions is dedicated to the eradication of Due Process and turning the Immigration Courts into a “Death Railroad” for asylum seekers and other migrants. He must be stopped before he destroys our entire U.S. justice system — apparently his ultimate aim.
Join the New Due Process Army and stand up to Jeff Sessions and the other bullying, scofflaw, White Nationalists in the Trump Regime.
President Trump issued three executive orders Friday aimed at overhauling the federal bureaucracy by making it easier to fire poor performers, sharply curtailing the amount of time federal employees can be paid for union work and directing agencies to negotiate tougher union contracts.
The orders could result in the biggest changes in a generation to civil service protections long enjoyed by federal workers.
White House officials said the goal of the executive orders is to make the workforce of two million federal employees more efficient and responsive to the public and to improve morale.
In a briefing with reporters, Andrew Bremberg, the White House’s director of the domestic policy, said that a survey of federal employees has found that many do not believe their agencies adequately address poor performers.
“These executive orders make it easier for agencies to remove poor performing employees and ensure that taxpayer dollars are more efficiently used,” he said.
One of the executive orders, which allows employees accused of misconduct to be fired more easily, expands on legislation that Congress passed last year to bring more accountability at the Department of Veterans Affairs.
“President Trump is attempting to silence the voice of veterans, law enforcement officers, and other frontline federal workers through a series of executive orders intended to strip federal employees of their decades-old right to representation at the worksite,” the American Federation of Government Employees, the largest federal employee union, said in a statement.
Joe Davidson contributed to this report.
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An honest, apolitical, expert career Civil Service has been the main difference between America and many of the dictatorships, one-party states, and failed states from which we once distinguished ourselves. Once destroyed, it won’t easily be rebuilt. That could well spell the end of America as an economic superpower and world leader.
Can the “Trump Kakistocracy” and his co-opted “Party of GOP Grifters” be stopped before it’s too late? Only time will tell. But, the clock is ticking!
