"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.
As many as 1,000 parents separated from their children are getting a second chance to stay in the US
In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.
A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.Mario Tama/Getty Images
The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.
The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.
If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.
And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.
The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.
If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.
Separating families made it much harder for parents to seek asylum
Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.
If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.
Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.
“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”
By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.
So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)
None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.
The government is agreeing to give reunited families the same chance they’d had if they’d never been separated
Here is what the agreement proposed by the government would actually do, if approved:
Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.
It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.
The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.
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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?
Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.
Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:
Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
to establish a viable overseas refugee screening program in the Northern Triangle;
working with other countries to share resettlement responsibilities;
and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.
Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).
Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.
Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.
Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!
Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.
Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.
It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.
Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.
Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.
During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.
Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.
But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.
We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:
Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation
At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.
Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.
Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.
Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman
During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.
He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.
Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.
Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).
As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.
Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group
My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.
Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.
August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.
Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.
Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.
Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.
Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion
I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.
Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.
A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”
(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)
Photos from my trip to Folkston, GA:
The Folkston ICE Processing Center.
Downtown Folkston, GA.
Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).
Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.
As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.
Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.
But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?
Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”
Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?
How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?
Your choice. Choose wisely. Good luck. Do great things!
Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.
Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.
The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.
This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.
Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.
“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.
Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”
Here are the biggest ways Sessions is attacking the immigration courts:
It’s now much more difficult to apply for asylum
In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.
Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.
In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, toldMother Jones when the decision was first announced.
A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.
Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”
Judges have less control over their case loads …
This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.
Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.
The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.
… and will have to move through them more quickly
In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.
The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.
“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”
It’s harder for them to reschedule cases
On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.
Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.
And as more judges retire, Sessions gets to staff up
Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”
Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.
What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”
Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.
Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.
Under Sessions, he says, the immigration court “has become a deportation railway.”
Sent from my iPad
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Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.
For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.
Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.
Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.
He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.
That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.
Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.
Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!
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.
(JTA) — A delegation of Jewish leaders from 17 organizations is visiting detention and migrant facilities on the U.S.-Mexico border.
The 27-person delegation visited detention centers in San Diego on Tuesday and is traveling to asylum-seeker shelters in Tijuana, Mexico, on Wednesday.
The trip, which is being organized by the Anti-Defamation League and the Jewish refugee aid group HIAS, includes meetings with American and Mexican government officials, immigration attorneys and humanitarian workers. Among the participants are representatives from three Jewish movements — Reform, Reconstructionist and Conservative — as well as groups such as the American Jewish World Service, the Jewish Council on Public Affairs and J Street. Mark Hetfield, CEO of HIAS, described the visits to detention centers and courthouses where migrants are being tried on charges that they entered the country illegally.
“It’s heartbreaking to see the way the United States is treating immigrants. It’s not treating them like human beings,” he told JTA in a phone interview from Tijuana.
Hetfield, a former immigration lawyer, said members of the delegation witnessed migrants being tried in a court as a group and that some who pleaded guilty to criminal charges lacked proper understanding of the consequences.
“It’s really troubling in terms of the lack of due process and the lack of understanding that people have as they’re going through and pleading guilty to these criminal proceedings,” he said.Nancy Kaufman, CEO of the National Council of Jewish Women, said visiting a detention center for unaccompanied minors, which held children as young as 6 years old, was “eye opening.”
Though she described the shelter as “clean and decent” and the staff as “very caring,” she had concerns about the conditions.
“I asked if they go to school. They have school there, but I don’t know how you have meaningful educational programs for that kind of range of kids,” she said.
Kaufman referenced the Holocaust in speaking about the importance of the trip.
“As Jewish leaders, we need to bear witness. We all committed after the Holocaust to ‘Never again’ — we meant it,” she said. “I think we all live our lives with the belief that every person is made in the image of God, ‘b’tzelem Elohim,’ and should be treated with dignity and respect.”
Jonathan Greenblatt, CEO of ADL, called the trip “a moral imperative” in a statement to JTA.
“In the face of continued harsh policies by the Administration targeting immigrants and asylum seekers, we’re here to learn more about the crisis at the border, listen to the experiences of migrants and asylum seekers escaping violent conditions, and recommit to our advocacy for humane and compassionate immigration policies,” he said.Many Jewish groups have joined progressives and some conservatives in criticizing President Donald Trump’s immigration policies, including his executive orders banning citizens from some Muslim-majority countries from entering the United States and the since-rescinded policy of separating migrant families at the border.
Last week, HIAS organized a letter to Trump urging him to raise the cap on refugees admitted into the country to at least 75,000. The letter was signed by leaders of 36 Jewish groups. Trump set the cap for 2018 at 45,000, a historic low, and is considering a further decrease, The New York Times reported earlier this month.
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Under Trump, Sessions, Miller, and the White Nationalist cabal running immigration policy in the name of our Government, 1939 is indeed upon us. The stain of how we are treating the vulnerable humans who seek only a fair shot at the legal protections we claim to offer might never be washed away.
Many thanks to my good friend and long time colleague, retired Judge Joan Churchill for sending this item my way.
In July, I left my wife and two little girls and traveled from Denver to Dilley, Texas, to join a group of volunteers helping migrant women in detention file claims for asylum. I am not a lawyer, but I speak Spanish and have a background in social work. Our task was to help the women prepare for interviews with asylum officers or to prepare requests for new interviews.
The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. Although the separations have stopped because of the resulting public outcry, hundreds of families have not been reunited (including more than 20 children under 5), families continue to be detained at higher rates than adults crossing the border alone, and the trauma inflicted on the women and children by our government will have lifelong consequences.
To be clear, this is a policy of deliberately tormenting women and children so that other women and children won’t try to escape life-threatening conditions by coming to the United States for asylum. I joined this effort because I felt compelled to do something to respond to the humanitarian crisis created by unjust policies that serve no purpose other than to punish people for being poor and female ― for having the audacity to be born in a “shithole country” and not stay there.
I traveled with a group of amazing women gathered by Carolina, a powerhouse immigration lawyer and artist from Brooklyn. My fellow volunteers were mostly Latinas or women whose histories connected them deeply to this work. Through this experience, we became a tight-knit community, gathering each night to process our experiences and try to steel ourselves for the next day. Working 12-hour shifts alongside us were two nuns in their late 70s, and it was one of them who best summed up the experience as we entered the facility one morning. “What is happening here,” she said, “makes me question the existence of God.”
It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’
I am still in awe of the resilience I witnessed. Many of the women I met had gone for more than two weeks without even knowing where their children were. Most had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala). They came here seeking refuge from unspeakable horrors, following the internationally recognized process for seeking asylum. For their “crime,” they were incarcerated with hundreds of other women and children in la hielera (“the freezer,” cold concrete cells with no privacy where families sleep on the floor with nothing more than sheets of Mylar to cover them) or la perrera (“the dog kennel,” where people live in chain link cages). Their children were ripped from their arms, they were taunted, kicked, sprayed with water, fed frozen food and denied medical care. Yet the women I encountered were the lucky ones, because they had survived their first test of will in this country.
Woman after woman described the same scene: During their separation from their children ― before they learned of their whereabouts or even whether they were safe ― the women were herded into a room where Immigration and Customs Enforcement officials handed them papers. “Sign this,” they were told, “and you can see your children again.” The papers were legal documents with which the women would be renouncing their claims to asylum and agreeing to self-deport. Those who signed were deported immediately, often without their children. Those who refused to sign were given sham credible-fear interviews (the first step in the asylum process), for which they were not prepared or even informed of asylum criteria.
The women were distraught, not knowing what ICE had done with their children or whether they would see them again. Their interviews were conducted over the phone, with an interpreter also on the line. The asylum officer would ask a series of canned questions, and often the women could reply only, “Where is my child? What have you done with my child?” or would begin to give an answer, only to be cut off midsentence. Not surprisingly, almost all of them got negative results — exactly the outcome this policy was designed to produce. Still, these women persisted.
After a court battle, my clients were reunited with their children and were fortunate enough to have access to free legal representation (many do not) through the CARA Pro Bono Project. The women arrived looking shell-shocked, tired, determined. Some of their children clung to them, afraid to be apart even for a few minutes, making it very hard for the women to recount their experiences, which often included sexual violence, death threats and domestic abuse. Other children stared into space or slept on plastic chairs, exhausted from sleepless nights and nightmares. Still others ran manically around the legal visitation trailer. But some of the children showed incredible resilience, smiling up at us, showing off the few English words they knew, drawing pictures of mountains, rivers, neat little houses. They requested stickers or coloring pages, made bracelets out of paper clips. We were not allowed to give them anything ― no treats or toys or books. We were not allowed to hug the children or their mothers ― not even when they sobbed uncontrollably after sharing the details of their ordeals.
In the midst of this sadness and chaos, the humanity of these women shined through. One of my clients and her son, who had traveled here from Guatemala, took great pleasure in teaching me words in their indigenous language, Mam. She taught me to say “courageous” ― hao-tuitz ― and whenever our work got difficult, we would return to this exhortation. These lessons were a welcome break from reviewing the outline of the experiences that drove them to leave, fleshing it out with details for their interview. They wearied of my pressing them to remember facts I knew the asylum officer would ask about. They wanted only to say that life is very hard for indigenous people, that their knowledge of basic Spanish was not enough to make them equal members of society. Mam is not taught in schools, and almost everyone in Guatemala looks down on those who speak it. They were so happy to have a licenciada (college graduate) interested in learning about their culture. We spent almost an hour finding their rural village on Google Earth, zooming in until we could see pictures of the landscape and the people. As we scrolled through the pictures on the screen, they called out the people by name. “That’s my aunt!” and “There’s my cousin!” There were tears of loss but mostly joy at recognizing and feeling recognized ― seen by the world and not just dismissed as faceless criminals.
A diabetic woman who had not had insulin in over a week dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement.
There were stories of the astonishing generosity of people who have so little themselves. One colleague had a client who had been kidnapped with her daughter and another man by a gang while traveling north from Guatemala. The kidnappers told the three to call their families, demanding $2,000 per person to secure their release. The woman was certain she and her daughter were going to die. Her family had sold, mortgaged and borrowed everything they could to pay for their trip. They had never met the man who was kidnapped with them. She watched as he called his family. “They’re asking for $6,000 for my release,” she said he told them. He saved three lives with that phone call. When they got to the U.S.-Mexico border, they went separate ways, and she never saw him again, never knew his last name.
Not everything I heard was so positive. Without exception, the women described cruel and degrading treatment at the hands of ICE officials at the Port Isabel immigrant processing center, near Brownsville, Texas. There was the diabetic woman who had not had insulin in over a week and dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement. Women reported being kicked, screamed at, shackled at wrists and ankles and told to run. They described the cold and the humiliation of not having any privacy to use the bathroom for the weeks that they were confined. The children were also kicked, yelled at and sprayed with water by guards, then awoken several times a night, ostensibly so they could be counted.
Worse than the physical conditions were the emotional cruelties inflicted on the families. The separation of women from small children was accomplished by force (pulling the children out of their mothers’ arms) or by deceit (telling the women that their children were being taken to bathe or get medical care). Women were told repeatedly that they would never see their children again, and children were told to stop crying because they would never see their mothers again. After the children were flown secretively across the country, many faced more cruelty. “You’re going to be adopted by an American family,” one girl was told. Some were forced to clean the shelters they were staying in and faced solitary confinement (el poso) if they did not comply. Children were given psychotropic drugs to ameliorate the anxiety and depression they exhibited, without parental permission. One child underwent surgery for appendicitis; he was alone, his cries for his mother were disregarded, and she was not notified until afterward.
The months of limbo in which these women wait to learn their fate borders on psychological torture. Decisions seem arbitrary, and great pains are taken to keep the women, their lawyers and especially the press in the dark about the government’s actions and rationales for decisions. One woman I worked with had been given an ankle bracelet after receiving a positive finding at her credible fear interview. Her asylum officer had determined that she had reason to fear returning to her country and granted her freedom while she pursues legal asylum status. Having cleared this hurdle, she boarded a bus with others to be released, but at the last moment, she was told her ankle bracelet needed a new battery. It was removed, and she was sent instead to a new detention center without explanation. A reporter trying to cover the stories of separated families told me about her attempt to follow a van full of prisoners on their way to be reunited with their children so that she could interview them. First ICE sent two empty decoy vans in different directions, and then it sent a van with the detainees speeding down a highway, running red lights to try to outrun her. Every effort is being made to ensure that the public does not know what is happening.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped. The sexual assaults the women described often involved multiple perpetrators, the use of objects for penetration and repeated threats, taunting and harassment after the rape. A Mormon woman I worked with could barely choke out the word “rape,” much less tell anyone in her family or community what had happened. Her sweet, quiet daughter knew nothing of the attack or the men who stalked the woman on her way to the store, promising to return. None of the women I spoke with had any faith that the gang-ridden police would or could provide protection, and police reports were met with shaming and threats. Overwhelmingly, the women traveled with their daughters, despite the increased danger for girls on the trip, because the women know what awaits their little girls if they stay behind. Sometimes the rapes and abuse were at the hands of their husbands or partners and to return home would mean certain death. But under the new directives issued by Attorney General Jeff Sessions, domestic violence is no longer a qualifying criterion for asylum.
Two things I experienced during my time in Dilley made the purpose of the detention center crystal clear. The first was an interaction with an employee waiting in line with me Monday morning to pass through the metal detector. I asked if his job was stressful, and he assured me it was not. He traveled 80 minutes each day because this was the best-paid job he could get, and he felt good about what he was doing. “These people are lucky,” he told me, “They get free clothes, free food, free cable TV. I can’t even afford cable TV.” I did not have the presence of mind to ask him if he would give up his freedom for cable. But his answers made clear to me how the economy of this rural part of Texas depends on prisons. The second thing that clarified the role of the detention center was a sign in the legal visitation trailer, next to the desk where a guard sat monitoring the door. The sign read, “Our stock price today,” with a space for someone to post the number each day. The prison is run by a for-profit corporation, earning money for its stockholders from the incarceration of women and children. It is important to note the exorbitant cost of this cruel internment project. ICE puts incarceration costs at $133 per person per night, while the government could monitor them with an ankle bracelet for $10 to $15 a day. We have essentially made a massive transfer of money from taxpayers to holders of stock in private prisons, and the women and children I met are merely collateral damage.
I have been back home for almost a month now. I am finally able to sleep without seeing the faces of my clients in my dreams, reliving their stories in my nightmares. I have never held my family so tight as I did the afternoon I arrived home, standing on the sidewalk in tears with my 7-year-old in my arms. I am in constant contact with the women I volunteered with, sharing news stories about family detention along with highlights of our personal lives. But I am still waiting for the first phone call from a client. I gave each of the women I worked with my number and made them promise to call when they get released. I even told the Mormon woman that I would pray with her. No one has called.
I comb the details of the Dilley Dispatch email, which updates the community of lawyers and volunteers about the tireless work of the on-the-ground team at Dilley. This week the team did 379 intakes with new clients and six with reunified families. There were three deportations ― two that were illegal and one that was reversed by an ACLU lawsuit. Were the deported families ones I worked with? What has become of the Mam-speaking woman and her spunky son, the Mormon woman and her soft-spoken daughter, the budding community organizer who joked about visiting me? Are they safely with relatives in California, North Carolina and Ohio? In each case, I cannot bear to imagine the alternative, the violence and poverty that await them. I have to continue to hope that with the right advocates, some people can still find refuge here, can make a new life ― that our country might live up to its promises.
Catherine Powers is a middle school social studies teacher. She lives in Colorado with her wife and two daughters.
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Yes, every Administration has used and misused immigration detention to some extent. I’ll have to admit to spending some of my past career defending the Government’s right to detain migrants.
But, no past Administration has used civil immigration detention with such evil, racist intent to penalize brown-skinned refugees, primarily abused women and children from the Northern Triangle, so that that will not be able to assert their legal and Constitutional rights in America and will never darken our doors again with their pleas for life-saving refuge. And, as Catherine Powers points out, under Trump and Sessions the “credible fear” process has become a total sham.
Even in the “Age of Trump & Sessions,’ we still have (at least for now) a Constitution and a democratic process for removing these grotesquely unqualified shams of public officials from office. It starts with removing their GOP enablers in the House and Senate.
Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!
“Massive demographic changes have been foisted upon the American people,” Laura Ingrahamdeclared in a now-infamous rant on Fox News, “and they are changes that none of us ever voted for, and most of us don’t like.”
America has more people of color than it used to, and for Ingraham, the natural result of that demographic change is anger, resentment and anxiety.
The truth, though, is that racism is not natural. It is an ideology cultivated by propaganda and designed to subjugate, terrorize, control and exploit marginalized people.
Claiming that racism is natural, or implying as much, as Ingraham does, is itself a powerful means of spreading and legitimizing racism. Because, if racism is natural, then white people aren’t to blame for it. Instead, they can blame “demographic change.”
Which is to say, they can imagine that racism is caused by the existence of people of color ― and that the solution to racism is to remove those people, in one way or the other.
Ingraham’s rhetoric is extreme. But the idea that racism is normal, expected and understandable is actually quite common.
Ingraham’s rhetoric is extreme. But the belief that racism is normal, expected and understandable is actually quite common. In their book Racecraft, Barbara Fields and Karen Fields point out that writers on racism frequently use phrases like, “black people are denied rights because of the color of their skin.”
No one is denied rights because of skin color. People are denied rights because racists decide to use skin color as an excuse for hatred and violence. Blaming racist acts on skin color, Fields and Fields write, “transforms racism, something an aggressor does, into race, something the target is.” It is, they write, “a sleight of hand that is easy to miss.”
There’s a similar sleight of hand in blaming racism on “demographic change,” which transform racism into a natural disaster, like a flash flood or an earthquake. A recent Washington Post report on white workers at a chicken plant in Pennsylvania, for example, argues that “demographic anxiety is contributing to many of the social fissures polarizing the United States.” That’s a nicer way of paraphrasing Ingraham: White people aren’t racist, they just react helplessly ― and understandably ― to the experience of working alongside brown people.
Similarly, New York Times conservative columnist Ross Douthat recommended restricting immigration because “increased diversity and the distrust it sows have clearly put stresses on our politics.” And social psychologist Jonathan Haidt wrote in 2016 that “those who dismiss anti-immigrant sentiment as mere racism have missed several important aspects of moral psychology related to the general human need to live in a stable and coherent moral order.”
No one is denied rights because of skin color. People are denied rights because racists decide to use skin color as an excuse for hatred and violence.
Haidt, in particular, has argued at length that resentment of immigration or diversity is not racist. He argues that nationalism and love of a particular country and a particular culture is a valuable moral commitment. A shared sense of self or culture leads to lower crime rates and greater generosity, he says.
“People don’t hate others just because they have darker skin or differently shaped noses,” Haidt insists. “They hate people whom they perceive as having values that are incompatible with their own, or who (they believe) engage in behaviors they find abhorrent, or whom they perceive to be a threat to something they hold dear.”
That may well be true, but where do Haidt’s reasonably moral nationalists get the idea that certain people’s values are incompatible with their own?
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The Spanish-speaking people at the Pennsylvania chicken plant are doing hard work of the same kind and in the same place as their English-speaking co-workers. What’s the difference in values supposed to be? For that matter, Spanish-speaking people have been in the Americas longer than English speakers have been here. The idea that the United States is somehow essentially English-speaking not a permanent, inviolable truth ― it is a myth.
LEIGH VOGEL VIA GETTY IMAGES
Jonathan Haidt has argued at length that resentment of immigration or diversity is not racist.
Human beings are quick to organize in-groups and out-groups. And human beings also have huge latitude in how they conceptualize the membership of those groups. At one point in the United States, white American Protestants considered Irish Catholics to be dangerous outsiders whose traditions were fundamentally opposed to democracy and reason. Now, St. Patrick’s Day is seen as a celebration of quintessential American-ness. Irish people didn’t change; they were human beings then and they’re human beings now. White Americans just decided to start including the Irish in their in-group.
Deciding that someone is part of an out-group because they speak Spanish is a choice. Deciding immigrants don’t share “our” values is a choice. Insisting immigrants are criminals despite all the evidence to the contrary is a choice.
“These moral concerns may be out of touch with reality, and they are routinely amplified by demagogues,” Haidt admits. But if your “moral concerns” are based on lies amplified by demagogues, maybe those concerns aren’t really “moral” at all. They certainly are not natural, unstoppable and unchangeable.
Deciding that someone is part of an out-group because they speak Spanish is a choice. Deciding immigrants don’t share “our” values is a choice.
Thomas Jefferson, as was his wont, outlined the logic of natural racism with unusual clarity. In explaining why he didn’t believe white people and black people could ever live together, Jefferson pointed to white prejudice and to black people’s resentment for years of oppression. But, tellingly, he also cited “the real distinctions that nature has made.” Jefferson believed white people hated and disliked black people because white and black people were fundamentally different from one another. Natural difference produces natural animosity. Racism, for Jefferson, is inevitable because race is real.
But Jefferson was wrong. Race isn’t a biological fact; humans are all the same species. There’s no instinctual demand that white people panic when someone with a different skin tone moves in next door. There’s no universal cultural imperative that says that English speakers must be filled with rage and fear when they hear someone speaking a different language.
“Difference” doesn’t make us hate. In fact, Ingraham and her ilk have it precisely backward: It’s the choice to hate that defines other people arbitrarily as “different.” When Ingraham says that “massive demographic changes” have made Americans angry, she’s blaming the victims of that anger.
But the existence of people of color is not the cause of racism. The cause of racism is racists like Laura Ingraham.
Noah Berlatsky is the author most recently of Nazi Dreams: Films About Fascism.
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Yup! Couldn’t agree more! And, blaming the victims is exactly what Trump, Sessions, Miller, Ingraham, and the White Nationalist restrictionists are all about.
Just say no to Trump, Sessions, Miller and racism!
JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS
By Paul Wickham Schmidt,
U.S. Immigration Judge, Retired
Americas Conference
International Association of Refugee & Migration Judges
Georgetown Law
August 4, 2018
INTRODUCTION
Good afternoon. I am pleased to be here. Some twenty years ago, along with then Chief U.S. Immigration Judge Michael J. Creppy, I helped found this Association, in Warsaw. I believe that I’m the only “survivor” of that illustrious group of “Original Charter Signers” present today. And, whoever now has possession of that sacred Charter can attest that my signature today remains exactly as it was then, boldly scrawling over those of my colleagues and the last paragraph of the document.
As the Americas’ Chapter Vice President, welcome and thank you for coming, supporting, and contributing to our organization and this great conference. I also welcome you to the beautiful campus of Georgetown Law where I am on the adjunct faculty.
I thank Dean Treanor; my long-time friend and colleague Professor Andy Schoenholtz, and all the other wonderful members of our Georgetown family; the IARMJ; Associate Director Jennifer Higgins, Dimple Dhabalia, and the rest of their team at USCIS; and, of course, our Americas President Justice Russell Zinn and the amazing Ross Patee from the Canadian Immigration and Refugee Board who have been so supportive and worked so hard to make this conference a success.
I recognize that this is the coveted “immediately after lunch slot” when folks might rather be taking a nap. But, as the American country singer Toby Keith would say “It’s me, baby, with you wake up call!” In other words, I’m going to give you a glimpse into the “parallel universe” being operted in the United States.
In the past, at this point I would give my comprehensive disclaimer. Now that I’m retired, I can skip that part. But, I do want to “hold harmless” both the Association and Georgetown for my remarks. The views I express this afternoon are mine, and mine alone. I’m going to tell you exactly what I think. No “party line,” no “bureaucratic doublespeak,” so “sugar coating.” Just the truth, the whole truth, and nothing but the truth!
I have good news and bad news. The good news is that we don’t have an implicit bias problem in the U.S. asylum adjudication system. The bad news: The bias is now, unfortunately, quite explicit.
Here’s a quote about refugees: “I guarantee you they are bad. They are not going to be wonderful people who go on to work for the local milk people.”
Here’s another one: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
Here’s another referencing the presence of an estimated 11 million undocumented residents of the U.S.: “Over the last 30 years, there have been many reasons for this failure. I’d like to talk about just one—the fraud and abuse in our asylum system.”
Here’s yet another: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”
You might think that these anti-asylum, and in many cases anti-Latino, anti-female, anti-child, anti-asylum seeker, de-humanizing statements were made by members of some fringe, xenophobic group. But no, the first two are from our President; the second two are from our Attorney General.
These are the very officials who should be insuring that the life-saving humanitarian protection purposes of the Refugee Act of 1980 and the Convention Against Torture are fully carried out and that our country fully complies with the letter and spirit of the 1951 Convention Relating to the Status of Refugees which is binding on our country under the 1967 Protocol.
Let me read you a quote that I published yesterday on my blog, immigrationcourtside.com, from a young civil servant resigning their position with “EOIR,” otherwise known as our Immigration Court system, or, alternatively, as the sad little donkey from Winnie the Pooh.
I was born and raised in a country that bears an indelible and shameful scar—the birth and spreading of fascism. An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things. So, I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.” This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.
Strong words, my friends. But, words that are absolutely indicative of the travesty of justice unfolding daily in the U.S. Immigration Courts, particularly with respect to women, children, and other asylum seekers –- the most vulnerable among us. Indeed, the conspicuous absence from this conference of anyone currently serving as a judge in the U.S. Immigration Courts tells you all you really need to know about what’s happening in today’s U.S. justice system.
Today, as we meet to thoughtfully discuss how to save refugees, the reality is that U.S. Government officials are working feverishly at the White House and the U.S. Department of Justice on plans to end the U.S. refugee and asylum programs as we know them and to reduce U.S. legal immigration to about “zero.”
Sadly, the U.S. is not alone in these high-level attacks on the very foundations of our Convention and international protection. National leaders in Europe and other so-called “liberal democracies” — who appear to have erased the forces and circumstances that led to World War II and its aftermath from their collective memory banks — have made similar statements deriding the influence of immigrants and the arrival of desperate asylum seekers. In short, here and elsewhere our Convention and our entire international protection system are under attacks unprecedented during my career of more than four decades in the area of immigration and refugee protection.
As a result, judges and adjudicators throughout the world, like you, are under extreme pressure to narrow interpretations, expedite hearings, view asylum seekers in a negative manner, and produce more denials of protection.
So, how do we as adjudicators remain loyal to the principles of our Convention and retain our own integrity under such pressures? And, more to the point, what can I, as someone no longer involved in the day-to-day fray, contribute to you and this conference?
Of course, you could always do what I did — retire and fulfill a longtime dream of becoming an internet “gonzo journalist.” But, I recognize that not everyone is in a position to do that.
Moreover, if all the “good guys” who believe in our Convention, human rights, human dignity, and fair process leave the scene, who will be left to vindicate the rights of refugees and asylum seekers to protection? Certainly not the political folks who are nominally in charge of the protection system in the US and elsewhere.
So, this afternoon, I’m returning to that which brought this Association together two decades ago in Warsaw: our united commitment to the letter and spirit of the 1951 Convention; additionally, our commitment to fairness, education, international approaches, group problem solving, promoting best practices, and mutual support.
In the balance of my presentation, I’m going to tell you four things, taken from our Convention, that I hope will help you survive, prosper, and advance the aims of our Convention in an age of nationalist, anti-refugee, anti-asylum, anti-immigrant rhetoric.
BODY
Protect, Don’t Reject
First, “protect, don’t reject.” Our noble Convention was inspired by the horrors of World War II and its aftermath. Many of you will have a chance to see this first hand at the Holocaust Museum.
Our Convention is a solemn commitment not to repeat disgraceful incidents such as the vessel St. Louis, which has also been memorialized in that Museum. For those of you who don’t know, in 1939 just prior to the outbreak of World War II a ship of German Jewish refugees unsuccessfully sought refuge in Cuba, the United States, and Canada, only to be rejected for some of the same spurious and racist reasons we now hear on a regular basis used to describe, deride, and de-humanize refugees. As a result, they were forced to return to Europe on the eve of World War II, where hundreds who should and could have been saved instead perished in the Holocaust that followed.
Since the beginning of our Convention, the UNHCR has urged signatory countries to implement and carry out “a generous asylum policy!” Beyond that, paragraphs 26 and 27 of the UN Handbookreiterate “Recommendation E” of the Convention delegates. This is the hope that Convention refugee protections will be extended to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition.
Therefore, I call on each of you to be constantly looking for legitimate ways in which to extend, rather than restrict, the life-saving protections offered by our Convention.
Give The “Benefit Of The Doubt”
Second, “give the benefit of the doubt.” Throughout our Convention, there is a consistent theme of recognizing the difficult, often desperate, situation of refugees and asylum seekers and attendant difficulties in proof, recollection, and presentation of claims. Therefore, our Convention exhorts us in at least four separate paragraphs, to give the applicant “the benefit of the doubt” in assessing and adjudicating claims.
As a sitting judge, I found that this, along with the intentionally generous “well-founded fear” standard, enunciated in the “refugee” definition and reinforced in 1987 by the U.S. Supreme Court and early decisions of our Board of Immigration Appeals implementing the Supreme Court’s directive, often tipped the balance in favor of asylum seekers in “close cases.”
Don’t Blame The Victims
Third, “don’t blame the victims.” The purpose of our Convention is to protect victims of persecution, not to blame them for all societal ills, real and fabricated, that face a receiving signatory country. Too much of today’s heated rhetoric characterizes legitimate asylum seekers and their families as threats to the security, welfare, heath, and stability of some of the richest and most powerful countries in the world, based on scant to non-existent evidence and xenophobic myths.
In my experience, nobody really wants to be a refugee. Almost everyone would prefer living a peaceful, productive stable life in their country of nationality. But, for reasons beyond the refugee’s control, that is not always possible.
Yes, there are some instances of asylum fraud. But, my experience has been that our DHS does an excellent job of ferreting out, prosecuting, and taking down the major fraud operations. And, they seldom, if ever, involve the types of claims we’re now seeing at our Southern Border.
I’m also aware that receiving significant numbers of refugee claimants over a relatively short period of time can place burdens on receiving countries. But, the answer certainly is not to blame the desperate individuals fleeing for their lives and their often pro bono advocates!
The answer set forth in our Convention is for signatory countries to work together and with the UNHCR to address the issues that are causing refugee flows and to cooperate in distributing refugee populations and in achieving generous uniform interpretations of the Convention to discourage “forum shopping.” Clearly, cranking up denials, using inhumane and unnecessary detention, stirring up xenophobic fervor, and limiting or blocking proper access to the refugee and asylum adjudication system are neither appropriate nor effective solutions under our Convention.
Give Detailed, Well-Reasoned, Individualized Decisions
Fourth, and finally, “give detailed, well-reasoned, individualized decisions.” These are the types of decisions encouraged by our Convention and to promote which our Association was formed. Avoid stereotypes and generalities based on national origin; avoid personal judgments on the decision to flee or seek asylum; avoid political statements; be able to explain your decision in legally sufficient, yet plainly understandable terms to the applicant, and where necessary, to the national government.
Most of all, treat refugee and asylum applicants with impartiality and the uniform respect, sensitivity, and fairness to which each is entitled, regardless of whether or not their claim under our Convention succeeds.
CONCLUSION
In conclusion, I fully recognize that times are tough in the “refugee world.” Indeed, as I tell my Georgetown students, each morning when I wake up, I’m thankful for two things: first, that I woke up, never a given at my age; second, that I’m not a refugee.
But, I submit that tough times are exactly when great, independent, and courageous judging and adjudication are necessary to protect both applicants from harm and governments from doing unwise and sometimes illegal and immoral things that they will later regret.
I have offered you four fairly straightforward ways in which adhering to the spirit of our Convention can help you, as judges and adjudicators, retain integrity while complying with the law: protect, don’t reject; give the benefit of the doubt; don’t blame the victims; and give detailed, well-reasoned, individualized decisions.
Hopefully, these suggestions will also insure that all of you will still be around and employed for our next conference.
Thanks for listening, have a great rest of our conference, and do great things! May Due Process and the spirit of our noble Convention and our great organization guide you every day in your work and in your personal life! Due Process forever!
The failure of the U.S. government to reverse the kidnapping of migrant children from their parents has been chalked up to incompetence. People want to believe that this act of extraordinary cruelty — and the Trump administration’s inability to fix it — stems from our leaders’ lack of experience or common sense.
But this too is a failure — of our collective imagination. Although the government claimed it met the Thursday deadline to reunite families, it admitted that hundreds of parents had been deported without their children. The separation policy was designed to inflict harm. And the resolution process is chaotic by design.
How else can we explain what has happened to these families? Some 14 million checked bags are managed by the Transportation Security Administration — and that’s just during Thanksgiving weekend. Even high school students can manage a coat check for an evening without losing everyone’s coats. They match each coat and owner with corresponding tickets, and do not store the coats outside the building, or even thousands of miles away from the event.
This administration will harm children in order to force Congress to agree to its absurd immigration policies.
The administration did not take even these basic measures when it began to separate children — not coats! — from their parents. It did not use corresponding numbers for the files of parents and children, or take photos of families together, or hand out hospital-style bracelets. It did not house families near one another, choosing instead to hold mothers in California and daughters in Chicago, fathers in Texas and sons in New York City.
In fact, the administration seems to have taken a comprehensive inventory of confiscated items — sneakers, toothpaste, rosaries — everything except which child belongs to which parent.
These are the actions of a government that intended to separate families but did not intend to reunite them. It meant to inflict so much suffering that other families wouldn’t make the dangerous trek. No matter how bad the violence might be in Central America, surely these families would choose to stay united rather than come and be separated.
In fact, through all the blather, the Trump administration has admitted as much.
“I would do almost anything to deter the people from Central America,” White House Chief of Staff John F. Kelly said in 2017. Even separate children from their parents, asked CNN’s Wolf Blitzer? “Yes.”
“We expect that the new policy will result in a deterrence effect,” Health and Human Services Assistant Secretary Steven Wagner told reporters in June.
“Hopefully people will get the message,” Atty. Gen. Jeff Sessions said casually on Fox News in June.
But according to the Department of Homeland Security, no one has been deterred. The number of families stopped at the border actually increased by 64% in the months after the administration began to separate families. So even if you could stomach traumatizing toddlers, this policy did not accomplish Sessions’ objective of sending a warning across the desert.
Still, cruelty has its uses. Across the country, Republicans have made the Trump administration’s immigration stance their rallying cry for reelection, running more than 14,000 campaign ads this year bragging about their efforts to “stop illegals.” And last month, Sessions spelled out the administration’s plan to use all the bad press for good.
“We do not want to separate parents from their children,” he clarified. “If we build the wall, if we pass legislation to end the lawlessness, we won’t face these terrible choices.”
In other words, this administration will harm children in order to force Congress to agree to its absurd immigration policies. But let’s be clear: No lawmaker of any party should ever accede to a legislative demand in response to the intentional infliction of harm.
The American people must also speak up. Our government has kidnapped children from their parents. It forces these lost boys and girls to say the Pledge of Allegiance while they are held captive in building wings named for U.S. presidents. (It is not hard to believe that President Reagan would be aghast.)
This is not who we are, we want to say, but that isn’t quite true. This policy reveals a darker side of America that has dehumanized black and brown people since our nation’s founding. Americans have stolen and enslaved black people, killed indigenous peoples and imprisoned Japanese Americans. The reason why this administration has pumped out racist rhetoric casting people as fish to be caught, infestations to be eradicated, and animals to be caged is because it has worked before.
Will it work again? That’s up to us.
Brian Schatz representsHawaii in the U.S. Senate.
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Senator Schatz provides a clear, succinct, powerful statement as to why we need regime change if American is to remain a great, diverse nation that uses the full abilities and respects the lives, dignity, potential, and rights of all of those who reside here now and may do so in the future.
“MAGA” has always been a not-so-thinly veiled exhortation to “Keep America As White As Possible For As Long As Possible No Matter How Much Damage We Inflict.”
Yeah, I remember that after his confirmation, I was willing to give Sessions “the benefit of the doubt” and hope that he meant his sworn testimony that he would rise above his past as a partisan Senator and represent the rights and dignity of all Americans (which, of course, would include those Americans residing here and protected by our Constitution regardless of “status”).
However, it didn’t take long to see that it was just more of the perjury and lies that roll so effortlessly off Sessions’s tongue. What he actually intended all along was to use his good fortune in being somewhat unexpectedly elevated to the Attorney Generalship to carry out a heinous, racist, xenophobic, homophobic, restrictionist, extreme right program directed against people of color, women, children, and other vulnerable minorities. This is the type of horrible program that had always driven him, but that had been able to inflict little actual damage on America due to Sessions’s “outlier” position, even among his fellow GOP Senators.
To be fair, that’s precisely what Senator Elizabeth Warren, Senator Corey Booker, and the Black Caucus tried to tell the Senate and the rest of American during the confirmation process. But, they were silenced or ignored. Now, innocent kids, families, abused women, and the international reputation of our entire nation are all “paying the price” for Sessions as AG.
Vote for “regime change” this November. Vote for accountability, decency, the real “rule of law,” and to rein in and ideally remove Jeff Sessions from office before he can do further damage to humanity and to our country!
Racism is a feature of the Trump administration, not a bug. Like demagogues before him, President Trump and his aides consistently single out one group for scapegoating and persecution: nonwhite Hispanic immigrants.
Trump doesn’t much seem to like nonwhite newcomers from anywhere, in truth — remember how he once expressed a fond wish for more immigrants from Norway? — but he displays an especially vicious antipathy toward men, women and even children from Latin America. We have not seen such overt racism from a president since Woodrow Wilson imposed Jim Crow segregation in Washington and approvingly showed “The Birth of a Nation,” director D.W. Griffith’s epic celebration of the Ku Klux Klan, at the White House.
Trump encourages supporters to see the nation as beset by high levels of violent crime — and to blame the “animals” of the street gang MS-13. He is lying; crime rates nationwide are far lower than two or three decades ago, and some big cities are safer than they have been in a half-century. But Trump has to paint a dystopian panorama to justify the need to Make America Great Again.
MS-13 is, indeed, unspeakably violent. But it is small; law enforcement officials estimate the gang’s total U.S. membership at roughly 10,000, concentrated in a few metropolitan areas that have large populations of Central American immigrants — Los Angeles, New York and Washington. Trump never acknowledges that the gang was founded in the United States by immigrants from El Salvador and exported to Central America, where it took hold. He also neglects to mention that its members here, mostly teenagers, generally direct their violence at one another, not at outsiders.
Trump deliberately exaggerates the threat from MS-13 in order to justify his brutality toward Central American asylum seekers at the border. People should never be treated that way, but “animals” are a different story.
It is unbelievable that the U.S. government would separate more than 2,300 children from their parents for no good reason other than to demonstrate cruelty. It is shocking that our government would expect toddlers and infants to represent themselves at formal immigration hearings. It is incredible that our government, forced to grudgingly end the policy, would charge desperate parents hundreds or thousands of dollars to be reunited with their children. It is appalling that our government would refuse even to give a full and updated accounting of how many children still have not been returned. Yet all of this has been done — in our name.
Trump uses words such as “invading” and “infest” and “breeding” to describe Central American migrants who arrive at the border lawfully seeking asylum. I’ll believe this is neutral immigration policy when Immigration and Customs Enforcement agents begin hunting down and locking up Norwegians who have overstayed their visas.
Said Norwegians, if anyone bothered to look for them, might well be taking jobs away from American workers or taking advantage of social-welfare programs or boosting crime rates. There is no evidence that asylumseekers are doing any of these things.
Trump’s policies flow from a worldview that he has never tried to hide. To describe Trump and aides such as Attorney General Jeff Sessions and senior policy adviser Stephen Miller as “anti-immigration” tells only part of the story. They adopt the stance of racial and cultural warriors, “defending” the United States against brown-skinned, Spanish-speaking hordes “invading” from the south.
Trump has proposed not just building a wall along the border with Mexico to halt the flow of undocumented migrants but also changing the system of legal immigration so that it no longer promotes family unification. He calls his aim a “merit-based” system, but Miller has specified that the administration wants to produce “more assimilation.”
Yet there is no evidence that immigrants from Latin America fail to assimilate in any way except one: They do not come to look like Trump’s mental image of “American,” which is basically the same as his mental image of “Norwegian.”
This is a story as old as the nation. German, Irish, Polish, Italian and other immigrant groups were once seen as irredeemably foreign and incapable of assimilating. The ethnic and racial mix of the country has changed before and is changing now.
Hispanics are by far the biggest minority group in the country, making up nearly 18 percent of the population; by 2060, the Census Bureau estimates, that share will rise to nearly 29 percent . Trump is punishing Central American mothers and babies because, try as he might, he can’t Make America White Again.
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Robinson gives us one of the best, concise summaries of the horrible dishonesty, racism, and all around meanness of spirit and ugliness that Trump, Sessions, Miller, and their enablers have brought to 21st Century America. But, in the end, it can’t change demographics any more than it can stop human migration. However, it does diminish us as a nation every day every day that these totally unqualified individuals remain in charge of our government, without any realistic restraints on their toxic, corrupt, and immoral actions.
S.E.R.L. v. Att’y Gen., No. 17-2031, 3rd Cir., July 3, 2018
HOLDING: Latinas fleeing persecution in the Northern Triangle can expect no protection under U.S. asylum laws in the Third Circuit.
PANEL: Circuit Judges Kent Jordan, Cheryl Ann Krause; Senior Circuit Judge Ira Morton Greenburg
OPINION BY: Judge Kent Jordan
KEY QUOTES:
S.E.R.L., a native of Honduras, seeks review of the denial of her application for asylum and statutory withholding of removal based on membership in a proposed particular social group that she characterizes as “immediate family members of Honduran women unable to leave a domestic relationship[.]”2 (Opening Br. at 21.) She fears persecution by two men, Jose Angel and Juan Orellana. Jose Angel abducted, raped, and continues to stalk one of S.E.R.L.’s daughters, K.Y.R.L. That daughter has already been granted asylum in the United States. Juan Orellana is S.E.R.L.’s stepfather and has repeatedly abused S.E.R.L.’s mother. S.E.R.L. fears that if she is removed to Honduras, both men will persecute her, Jose Angel because of her relationship to her daughter, and Juan Orellana because of her relationship to her mother.S.E.R.L. and two of her children fled here from Honduras in 2014. Within a month of their unlawful arrival, the Department of Homeland Security initiated removal proceedings pursuant to INA § 212(a)(6)(A)(i). S.E.R.L. conceded removability, and timely applied for asylum and statutory withholding of removal.4 In support of her claims for relief, she alleged past persecution and a fear of future persecution based on the relationships just noted.
. . . .
S.E.R.L. contends that the BIA’s change innomenclature from “social visibility” to “social distinction” is the only change the BIA has made to its test for assessing a“particular social group,” and, she says, that is a “distinction without a difference.” (Reply Br. at 5.) According to S.E.R.L., our decision in Valdiviezo-Galdamez forecloses application of the “particularity” and “social distinction”requirements. She also argues that the BIA plainly acknowledges that it has not changed course, nor has itprovided a “principled” explanation for why it continues to impose criteria we rejected in Valdiviezo-Galdamez. (Opening Br. at 31.)
In addition, those who have filed amicus briefs in this case point out that the BIA’s decisions in M-E-V-G- andW-G-R- could be read as inconsistent with certain other BIA decisions and contrary to the canon of ejusdem generis. Amici note, for example, that in W-G-R-, the BIA concludedthat “‘former members of the Mara 18 gang in El Salvadorwho have renounced their gang membership’ does not constitute a particular social group” in part because “the group could include persons of any age, sex, or background.”26 I. & N. Dec. at 221. Yet, even though the groups varied significantly across age, sex, and background, the BIA has also held that “Filipinos of Chinese [a]ncestry” constituted a “particular social group,” In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997), and that “former member[s] of the national police” in El Salvador, Fuentes, 19 I. & N. Dec. at 662, likewise could be cognizable.15 And although the BIA expressly justified its new requirements as “[c]onsistent with the interpretive canon ‘ejusdem generis,’” M-E-V-G-, 26 I. & N. Dec. at 234, amici highlight that some of the enumerated grounds for persecution, including “political opinion,” and “religion,” 8 U.S.C. § 1101(a)(42)(A), may themselves be thought of as amorphous, diffuse, or subjective and therefore as insufficient bases for PSGs under M-E-V-G-’s requirements.
Those critiques raise legitimate concerns. The BIA has chosen to maintain a three-part test for determining the existence of a particular social group, and it has discussed how the revised particularity and social distinction requirements are not a departure from but a ratification of requirements articulated in its prior decisions. M-E-V-G-, 26 I. & N. Dec. at 234. And the arguable inconsistencies in its precedent highlight the risk that those requirements could be applied arbitrarily and interpreted to impose an unreasonably high evidentiary burden, especially for pro se petitioners, at the threshold. At the same time, however, we recognize thatM-E-V-G- is a relatively recent decision and clarity and consistency can be expected to emerge with the accretion of case law. That process is aided by M-E-V-G- itself, which addressed the specific concerns we raised in Valdiviezo- Galdamez, and explained why the particularity and social distinction requirements are different from one another and necessary. We now consider each of those requirements, beginning with social distinction, to explain why, notwithstanding our concerns, we conclude that the requirements are reasonable and warrant Chevron deference.
. . . .
Although S.E.R.L. also relies heavily on Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), where the BIAhad held that “married women in Guatemala who are unable to leave their relationship” constituted a particular socialgroup, the Attorney General recently issued a decision overruling A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
. . . .
At the same time, we are mindful of the role that courts can and must play to ensure that agencies comply withtheir “obligation to render consistent opinions,” Chisholm v. Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), including, as relevant here, review of BIA decisions for inconsistent application of M-E-V-G’s requirements to similarly situated petitioners, routine rejection of proposed PSGs without reasoned explanation, and the imposition of insurmountable evidentiary burdens that would render illusory the opportunity to establish a PSG. However, just as we will carefully examine cases on petition for review to guard against such dangers, we anticipate that the BIA will scrutinize the IJ decisions that come before it with those considerations in mind and with an eye towards providing clear guidance and a coherent body of law in this area.
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3RDCIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS: YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 – How “Go Along To Get Along” Judging Costs Innocent Lives!
By Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit got together in Philly, ”our nation’s birthplace,” on July 3, 2018 to deliver an early July 4 message for courageous Latinas fleeing the Northern Triangle: Your lives don’t matter; we’re OK with femicide, rape, torture, and abuse of you and your children as long as it’s out of sight, out of mind in some foreigncountry where we don’t have to listen to your screams or come across your mutilated bodies!
These judges’ names and faces are worth remembering, since they went to such great lengths to avoid taking or acknowledging any legal or moral responsibility for their own actions. Obviously, they don’t want anyone to put names and faces with consequences.
While you wouldn’t recognize it from their 43 pages of intentionally legalistic, opaque, de-humanized, gobbledygook, there is actually a simple straightforward human tragedy behind their obfuscation and task shirking. Since they won’t tell it, I will.
“Ms. S.E.R.L”. (I’ll call her “Susana”) is a native and citizen of Honduras. Honduras is a patriarchal “failed state” with a corrupt and incompetent government that does little or nothing to control gang violence and violence against women, even encouraging it or participating in the abuses in many cases. By 2015, femicides in Honduras had far surpassed “epidemic levels.” For example, in 2013, one Honduran woman was murdered every fourteen hours!
Jose Angel abducted, raped, and continued to stalk Susana’s daughter “Karla.” Susana’s stepfather, Juan Orellana repeatedly abused Susana’s mother without any interference from the government. Juan also threatened Susana personally. Having witnessed what these men did to her closest relatives, her daughter and her mother, Susana reasonably believed that she would be next. Karla was granted asylum in the U.S. Susana fled to the United States with two other daughters and applied for asylum.
Since Karla was granted asylum in the U.S., Susana expected the same humane treatment, particularly since our Supreme Court once said that asylum laws should be generously applied to those with as little as a 10% chance of being persecuted. After all, Honduran women are a distinct, well-recognized class subject to essentially uncontrolled specifically gender-based violence in a patriarchal society. Additionally, the family members closest to Susana had already suffered severe harm in Honduras at the hands of two specific men. And, her daughter Karla was being allowed to stay.
The Immigration Judge supposedly believed Susana. However, he came up with some creative ways, pioneered by the BIA, to deny her protection. First, he found that she had no reason to fear harm because she hadn’t actually been harmed or killed by either Jose or Juan, despite the threats to her from Juan who obviously was capable of inflicting severe harm. Second, he found she didn’t fit within any “particular social group,” whatever that might mean on a particular day. The went on to make the amazing finding that being a Honduran woman would have nothing to do with the harm anyway.
Perhaps, the judge believed that Honduran men suffered the same high rate of femicide as did women. Or, maybe he believed that guys like Jose and Juan and Honduran society in general wouldn’t recognize that Susana was a Honduran woman closely related to two previously abused Honduran women. The judge observed that refugee laws weren’t meant to protect women like Susana from “generalized violence,” even though Susana’s claim wasn’t based on generalized violence but rather specific violence directed at her.
The judge basically told Susana to buck up and accept her fate. The judge appeared to have no idea what actually happens to women like Susana in Honduras. Susana appealed to the BIA which had very recently found that a virtually identical situation qualified a woman for asylum. But, the other woman wasn’t Susana, and the BIA found some reasons why it was OK to send Susana back to where she might reasonably expect be killed, raped, or abused by Jose and/or Juan.
Susana appealed to a “real court”, the Third Circuit Court of Appeals. Unlike the Immigration Judge and the BIA, judges on the Third Circuit don’t work for Attorney General Jeff Sessions. Jeff hates foreign nationals, women, and particularly brown-skinned foreign women fleeing from persecution in Central America. He thinks that they are all coming here for economic reasons and should just go stand in a line to immigrate. But, Jeff knows that the line doesn’t really exist, and that they will likely be killed or disabled shortly after return anyway. What Jeff really wants is an America where only nasty old White guys like him hold all the power and non-White folks stay away.
Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg decided Susana’s case. They recognized that the BIA had rewritten asylum law so that fewer individuals would be protected and more rejected. They also recognized that Jeff Sessions had further rewritten the laws so that women like Susana would have no chance of protection. They also knew that there were lots of good arguments against what the BIA and Jeff were doing and in favor of protecting Susana.
But the judges found another Supreme Court case saying that they really didn’t have to decide legal questions if Jeff Sessions and his subordinates had done it for them. They thought that it made sense to rewrite protection law so that very few people, particularly women of color, would be protected. According to their thinking, the asylum law is intended to reject, not protect. They also thought that because these were relatively new interpretations, Jeff and the BIA should have a chance to kill or harm as many Latinas as possible before they as judges might think about whether it was a good idea. Of course, by then, it would be too late for Susana and others like her. And, these judges don’t really have any intent or will to hold Sessions accountable anyway.
So, Judge Jordan, Judge Krause, and Judge Greenburg told Susana that she should be separated from her daughter Karla and go back to Honduras with her other daughters to die, be raped, be beaten, or whatever. They knew that she would receive no help from the Government. But, they just didn’t care. Because Susana and her daughters were not their daughters or granddaughters and they wouldn’t have to hear her screams or look at their dead bodies. But, history has recorded what they did. Let the slaughter of innocents commence.
Better, more courageous judges might have said the obvious: that “women in Honduras” are a particularized, distinct, immutable/fundamental protected group; that Susana is a member of that group; and that any reasonable person in her position would have an objectively reasonable fear of persecution if returned to Honduras.
They also could have castigated the BIA and Jeff Sessions for intentionally manipulating asylum law so as not to grant protection to some of the most vulnerable and needy refugees among us. But, this “Gang of Three’ who decided Susana’s case would have been happy pushing the St. Louisand its cargo of Jewish refugees from Germany back out to sea again. Any of the judges who looked at Susan’s case could have had spoken out for saving her life and the lives of her daughters. None did!
After abdicating their judicial functions to hold the Executive accountable, this “Gang of Three” dishonestly expresses concerns about consistency and not creating “insurmountable evidentiary burdens.” Get serious!
Everyone knows Jeff Sessions is ordering Immigration Judges to crank out more removal orders with little or no Due Process. He has publicly stated his disdain for asylum seekers and women asylum seekers from the Northern Triangle. He has made it clear that he intends to “deconstruct:” the entire U.S. protection system until the only “consistency” will be that nobody gets asylum. And with cases like his decision in Matter of A-B-and spineless “go along to get along” precedents like this from the Article III courts, Sessions is implementing his real plan – insuring that nobody who comes to the border and seeks asylum passes “credible fear” and even gets to an Immigration Judge hearing.
Judges like these can shirk their responsibilities and hide behind mountains of hollow words and legal platitudes. But, they won’t escape the judgement of history for their lack of courage, backbone, integrity, and their unwillingness to stand up for human rights and human decency in the face of tyranny.
Happy July 4, 2018 from Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit! They can celebrate. But, for Susana, her family, and other vulnerable refugee like her, there will be no celebration. Indeed, they might not even live to see another July 4! That should make us all ashamed as a nation!
Perhaps Trump’s “no due process” approach is the best solution if persecution claims can be considered outside of the United States.
Letting them apply here isn’t working well.
As of April 2017, the average wait for a hearing was 670 days, and the immigration court backlog has increased since then. It was 714,067 cases in May 2018.
It isn’t possible to enforce the immigration laws if deportable aliens can’t be put in removal proceedings, and the judges are being pressed to spend less time on cases, which puts due process in jeopardy.
We need a politically acceptable way to reduce the number of asylum applicants to a manageable level.
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Go on over to The Hill at the link to read Nolan’s complete article!
I agree with Nolan’s observation that pushing Immigration Judges to schedule more cases and spend less time on them puts due process in jeopardy. I also can see that Sessions intends to reduce asylum grant rates to about 0% by totally distorting the system until it is impossible for virtually anyone actually needing protection to get it.
As I have stated before, the problem isn’t the asylum law. The problem is the way Trump and Sessions have distorted and perverted asylum law and the Constitutional right to Due Process.
Asylum law is designed to protect individuals fleeing from persecution. We haven’t even begun to test the limits of our ability to give refuge. Indeed, at the time of the world’s greatest need, and our own prosperity, we have disgracefully turned our backs on accepting anything approaching a fair share of the world’s desperate refugees. We should be ashamed of ourselves as a nation! Refugees of all types bring great things to our nation and help us prosper. But, even if they didn’t, that wouldn’t lessen our moral and humanitarian obligations to accept our fair and more generous share of the world’s refugees.
And never forget that the backlog and the waiting times have little or nothing to do with fault on the part of asylum applicants.Many of them have also been unfairly screwed by the mess that Congress, the DOJ, DHS, and politicos have made of the Immigration Court system.
The backlog is almost entirely the result of “Aimless Docket Reshuffling” which has been kicked into high gear under Sessions, exceptionally poor choices in docket management and bad prosecutorial decisions by DHS, and years of neglect and understaffing by Congress, as well as stunningly incompetent management of the Immigration Courts by the DOJ under the last three Administrations.
Here’s the truth that Trump and the restrictionists don’t want to deal with:
SOLVING THE SOUTHERN BORDER: It’s Not Our Asylum Laws That Need Changing — It’s The Actions Of Our Leaders Who Administer Them That Must Change!
By Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Contrary to what White Nationalist liars like Trump & Sessions say, our U.S. asylum laws are not the problem. The politicos who misinterpret and misapply the law and then mal-administer the asylum adjudication system are the problem.
The current asylum laws are more than flexible enough to deal efficiently, effectively, and humanely with today’s bogus, self-created “Southern Border Crisis.” It’s actually nothing more than the normal ebb and flow, largely of refugees, from the Northern Triangle.
That has more do with conditions in those countries and seasonal factors than it does with U.S. asylum law. Forced migration is an unfortunate fact of life. Always has been, and probably always will be. That is, unless and until leaders of developed nations devote more time and resources to addressing the causation factors, not just flailing ineffectively and too often inhumanely with the inevitable results.
And the reasonable solutions are readily available under today’s U.S. legal system:
Instead of sending more law enforcement officers, prosecutors, and judges to the Southern Border, send more CBP Inspectors and USCIS Asylum Officers to insure that those seeking asylum are processed promptly, courteously, respectfully, and fairly.
Take those who turn themselves in to the Border Patrol to the nearest port of entry instead of sending them to criminal court (unless, of course, they are repeat offenders or real criminals).
Release those asylum seekers who pass “credible fear” on low bonds or “alternatives to detention” (primarily ankle bracelet monitoring) which have been phenomenally successful in achieving high rates of appearance at Immigration Court hearings. They are also much more humane and cheaper than long-term immigration detention.
Work with the pro bono legal community and NGOs to insure that each asylum applicant gets a competent lawyer. Legal representation also has a demonstrated correlation to near-universal rates of appearance at Immigration Court hearings. Lawyers also insure that cases will be well-presented and fairly heard, indispensable ingredients to the efficient delivery of Due Process.
Insure that address information is complete and accurate at the time of release from custody. Also, insure that asylum applicants fully understand how the process works and their reporting obligations to the Immigration Courts and to DHS, as well as their obligation to stay in touch with their attorneys.
Allow U.S. Immigration Judges in each Immigration Court to work with ICE Counsel, NGOs, and the local legal community to develop scheduling patterns that insure applications for asylum can be filed at the “First Master” and that cases are completed on the first scheduled “Individual Merits Hearing” date.
If there is a consensus that these cases merit “priority treatment,” then the ICE prosecutor should agree to remove a “lower priority case” from the current 720,000 case backlog by exercising “prosecutorial discretion.” This will end “Aimless Docket Reshuffling” and insure that the prioritization of new cases does not add to the already insurmountable backlog.
Establish a robust “in-country refugee processing program” in the Northern Triangle; fund international efforts to improve conditions in the Northern Triangle; and work cooperatively with the UNHCR and other countries in the Americas to establish and fund protection programs that distribute refugees fleeing the Northern Triangle among a number of countries. That will help reduce the flow of refugees at the source, rather than at our Southern Border. And, more important, it will do so through legal humanitarian actions, not by encouraging law enforcement officials in other countries (like Mexico) to abuse refugees and deny them humane treatment (so that we don’t have to).
My proposed system would require no legislative fixes; comply with the U.S Constitution, our statutory laws, and international laws; be consistent with existing court orders and resolve some pending legal challenges; and could be carried out with less additional personnel and expenditure of taxpayer funds than the Administration’s current “cruel, inhuman, and guaranteed to fail” “deterrence only” policy.
ADDITIONAL BENEFIT: We could also all sleep better at night, while reducing the “National Stress Level.” (And, for those interested in such things, it also would be more consistent with Matthew 25:44, the rest of Christ’s teachings, and Christian social justice theology).
As Eric Levitz says in New York Magazine, the folks arriving at our border are the ones in crisis, not us! “And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.”
That warrants a much more measured, empathetic, humane, respectful, and both legally and morally justifiable approach than we have seen from our Government to date.The mechanisms for achieving that are already in our law. We just need leaders with the wisdom and moral courage to use them.
PWS
06-23-18
I also take note of how EOIR under Sessions has disingenuously manipulated the asylum adjudication numbers to support a false narrative that most asylum claims are meritless.
The only “real ” number is a comparison of asylum grants to denials, not grants to the total number of cases involving asylum applications including the substantial number that were never decided on the merits. The fact that a case is disposed of in some other manner does not mean that the asylum application was meritless; it just means that the case was disposed of in another way.
Here are the “real” numbers from EOIR’s own Statistics Yearbook, before they were dishonestly manipulated under Sessions’s instructions to support his false claims about asylum seekers:
Asylum Grant Rate
Grants
Denials
Grant Rate
FY 12
10,575
8,444
56%
FY 13
9,767
8,777
53%
FY 14
8,672
9,191
49%
FY 15
8,184
8,816
48%
FY 16
8,726
11,643
43%
In 2016, the “real” grant rate was 38%. Even under Sessions in the partial FY 2018, the merits grant rate is 35%. That’s by no means negligible — one in three! And, remember folks, this is with asylum law that was already badly skewed against applicants, particularly those from the Northern Triangle with potentially bona fide claims. (But, admittedly, before Sessions recent rewriting of asylum law to improperly deny asylum and essentially impose death sentences or torture on vulnerable women fleeing from the Northern Triangle.)
And, in my experience, the vast majority of denied asylum seekers had legitimate fears of harm upon return that should have entitled them to some protection; they just didn’t fit our unrealistically and intentionally restrictive interpretations. By no means does denial of an asylum claim mean that the claim was frivolous!
The real question we should be asking is that with the refugee situation in the world getting worse and with continually deteriorating conditions in the Northern Triangle, how do asylum merits grant rates drop from 56% and 53% as recently as FY 2011 & 2012 to 35% in 2018? What those numbers really suggests is large-scale problematic behavior and improper influence within the DOJ and the Immigration Judges who are denying far, far too many of these claims. Some of that includes use of coercive detention in out-of-the-way locations and depriving individuals of a fair opportunity to be represented by counsel, as well as a number of BIA decisions (even before Sessions’s Matter of A-B- atrocity) specifically designed to promote unfairness and more asylum denials.
There is no “southern border crisis,” other than the unnecessary humanitarian crisis that Trump and Sessions created by abusing children. Nor is there a problem with our asylum laws except for the intentional failure of our Government to apply them in a legal, fair, and Constitutional manner. But, there is a White Nationalist, racism problem clearly manifesting itself in our immoral and scofflaw national leadership.
Everyone committed to fairness, Due Process, and maintaining America as a country of humane values should fiercely resist, in every way possible, suggestions by Trump, Sessions, and some in the GOP to further abuse Due Process and eliminate the already limited rights of the most vulnerable among us!
We need to say focused on the real threats to our national security and continued existence as a democratic republic: Trump, Sessions, and their cohorts and enablers!
1) Government never had specific plan to reunify families, court testimony shows
By: Tal Kopan, CNN
In recent weeks, the government has stumbled trying to explain its plan for reunifying families in the wake of its much-criticized family separations policy at the border.
But newly reviewed court filings show that the byzantine system that has resulted in thousands of children separated for weeks and months from parents elsewhere in government custody was not an accident. It was always the design.
In fact, one of the women in an ongoing lawsuit over family separations can now was apparently one of the first separations that took place during a quiet pilot of the policy last year. The pilot program has been previously reported, but took on new attention on the heels of an NBC report about it Friday.
A government attorney admitted in court just days before the border-wide initiative was unveiled in early May that there was never a plan for parents like her to be proactively reunited with their kids.
And an analysis of the purported success of the pilot shows that the Department of Homeland Security’s justification that the program worked as a deterrent was likely based on dubious data.
A DHS official confirmed Friday that the agency first tested the policy of prosecuting parents caught illegally crossing the border in the El Paso sector in Texas from July to October of last year. The pilot had been previously reported, but was not widely known. NBC reported the effort anew Friday.
Ms. C, as she is known in court filings, was apprehended crossing the border illegally in late August 2017 and prosecuted in El Paso, according to court documents. She asked for asylum and in the midst of the legal process, the government took her 14-year-old son from her, sending him to a Health and Human Services facility in Chicago. They were separated for months.
2) Controversial ICE chief retiring, replacement expected to be named soon
By: Tal Kopan, CNN
Immigration and Customs Enforcement chief Tom Homan is serving his last day Friday, as the controversial face of the Trump administration’s crackdown on illegal immigration retires.
Homan’s final day was confirmed by spokeswoman Liz Johnson.
The polarizing face of the administration’s immigration enforcement, and a favorite of President Donald Trump himself, Homan had announced in April he would be taking his long-delayed retirement this month.
Homan has told the story of receiving the request to stay on as chief of ICE under Trump while celebrating at his going away party — a retirement that was deferred for a year and a half.
According to a source familiar, acting CBP Deputy Commissioner Ronald Vitiello is expected to be named acting director of ICE in Homan’s stead as soon as Friday.
Vitiello has been a familiar face for the media as well, often speaking with reporters about the President’s border wall project.
The White House has not responded to a request for comment.
3) Trump administration may further restrict asylum rights
By: Laura Jarrett and Tal Kopan, CNN
The Justice Department is considering a regulation that would prevent people from claiming asylum if they’re convicted of illegally entering the US, according to two sources familiar with the plans.
Such a rule would be a dramatic change in the landscape of US immigration law and could conflict with domestic law and long-standing international obligations.
The draft regulation was described to CNN as being in its very early stages and has not yet been submitted to the White House for review. Should it be implemented, it would likely result in immediate legal challenges from asylum-seekers and advocates.
A Justice Department spokesperson declined to comment.
The proposal was first reported by Vox.
Current law allows migrants to raise an asylum claim at any lawful port of entry to the US, as well as between valid ports of entry where crossing to the US is illegal.
The Immigration and Nationality Act states that anyone who arrives in the US “whether or not at a designated port of arrival” may apply for asylum if he or she has a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Yet another part of the law gives Attorney General Jeff Sessions the leeway to regulate which offenses “will be considered to be a crime,” in which case asylum is not available.
How exactly the rule will be tailored and whether it will include any exceptions remains unclear.
Join the New Due Process Army — Fight White Nationalism, Lies, Cowardice, and Bullying by Trump and his evil gang of immoral, scofflaw, racist “swamp monsters.”
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 events occurring now on our border with Mexico, where children are being removed from the arms of their mothers and fathers and sent to foster families or “shelters”, make me weep and gnash my teeth with sadness and rage. I know what they are going through. When we were children, my two siblings and I were also taken from our parents. And the problems we’ve experienced since then portend the terrible things that many of these children are bound to suffer.
My family was Jewish, living in 1942 in the Netherlands when the country was occupied by the Nazis. We children were sent into hiding, with foster families who risked arrest and death by taking us in. They protected us, they loved us, and we were extremely lucky to have survived the war and been well cared for.
Yet the lasting damage inflicted by that separation reverberates to this day, decades hence.
Have you heard the screams and seen the panic of a three-year-old when it has lost sight of its mother in a supermarket? That scream subsides when mother reappears around the end of the aisle.
This is my brother writing in recent years. He tries to deal with his lasting pain through memoir. It’s been 76 years, yet he revisits the separation obsessively. He still writes about it in the present tense:
In the first home I scream for six weeks. Then I am moved to another family, and I stop screaming. I give up. Nothing around me is known to me. All those around me are strangers. I have no past. I have no future. I have no identity. I am nowhere. I am frozen in fear. It is the only emotion I possess now. As a three-year-old child, I believe that I must have made some terrible mistake to have caused my known world to disappear. I spend the rest of my life trying desperately not to make another mistake.
My brother’s second foster family cared deeply about him and has kept in touch with him all these years. Even so, he is almost 80 years old now and is still trying to understand what made him the anxious and dysfunctional person he turned into as a child and has remained for the rest of his life: a man with charm and intelligence, yet who could never keep a job because of his inability to complete tasks. After all, if he persisted he might make a mistake again, and that would bring his world to another end.
My younger sister was separated from our parents at five. She had no understanding of what was going on and why she suddenly had to live with a strange set of adults. She suffered thereafter from lifelong, profound depression.
I was older: seven. I was more able than my siblings to understand what was happening and why. I spent most of the war with Dick and Ella Rijnders. Dick was mayor of a small, rural village, and he and Ella lived in a beautiful house next to a wide waterway. Ella had a warm smile and Dick referred to me as his “oldest daughter”. I was able to go to school normally, make friends, and became part of village life. I was extraordinarily lucky, but I was not with my own parents, sister, and brother. And, eventually, I also had to leave the Rijnders, my loving second “family”. I was returning to my own family, but this meant another separation.
In later life, I was never able to really settle down. I lived in different countries and was successful in work, but never able to form lasting relationships with partners. I never married. I almost forgot to mention my own anxiety and depression, and my many years in psychotherapy.
My grief and anger about today’s southern border come not just from my personal life. As a retired psychotherapist who has worked extensively with victims of childhood trauma, I know all too well what awaits many of the thousands of children, taken by our government at the border, who are now in “processing centers” and foster homes – no matter how decent and caring those places might be. We can expect thousands of lives to be damaged, for many years or for ever, by “zero tolerance”. We can expect old men and women, decades from now, still suffering, still remembering, still writing in the present tense.
What is happening in our own backyard today is as evil and criminal as what happened to me and my siblings as children in Nazi Europe. It needs to be stopped immediately.
This about race. It is no accident that virtually all of the separated parents and kids are Hispanic and the few others affected are almost all “of color.” We wouldn’t be having all this ruckus if the arrivals were White. Trump, Sessions, and Miller are White Nationalists in the “Bannon Mode.” Kelly and Nielsen have decided to come out of the closet and reveal their racist sympathies.
The harm is permanent. All experts say that the harm intentionally inflicted in these kids will be permanently disabling. More blogging on that later.
We’re sending these families to concentration camps masquerading as countries. Make no mistake about it, most of these folks are refugees fleeing persecution and torture at the hands of gangs and cartels that basically are the government in much of the Northern Triangle. Sessions & Trump have intentionally misconstrued the law, misrepresented facts, and violated Constitutional Due Process to artificially deny most of these individuals legal protections they deserve. Their return is likely to mean death, torture, a lifetime of abuse, extortion, rape, sexual enslavement, forced drug trafficking, or prostitution. Others will be forcibly impressed into a life of serving the gangs because we have turned our collective backs on them. Inhumanity is inhumanity; it’s only a matter of degree. And, that the Nazis were even worse in no way makes any difference to those we are sentencing to death, torture, or a lifetime of abuse. Dead is dead. Tortured is tortured. Decapitated is functionally the same as shot or gassed.
Sessions keeps parroting that misdemeanor unlawful entry “isn’t a victimless crime.” Perhaps he’s right. The “victims” here are the migrants and their families seeking to exercise legal rights to apply for asylum. The “criminals” are Sessions, Trump, Nielsen, Miller, Kelly and other Administration hard liners who engage in child abuse rather than protection. And, they lie about what and why they are doing it. Who will eventually bring the real criminals to justice?
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