"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
There is now a broad, bipartisan consensus that ripping infants from their mothers — and then putting both in (separate) cages — is not a morally acceptable way of treating families who cross our southern border. After weeks of deliberation, our nation has concluded that Central American migrants do not deserve to have their children psychologically tortured by agents of the state.
But what they do deserve remains in dispute.
The White House contends that migrants have a right to be caged with their family members (except for those who have already been separated from their children, who aren’t necessarily entitled to ever see their kids again). But the judiciary says that child migrants have a right not to be caged, at all. And progressives seem to believe that these huddled masses are entitled to something more — though few have specified precisely what or why.
In defending its “zero tolerance” policy — which is to say, a policy of jailing asylum-seekers for the misdemeanor offense of crossing the U.S. border between official points of entry — the White House has implored its critics to consider the bigger picture: Such “illegal aliens” have already undermined the rule of law in our country, and brought drugs, violent crime, and MS-13 to our streets. Locking up their families might look cruel when viewed in isolation; but when understood in the broader context of a migrant crisis that threatens the safety and sovereignty of the American people, the policy is more than justified.
In reality, however, this narrative inverts the truth: Context does not excuse the cruelty of our government’s “zero tolerance” policy, it indicts that policy even further. The United States is not suffering a crisis that justifies radical measures; the Central American families gathered at our border are. And those families aren’t bringing crime and lawlessness to our country — if anything, we brought such conditions to theirs.
After all, it was the CIA that overthrew the democratically elected government of Guatemala in 1954, and thereby subjected its people to decades of dictatorship and civil war. It was the streets and prisons of California that gave birth to MS-13, and American immigration authorities that deported that gang back to El Salvador. And it is America’s taste for narcotics that sustains the drug trade in Honduras — and our war on drugs that ensures such trade is conducted by immensely profitable and violent cartels.
There is no easy answer to the Central American migrant crisis. But any remotely moral policy response will need to proceed from the recognition that we are not the victims of this crisis — and asylum-seekers are not its creators.
Central American families are not a threat to the United States.
It is very hard to make a reasoned case for why our nation’s current levels of undocumented immigration — or, of low-skilled immigration more broadly — represent major threats to the safety and material well-being of the American people.
We have long known that native-born Americans commit violent crimes at far higher rates than either legal or undocumented immigrants. And newer research into immigration and criminality has proven even more devastating to the nativists’ case: States with higher concentrations of undocumented immigrants tend to have lower rates of violent crime — and this correlation persists even when controlling for a given state’s median age, level of urbanization, and rate of unemployment or incarceration.
Meanwhile, the American economy is in great need of young, unskilled workers. On the Labor Department’s list of the 15 occupations that will experience the fastest growth over the next six years, eight require no advanced education. Further, with the baby-boomers retiring — and birth rates plummeting — the future of American economic growth, and the survival of Social Security, depends on an infusion of foreign workers. It is true that there is some basis for believing that mass, low-skill immigration depresses the wages of native-born high-school dropouts (although that claim is contentious). But there is no basis for believing that restricting immigration will do more to boost such workers’ take-home pay than encouraging unionization through labor-law reform, or expanding the Earned Income Tax Credit (EITC). Thus, given the positive material benefits of mass low-skill immigration, it is hard to see how more of it would constitute an economic crisis, even if we stipulate that it puts downward pressure on the wages of some native-born workers.
By contrast, the crisis facing the migrants themselves is wrenching and undeniable.
Asylum-seekers are fleeing violence and disorder, not exporting it.
To seek asylum in the United States, Central American families must travel many hundreds of miles through the desert, along a route teeming with rapists, thieves, and homicidal gangs. The hazards inherent to this journey aren’t unknown to most who take it — such migrants simply find the hazards of remaining in place more intolerable.
And that calculation isn’t hard to understand. El Salvador, Guatemala, and Honduras endure some of the highest rates of violent crime — and levels of official corruption — of any nations in the world. As recently as 2015, El Salvador was the single-most violent country (that wasn’t at war) on planet Earth, with a homicide rate of 103 per 100,000. And the vast majority of those homicides went unpunished — according to a 2017 report from the Georgetown Security Studies Review, roughly 90 percent of murders throughout the Northern Triangle go unprosecuted. This lawlessness is both a cause and effect of widespread public distrust in state police forces, which are largely non-professionalized, frequently penetrated by criminal gangs, and historically associated with atrocities carried out in times of political unrest and civil war.
Public trust in the region’s other governing institutions is similarly, justifiably, low. Due to corruption and bureaucratic inefficacy, nations in the Northern Triangle collect less in tax revenues than most other Latin American countries (relative to the size of each nation’s gross domestic product). This fact, combined with high levels of spending on (grossly underperforming) security forces leaves the region’s governments with little funding for social services and public investment. And corruption eats into what meager funding is allocated to such purposes — in Honduras, the ruling National Party has been accused of embezzling social security funds; Guatemala’s former president and nine of his ex-ministers were arrested in February for graft connected to a public transit project.
While the region’s governments have struggled to collect taxes, its drug cartels have proven quite effective at collecting tribute. In 2015, the Honduran newspaper La Prensa revealed that citizens of El Salvador, Honduras, and Guatemala were collectively making more than $651 million in extortion payments to criminal organizations annually. Those who fail to pay up are routinely murdered; many of the migrants seeking asylum in the U.S. claim (quite credibly) to be fleeing such homicidal extortion rackets.
So, these migrants are fleeing a genuine crisis. But that does not necessarily mean that our country has any special obligation to address their plight. The U.S. government is not forcing the Northern Triangle’s political and economic elites to engage in graft, or avoid taxes. It does not pay the region’s police to let murders go unsolved, or (directly) sell weapons to the region’s cartels. In fact, Congress has spent more than $3 billion on security aid for Central America over the past decade.
And yet, the United States still bears profound responsibility for the region’s troubles; because the Northern Triangle’s failures of governance — and wrenching security challenges — are inextricably-linked to our nation’s policy choices and consumption habits.
On the former point: The CIA subjected Guatemala to decades of authoritarian rule and civil war, for the sake of aiding a fruit company that its director was invested in.
In 1945, a revolutionary movement built a representative democracy in Guatemala. Nine years later, the United States tore it down. Officially, the Eisenhower administration orchestrated the overthrow of Jacobo Árbenz’s government to save the Guatemalan people from Communist tyranny. In reality, it did so to deny them popular sovereignty.
Árbenz had been democratically elected, and enjoyed widespread public support. He had legalized the Communist Party, but was no card-carrying member. His crime was not the suppression of dissent or the suspension of constitutional rule — but rather, an attempt to address his nation’s wrenching inequality by redistributing the United Fruit Company’s (UFC) unused land to impoverished peasants.
This was not an act of pure expropriation — the UFC had robbed the Guatemalan government of tax revenue, by vastly understating the value of its holdings. By seizing the company’s unused lands, Árbenz secured a measure of compensation for his state; and, more importantly, provided 100,000 Guatemalan families with land, and access to credit. Agricultural production increased, poverty fell. Árbenz’s constituents were pleased.
But the United Fruit Company was not. And both Secretary of State John Dulles and his brother, CIA director Allen Dulles had close ties to the UFC. So, our government took out Árbenz, and replaced him with a reactionary, former military officer — who promptly assumed dictatorial powers. Nearly four decades of civil war between authoritarian governments and left-wing guerrillas ensued — throughout which the United States provided support to the former. By the time the fighting ended in 1996, 200,000 people were dead.
It is impossible to know what life in Guatemala would be like today absent the CIA’s intervention. One can imagine Árbenz’s democracy thriving through the second half of the 20th century, and serving as a model for its neighbors in the Northern Triangle. One can also imagine less rosy counterfactuals. What we know for certain is that the United States deliberately undermined the national sovereignty of Guatemala and inadvertently triggered decades of civil war. And we know that said civil war left in its wake large groups of demobilized men with experience in killing, and access to (often, U.S.-made) military-grade weapons — and that many of those men ended up forming violent, criminal organizations that plague the Northern Triangle today.
And American drug users and policymakers sustain those criminal organizations.
Demand for narcotics is overwhelmingly concentrated in prosperous, developed countries; which means, in the Western Hemisphere, it is overwhelmingly concentrated in the United States. And the U.S. government’s Draconian (and profoundly ineffective) approach to reducing that demand has only inflated the profits that Central American criminal organizations can reap by satisfying our illicit appetites. As German Lopez reported for Vox in 2014:
These drugs cost pennies by the dose to produce, but their value is increased through the supply chain to reflect the risk of losing a harvest to drug-busting government officials or rival criminal organizations.
The inflated cost creates a huge financial incentive for criminal organizations to get into the business of drugs, no matter the risks. They might lose some of their product along the way, but any product that makes it through is immensely profitable.
Criminal groups would likely take up other activities — human trafficking, kidnapping, gun smuggling, extortion — if the drug market didn’t exist. But experts argue drugs are uniquely profitable and empower criminal organizations in a way no other market can.
One could argue that the downside risks of legalizing hard drugs justify the harms inherent to their prohibition. The fact that the United States refuses to remove marijuana from the black market — and thus, deny cartels a major profit source — is harder to justify. But either way, it remains the case that the costs of our nation’s consumption — and prohibition — of drugs fall heaviest on our neighbors to the south. In fact, some have even argued that America’s drug habit is responsible for nearly all of the violence in the Northern Triangle — among them, White House chief of staff John Kelly.
“There are some in officialdom who argue that not 100 percent of the violence [in Central America] today is due to the drug flow to the U.S.,” Kelly wrote in 2014, when he was serving as Southcom commander. “I agree, but I would say that perhaps 80 percent of it is.”
MS-13 was born in the U.S.A.
Donald Trump has accused Central American governments of “sending” their most violent and criminal residents to the United States — including the homicidal gangsters of MS-13. In truth, of course, the vast majority of migrants from Central America are self-selected and nonviolent.
But Trump’s mistake is almost understandable: After all, the U.S. government actually has sent some of its most violent and criminal residents to Central America: MS-13 was formed on the streets of Los Angeles, hardened in American prisons, and then deported back to the Northern Triangle.
True, the gang’s original members were (mostly unauthorized) Salvadoran immigrants who’d fled their nation’s civil war. But those immigrants arrived in California as troubled teenagers, not sadistic killers. Dara Lind offers a concise sketch of the competing theories for how some of them became the latter:
[The Salvadoran teens] faced hostility from other ethnic groups for being new, and from other young people for being long-haired mosher types, so they banded together and called themselves the Stoners — later Mara Salvatrucha, and eventually, once the gang had metastasized under the network of Southern California Latino gangs known as Sureños, MS-13.
When and why the “Stoners” became a hardened violent gang is up for debate. Avalos attributes it to repeated confrontations with other LA gangs, while journalist Ioan Grillo thinks it has more to do with the arrival of newer Salvadoran immigrants who were “hardened by the horrors” of civil war. Salvadoran journalists Carlos Martinez and Jose Luis Sanz, meanwhile, say that the gang’s story paralleled that of a lot of young men during the “tough on crime” era: They were minor delinquents stuffed into jails and prisons, where they had the time, opportunity, and incentive to become hardened criminals.
Whichever version of this story one accepts, our nation’s institutions remain implicated in the formation of MS-13. Salvadoran immigrants did not introduce the culture of street gangs to Los Angeles; L.A. introduced it to them. And, given the rates of recidivism in our criminal justice system, it is reasonable to assume that the failure of American prisons to rehabilitate these teenage immigrants (once they turned to violent crime) was not solely due to their inadequacies.
Regardless, the U.S. government bears unambiguous responsibility for MS-13’s evolution into an international menace. Despite the fact that El Salvador was ill-equipped to handle a massive influx of gang members, the U.S. deported roughly 20,000 convicts (including many MS-13 members) to that country between 2000 and 2004 — without telling the Salvadoran government which of the deportees being returned to them had criminal histories, and which did not.
Our debt to Central American migrants cannot be paid simply by reuniting them with their traumatized children.
Donald Trump does not deny that the migrants at our southern border hail from nations wracked by violence and instability (the brutality of Central American gangs is one of our president’s favorite topics of conversation). But Trump sees the Northern Triangle’s troubles as cause for turning away its refugees, not taking them in: In his understanding (or at least, in the one he projects to the public), Honduras is not violent and poor for complicated reasons of history, politics, and economics; it is violent and poor because Honduran people live there. Therefore, these migrants are not looking to escape their nations’ pathologies, but to export them; they’re not huddled masses yearning to breathe free, but virus-bearing insects yearning to “infest.”
These sentiments reek of racism. But like so many other prejudices that the powerful harbor against the powerless, they also betray a will to evade responsibility.
If the pathologies of impoverished black communities can be attributed to the cultural (and/or biological) flaws of black people, then the American government owes them little. If we acknowledge that their troubles are inextricable from centuries of discriminatory policy, by contrast, our collective obligation to improve their well-being becomes immense. And the same is true of migrant families. If we can call these people “animals,” then we need not ask what caused the barbarities they’re fleeing. But rejecting Trump’s racism requires us to ask that question — and answering it honestly requires grappling with our collective responsibility for the traumas that migrant children suffered before they ever crossed our border.
What we owe them can be debated (accepting a much greater number of them into our country, and increasing aid to their region would seem like two possibilities). But there is no doubt that we owe them much more than this.
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ESSAY:
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.
I’ll be on for a 5 minute or so segment with Scott Simon that airs locally on WAMU starting at 8:00 AM Saturday. I believe “my segment” will begin around 8:20 AM. It will be posted to the internet by noon on Saturday.
MATTER OF FACT WITH SOLEDAD O’BRIEN
I have about a 10 minute segment with Soledad that will air in the DC area on WTTG, Ch. 5, at 1:00 AM on Monday (CORRECTED). It will also be posted online later.
MAJORITY OPINION: Justice Sotomayor for herself and seven others.
CONCURRING OPINION: Justice Kennedy
DISSENTING OPINION: Justice Alito
KEY QUOTE FROM MAJORITY:
Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v.United States, 571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “adminis- trative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respond- ent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbi- trary dates and times that are likely to confuse and con- found all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30– 31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before send- ing notices to appear.
Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” nonciti- zens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any poten- tial confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens,post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta- tion, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Re- spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS Opinion of the Court
purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal pro- ceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence.Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and- place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
KEY QUOTE FROM JUSTICE KENNEDY’S CONCURRING OPINION:
In according Chevron deference to the BIA’s interpreta- tion, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be dis- cerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v.Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. See Arlington v. FCC, 569 U. S. 290, 327 (2013) (ROBERTS, C. J., dissenting) (“We do not leave it to the agency to decide when it is in charge”). Given the con- cerns raised by some Members of this Court, see, e.g., id.,at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
Cite as: 585 U. S. ____ (2018) 3
KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur- ring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevronand how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. See, e.g.,Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
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I filed an Amicus Brief, with the assistance of Eric Citron, Goldstein & Russell, of in behalf of Mr. Pereira.
In invalidates hundreds of thousands of defective Notices to Appear, thus potentially requiring massive “restarts” in an already out of control system.
Even with a more or less hand-picked Supreme Court, immigration reactionaries continue to lose case after case. So, it isn’t “liberal judges.” It’s inane, biased policies and lousy lawyering at the DOJ and DHS which goes back through the Obama and Bush II Administrations. It’s just reached its lowest conceivable level under Sessions. But, I’ll admit that every time I think Sessions can’t sink any lower on the legal and moral scale, he surprises me.
It makes tens of thousands of additional individuals who have now been here for 10 or more years eligible to apply for “Non-LPR Cancellation of Removal” because the “stop time rule” was not properly invoked by the service of the defective NTA in their cases. This could pour tens of thousands of Motions to Reopen and/or Reconsider into an already overwhelmed system.
Virtually every individual from El Salvador, Haiti, and Honduras whose TPS is going to be (bone-headedly) terminated by the Trumpsters will now be able to demand full hearings on Cancellation of Removal in U.S. Immigration Court. Thus, they aren’t going anywhere any time soon.
It illustrates the problems of giving improper “Chevron Deference” to a BIA that no longer functions as an expert tribunal and does not exercise independent judgement. Ever since the “Ashcroft Purge” the BIA has been an “inbred body” specifically structured and staffed to be a “shill” for DHS and the Administration’s enforcement policies. And, under Sessions, the BIA has been completely co-opted by his unethical and highly improper interference in what little was left of its independent decision-making function. “Justice” in today’s Immigration Courts is a total sham!
Chevron, as I have stated many times to my law school class, is a cowardly exercise of “judicial task avoidance” by the Supremes. Congress should eliminate it if the Supremes don’t. Article III Judges should be required to do their Constitutional duties, earn their pay, and decide legal issues de novo, even when that might be controversial, unpopular, or require more critical, analytical thinking than they care to do.
The Pereira debacle is entirely the fault of a totally screwed up and incompetent Executive Immigration function stretching back for nearly two decades. Fixing this problem properly should have been a “no brainer.” The “technology” (which probably could have been developed by a middle schooler sitting in her basement) was there more than a decade ago. But “haste makes waste” corner cutting combined with the assurance that the emasculated and enfeebled BIA would intentionally misread the plain meaning of the statute to screw the respondent and help the DHS produced a totally avoidable administrative nightmare.
“You ain’t seen nothin’ yet.” With White Nationalist xenophobe Sessions demanding that Immigration Judges deny, deny, deny, without hearings if necessary, to achieve their quota of removals without the inconvenience of Due Process and impartiality, cases are going to come rocketing back from the Courts of Appeals by the truckload. The whole system is going to collapse. And don’t anyone let the corrupt and biased Sessions get away with fobbing the blame off on others, as he and the rest of the Trump Regime are wont to do.
Sessions, Trump, Miller, Nielsen, Kelly, Homan and the rest of the scofflaw, White Nationalist, anti-Constitutional crowd might think that the Constitution doesn’t mean what it says. But, foreign nationals in the United States are entitled to fairness and due process. No matter how many corners the Trumpsters cut and how much bias they institutionalize into the already compromised Immigration Courts, they aren’t going to be able to eliminate Due Process.
We need a legitimate, independent, impartial, unbiased, Sessions-free, Due Process focused U.S. Immigration Court. Until that happens, the entire immigration justice system will continue to spiral downward under the immorality and toxic incompetence of Sessions and his cronies.
Throwing kids behind bars with their parents isn’t a whole lot better than separating them.
The nation should be thankful that President Trump finally came to his senses and ended the inhumane and traumatizing practice of separating children from their immigrant parents who illegally enter the United States. Facing an extraordinary backlash not just from Democrats but from some Republicans, every living former first lady (and, amazingly, the current one), United Nations human rights officials, Willie Nelson, Pope Francis and many, many others who reacted in dismay to scenes of children corralled in metal cages, Trump probably had little choice.
But his solution — detaining entire families together while the adults face, in most cases, misdemeanor charges of illegal entry — raises enormously troubling problems of its own. Innocent children do not belong in jails or detention centers, as a 20-year-old federal consent decree acknowledges.
The congressional Republicans and Christian conservatives who spoke out against separating children from parents — more than 2,300 have been separated — deserve acknowledgment for finally drawing a line, though it is disheartening that it took a policy as cruel and damaging as ripping children from their parents’ arms to finally get them to stand up to the administration.
Of course, the president’s change of heart also put the lie to his assertions, echoed by underlings such as Homeland Security Secretary Kirstjen Nielsen and Atty. Gen. Jeff Sessions, that loopholes in immigration laws and court decisions made the separations necessary. They did not. It was Sessions’ “zero tolerance” policydecision to charge all suspected illegal border crossers with crimes and detain them pending court action. Though entering the U.S. without permission is a misdemeanor, no law requires the government to prosecute every violation. Nor does the government have to detain the border crossers, which is what led to the family separations. The administration chose to do that.
Under Trump’s new policy, the zero-tolerance arrests will continue, but the government apparently will keep the families together in detention — in direct violation of the 1997 Flores consent decree that says the government cannot hold undocumented children in detention centers for more than 20 days, with or without their parents. In fact, during the surge of unaccompanied minors and families fleeing violence in Central America, the Obama administration detained entire families to try to deter others from making the dangerous trip from El Salvador, Honduras and Guatemala, where violent gangs have terrorized neighborhoods. The administration ended the policy in the face of political backlash and court orders. The 9th Circuit Court of Appeals eventually ruled that while the Flores agreement does not require parents to be released, it does bar the government from keeping the children in detention.
In his order, Trump said he intends to ask the court to revise the Flores settlement to allow for longer family detentions. The court should rebuff that. The goal here is to keep the families together — but not by violating a rule that was designed to set ra-tional and compassionate immigration detention standards for children. The better solution is to stop the over-reliance on incarceration. Unless there is a valid belief that the parents pose a threat, they should be released along with their children, with steps taken to ensure they will return for their court dates. Those steps can include electronic monitoring through ankle bracelets and other techniques.
It’s notable that the president, who repeatedly said it would be up to Congress to change laws to end the family separations, ultimately decided for his own political expediency to issue his executive order even as bills barring family separations were being introduced. We’re glad the president didn’t wait forthe glacially slow Congress to act, which would have repeated the error he made in ending Obama-era protections for “Dreamers” and then telling Congress to save the program legislatively. Trump can undo that executive decision, too.
But the president is right that Congress should — really, must — address its two-decade impasse over how to fix the nation’s dysfunctional immigration laws and enforcement system. In fact, some efforts to push reform legislation are currently underway, but Congress should be wary of using the crisis of family separations as blackmail to force through the kinds of draconian policies pushed by hard-liners like Trump advisor Stephen Miller, who seek to severely reduce legal immigration. What the U.S. needs is a fair and humane bipartisan immigration overhaul that addresses the complicated but solvable issues that have divided the country for too long.
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And, we haven’t even gotten to the pictures of headless, mutilated corpses that will certainly be the result of Jeff Sessions’s twisted White Nationalist reinterpretation of refugee protection law. Sessions’s lawless (and, naturally intentionally cruel and inhumane) actions will enable the Administration to return legitimate refugees, primarily women and children, to death and torture at the hands of gangs and cartels that exercise quasi-governmental authority in the Northern Triangle.
Or, perversely, the Administration is effectively telling refugees to stop resisting the gangs and join up or cooperate in abusing others as the only way to save their lives. Because, under the White Nationalist Trump Regime, “brown lives” don’t matter either.
The stain of the Trump Regime and its human rights abuses are on the hands of all of us.
Bottom line: “Sessions made it clear that we at ICE control the Immigration Judges, their dockets, and their priorities. If they get out of line, report ’em. We’ll all working on the “Trump/Sessions Deportation Express.” And we at ICE are the Conductors. The “Judges” are just porters to carry our baggage.
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Talk about feckless!
I think that it’s critical that advocates work documents like this into their Article III briefs and arguments. It’s important to let “real” judges know that notwithstanding fancy titles and outward appearances, the “Immigration Court” is not a real independent court system that can be expected to provide Due Process, or even care about it on a systemic basis, for that matter.
It’s a “captive” of Chief Child Abuser Jeff Sessions who has directed it to carry out his prosecutorial (and overall racist) program of dehumanization and bias against the most vulnerable and defenseless among us. In no way, shape, or form, can a court system selected, directed, and evaluated by Jeff Sessions and his biased minions be considered to provide the “fair and impartial adjudication” required by the Due Process Clause. Article III Judges must be (politely) confronted with their own complicity when they approve any removal order entered by this inherently corrupt, unethical, and unfair system.
Yes, there are many dedicated and conscientious Immigration Judges out there. But, they have been ordered to carry out Sessions’s enforcement vendetta, stripped of all meaningful authority to control their dockets, and told they are being watched to make sure they are “with the program” — which in Sessions’s own words is all about “volume” – not fairness, not quality, not scholarship, not empathy, not human understanding, not respect — nope “volume” which has nothing whatsoever to do with individual justice. How would you like to trust your life to a judge working under those conditions.
Almost every day, Jeff Sessions provides clear public evidence of his bias and total unsuitability for any public office, let along one purporting to run a “court system.”
“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., it is hereby ordered as follows:
Section 1. Policy. It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.
Sec. 2. Definitions. For purposes of this order, the following definitions apply: (a) “Alien family” means
(i) any person not a citizen or national of the United States who has not been admitted into, or is not authorized to enter or remain in, the United States, who entered this country with an alien child or alien children at or between designated ports of entry and who was detained; and
(ii) that person’s alien child or alien children.
(b) “Alien child” means any person not a citizen or national of the United States who
(i) has not been admitted into, or is not authorized to enter or remain in, the United States;
(ii) is under the age of 18; and
(iii) has a legal parent-child relationship to an alien who entered the United States with the alien child at or between designated ports of entry and who was detained.
Sec. 3. Temporary Detention Policy for Families Entering this Country Illegally. (a) The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.
(b) The Secretary shall not, however, detain an alien family together when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.
(c) The Secretary of Defense shall take all legally available measures to provide to the Secretary, upon request, any existing facilities available for the housing and care of alien families, and shall construct such facilities if necessary and consistent with law. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(d) Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes. The Secretary, to the extent permitted by law, shall be responsible for reimbursement for the use of these facilities.
(e) The Attorney General shall promptly file a request with the U.S. District Court for the
Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.
Sec. 4. Prioritization of Immigration Proceedings Involving Alien Families. The Attorney General shall, to the extent practicable, prioritize the adjudication of cases involving detained families.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP”
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Section 1 maintains the abusive policy of prosecuting every misdemeanor illegal entry case (“zero-tolerance,” a/k/a “zero common sense,” a/k/a “zero humanity”). Most of those duressed into pleading guilty in assembly line Federal criminal courts are sentenced to “time served,” thus illustrating the absurd wastefulness of this policy and how it detracts from real law enforcement. Trump also throws in a gratuitous and totally disingenuous jab at Congress and the courts for causing the problem that he & Sessions actually created.
Section 3(a) directs the detention of families throughout criminal proceedings and until the end of Immigration Court proceedings (which often takes many months or even years), an abominable, costly, inhumane, unnecessary, and unsustainable policy originally developed during the Obama Administration. The Government lacks adequate family detention facilities, which are supposed to be non-secure facilities licensed by a child welfare agency. Additionally, asylum applicants in Removal Proceedings generally have a right to bond. In most cases, there would be no legitimate reason to deny bond. Contrary to the Administration’s bogus suggestions and intentionally misleading statistics, studies show that those who are represented by counsel and understand the asylum process show up for their hearings more than 90% of the time. I found it was close to 100%. This suggests that a “saner” policy would be to help individuals find lawyers and then release them.
Section 3(c) makes the Secretary of Defense, an official without any qualifications whatsoever, responsible for providing family jails on military bases. It shouldn’t take the courts too long to find these facilities unsuitable for family immigration detention.
Section 3(e) recognizes that this order is largely illegal in that it contravenes the order of the U.S. District Court in Flores v. Sessions which was affirmed by the Ninth Circuit. Flores orders the release of juveniles from immigration detention within 20 days unless they present a significant public safety risk or are likely to abscond. Where juveniles don’t meet the release criteria, they must be held in the least restrictive setting appropriate to age and special needs. While Trump orders the Attorney General to seek a modification of Flores, there is no legal rationale for that action. In fact, the abusive “fake emergency” situation that Trump & Sessions have created, shows exactly why Flores is needed, now more than ever. It also makes a compelling case for Congress to enact Flores protections into law, thereby making them permanent and avoiding future abuses by the Executive.
Section 4 basically orders the Attorney General to engage in more “Aimless Docket Reshuffling” (“ADR”) in the U.S. Immigration Courts by prioritizing cases of recently arrived families, many of whom have not had a chance to obtain lawyers and document applications, at the expense of cases that are already on the docket and ready for final hearings. That’s why the Immigration Court backlog is 720,000 cases and continuing to grow. It also shows why the Immigration Courts are a facade of Due Process, totally mismanaged by politicos, and must be removed from the DOJ and become a truly independent court system that establishes court priorities and procedures without Executive interference.
The order is silent on whether it applies to those families who have already been separated and how those families might be reunited.
In summary, this “Temporary Executive Order” is not a credible attempt to solve the problem of family separation. Rather, it is another “designed to fail” charade intended to provoke litigation so that the predictable mess can be blamed on the courts, Congress, the asylum applicants and their families (“blaming the victims”), and their courageous lawyers. In other words, anyone except Trump and his cronies who are responsible for the problem.
It’s a prime example of what life in a Kakistocracy is and will continue to be until there is “regime change.”
What would a “real solution” to this issue look like. Well, I’ve said it before:
The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.
Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.
Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks really want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.
My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.
Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.
Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.
Don’t hold your breath! But, eventually the New Due Process Army will win the war and enough elections to finally bring sanity, humanity, and reality to the U.S. immigration system.
Michael Scherer & Josh Dawsey report for the Washington Post:
President Trump has calculated that he will gain political leverage in congressional negotiations by continuing to enforce a policy he claims to hate — separating immigrant parents from their young children at the southern border, according to White House officials.
On Friday, Trump suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include funding a border wall, tightening the rules for border enforcement and curbing legal entry. He also is intent on pushing members of his party to vote for a compromise measure that would achieve those long-standing priorities.
Trump’s public acknowledgment that he was willing to let the policy continue as he pursued his political goals came as the president once again blamed Democrats for a policy enacted and touted by his own administration.
“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda,” he tweeted. After listing his demands in any immigration bill, he added, “Go for it! WIN!”
The attempt to gain advantage from a practice the American Academy of Pediatrics describes as causing children “irreparable harm” sets up a high-stakes gambit for Trump, whose political career has long benefited from harsh rhetoric on immigration.
Democrats have latched onto the issue and vowed to fight in the court of public opinion, with leaders planning trips to the border to highlight the stories of separated families, already the focus of news media attention. Democratic candidates running for vulnerable Republican seats also have begun to make the harsh treatment of children a centerpiece of their campaigns.
The policy has cracked Trump’s usually united conservative base, with a wide array of religious leaders and groups denouncing it. The U.S. Conference of Catholic Bishops and the Southern Baptist Convention issued statements critical of the practice.
The Rev. Samuel Rodriguez, who delivered a prayer at Trump’s inauguration, signed a letter calling the practice “horrible.” Pastor Franklin Graham of Samaritan’s Purse, a vocal supporter of the president’s who has brushed aside past Trump controversies, called it “terrible” and “disgraceful.”
Besides increasing the odds of a broader immigration bill, senior Trump strategists believe that the child separation policy will deter the flow of migrant families across the border. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security. The figure is the only one released by the goverment.
“The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” a White House official said. “The thinking in the building is to force people to the table.”
Trump reinforced that notion Friday morning at the White House when he suggested Democrats alone had the power to alter the policy.
“I hate the children being taken away,” Trump said.
The president used a similar strategy last year as he sought to gain approval for his immigration demands by using the lure of protection for young immigrants brought to the United States as children. That effort, which ran counter to Trump’s earlier promise to sign a bipartisan bill protecting the young immigrants, foundered in Congress.
. . . .
The current policy resulted from a decision made in April by Attorney General Jeff Sessions to prosecute all migrants who cross the border, including those with young children. Those migrants had avoided detention during the administrations of George W. Bush and Barack Obama. Because of a 1997 court settlement that bars children from being imprisoned with parents, Justice Department officials now say they have no choice but to isolate the children.
Sessions and White House press secretary Sarah Huckabee Sanders have defended the policy as a sound, and biblical, decision to enforce the law.
“The previous administration wouldn’t prosecute illegal aliens who entered the country with children,” Sessions said Thursday in Fort Wayne, Ind., citing biblical advice to follow laws. “It was de facto open borders.”
The biblical underpinnings have been challenged by religious leaders.
“There’s definitely a groundswell of opposition from virtually every corner of the Christian community,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “People are able to understand immediately the drive of parents to protect their child and to understand the horror of splitting up vulnerable children from their parents.”
Yet several key Trump administration officials support the family separation policy, including Chief of Staff John F. Kelly, Homeland Security Secretary Kirstjen Nielsen and senior adviser Stephen Miller, a vocal supporter of stricter immigration laws.
Some senior officials think Democrats will be pressured by the policy to cut an immigration deal.
“If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can,” said a second White House official.
Others have argued that the main benefit of the policy is deterrence. Miller has said internally that the child separations will bring the numbers down at the border, a goal that Trump wants to achieve. Miller and Marc Short, the White House director of legislative affairs, have argued that immigration legislation is unlikely to pass this summer, officials said.
“The side effect of zero tolerance is that fewer people will come up illegally, and fewer minors would be put in danger,” said a third senior administration official. “What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?”
. . . .
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Please read the complete article at the link.
So, the choice is ““What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?” Not really!
The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.
Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.
Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks rally want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.
My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.
Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.
Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.
The thing we will not be able to do is to halt human migration solely by law enforcement actions taken at “our end” of the chain. That is, unless we wish to establish a “Stalinist type state” that is so grim and repressive that nobody wants to come any more.
Kids as human pawns. Child abuse as policy. Dreamers as hostages. Jesus told us to do it. It’s the Democrats fault. I really hate to let Jeff abuse children, but I have no choice. Refugee women fleeing gang controlled states reduced to human scum who should just accept their beatings and rape and get in the non-existent line for legal immigration that we want to eliminate. That is, if they actually live long enough to get in the non-existent line, which is unlikely. Biased judges cheering the chance to sign death warrants for the most vulnerable among us. Courts clogged with refugees being prosecuted for seeking refuge while being pressured by seizure of their children into giving up rights.
Once again, I’ve been proved right: We are actively diminishing ourselves as a nation every day; but, it isn’t stopping, and won’t in the long run stop, human migration. Sure, there is a natural ebb and flow that responds in some minor ways to our futile attempts to stop it. Sort of like throwing up man-made sand bars to stop beach erosion. Works for a few months or even years, but eventually the inevitable forces of nature win out. It sure seems to me that it would be smarter to work with the flow of the river and turn it to our advantage, rather than trying to make it reverse course — an exercise in futility that only serves to diminish the humanity of each of us.
Those looking for legal analysis should read no further. The following is a cry from the heart.
The respondent’s personal nightmare began the year after her marriage. For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.
It is most apt that Donald Trump became president by beating a woman. His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.
“The violence inflicted on [her] took many forms. Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant. He raped her on countless occasions.”
On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.
Sessions’ action was shockingly tone deaf. As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern. Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.” The year after Solnit wrote those words, our Department of Justice took a step in the right direction. In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.
“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.” The above were supported by sworn statements provided by the respondents’ neighbors.
It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women. #MeToo is a true civil rights movement, one that is so very long overdue. In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace. It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group. When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law. No one has appealed or challenged that determination in the four years since. Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?
The respondent’s “husband controlled, humiliated, and isolated her from others. He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’ He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’ When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”
Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come. As with Wallace and the Civil Rights Movement, justice will eventually prevail. But now as then, people deserving of his protection will die in the interim.
“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals. He also beat their children in front of her, causing her serious psychological damage.”
The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference. There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations. Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people. But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”
Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?
The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her. She does not believe there is anywhere” in her country “she could find safety.
Victims of domestic violence will continue to file applications for asylum. They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision. Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.
The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
The massive asylum changes Jeff Sessions tucked into the footnotes
By Tal Kopan, CNN
When Attorney General Jeff Sessions ruled that domestic violence and gang victims are not likely to qualify for asylum in the US, he undercut potentially tens of thousands of claims each year for people seeking protection.
But in a footnote of his ruling, Sessions also telegraphed a desire for more sweeping, immediate reinterpretations of US asylum law that could result in turning people away at the border before they ever see a judge.
Sessions wrote that since “generally” asylum claims on the basis of domestic or gang violence “will not qualify for asylum,” few claims will meet the “credible fear” standard in an initial screening as to whether an immigrant can pursue their claim before a judge. That means asylum seekers may end up being turned back at the border, a major change from current practice.
“When you put it all together, this is his grand scheme to just close any possibility for people seeking protection — legally — to claim that protection that they can under the law,” said Ur Jaddou, a former chief counsel at US Citizenship and Immigration Services now at immigration advocacy group America’s Voice. “He’s looking at every possible way to end it. And he’s done it one after the other.”
The Trump administration has focused on asylum claims — a legal way to stay in the US under domestic and international law — characterizing them as a “loophole” in the system. The problem, they say, is many claims are unsuccessful, but in the meantime as immigrants wait out a lengthy court process, they are allowed to live and work in the US and build lives there, leading some to go into hiding.
I strongly recommend that you go on over to CNN at the link to read Tal’s amazing and incisive analysis of Jeff Sessions’s insidious plan to destroy US protection laws and undermine our entire Constitutional system of justice to further his obscene White Nationalist agenda.
For those of you who read “Courtside” on a regular basis, it’s no secret that I’m a “Charter Member” of the “Tal Kopan Fan Club.” I have total admiration for her amazing work ethic, ability to understand and simplify one of the most complex subjects in US law and politics, and to turn out such tightly written, gobbledygook free copy on a regular basis.
In my view, even for a superstar like Tal, this is one of her “best ever” articles, and one that every American interested in saving lives, preserving our refugee and asylum laws, retaining our Constitutional system of Due Process, and remaining a nation of “values rather than men” in light of a totally unprincipled attack by an Attorney General unqualified for office should read and digest Tal’s analysis!
How disingenuous a scofflaw is Jeff Sessions? As Tal mentions, in FN 8 of Matter of A-B-, Sessions takes aim at the well-established principle of asylum law that “family” is a qualifying “particular social group.”
Now, lets hear what a “real” Article III Court, one not bound to a restrictionist White Nationalist anti-asylum agenda, and where they judges don’t work for Jeff Sessions, has to say about “family” as a particular social group:”
The INA does not expressly define the term “particular social group,” but we have recently considered its meaning. See Lizama v. Holder,629 F.3d 440 (4th Cir. 2011).4 We there concluded that Chevron deference should be accorded to the BIA’s long-standing interpretation of “particular social group” as “a group of persons all of whom share a common, immutable characteristic,” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). See Lizama, 629 F.3d at 447. This “immutability” test, first articulated in the BIA’s seminal Acosta case, requires that group members share a characteristic that “the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” 19 I. & N. Dec. at 233.
The Crespins’ proposed group satisfies this test. Acosta itself identifies “kinship ties” as paradigmatically immutable, see id., and the BIA has since affirmed that family bonds are innate and unchangeable. See In re C-A, 23 I. & N. Dec. 951, 959 (BIA 2006); In re H-, 21 I. & N. Dec. 337, 342 (BIA 1996) (accepting “clan membership” as a particular social
[632 F.3d 125]
group because it was “inextricably linked to family ties”). Accordingly, every circuit to have considered the question has held that family ties can provide a basis for asylum. See Al-Ghorbani v. Holder,585 F.3d 980, 995 (6th Cir.2009); Ayele v. Holder,564 F.3d 862, 869 (7th Cir.2009); Jie Lin v. Ashcroft,377 F.3d 1014, 1028 (9th Cir.2004); Gebremichael v. INS,10 F.3d 28, 36 (1st Cir.1993). We agree; the family provides “a prototypical example of a `particular social group.'” Sanchez-Trujillo v. INS,801 F.2d 1571, 1576 (9th Cir. 1986).
The BIA committed legal error by concluding to the contrary. That error flowed from the fact that, as the Government concedes, the BIA’s removal order rejected a group different from that which the Crespins proposed. The BIA concluded that “those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses” does not constitute a cognizable social group. But the Crespins did not so contend. Rather, they maintained, and continue to maintain, that family members of those witnesses constitute such a group. The BIA later essentially admitted this error, acknowledging in its denial of Crespin’s motion to reconsider that it does “not dispute that family membership can give rise to membership in a particular social group under certain circumstances.” The BIA nonetheless affirmed its original order, asserting that the Crespins’ proposed social group was insufficiently “particular[ ]” because “anyone who testified against MS-13, as well as all of their family members, would potentially be included.” Again the BIA inaccurately characterized the Crespins’ proposed social group. Indeed, the Crespins’ proposed group excludes persons who merely testify against MS-13; the Crespins’ group instead encompasses only the relatives of such witnesses, testifying against MS-13, who suffer persecution on account of their family ties. The BIA never explained why this group stretches beyond the bounds of particularity.
Moreover, the precedent on which the BIA relied requires only that “the group have particular and well-defined boundaries” such that it constitutes a “discrete class of persons.” Matter of S-E-G-, 24 I. & N. Dec. 579, 582, 584 (BIA 2008). The family unit—centered here around the relationship between an uncle and his nephew—possesses boundaries that are at least as “particular and well-defined” as other groups whose members have qualified for asylum. See, e.g., Urbina-Mejia v. Holder, 597 F.3d 360, 365-66 (6th Cir.2010) (former gang members); Tapiero de Orejuela v. Gonzales,423 F.3d 666, 672 (7th Cir.2005) (“the educated, landowning class of cattle farmers”); Safaie v. INS,25 F.3d 636, 640 (8th Cir.1994) (“Iranian women who advocate women’s rights or who oppose Iranian customs relating to dress and behavior”), superseded by statute on other grounds, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as recognized in Rife v. Ashcroft,374 F.3d 606, 614 (8th Cir.2004).
Finally, the BIA opined that the proposed group lacked the requisite “social visibility” of a particular social group. This was also error.5 Indeed, the BIA itself has previously stated that “[s]ocial
[632 F.3d 126]
groups based on innate characteristics such as … family relationship are generally easily recognizable and understood by others to constitute social groups.” In re C-A, 23 I. & N. Dec. at 959. In fact, we can conceive of few groups more readily identifiable than the family. See Sanchez-Trujillo, 801 F.2d at 1576. This holds particularly true for Crespin’s family, given that Crespin and his uncle publicly cooperated with the prosecution of their relative’s murder.
In sum, the BIA’s conclusion that Crespin failed to demonstrate his membership in a “particular social group” was manifestly contrary to law.
Crespin-Valladares v. Holder, 632 F.3d 117, 124-26 (4th Cir. 2011).
Outrageously, Sessions is suggesting taking a position that has been held by the Article III Courts to be “manifestly contrary to law.” Could there be a clearer example of a “scofflaw?”
And, lets not forget the cause for which Sessions is prostituting himself and the law. Contrary to Sessions’s suggestion that these are just ordinary folks seeking a better life, he is actually proposing to summarily remove mostly women and children who face a specific, very real chance of rape, torture, beatings, and death because of their position, gender, and resistance to the forces perpetrating persecution in El Salvador who are closely aligned with or operate largely with impunity from the Government, in fact if not in the mythical version that Sessions portrays.
In plain terms, Jeff Sessions is advocating that we pass a potential “death sentence” on the most vulnerable among us without giving them a fair hearing or actually considering the many ways in which protections laws could be used to save their lives. Even if Sessions were legally correct (which he certainly isn’t) removing basically defenseless individuals to places where they face such a deadly future would be both cowardly and highly immoral.
Finally, as I have pointed out before, the real plan here, which will go into effect almost immediately, is to have USCIS Asylum, Officers and Immigration Judges who now are all considered “partners” in the enforcement mechanism by Sessions, deny almost all “credible fear” claims based on Sessions’s yet untested decision in Matter of A-B-. Therefore, unless the Article III Courts decide to enforce the Due Process Clause of the Constitution, a duty which to date they have fairly consistently shirked in connection with the “credible fear process,” most current and future arrivals will be shipped out without any access to the hearing process at all — in other words, without even a veneer of fairness, impartiality, and Due Process.
Advocates had better get busy with a better plan to get the illegal aspects of the “deportation express” before the Article IIIs. Otherwise, vulnerable women and children are going to be condemned to death and /or torture with no process at all! Think we’re not witnessing the “decline and fall” of our republic. Guess again!
What have we come to as a nation when a corrupt and biased individual like Sessions purports to “speak for America?”
Stand up for Due Process and human values! Oppose Jeff Sessions and his restrictionist agenda!
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Meanwhile, back at the ranch, “Midnight Writer” Tal reports on the GOP’s “DACA negotiations.”
House DACA deal in final stages: ‘Crossing the Ts’
By: Tal Kopan, CNN
Republican negotiations on a House immigration bill that would fix the Deferred Action for Childhood Arrivals program are in the final stages, key lawmakers said as they left a secretive meeting in the House basement on Wednesday.
Both moderates and conservatives are coming together on an outline of a bill brought on by weeks of negotiations behind closed doors, as leadership brought the two wings of the party together to avert rebellions on both sides.
After a breakthrough agreement on how to proceed Tuesday — and arm twisting by leadership — that cut off moderates’ efforts to buck leadership control of the floor, talks Wednesday centered around hammering out the details of the policy itself.
The progress in negotiations sets the stage for votes on immigration on the House floor next week, which will include a vote on a conservative proposal that is not believed to have the support to pass and a separate compromise being written that will stem from the negotiations currently in progress.
Though the bills’ fates are still unclear and it’s possible neither passes the House — let alone moves in the Senate — the prospect of Republicans having a debate and vote on the political third rail of immigration on the House floor the summer before midterm elections was unthinkable just months ago.
“We’re just doing the cleanup stuff from the negotiations that (Reps) Raul (Labrador) and Carlos (Curbelo) did yesterday,” said conservative Freedom Caucus Chairman Mark Meadows as he left member negotiations Wednesday. “So we’re just trying to dot our I’s and cross our T’s.”
“We’re just about there,” Curbelo said. “I think we’ll definitely see text this week.”
What’s in it
CNN has obtained a draft from a source close to the negotiations of the outline lawmakers are working from to write the bill, which, when described to Curbelo, was confirmed as largely still what they’re working on minus a few “details filled in.” The broader GOP conference was briefed on the toplines of the bill in a Wednesday morning meeting.
Sounds to me like another wasteful “legislative charade” on the way from the GOP. The only “Dreamer bill” that actually could pass both houses would be one pushed by a bipartisan group of legislators. But, GOP leadership has no interest in such a solution, nor does Trump.
Therefore, I predict that Dreamers will continue to “twist in the wind” while the Federal Courts ruminate about their fate.
Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Attorney General’s Decision in Matter of A-B-.
As former Immigration Judges with decades of experience at the trial and appellate level, we consider the Attorney General’s decision an affront to the rule of law. As former judges, we understand that in order to be fair, case law must develop through a process of impartial judicial analysis applying statute, regulations, case law, and other proper sources to the facts of the case.
The life-or-death consequences facing asylum applicants makes it extremely important to keep such analysis immune from the political considerations that appointed cabinet members are subject to.
The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a
particular social group was the culmination of a 15 year process through the immigration courts and BIA. The issue was certified by three different Attorneys General (one Democrat and two Republican), who all chose in the end to leave the final determination to the immigration judges and the BIA. The private bar, law enforcement agencies (including DHS), the BIA, and the circuit courts all agreed with this final determination.
What is more, a person who suffers persecution that is perpetrated by private parties whom their government cannot or will not control, is equally eligible for asylum protection under both US law and international refugee treaties.
For reasons understood only by himself, the Attorney General today erased an important legal development
that was universally agreed to be correct. Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications.
Sincerely,
Honorable Steven R. Abrams
Honorable Sarah M. Burr
Honorable Jeffrey S. Chase
Honorable Bruce J. Einhorn
Honorable Cecelia Espenoza
Honorable Noel Ferris
Honorable John F. Gossart, Jr.
Honorable William P. Joyce
Honorable Carol King
Honorable Elizabeth A. Lamb
Honorable Margaret McManus
Honorable Susan Roy
Honorable Lory D. Rosenberg
Honorable Paul W. Schmidt
Honorable Polly A. Webber
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List of Retired Immigration Judges and Former BIA Members
The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003- 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in
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immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues. The Honorable Elizabeth A. Lamb
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of
was appointed as an Immigration Judge in September 1995. She received
a Bachelor of Arts degree from the College of Mt. St. Vincent in 1968, and a Juris Doctorate in 1975 from St.
John’s University. From 1983 to 1995, she was in private practice in New York. Judge Lamb also served as an
adjunct professor at Manhattan Community College from 1990 to 1992. From 1987 to 1995, Judge Lamb
served as an attorney for the Archdiocese of New York as an immigration consultant. From 1980 to 1983, she
worked as senior equal employment attorney for the St. Regis Paper Company in West Mark, New York. From
1978 to 1980, Judge Lamb served as a lawyer for the New York State Division of Criminal Justice Services in
New York. She is a member of the New York Bar.
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the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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The AP already picked up our statement in this article:
U.S. Sen. Dianne Feinstein, a California Democrat, said the decision was “despicable and should be immediately reversed.” And 15 former immigration judges and Board of Immigration Appeals members signed a letter calling Sessions’ decision “an affront to the rule of law.”
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
******************************************
Also, I was quoted in this article by Alan Pyke posted yesterday in ThinkProgress:
The attorney general also took care to remind the judges that his decisions aren’t advice from a fellow lawyer but binding instructions from their one true boss. Though they are termed “judges” and wear robes behind a bench in court, the immigration judiciary is essentially a staff arm of the Attorney General rather than the independent arbiters that most envision when hearing their job titles.
Sessions’ frank expression of expectations was jarring to retired immigration judge Paul Schmidt. When attorneys general addressed the training conference in the past, Schmidt said, they stuck to the kind of collegial rah-rah stuff common to executives addressing underappreciated staff — but also stressed an expectation of careful, diligent, and independent professional conduct.
“I’ve never seen an AG come and basically tell the judges they’re part of the border enforcement effort. It’s outrageous,” Schmidt said. “Whether they’re inside DOJ or not, this is supposed to be an administrative court that exercises independent judgment and decisionmaking. And he’s reduced to to where they’re little enforcement officers running around carrying out the AG’s border policies.”
Sessions did go briefly off-book on Monday to offer one conciliatory note, looking up from his notes after calling the current backlog in immigration courts“unacceptable” to acknowledge that it’s been a tougher problem than he expected. “We thought we could get those numbers down, but they’re not going down yet,” Sessions said, before returning to his prepared remarks. He did not acknowledge that his own policies have contributed to the swelling of the backlog, which hit an all-time high in May.
Immigration court backlog hits all-time high, days before Sessions speech to immigration judges
Sessions is redrawing lines more tightly atop an already perversely narrow system.
A separate ruling last Friday helps underline the severity of the limits on traumatized migrants’ rights to seek protection in the United States. In a decision pertaining to the immigration courts’ handling of those accused of providing “material support” to terrorist organizations abroad, the Board of Immigration Appeals decided even labor compelled with death threats counts as grounds to bar someone from the United States.
The Salvadoran woman whose appeals gave rise to the case had been married to a sergeant in El Salvador’s army during a bloody civil war there. Guerrillas kidnapped the woman and her husband, made her watch as he dug his own grave and was shot dead, then made her wash clothes and do other menial chores for the rebel fighters while in captivity.
This clothes-washing and death-avoiding makes her, in the DOJ’s immigration overseers’ eyes, a terrorist no better than the unnamed group — presumably the Marxist-Leninist revolutionary Farabundo Martí National Liberation Front (FMNL) — who killed her husband in front of her and forced her into servitude.
The board denied her appeals and used the case to set a broader line across all immigration courts. Violently coerced labor while imprisoned by a terror organization will permanently bar you from crossing the U.S. border to seek protection. If you try it, we’ll send you back to your captors — presumably after first taking your kids away from you, pursuant to Sessions’ new policy mandating all immigrants crossing the border without documentation be referred to criminal court and thus separated from any minors who accompanied them.
This piece has been updated with additional context about Sessions’ immigration policies and further perspective from immigration policy experts.
Read Alan’s full analysis at the above link. According to many observers, the “small aside” by Sessions in the article is the closest he’s ever come to accepting responsibility for a mess that he, the Trump Administration, and the two previous Administrations actually have caused with their horrible and highly politicized mismanagement of the U.S Immigration Courts.
For the most part, the ever disingenuous Sessions, has tried to shift blame for his gross mismanagement to the victims: migrants (particularly asylum seekers); private attorneys (particularly those heroic attorneys performing pro bono); and the beleaguered, totally demoralized U.S. Immigration Judges themselves who have been stripped of dignity, wrongfully accused of laziness, and placed under inane, sophomoric, “performance standards” — incredibly developed by Sessions and other politicos and “Ivory tower” bureaucrats who have never themselves been Immigration Judges, have no idea what is happening in Immigration Court, and are driven entirely by political bias and/or a desire to keep their comfy jobs on the 5th floor of the DOJ or in the Falls Church Tower — well away from the results of the havoc they are wreaking on local Immigration Courts every day!
What a way to “manage” one of the nation’s largest and most important court systems! The real blame here goes to Congress which created this awful mess, yet has done nothing to remove this joke of a system from the toxic incompetence of the DOJ and create an independent court system where fairness, Due Process, quality, respect, and efficient, unbiased decision-making will be the hallmarks!
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UPDATE:
The fabulous Dan Kowalski @ LexisNexis also reminds me that our statement was the “banner, above the fold” headline on today’s bibdailyonline!
Here’s the link which also includes tons of other “great stuff” that Dan publishes!
(1)Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.
(2)An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.
(3)An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.
(4)If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.
(5)The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
(6)To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.
(7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
(8)An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.
(9)The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.
KEY QUOTES:
For these and other reasons, I vacate the Board’s decision and remand for further proceedings before the immigration judge consistent with this opinion. In so doing, I reiterate that an applicant for asylum on account of her membership in a purported particular social group must demonstrate: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control. See M-E-V-G-, 26 I&N Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8. Furthermore, when the applicant is the victim of private criminal activity, the analysis must also “consider whether government protection is available, internal relocation is possible, and persecution exists countrywide.” M-E-V- G-, 26 I&N Dec. at 243.
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.1 While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
1 Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(v) (requiring a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title [8 U.S.C. § 1158]”).
. . . .
A-R-C-G- was wrongly decided and should not have been issued as a precedential decision. DHS conceded almost all of the legal requirements necessary for a victim of private crime to qualify for asylum based on persecution on account of membership in a particular social group.8 To the extent that the Board examined the legal questions, its analysis lacked rigor and broke with the Board’s own precedents.
. . . .
When an asylum applicant makes inconsistent statements, the immigration judge is uniquely advantaged to determine the applicant’s credibility, and the Board may not substitute its own view of the evidence on appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 (2d Cir. 2006) (“[W]here the [immigration judge]’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the
asylum applicant about matters material to his claim of persecution, or on contradictory or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” (quotation omitted)). Under the REAL ID Act, “[t]here is no presumption of credibility” in favor of an asylum applicant. Pub. L. No. 109-13, div. B, §§ 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Furthermore, the identified inconsistencies do not have to be related to an applicant’s core asylum claim to support an adverse credibility determination: “Considering the totality of circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant’s or witness’s written and oral statements . . . , the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . , without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other factor.” Id. (emphasis added). “[O]missions, inconsistent statements, contradictory evidence, and inherently improbable testimony are appropriate bases for making an adverse credibility determination,” and the existence of “only a few” such issues can be sufficient to make an adverse credibility determination as to the applicant’s entire testimony regarding past persecution. Djadjou v. Holder, 662 F.3d 265, 273–74 (4th Cir. 2011).
. . . .
The Board also erred when it found that the respondent established the required nexus between the harm she suffered and her group membership. Whether a purported persecutor was motivated by an alien’s group affiliation “is a classic factual question,” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247–48 (4th Cir. 2017) (internal quotation marks omitted), which the Board may overturn only if “clearly erroneous.”
The Board stated that “the record indicates that the ex-husband abused [the respondent] from his position of perceived authority, as her ex-husband and the father of her children.” A-B- at *3. From this, the Board held, in a conclusory fashion, that the “record as a whole supports a finding that the respondent’s membership in the particular social group of ‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common’ is at least one central reason that he ex-husband abused her.” Id. While citing the standard of review, the Board did not apply it in summarily dismissing the immigration judge’s findings. Moreover, the Board’s legal analysis was deficient. The Board, required to find “clear error” of a factual finding, pointed to no record evidence that respondent’s husband mistreated her in any part “on account of” her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationship where they have children in common.” The Board cited no evidence that her husband knew any such social group existed, or that he persecuted wife for reasons unrelated to their relationship. There was simply no basis in the Board’s summary reasoning for overturning the immigration judge’s factual findings, much less finding them clearly erroneous.
The Board also erred when it overruled the immigration judge’s finding that the respondent failed to demonstrate that the government of El Salvador was unable or unwilling to protect her from her ex-husband. This inquiry too involved factual findings to which the Board did not give proper deference. No country provides its citizens with complete security from private criminal activity, and perfect protection is not required. In this case, the respondent not only reached out to police, but received various restraining orders and had him arrested on at least one occasion. See A-B- at *14–15 (Immig. Ct. Dec. 1, 2015).
For many reasons, domestic violence is a particularly difficult crime to prevent and prosecute, even in the United States, which dedicates significant
resources to combating domestic violence. See, e.g., Office of Justice Programs, U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence (2000). The persistence of domestic violence in El Salvador, however, does not establish that El Salvador was unable or unwilling to protect A-B- from her husband, any more than the persistence of domestic violence in the United States means that our government is unwilling or unable to protect victims of domestic violence. In short, the Board erred in finding, contrary to the record and the immigration judge’s findings, that El Salvador was unable or unwilling to protect A-B- and that she thus had no choice but to flee the country.
D.
The Board, immigration judges, and all asylum officers should consider the following points when evaluating an application for asylum. First, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA 2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration judge has a responsibility to “ensure that the specific social group being analyzed is included in his or her decision,” as it critical to the Board’s “appellate review that the proposed social group is clear and that the record is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The Board must also remember that it cannot sustain an asylum applicant’s appeal based on a newly articulated social group not presented before or analyzed by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly defined social group because the claim based on “membership in that narrowed social group” had not been raised below); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular social group raised for the first time on appeal).
Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum. Asylum applicants who have “not established past persecution . . . bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or government- sponsored.” 8 C.F.R. § 1208.13(b)(3)(i). An immigration judge, “in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution” if it is “found by a preponderance of the evidence” that “the applicant could avoid future
persecution by relocating to another part of the applicant’s country of nationality, . . . and under all the circumstances, it would be reasonable to expect the applicant to do so.” Id. § 1208.13(b)(1)(i). Beyond the standards that victims of private violence must meet in proving refugee status in the first instance, they face the additional challenge of showing that internal relocation is not an option (or in answering DHS’s evidence that relocation is possible). When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.
Finally, there are alternative proper and legal channels for seeking admission to the United States other than entering the country illegally and applying for asylum in a removal proceeding. The asylum statute “is but one provision in a larger web of immigration laws designed to address individuals in many different circumstances,” and “[t]o expand that statute beyond its obviously intended focus is to distort the entire immigration framework.”Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring). Aliens seeking a better life in America are welcome to take advantage of existing channels to obtain legal status before entering the country. In this case, A-B- entered the country illegally, and when initially apprehended by Border Patrol agents, she stated that her reason for entering the country was “to find work and reside” in the United States. Aliens seeking an improved quality of life should seek legal work authorization and residency status, instead of illegally entering the United States and claiming asylum.12
12 Asylum is a discretionary form of relief from removal, and an applicant bears the burden of proving not only statutory eligibility for asylum but that she also merits asylum as a matter of discretion. 8 U.S.C. §§ 1158(b)(1), 1229a(c)(4)(A)(ii); see also Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). Neither the immigration judge nor the Board addressed the issue of discretion regarding the respondent’s asylum application, and I decline to do so in the first instance. Nevertheless, I remind all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility under the INA. Relevant discretionary factors include, inter alia, the circumvention of orderly refugee procedures; whether the alien passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procedures were in fact available to help her in any country she passed through; whether she made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; and her living conditions, safety, and potential for long-term residency there. See Matter of Pula, 19 I&N Dec. 467, 473–74 (BIA 1987).
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As my former BIA colleague Judge Lory Rosenberg used to say “there are lots of ways to deny an asylum application.” Sessions runs through most them with a tone that clearly encourages Immigration Judges to “just find a way to say no as quickly as possible.”
Additionally, he’s basically directing Asylum Officers to find no “credible fear” in almost all domestic violence and gang-related cases, thus cutting off hearings without effective Article III judicial review under the current state of the law. That’s likely to speed up the “deportation railway.”
It’s likely that this decision also will fulfill Sessions’s dream of mass denials of asylum at the Immigration Judge stage that will be more or less summarily affirmed by the BIA. Any Immigration Judge who doesn’t “get” Session’s strong anti-asylum message would have to be pretty slow on the uptake.
It seemed totally disingenuous for Sessions to pontificate that individuals should go through the “legal immigration system” while publicly trashing legal immigrants as “job stealers” and favoring massive cuts to legal immigration. But, intellectual honesty has never been one of this Attorney General’s strong points.
The “asylum denial express” might have some difficulty in the Courts of Appeals, however. Not all such courts are eager to “rubber stamp” hasty denials. And, by encouraging Immigration Judges to look for “any reason to deny” to cut corners, and avoid having to analyze the entire case, Sessions is likely to end up with sloppy work and lots of Circuit Court remands for “do overs.” At a minimum, that’s going to add to the already out of control Immigration Court backlog.
Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training Program
Washington, DC
~
Monday, June 11, 2018
Remarks as prepared for delivery
Thank you, James, for that introduction, and thank you for your years of superb service to the Department as an SAUSA, at Main Justice, and now here at EOIR. James has been doing a fabulous job. He understands these issues, knows exactly what our challenges are, and is working steadfastly every day to meet them.
Thank you also to Katherine Reilly, Kate Sheehy, Chris Santoro, Edward So, David Neal, Chief Judge Keller, Lisa Ward, Jean King, Robin Sutman, and all of the leadership team.
It is good to be with you today.
Each one of you plays an important role in the administration of our immigration laws. Immigration judges are critical to ensuring that the Department of Justice carries out its responsibilities under the INA. You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently. As the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.
This responsibility seeks to ensure that our immigration system operates in a manner that is consistent with the laws enacted by Congress. As you know, the INA was established to ensure a rational system of immigration in the national interest.
Of course there are provisions in the INA, consent decrees, regulations, and court decisions where the commonsense enforceability of the plain intent of the INA has been made more difficult. That’s what you wrestle with frequently.
President Trump is correct: Congress needs to clarify a number of these matters. Without Congressional action, clarity and consistency for us is much more difficult.
Let’s be clear: we have a firm goal, and that is to end the lawlessness that now exists in our immigration system. This Department of Justice is committed to using every available resource to meet that goal. We will act strategically with our colleagues at DHS and across the government, and we will not hesitate to redeploy resources and alter policies to meet new challenges as they arise.
Last month, the Department of Homeland Security announced that it will begin to refer as close to 100 percent of illegal Southwest Border crossers as possible to the Department of Justice for prosecution. The Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross the Southwest border unlawfully, then we will prosecute you. It’s that simple.
If someone is smuggling illegal aliens across our Southwest border, then we will prosecute them. Period.
I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to detention centers near the border. That is about a 50 percent increase in the number of immigration judges who will be handling cases at the border.”
All of us should agree that, by definition, we ought to have zero illegal immigration in this country.
Each of us is a part of the Executive Branch, and it is our duty to “take care that the laws be faithfully executed.”
Ours is a public trust.
And the United States of America is not a vague idea. It is not just a landmass or an economy. Ours is a sovereign nation state with a constitution, laws, elections, and borders.
As you all well know, one of our major difficulties today is the asylum process.
The asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing. This is a large part of what has been accurately called, “catch and release”.
Beginning in 2009, more and more aliens who passed an initial USCIS credible fear review were released from custody into the United States pending a full hearing. Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.
The results are just what one would expect. The number of illegal entrants has surged. Credible fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined.
That’s because the vast majority of the current asylum claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by USCIS as a part of their initial screening.
Further illustrating this point, in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.
Now we all know that many of those crossing our border illegally are leaving difficult and dangerous situations. And we understand all are due proper respect and the proper legal process. But we cannot abandon legal discipline and sound legal concepts.
Under the INA, asylum is available for those who leave their home country because of persecution or fear on account of race, religion, nationality, or membership in a particular social group or political opinion. Asylum was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.
Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.
We have not acted hastily, but carefully. In my judgment, this is a correct interpretation of the law. It advances the original intent and purpose of the INA, and it will be your duty to carry out this ruling.
This decision will provide more clarity for you. It will help you to rule consistently and fairly.
The fact is we have a backlog of about 700,000 immigration cases, and it’s still growing. That’s more than triple what it was in 2009. This is not acceptable. We cannot allow it to continue.
At this time, when our immigration system and our immigration judges are under great stress, I am calling on you to use your best efforts and proper policies to enhance our effectiveness. To end the lawlessness and move to the virtuous cycle, we have to be very productive. Volume is critical. It just is. We ask you to evaluate your processes and disposition rates.
We ask each one of you to complete at least 700 cases a year. It’s about the average. We are all accountable. Setting this expectation is a rational management policy to ensure consistency, accountability, and efficiency in our immigration court system. Thank you for working every day to meet and exceed this goal. You can be sure that this administration and this Department of Justice supports you in this critically important and historic effort.
That’s why we are hiring more than 100 new immigration judges this calendar year. And we are actively working with our partners at DHS to ensure that we can deploy judges electronically and by video-teleconference where needed and to obtain appropriate courtroom facilities.
Let’s be clear. These actions will not end or reduce legal immigration. These actions will be directed at reducing illegal immigration. Only Congress can change legal immigration.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to come here. But they must do so according to law.
When we lose clarity or have decisions that hold out hope where a fair reading of the law gives none, we have cruelly hurt many people. As we resolutely strive to consistently and fairly enforce the law, we will be doing the right thing.
The world will know what our rules are, and great numbers will no longer undertake this dangerous journey. The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them.
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It’s all about numbers — volume over justice! What a total farce!
Sessions also lied about the low asylum grant rate. Of cases in which a merits decisions on asylum is actually rendered by an Immigration Judge after hearing, here are the actual asylum grant rates from the EOIR’s own website
Figure 16
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 other words, for the last five years available, nearly half of the asylum applications actually decided on the merits were granted. And, that doesn’t even include individuals granted other types of protection such as withholding of removal and CAT after a merits hearing.
It’s a far cry from the bogus 20% figure Sessions used. In any event, it’s well established law that denial of an asylum application does not in any way show that it was “fraudulent” or “frivolous” as Sessions implies.
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As usual, the ever-amazing Tal Kopan was one of the first to “hit the net running” with her analysis of the Sessions speech to EOIR.
Jeff Sessions primed to overhaul asylum law
By Tal Kopan, CNN
Attorney General Jeff Sessions will announce a major decision that could impact thousands of asylum seekers from Central America on Monday — his latest move to use his unique authority to single-handedly reshape immigration law.
Sessions made the announcement at an annual training conference for the nation’s hundreds of immigration judges, telling them the decision would be coming and reminding them that they will be obligated to follow his interpretation of the law.
Though Sessions did not explicitly name the decision, it is widely expected to be a case involving asylum protections for domestic violence victims. Sessions referred the case to himself earlier this year and invited interested parties to submit briefs. In his remarks, Sessions implied he would be restricting the use of asylum for victims of crime, which would reverse previous court decisions and overrule a significant 2014 Board of Immigration Appeals decision that ruled Central American domestic violence victims who cannot escape their abusive partners can qualify under asylum law for protection in the US.
“Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world,” Sessions said, reiterating the particular requirements of asylum under the law. “Today I will be exercising the responsibility given to me under the (Immigration and Nationality Act), I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”
The ruling and announcement is the latest evidence of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
Sessions also reminded judges that his decision will be final, unless a federal appellate court were to overturn it on appeal.
In addition to impacting domestic violence victims, the case could also have large-scale implications for victims of other forms of crime and violence — rampant in Central America, where a majority of US asylum seekers at the southern border come from.
Related: Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
“In my judgment, this will be a correct interpretation of the law,” Sessions said. “It advances the original intent and purpose of the INA, and it will be your duty, of course, to carry that out.”
According to Tal, the National Association of Immigration Judges (“NAIJ”) immediately criticized Sessions’s overemphasis on numerical quotas that are actually still supposed to be the subject of “good faith” labor negotiations with the NAIJ before going into effect in the Fall.
Nevertheless, Tal’s longer article (linked above) would lead one to believe that many U.S Immigration Judges look forward their new well-defined role as an “asylum denial workforce” working as part of the law enforcement “team” to send vulnerable individuals, including children, back to death, rape, extortion, or constant beatings, in probable violation of international standards, as part of the DHS enforcement effort headed by Sessions.
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
Denying applications based on “precedents” intentionally misinterpreting the law will definitely make dockets move faster and might even allow some Immigration Judges to earn “gold stars” — and perhaps even recognition from the Chief Enforcer himself at next year’s conference — for exceeding their deportation quotas — at least until those pesky Article III Courts get involved.
We’ll see whether the Administration’s policies of intentional cruelty, criminal prosecution, child abuse, and sending folks back to places where their lives will be endangered without fairly considering their claims of protection works as a “deterrent” (never has in the past) or merely diminishes us as a society and a country.
As I always say, “We can diminish ourselves as a nation (and we are), but that won’t stop human migration.”
It’s a far cry from when the late Attorney General Janet Reno used to appear at Immigration Judge Conferences and urge us to do our duty to provide fairness, Due Process, and “equal justice for all.”
Stay tuned for the release of the AG’s decision and more reaction.
The aim of President Donald Trump’s new policy of splitting kids from their mothers at the border is, in a word, deterrence: The White House wants to discourage more immigrants from trying to enter the United States.
Kirstjen Nielsen, Trump’s secretary of homeland security, is careful not to say this outright — she dodged a direct question on the subject from Sen. Kamala Harris (D-Calif.) at a hearing last month.
JOHN MOORE VIA GETTY IMAGES
Central American immigrants walk after crossing the U.S.-Mexico border to turn themselves in to Border Patrol agents in February near McAllen, Texas. The Trump administration adopted a policy in May of intentionally separating mothers from their children at the border in order to deter migrants from crossing illegally into the U.S.
There’s a reason Nielsen and other administration officials shy away from attaching the word “deterrence” to the new policy: Changing immigrant detention policy as a way to deter undocumented people from coming to the U.S. is illegal, federal courts have repeatedly ruled. So now she and other Trump administration officials find themselves struggling to defend a family separation policy whose clear ambition is deterrence.
A growing number of mothers have crossed into the United States since 2014, often from Central America and often requesting asylum. Other administration officials were blunter in the past when discussing a policy that would split the families up to scare them away from coming.
The Department of Homeland Security was considering separating children from their parents “in order to deter” undocumented immigration, White House chief of staff John Kelly told CNN while serving as Nielsen’s predecessor last year. And Gene Hamilton, a former aide to Attorney General Jeff Sessions, asked participants at a meeting last August on the policy to “generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” according to The New Yorker.
Whether or not the deterrence goal is spelled out, the strategy is likely to backfire. Former President Barack Obama learned that lesson in 2015, when a federal judge in Washington blocked his plans to lock up Central American immigrant mothers and their kids without bond to deter others from trying to cross the border.
U.S. District Judge James Boasberg ruled that the federal government can’t detain immigrants indefinitely for the sake of deterrence alone. Instead, the decision to detain needed to be based on whether the immigrant posed a threat to the community or a flight risk.
The Obama administration was forced to provide bond hearings to the migrants in family detention. A separate ruling that year ordered the Obama administration to start releasing people from family detention after three weeks in order to comply with the Flores settlement, a 1997 deal that bars the government from locking up children in detention centers.
The Trump administration hopes to skirt the rulings that got Obama officials into trouble by prosecuting immigrant parents at the border. The federal government can’t jail children while their mothers await trial, so immigration authorities transfer them to the Office of Refugee Resettlement to find a sponsor or to non-secured facility to hold them, as if they arrived by themselves.
But this legal maneuver stands on the same shaky ground.
“Whether the deterrence to seeking protection is being done by detaining families or separating families doesn’t make a whole lot of difference,” said Michelle Brané, the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission. “They’re both punishing families for seeking protection, and protection to which they have the right under U.S. law.”
The Trump administration is already running into legal trouble over its policy. The American Civil Liberties Union filed a lawsuit in federal court in Southern California to overturn Trump’s family separation policy, asking U.S. District Judge Dana Sabraw for a nationwide injunction to halt the practice. At a hearing on May 4, Sabraw repeatedly asked whether the Trump administration had adopted the family separation policy to deter others.
“If there were a blanket policy to separate for deterrence value, would that be legal?” Sabraw asked, according to a transcript of the hearing. “Would that pass muster under the Fifth Amendment?”
The judge did not receive a straight answer. The government’s lawyer, Sarah Fabian, instead argued that the government wasn’t separating mothers from their kids systematically, and only following existing immigration law to do so.
Attorney General Jeff Sessions undermined her argument three days later, when he announced that the Justice Department’s “zero tolerance” policy for prosecuting border-crossers included mothers who cross with their children.
Lee Gelernt, the lawyer leading the ACLU lawsuit, called the government lawyer’s unwillingness or inability to defend family separation on the merits without resorting to the legally fraught term “deterrence” significant.
“The government still needs a persuasive justification for separating children,” Gelernt wrote in an email. “And the government has not provided one.”
On Wednesday, Sabraw ordered that the case against family separation can move forward, over the Trump administration’s objections. Although he has yet to rule on the case’s merits, his order did not augur well for the federal government.
Implementing a family separation policy to deter other migrants “arbitrarily tears at the sacred bond between parent and child,” Sabraw wrote. “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”
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Ah, the never-ending legal, moral, and intellectual corruption and dishonesty of the Trumpsters!
Take depositions — force them to lie under oath or admit they have been lying publicly. And, as I recently pointed out, most Article III Federal Judges, who actually have contempt of court authority, take a dim view of perjury by Cabinet Officers in their court proceedings.
I also think that even under the Supreme’s restrictive standards, there is an ever increasing possibility of actually imposing monetary damages on Nielsen, Sessions, and others for their intentional denial of Constitutional rights and their dishonest schemes to conceal their true intent. I actually think that when the full truth some day comes out, we will find not only illegal deterrence, but rather clear evidence of racial animus underlying Sessions’s policies. To be honest, Sessions has turned the entire U.S. Immigration Court system into a tool for enforcement deterrence — a huge violation of Due Process, as well as an astounding conflict of interest and violation of ethics.
Also, not surprisingly, the name of Sessions’s restrictionist crony Gene Hamilton has surfaced in connection with this scheme.
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE
Greetings. The Immigration Court’s backlog keeps rising. As of the end of May 2018, the number of cases waiting decision reached an all-time high of 714,067. This compares with a court backlog of 542,411 cases at the end of January 2017 when President Trump assumed office. During his term the backlog has increased by almost a third (32%) with 171,656 more cases added.
The pace of court filings has not increased – indeed, case filings are running slightly behind that of last year at this time. What appears to be driving the burgeoning backlog is the lengthening time it now takes to schedule hearings and complete proceedings in the face of the court’s over-crowded dockets.
For example, cases that ultimately result in a removal order are taking 28 percent longer to process than last year – up from 392 days to an average of 501 days – from the date of the Notice to Appear (NTA) to the date of the decision. And compared with the last full fiscal year of the Obama administration, cases resulting in removal take an average of 42 percent longer.
Decisions granting asylum or another type of relief now take over twice as long as removal decisions. Relief decisions this year on average took 1,064 days – up 17 percent – from last year.
Wait times in Houston, San Antonio, Chicago, Imperial (California), Denver, and Arlington (Virginia) now average over 1,400 days before an immigrant is even scheduled for a hearing on his or her case. At many hearing locations hearings are currently being scheduled beyond 2021 before an available slot on the docket is found.
To read the full report, including how long at each court hearing location current cases are waiting before their hearing is scheduled, go to:
In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through May 2018. For an index to the full list of TRAC’s immigration tools go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
*************************************
Wow! The “One Man Supreme Court” is also a “One Man Wrecking Crew” trying his best to bring down the entire U.S. justice system with his remarkable mix of bias, ignorance, cruelty, political grandstanding, and just plain old incompetence. To my knowledge, he’s never run anything larger than a modest sized U.S. Attorney’s Office, and not everyone who worked with him then was enamored by the way he handled that job. In fact, he was so bad that members of his own party his own party helped block him from a U.S. District Judge position because of his perceived racial bias and lack of ability to deal fairly with minorities.
All of this while, the GOP Congress just sits back and “ho hums” about the mess they have created and allowed to fester in the DOJ and their lack of meaningful oversight over Sessions’s destructive, often dishonest, actions and gross mismanagement!
And, destroying the U.S. Immigration Courts is by no means the last or least of his efforts. According to Richard Morosi’s “banner headline top story” in today’s Los Angeles Times, Sessions & Co have so overloaded the U.S. District Courts along the border with non-violent misdemeanor immigration offenders that those courts 1) don’t have time for more serious offenders, major fraudsters, and other real criminals; and 2) are abandoning their values and independence to produce what one former senior prosecutor, Charles La Bella, termed “turnstyle justice” (“not what the federal courts were meant to do”). It’s so horrible that one long-time U.S. District Judge has already quit because he couldn’t take the wanton wastefulness, stupidity, and inhumanity of it all. You can check out Morosi’s full article here: http://enewspaper.latimes.com/infinity/article_share.aspx?guid=aec32f3c-e756-4d4a-acbc-f7e451bd9d87
In other words, Sessions is compromising the actual safety and security of the United States and threatening the integrity of our U.S. Court System to indulge his own racist, xenophobic desire to punish “regular folks, dishwashers, landscapers . . .people who are coming to pick fruit or find menial work to send money back home.”
At least the Chief U.S. District Judge trying to deal with this mess has included defense attorneys along with judges and prosecutors in his new “case management committee.” Compare that with the Immigration Courts, where Sessions, his DOJ politicos, and administrative bureaucrats in Falls Church manage the cases from afar, based solely on political and enforcement considerations. The U.S. Immigration Judges who actually hear the cases, the hard-working (largely pro bono) defense attorneys, and even the local ICE prosecutors are effectively “frozen out” of the system for setting priorities and managing cases. I’ll wager that there is no other court system in the United States that attempts to operate in this bone-headed and obviously counterproductive manner!
Under Sessions, more judges = more backlog! That militates against Congress throwing any more judges, money, and personnel into this mess until the Immigration Courts are removed from the DOJ, a long, long overdue move.
How do you build more backlog with more judges? First, by demoralizing and effectively forcing out some of the most experienced and fairest judges and replacing them with “newbies,” Sessions reduces judicial legal expertise, productivity, and independence, at least in the short run.
Second, by trashing the very promising “prosecutorial discretion” program undertaken by ICE prosecutors with the encouragement and cooperation of the Immigration Judges, he forces “low priority” cases into the court system at the expense of the more difficult and complex cases that then get pushed to the end of the line. Astoundingly, Sessions’s recent legally flawed “beat down” of “Administrative Closing” virtually guarantees that several hundred thousand low priority “closed” cases will be returned to the courts’ active dockets in the near future, thus artificially pushing the backlog beyond 1,000,000!
This is known as “Aimless Docket Reshuffling.” It started under Obama, but has accelerated dramatically under Sessions. This is essentially what is happening with Sessions’s irresponsible prosecution of minor misdemeanants over in the U.S. District Courts along the border.
Third, and this jumped out from the TRAC report, it now takes much longer to complete cases, particularly asylum case and other cases granting relief, because they are all contested by ICE and Sessions is actively trying to “jack” the law against respondents, particularly asylum applicants. A wise Attorney General actually committed to the job of justice for all in America and responsible use of taxpayer-funded resources would work cooperatively with prosecutors, defense attorneys, and Immigration Judges within existing precedents favorable to asylum applicants to encourage “pretrial” of the many well-documented, meritorious asylum cases and other cases for relief (like cancellation of removal) now unnecessarily clogging the dockets so that they could be granted relief on “short-block dockets” by Immigration Judges. In other cases, they could be closed and removed from the docket to pursue alternative forms of relief at USCIS. This would be a great way of attacking the backlog without running over anyone’s Due Process rights! But, that’s not what Sessions is interested in.
Not only are asylum cases becoming unnecessarily complex and time-consuming under Sessions, but his apparent plan to intentionally misconstrue U.S. asylum law to disadvantage bona fide applicants in favor of his restrictionist agenda and personal biases against asylum seekers, women, and Central Americans is almost sure to result in many “losers” for the Government in the Courts of Appeals. This, in turn, is likely to result in massive returns for “do-overs” — just as happened during the Due Process disaster than occurred following the “Ashcroft Purge” of the BIA in 2003!
“All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers.”
“We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”
Clinton is not the only Democrat who has spoken out against illegal immigration. The Republicans provide a number of examples in a blog they posted recently: “The Democrat Hard Left Turn on Illegal Immigration.”
In 1993, then-Senator Harry Reid (D-Nev.), said, “When it comes to enforcing laws against illegal immigration, we have a system that will make you recoil in disbelief. … Yet we are doing almost nothing to encourage these people to go home or even to deter them from coming here in the first place.”
In 1994, Senator Dianne Feinstein (D-Calif.) ran a political ad showing illegal immigrants crossing the border and promised to get tough on illegal immigration with more “agents, fencing, lighting, and other equipment.”
In 2006, then-Senator Barack Obama (D-Ill.) said “Better fences and better security along our borders” would “help stem some of the tide of illegal immigration in this country.”
In 2009, during a speech at Georgetown Law, Senator Chuck Schumer(D-N.Y.) said, “When we use phrases like ‘undocumented workers,’ we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.”
The blog also provides video clip links, including one that shows Clinton receiving a standing ovation for his remarks about Americans being disturbed by the large numbers of illegal aliens entering the country.
. . . .
A recent report from the Economic Policy Institute (EPI) on the labor laws California has enacted to protect unauthorized immigrant workers indicates that many of the immigrants who have been attracted to California by its sanctuary policies are being exploited by unscrupulous employers.
In fact, the main beneficiaries of California’s sanctuary policies are the employers who exploit undocumented immigrant workers and deportable immigrants in police custody who otherwise would be turned over to ICE when they are released.
California has had to enact seven laws to protect undocumented workers from being exploited by their employers.
EPI found that the ability of U.S. employers to exploit unauthorized workers undercuts the bargaining power of U.S. workers who work side by side with them. When the wages and labor standards of unauthorized immigrants are degraded, it has a negative impact on the wages and labor standards of U.S. workers in similar jobs.
In reality, we could meet all of our immigration needs with legal immigration. We do not need nor ultimately benefit from uncontrolled illegal immigration.
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Go on over to The Hill to read Nolan’s complete article.
I’m all for replacing the uncontrolled flow of undocumented migrants with legal migrants. That’s why I favor a “smart” immigration policy that would:
Legalize the vast majority of those currently here without documentation who are working in needed jobs, law-abiding, and contributing to our society. Legalization would allow them to be screened, brought into the tax system (if they aren’t already), and protected by U.S. labor laws.
Expand legal immigration opportunities, particularly for so-called “non-professional,” manual labor skills and jobs that are badly needed in the U.S. and which now often are filled by undocumented labor. That would allow screening of visa applicants abroad, a controlled entry process, and protections under the labor laws. To the extent that undocumented migration is being driven by unfilled market forces, it would decrease the flow of undocumented individuals, thus saving us from expensive, unneeded, inhumane, and ineffective “enforcement overkill.” Immigration enforcement would be freed to concentrate on those who might actually be a threat to the U.S.
Create more robust, realistic refugee laws that would bring many more refugees through the legal system, particularly from the Northern Triangle. This, along with cooperation with the UNHCR and other nations would reduce the need for individuals to make they way to our borders to apply for asylum. Asylum processing could be improved by allowing the Asylum Office to review and grant “defensive” as well as affirmative applications, thus lessening the burden on the Immigration Courts.
More investment in Wage and Hour, NLRB, and OSHA enforcement to prevent unscrupulous employers from taking advantage of workers of all types.
We have full employment, surplus jobs, a declining birth rate, and we’re losing the “STEM edge” to the PRC, Canada, Mexico, the EU and other nations that are becoming more welcoming and attractive to “high skill” immigrants. We’re going to need all of the legal immigration we can get across the board to remain viable and dynamic in a changing world.
