Human Rights – Page 232 – immigrationcourtside.com

More On Trump’s Refugee, Muslim Restrictions

http://www.huffingtonpost.com/entry/trump-muslim-ban-refugees_us_58877244e4b096b4a2349927?ioficaiiz1xn06yldi&

The Huffington Post writes:

“Although it reflects anti-refugee sentiment spreading worldwide, the draft of Trump’s order represents a dramatic upending of current U.S. policy toward some of the globe’s most unstable regions. It will inevitably face opposition from human rights groups, civil liberties organizations, Democrats and even members of the Christian right, who have encouraged a sympathetic approach to the refugee crisis.

The civil war in Syria, now in it’s sixth year, has left 4.8 million Syrians as refugees, according to the United Nations High Commissioner for Refugees. Since the war began in 2011, the U.S. has admitted only about 18,000 refugees from Syria, due in part to a lengthy vetting process that typically takes from 18 to 24 months. But as the humanitarian crisis in Syria worsened, former President Barack Obama pushed for an increase in admissions. During the last fiscal year, the U.S. accepted over 10,000 Syrian refugees.

Despite the low number of admissions and the intensive, multi-agency screening process, resettling Syrian refugees in the U.S. has become a controversial issue. In response to Obama’s push to welcome more people from the country, more than half of U.S. governors ― all but one of them Republicans ― attempted to block Syrian refugees from resettling in their states.

Throughout the presidential race, Trump seized on the growing national opposition to refugee resettlement. He first proposed banning Muslims from entering the U.S. in December 2015, following the mass shooting in San Bernardino, California. Though his specifics varied over the year that followed, Trump continued to promise to heavily restrict immigration from countries with Muslim-majority populations.

The draft executive order gives religious minorities priority in refugee admissions ― which may mean that Christians in most countries in the Middle East will be favored over Muslims.

The executive order is expected to include a list of acts that would disqualify an individual from entering the U.S., two sources briefed on the language said. People who commit honor killings, bigotry, violence against women, or who persecute against people on the basis of religion, race, gender, or sexual orientation, would not be admitted, they said. The U.S. already denies admission to persecutors, criminals and human rights abusers.

At least one refugee resettlement organization has already been briefed on an expected decline of refugee admissions to 50,000. That number is significantly lower than ceilings proposed before the Syrian civil war began.

Former intelligence analysts have pointed out that a policy that specifically discriminates against Muslims perpetuates the narrative that the U.S. is at war with Islam, which serves as a powerful recruiting tool for jihadist groups like the so-called Islamic State and al Qaeda.”

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I’m glad I’m not a refugee. And, most refugees wish they weren’t refugees.

PWS

01/24/17

NYT: President Trump Will Order Wall!

https://www.nytimes.com/2017/01/24/us/politics/wall-border-trump.html?_r=0

This breaking story from the NYT was passed on by Dan Kowalski over at LexisNexis:

“President Trump will order the construction of a Mexican border wall on Wednesday, White House officials said, and is mulling plans to stop Syrian refugees from entering the country and to slash immigration of refugees from “terror prone” nations, perhaps as early as this week.”

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No real surprises here. I had previously reported that the U.S. taxpayers will be on the hook for the cost of the border wall with only President’s Trump’s assurances that the Mexican Government will be reimbursing us.

And, as I have said many times before, I wake up every morning thankful that I woke up and that I’m not a refugee (particularly in today’s climate).

Interestingly, according to a recent Pew Research Center Poll, only a minority of Americans (39%) think that building a wall is a priority, while a majority (62%) favor legalization of those residing here without authorization and continuing to admit refugees on a humanitarian basis (61%). However, a majority of those surveyed (58%) do agree with President Trump that increasing deportations is important and that there should be stricter enforcement of those overstaying temporary visas (77%).

There does appear to be an opportunity for the Trump Administration to establish some type of national consensus on immigration. However, it does not appear to be exactly the same program that President Trump presented during his campaign. So, it would require some flexibility on all sides.

Read the complete Pew Research poll t this link:

http://www.pewresearch.org/fact-tank/2017/01/06/less-than-half-the-public-views-border-wall-as-an-important-goal-for-u-s-immigration-policy/

PWS

01/24/17

WSJ: Torture Still The Norm For Human Rights Lawyers In PRC!

http://www.wsj.com/articles/beijing-breaks-lawyers-1485121205

In an editorial today, the WSJ writes:

“That was the case for prominent lawyer Gao Zhisheng. After being detained in 2006, Mr. Gao recanted his confession and described how police tortured him. He was detained and tortured again in 2009. He described that experience too, and the authorities have not released him again. Then there was the fate of Li Chunfu, a lawyer released on Jan. 12 after 500 days of detention. He is now mentally ill, diagnosed with schizophrenia.

One of Mr. Xie’s captors threatened him with the same fate. “I’m going to torture you until you go insane,” he said. “Don’t think you’ll be able to continue being a lawyer once you get out. You’re going to be a waste of a person.”

Mr. Xie’s wife, Chen Guiqiu, issued a statement on Thursday, saying, “Let the world know what forced confession through torture is, what shamelessness without limit is.” That same day, she was detained.”

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Just because the PRC has become a worldwide economic power and frequent tourist destination, doesn’t mean we should forget that it is a brutal one-party state where dissent is not tolerated.

PWS

01/24/17

Beware: When Egotistical Nationalist Leaders Invoke “The Will Of The People,” Very Bad Things Are Likely To Happen!

http://billmoyers.com/story/a-date-that-will-live-in-infamy/

Retired professor of theology Charles Bayer writes on “Moyers & Company:”

“What shall we do now? I doubt we can pass this off as simply an intellectual or academic problem that can be solved by further conferences, documents, symposia or formal papers.

Perhaps we should rather look at what has produced serious positive change in the recent past. I think of a woman who just sat in the front seats of a bus, and the Freedom Riders who traveled throughout the American South at the risk of their lives. And I remember the tens of thousands of both young and older people who hit the streets and finally whose acts were critical in ending the disastrous Vietnam War. To the extent that these actions were nonviolent, they gained the respect of the American people. Violence just sets things back. New generations of in-the-street activists, not journalists or academics, might blunt the destructive nationalistic thrust of the new administration, and prepare the rest of us to play an important role in making America good again.”

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PWS

01/22/17

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro. Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14. There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over: projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions. I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years. If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean. Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”). I wish I had gotten to know Shelly better. He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR. Accomplished attorneys, dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us. Both of them represent the true values of the real America: fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day! It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

Quartz Media Reporter Ana Campoy “Nails” The Obama Administration’s Failed Southern Border Strategy — “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.” (Quoting Me)

THE LAW IS THE LAW
The US doesn’t have an immigration problem—it has a refugee problem
Ana Campoy January 18, 2017

http://trac.syr.edu/whatsnew/email.170117.html

Quote boxes:

“In fact, Trump’s fixation with blocking illegal immigration from Mexico, which has plummeted in recent years, obfuscates the problem. Yes, border patrol agents are apprehending thousands of people every month along the US-Mexico line, but many of them—around half, according to Claire McCaskill, a member of the US Senate’s homeland security and governmental affairs committee—turn themselves in voluntarily asking for help. Government statistics bear this out. The number of immigrants claiming fear of persecution or torture in their home countries is on the rise, and so are the findings that those claims are credible. In order to be considered for asylum by an immigration judge, immigrants first have to go through a “credible fear” screening, in which an asylum officer determines whether the claims they are making have a “significant possibility” of holding up in court.

More than 70% of those who claimed credible fear in the 2016 fiscal year hailed from El Salvador, Honduras, and Guatemala, places beset by rampant violence.

Under US law, individuals who are found to have credible fear have the right to due process to determine the validity of their claims in the court. Whether they are Syrians escaping civil war, or El Salvadorans fleeing from criminal gangs, what they have to prove is the same: that they face persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.

But US authorities don’t always take Central American immigrants’ fears seriously, studies suggest. One, released by the American Immigration Lawyers Association in 2016, found that not all border patrol agents are asking immigrants if they’re afraid to return to their country, as they are required to do. Other agents refuse to believe them, per the report, which is based on immigrant testimony documented by the group. Another 2016 analysis, by the US Commission on International Religious Freedom, a government advisory body, noted, “outright skepticism, if not hostility, toward asylum claims” by certain officers, among other practices that may be resulting in deportations of refugees with a legitimate right to stay.

A US Customs and Border Protection (CBP) spokesman said the agency “strives to treat every person we encounter with dignity and respect.” Anyone with concerns about the treatment doled out by its officers can call the agency, he added.”

. . . .

“The Obama administration’s response has already run up against the law. For example, several courts have shot down the government’s arguments and efforts to justify the detention of children and families while their cases wait to be resolved—a policy meant to convince would-be immigrants to stay home.

On Jan. 13, a coalition of immigrant rights groups filed a formal complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties accusing CBP officers of turning back people requesting asylum at ports of entry along the US-Mexico border. In what the groups called an “alarming new trend,” the officers have allegedly been telling immigrants that they can’t enter the country without a visa— contrary to US law—and referring them to Mexican immigration authorities.

Trump has framed his border policy as a choice between enforcing existing laws against illegal immigration or skirting them. But the decision facing US leaders is rather more complicated: Should the US continue providing refuge to those who are unfairly persecuted in their home countries?

If Americans are unwilling to do that, perhaps it’s time to do away with the nation’s asylum laws—and remove the famous poem at the base of the Statue of Liberty welcoming the world’s “huddled masses yearning to breathe free.”

Recently retired immigration judge Paul Wickham Schmidt put it this way: “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.”

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In my view, Ana Campoy provides a remarkably clear and well-documented analysis of why the Obama Administration’s “get tough” border policies have failed, and why the Trump Administration would be wise to take a more “nuanced” approach that recognizes our obligation to provide due process and protection under our laws to individuals fleeing from the Northern Triangle.

As incoming DHS Secretary Gen. John Kelly has recognized, this problem can’t be solved just by (even more) enhanced enforcement on our end. It will require addressing the systemic problems in the sending countries of the Northern Triangle, which certainly have most of the characteristics of “failed states,” as well as working with other stable democratic nations in the Americas to fashion meaningful protections, inside or outside the asylum system, for those who are likely to face torture, death, or other types of clear human rights abuses if returned to the Northern Triangle at present.

It’s not an easy problem to solve, and there are no “silver bullets.” But, we know what doesn’t work. So, it sure seems like it would be a good idea to try different approaches (and I don’t mean repealing asylum protections as Ana, somewhat facetiously suggests near the end of her article).

PWS

01/19/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Washington Post: U.S. & Mexican Officials Allegedly Flout U.S. Asylum Law (And International Treaties) At Southern Border!

https://www.washingtonpost.com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.html?utm_term=.4f9b23834fc7

Joshua Partlow writes in the Washington Post:

“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”

The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.

The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.

The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”

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The law is very clear: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).

Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.

Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.

Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.

Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?

It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.

Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”

We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.

Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?

PWS

01/17/17

Out Of Africa? Trump Transition Team Appears Indifferent To The Fate Of The 1.3 Billion Residents Of Continent — Recurring Themes: What’s In It For Us? Why Should We Care?

https://www.nytimes.com/2017/01/13/world/africa/africa-donald-trump.html?ribbon-ad-idx=2&rref=world&module=Ribbon&version=origin®ion=Header&action=click&contentCollection=World&pgtype=article&_r=0

“A four-page list of Africa-related questions from the transition staff has been making the rounds at the State Department and Pentagon, alarming longtime Africa specialists who say the framing and the tone of the questions suggest an American retreat from development and humanitarian goals, while at the same time trying to push forward business opportunities across the continent.

“How does U.S. business compete with other nations in Africa? Are we losing out to the Chinese?” asks one of the first questions in the unclassified document provided to The New York Times.

That is quickly followed with queries about humanitarian assistance money. “With so much corruption in Africa, how much of our funding is stolen? Why should we spend these funds on Africa when we are suffering here in the U.S.?”

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Wonder what JFK would think? Will cutting aid make us more competitive with China?

PWS

01/17/17

After More Than A Decade Of Leftist Misrule, Once Prosperous Venezuela Is Crumbling In A Violent Dance Of Death And Disorder — Refugees Will Be Fanning Out Across The Americas

https://www.washingtonpost.com/news/in-sight/wp/2017/01/09/caracas-by-day-torments-and-by-night-terrifies/

“Venezuela is a country that seems to be at war with itself. It’s not always clear who is who. It’s hard to know who to trust or who your enemy is, so you’re always looking over your shoulder, waiting for the next blow, unsure of where it will come from. Violence has so saturated life here that people have begun to see it as normal.

Most of the time, the people who are supposed to protect are the ones who harm civilians. The police and the military are without a doubt involved in kidnapping, extortion and even robbery. One night, a couple of photographers and I go with the police on a night patrol. It quickly becomes obvious that they were putting on a show for us. But after the patrol, I see two plainclothes officers interrogating a couple of guys outside a liquor store, slapping them when they give answers they didn’t like.”

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Lots of pictures in the full story at the link. Very sad story. What’s our response going to be when refugees show up here?

PWS

01/13/17

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

*********************************************

From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him. I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.” To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t. But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views. I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.” That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions. It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned. In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws. And, throwing them in detention isn’t going to deter them either — that’s been proved. But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important. It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations. But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle. Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow. It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about. They also won’t satisfy those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach. To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

Senator Cory Booker Is Skeptical That Jeff Sessions Will “Seek Justice For All” As AG!

https://www.washingtonpost.com/world/national-security/jeff-sessions-has-made-his-case-to-be-the-attorney-general-now-the-senate-will-hear-from-supporters-and-detractors/2017/01/10/5683ce24-d796-11e6-9a36-1d296534b31e_story.html?hpid=hp_rhp-top-table-main_sessions-1225p%3Ahomepage%2Fstory&utm_term=.60a27c7babe2

In an unprecedented move, Senator Cory Booker (D-NJ) became the first U.S. Senator ever to testify against a colleague during a confirmation hearing. In the above account from the Washington Post, Senator Booker charged that:

“If confirmed, Sen. Sessions will be required to pursue justice for women, but his record indicates that he won’t,” Booker said. “He will be expected to defend the equal rights of gay and lesbian and transgender Americans, but his record indicates that he won’t. He will be expected to defend voting rights, but his record indicates that he won’t. He will be expected to defend the rights of immigrants and affirm their human dignity, but the record indicates that he won’t.”

The Senate Judiciary Committee also heard testimony from a number of Sessions’s supporters, including former Attorney General Michael Mukasey, who said, according to the Post:

“Sessions is “thoroughly dedicated to the rule of law and the mission of the [Justice] department.”

The Post also reported that the Committee heard testimony from Oscar Vasquez, a former undocumented individual, who expressed the fear of many so-called “Dreamers” that as Attorney General Sessions will support the revocation of their protected status and use the information that they voluntarily furnished to the USCIS to institute removal proceedings.

During yesterday’s hearing, Senator Sessions took a somewhat ambiguous position on Dreamers. He indicated he would have no problem if President Trump decided to revoke the Executive Order establishing the DACA program, while at the same time acknowledging that there was no plan in the offing to actually place Dreamers into removal proceedings.

**********************************

Notwithstanding Senator Booker’s reservations, and those of many others in the civil rights, human rights, women’s rights, and immigrants’ rights communities, Senator Sessions will be the next Attorney General. At best, therefore, Senator Booker’s testimony was a “marker” in the event that once confirmed, Senator Sessions abandons his promise to seek justice for all Americans (which includes lawfully resident immigrants and undocumented individuals residing in the United States) and returns to the much narrower view of civil rights, human rights, women’s rights, and immigrants’ rights that he has often expressed and defended during his long Senate career.

It’s a tall order for Senator Sessions to rise above the limitations of his past and take a broader, more inclusive, more humane view of the U.S. legal system. But, for the sake of all Americans, I sincerely hope he can pull it off.

PWS

01/11/17

Human Rights First Chief Critiques Obama Administration On Human Rights!

https://www.washingtonpost.com/posteverything/wp/2017/01/09/obamas-human-rights-failures-could-pave-the-way-for-trumps-excesses/

Kenneth Roth, Executive Director do Human Rights First writes in this Washington Post op-ed:

“As President-elect Donald Trump prepares to take office, many understandably fear a new hostility to human rights. One area of particular concern will be his approach to fighting terrorism: Nearly a year ago, he declared that “torture works”; he has expressed admiration for various dictators; and at one point during the campaign, he said, “When you get these terrorists, you have to take out their families.”

Sadly, Trump’s ability to disregard human rights norms will be made easier by President Obama’s inability to fully roll back and confront President George W. Bush’s abuses.”

***************************

Roth doesn’t even touch on the important issue of immigration. Overuse of immigration detention, poor detention conditions, hijacking of the U.S. Immigration Court’s due process mission to achieve enforcement objectives, and purposely wooden and underclusive interpretations of the Convention Against Torture and “particular social group” protections for refugees were largely left unaddressed or arguably even aggravated under the Obama Administration.

PWS

01/09/17

David Leopold Warns About Possible Five-Point Attack On Immigrants By Attorney General Sessions

http://www.huffingtonpost.com/entry/five-chilling-ways-senator-jeff-sessions-could-attack-immigrants-as-attorney-general_us_5870022ce4b099cdb0fd2ef7

“As the nation’s top lawyer, head of the immigration court, and civil rights officer, Jeff Sessions would have access to multiple tools to harm immigrants and undermine due process. Given his rhetoric and record as a United States Senator, as well as his association with anti-immigrant extremists, there is every reason to believe he would use all of them.

Here are five ways Sessions could attempt to undermine immigrants and immigration policy if confirmed as Attorney General:

Impose his radical, anti-immigrant ideology on decisions by the federal immigration courts;

Expand the number of immigrants who are deported even though they qualify for a green card or asylum;

Reduce access to legal counsel and information about immigrants’ legal rights;

Criminalize immigrants by bringing trumped up charges against ordinary workers; and

Strong arm state and local police to become Trump deportation agents

Of course, any attempt Sessions would make to undermine civil and due process rights will be met by strong litigation from the outside. But the U.S. Senate should block his confirmation from the start, as Senator Sessions is highly unqualified for this position and has showed a profound disregard for civil and human rights.”

***********************************

Sorry, David, but Jeff Sessions has the votes to be confirmed as the next Attorney General. Those who don’t like that can rant, but that’s not going to change the reality that Donald Trump won the Presidential election and the Republicans firmly control both Houses of Congress.

When you lose elections at the national and state levels, like the Democrats did, you end up with next to no leverage on appointments or policies unless you can reach across the aisle and strike a chord with at least some Republicans. Right now, it appears that all Republican Senators, and probably a few Democrats, ewill vote for Senator Sessions’s confirmation. Whatever his pros and cons, Senator Sessions appears to have had the wisdom to be polite and cordial to his colleagues and to occasionally reach across the aisle on issues of common interest. Rightly or wrongly, that seems to count for a lot when current or former Senators come up for confirmation to Executive Branch positions.

So barring a “bombshell” next week, and I must say his record has been “flyspecked” — regardless of what he put in the Judiciary Committee questionnaire — that’s unlikely. For better or worse, Senator Session’s views on a wide variety of subjects and his conduct as a public servant over many decades are a matter of public record. Nothing in that record seems to have given pause to any of his Republican Senate colleagues.

That being said, it woulds be nice to think that upon hearing some of the criticisms, Jeff Sessions will reflect on the huge differences between being a Senator from Alabama, the Attorney General of Alabama, and a U.S. Attorney for Alabama, and the wider responsibilities of being the chief law enforcement official, legal adviser, and litigator representing all of the People of the United States, not just the Trump Administration.

David is, of course, correct to focus on Attorney General Session’s vast authority over immigration. He will control a huge and critically important U.S. Immigration Court System currently sporting a backlog of more than one-half million cases and suffering from chronically inadequate judicial administration and lack of basic technology like e-filing. While there certainly is an interrelationship among civil rights, human rights, and due process in the Immigration Courts, there is every reason to believe that Attorney General Session’s biggest impact will be in the field of immigration.

If things go as David predicts, then the battle over fundamental fairness and due process in immigration policy and the Immigration Courts is likely to be fought out in the Article III Federal Courts, which, unlike the Immigration Courts, aren’t under Executive control. That will have some drawbacks for everyone, but particularly for the Trump Administration.

And, if Sessions is wise, he’ll look back at what happened when the Bush Administration tried to promote a “rubber stamp” approach to justice and due process in the Immigration Courts. The U.S. Courts of Appeals were outraged at the patent lack of due process and fundamental fairness as “not quite ready for prime time” cases were “streamlined” and thrown into the Courts of Appeals for review with glaring factual errors and remarkable legal defects. Not totally incidentally, this also dramatically increased their workload, with judicial review of immigration matters occupying a majority of the docket in several prominent circuits.

As a result, cases were returned to the Board of Immigration Appeals, who then returned them to the Immigration Courts for “re-dos,” in droves. The Courts of Appeals lost faith in the Executive’s ability to run a fundamentally fair, high quality Immigration Court System, and basically placed the Immigration Courts into “judicial receivership” until things stabilized at least somewhat. The waste and abuse of taxpayer dollars caused by this “haste makes waste” approach was beyond contemplation and, for a time, threatened to paralyze the entire American justice system.

Additionally, it would be a huge mistake for the Trump Administration to view the Bush Administration’s Immigration Court debacle as the product of “bleeding heart liberal appellate judges” appointed by President Bill Clinton. The criticism from Article III Judges cut across political lines. Two of the most outspoken judicial critics of the Bush Administration’s handling of the U.S. Immigration Courts were Republican appointees: then Chief Judge John M. Walker, Jr. of the Second Circuit and Judge Richard Posner of the Seventh Circuit. Indeed, Judge Walker is a cousin of former President George H.W. Bush.

Obviously, those who favor greater immigration enforcement won the election and are going to have a chance to try out their policies. But, “enhanced enforcement” is likely to be effective only if we have a fair, impartial, and totally due process oriented Immigration Court System.

In other words, the Immigration Courts must be a “level playing field” with judges who, in the words of Chief Justice Roberts, play the role of “impartial umpires” between those seeking to stay in our country and those seeking to remove them. Results from such a due-process oriented system would be more likely to inspire confidence from the U.S. Courts of Appeals, thereby increasing the stature of the Immigration Courts and their ability to achieve final resolutions at the initial, and most cost-efficient, level of our justice system. Due process and fairness in the Immigration Court System should be a nonpartisan common interest no matter where one stands on other aspects of the “immigration debate.”

We are about to find out what Attorney General Jeff Sessions has in mind for the U.S. Immigration Courts and the rest of the U.S. justice system. I’m hoping for the best, but preparing to assert the essential constitutional requirement for due process in the Immigration Courts if, as David predicts, it comes under attack.

Due Process Forever!

PWS

01/07/16

From Haven to Hell: Venezuela On The Verge Of Collapse After Years Of Bad Government — Neighbors Brace For Humanitarian/Refugee Crisis!

http://lawprofessors.typepad.com/immigration/2017/01/hungry-venezuelans-flood-brazilian-towns-as-threat-of-mass-migration-looms.html

“Oil-rich Venezuela has been an immigrant destination for much of its history. Now it is a place to flee. Chronic food shortages, rampant violence and the erratic and often paranoid behavior of President Nicolás Maduro have turned the country’s border crossings and beaches into escape valves.”

*******************

I’ve blogged about this unfolding humanitarian disaster before. Go over to ImmigrationProf Blog and the Washington Post at the link to read more.

PWS

01/04/17

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