"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.
Congressional Quarterly reports that Acting EOIR Director James McHenry will testify before the Immigration and Border Security Subcommittee Chaired by Chairman Raul R. Labrador, R-Idaho, at 2 p.m. in Room 2141 of the Rayburn House Office Building on Wednesday, Nov. 1. According to CQ, he is expected to address backlogs, hiring, and other issues facing the U.S. Immigration Courts.
PWS
10-29-17
9TH CIR Lin v. Sessions, 9th, Credibility
Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished
PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
OPINION: PER CURIAM
KEY QUOTE:
“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.
As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility
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finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding
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documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.
After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).
In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily
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eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”
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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.
Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.
No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.
This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.
All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.
We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.
PWS
10-29-17
Aguilar-Escoto v. Sessions, 1st Cir., 10-27-17, published
PANEL: Howard, Chief Judge,Thompson and Kayatta, Circuit Judges.
OPINION BY: Chief Judge Howard
KEY QUOTE:
“We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all
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relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 F. App’x 900, 902 (11th Cir. 2007) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). Rather, where the applicant provides evidence other than her own testimony, the agency “must consider that evidence” and may not “rely solely on an adverse credibility determination.” Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the agency’s failure to fulfill this duty is grounds for vacating the BIA decision, irrespective of the merits of the adverse credibility finding. See Toska v. U.S. Att’y Gen., 194 F. App’x 767, 768 (11th Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013) (“[W]e will remand if the agency fails to state with sufficient particularity and clarity the reasons for denial of [relief] or otherwise to offer legally sufficient reasons for its decision.” (citation omitted)).
We agree with the Eleventh Circuit’s approach to this issue, which is consistent with our precedent. See Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (“An adverse credibility finding by itself would not automatically doom a claim for asylum.”). The appropriate result in this case follows easily.
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Even assuming that its credibility ruling was supportable, the BIA was required to go further and address whether, setting Aguilar’s testimony to one side, the documentary evidence entitled her to relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed, the IJ expressly recognized that this documentary evidence, if believed, was sufficient to establish multiple acts of domestic violence against Aguilar by her ex-husband. In these circumstances, the BIA’s failure to consider or even acknowledge the evidence requires remand. See Toska, 194 F. App’x at 768; Khattak, 704 F.3d at 208. We take no position on the merits of the IJ’s holding that the abuse reflected in the documentary evidence was not sufficiently severe to warrant relief. This issue is best left to be addressed by the BIA in the first instance.
We note, for the benefit of the agency on remand, that the Board’s failure to consider Aguilar’s documentary evidence may have been rooted in its fundamental misunderstanding of her claim. Again, the Board appears to have operated under the mistaken assumption that Aguilar had applied for asylum as well as withholding of removal. These two grounds for relief are not identical. For one thing, withholding of removal requires a higher likelihood of persecution than asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for withholding must satisfy a “more likely than not” standard (citation omitted)). There is, however, a different sense in which
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the asylum standard may be more exacting. Withholding claims “lack a subjective component and are [thus] concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (explaining that the relevant statutory language “has no subjective component”). Asylum, by contrast, has both a subjective and an objective component: it requires a showing that the applicant “genuinely fears persecution,” in addition to proof that the “fear is objectively reasonable.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Applicants “typically” seek to establish the requisite “genuineness” through their “own credible testimony.” Id. at 80-81. An adverse credibility finding thus may prove fatal to this aspect of an asylum claim. But, because withholding of removal requires no such genuine belief, a withholding claim “may, in appropriate instances, be sustained” despite an adverse credibility finding. Paul, 444 F.3d at 156.
In the present case, the BIA may well have been justified in concluding that, absent her own credible testimony, Aguilar failed to establish a subjectively genuine fear that she would be persecuted upon returning to Honduras. This failure would doom an asylum claim notwithstanding additional evidence establishing that a reasonable person in Aguilar’s circumstances would have feared persecution. See Makhoul, 387 F.3d at 80-81. But, in the withholding context, the inquiry is a strictly objective one. See
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Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting Aguilar’s testimony, arguably the only evidence that she did in fact harbor a subjective fear of persecution, the BIA was nonetheless obliged to consider documentary evidence potentially capable of establishing her likelihood of suffering further abuse.
Rather than embarking on this objective assessment, the BIA fell back on the familiar refrain that, because “the applicant did not establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof.” Such a conclusion is unassailable where the applicant’s subjective fear is proven or assumed, and the denial of the asylum claim turns on the lack of evidence that the fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at 81. But the same is not necessarily true where an asylum claim fails due to a lack of credible testimony establishing the applicant’s subjective fear. The Board’s failure to apply the appropriate, purely objective standard to Aguilar’s withholding claim provides an independent basis for remand. See Kozak v. Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because “the BIA applied an inappropriate legal standard”); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding “to allow the matter to be considered anew under the proper legal standards”).
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III.
For the foregoing reasons, we VACATE the BIA’s orderdismissing Aguilar’s appeal and remand for further proceedings consistent with this opinion.”
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You can read the complete opinion at the link
This type of reversal does not involve a “Chevron-type” legal policy issue where the BIA and the Article IIIs might well reach different conclusions. Rather, this case is all about the BIA misapplying the “fundamental nuts and bolts” of credibility and withholding analysis in putting out a “boilerplate denial.” Why should the Article IIIs be finding “mechanical-analytical” issues that the expert BIA missed? Perhaps the EOIR system is “peddling too fast.” In that case, Sessions’s proposed “production quotas for judges” are the absolute worst thing that could happen to the Immigration Courts and Due Process.
Also, if the Article IIIs are better than the BIA at the basics of immigration and asylum law, why shouldn’t the Article IIIs, not the BIA, be getting “Chevron deference?”
https://www.politico.com/agenda/story/2017/10/25/immigrants-caretaker-workforce-000556
Ted Hesson reports for Politico:
“One of the biggest future crises in U.S. health care is about to collide with the hottest political issue of the Trump era: immigration.
As the largest generation in American history – the baby boom – heads into retirement and old age, most of those aging boomers will need someone to help take care of them for at least some portion of their twilight years. Demand for home health aides is expected to outstrip the growth for nearly all other jobs in coming decades, with the Bureau of Labor Statistics projecting the number of home health aide positions will increase 38 percent by 2024. That puts it among the top five fastest-growing U.S. occupations.
So who’s going to do it? The question is one of the biggest uncertainties looming over not only the health care, but the labor market overall. Health policy experts have been raising the alarm for some time: No matter how you look at it, the United States is going to need a lot more caretakers and home health aides. And we’re going to need them soon.
Right now, immigrant workers fill a significant share of the formal and informal caretaker workforce. In health care overall, immigrants (both legal and undocumented) make up roughly 17 percent of workers, on par with their representation in the broader labor force. When it comes to home health care, however, that figure is considerably higher: about 24 percent, according to the nonpartisan Migration Policy Institute.
There’s a reason foreign-born workers take so many home health jobs: they’re low-paid, low-skilled and increasingly plentiful. Barriers to entry are low; a high school degree is not usually a requirement and neither is previous work experience. Much caretaking comes from family members, of course. But with families getting smaller, more Americans living alone and chronic diseases growing more complex, a lot of that care in the future will need to come from professionals.
The job also isn’t easy. Home health aides can be tasked with bathing and feeding clients, cleaning the person’s house, driving them to doctor’s appointments and even helping with trips to the bathroom. It’s one of those occupations that comes to mind “when people say that immigrants do the jobs that Americans don’t want to do,” notes Patricia Cortés, an assistant professor of markets, public policy and law at Boston University’s Questrom School of Business.
Bianca Frogner, an associate professor at the University of Washington School of Medicine, said the low barriers to entry make it a natural fit for immigrants who are new to the U.S. workforce. “It’s easy to get into and they’re in high demand,” she said.
This is where politics comes in: The current move to curb immigration threatens to cut off the main supply of potential new workers to care for aging Americans.
Illegal immigration isn’t the issue. The home health care immigrant workforce is vastly legal. The Pew Research Center found that just 4 percent of nursing, psychiatric and home health aides are in the country without legal status, based on an average from 2005 to 2014. Some home health aide positions require certification, which may drive down the ranks of undocumented immigrants in those positions.
The question for the health care system is what will happen to the flow of legal immigrants. Trump and immigration hawks in Congress have endorsed a bill that would cut legal immigration in half over a decade. The bill would also refocus the immigration system to prize better-educated and more highly skilled immigrants — potentially choking off the supply of lower-skilled workers who are the likeliest candidates to fill the home health aide jobs of the future.
In theory, native-born Americans could take some of those jobs, but there are reasons to assume they won’t.
. . . .
The strange thing about home health care work is that immigrants don’t appear to drive down wages, as happens in some other fields. If anything, they tend to push wages higher. Naturalized citizens who worked as nursing, psychiatric and home health aides earned 22 percent more than their U.S.-born counterparts, according to 2015 American Community Survey data analyzed by the University of Washington Center for Health Workforce Studies.
Lindsay Lowell of Georgetown University’s Institute for the Study of International Migration, said the wage phenomenon and the fact that the work is a natural fit for new immigrants make it a no-brainer: Immigrants are our best caretaking option for the foreseeable future. “You put all that together,” Lowell said, “and I think it’s a good thing.”
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Read the complete article at the link.
In a sane system led by competent individuals with the common good in mind, this would be a “no brainer.” Legalize the existing undocumented workforce to provide some “upward and sideways” mobility to staff these jobs in the short run, while expanding legal immigration opportunities for these positions in the future. More legal immigration would also contribute to the tax coffers and add needed workers to the Social Security contribution base. Moreover, it would conserve considerable Government funds now being squandered on counterproductive immigration enforcement and unnecessary detention, as well as relieving the pressure on the overwhelmed Immigration Courts. That, in turn, would free up enforcement resources to concentrate on removing serious criminals and shutting down international smuggling cartels.
However, when policy is driven by bias, prejudice, and irrationality, as with guys like Trump, Sessions, Bannon, Miller, and the “RAISE Act Bunch” the results are a lose – lose.
PWS
10-28-17
Kate Linthicum writes in the LA Times:
“MEXICO CITY — The United States and Mexico are teaming up in a new effort to stem the flow of immigrants from Central America, even as President Trump carries out policy changes that critics argue could spur insecurity in the region and drive more people north.
In recent years, more people entering the U.S. illegally have come from Central American countries than from Mexico, with more than 200,000 Central Americans detained at the border in 2016.
The new initiative aims to discourage people from leaving Honduras, El Salvador and Guatemala by funding projects over the next six months to improve the economies and security situation in those countries while reducing corruption.
“We’re taking on what we both recognize as the drivers of mass migration,” said Mark Green, the administrator for the U.S. Agency for International Development, who announced the collaboration Thursday after meeting with his counterparts in Mexico City.
Migrants don’t want to leave their homes and family behind, Green said. “If we can take on those drivers at home, then kids get a normal life.”
While Trump asked for a reduction in funding for Central America in his proposed budget to Congress earlier this year — part of a suggested 30% cutback across the State Department — the initiative is a continuation of a strategy forged by his predecessor.
President Obama persuaded Congress to approve more than $750 million in development aid for Central America after more than 68,000 children traveling without an adult were apprehended at the border in 2014. Most of them came from the so-called Northern Triangle countries of El Salvador, Guatemala and Honduras.
In June, Vice President Mike Pence seemed committed to that approach when he met with leaders from Mexico and the Northern Triangle to discuss ways to prevent citizens from migrating to the United States.
Still, experts said those efforts could be undercut by Trump’s other actions in the region.
In August, Trump ended an Obama-era program that granted temporary legal residence in the U.S. to Central American children who could prove they were under threat of violence. The program was designed as a safe and legal alternative for children who might have otherwise sought to migrate alone. Without it, migrant advocates fear more minors will head north with smugglers.
Advocates also warn that other migration-related policies the administration has enacted or is weighing could destabilize the region by leading to much higher levels of deportations of Central Americans from the U.S.
In September, Trump announced that he would be ending the Deferred Action for Childhood Arrivals program, an Obama-era initiative that shields from deportation 800,000 migrants brought to the U.S. as children.
Trump is also weighing whether to renew protections for immigrants living in the country with Temporary Protected Status, which was granted to tens of thousands of migrants in the wake of natural disasters in Honduras, El Salvador and several other countries.
The president has repeatedly called for deporting members of MS-13, a gang active in both the U.S. and El Salvador. In a speech this summer, Trump called the gang members “animals” and promised “they’ll be out of here quickly.”
Mass deportations could be seriously disruptive in the small, poor countries of Central America, said Eric Olson, an expert on the region at the nonpartisan Wilson Center think tank in Washington. It was the large-scale deportation of MS-13 gang members to El Salvador beginning in the 1990s, he said, that helped turn the country into one of the most violent in the world.
“The Trump administration runs the risk of undermining its own policy goals,” Olson said. “If at the same time they’re sending back tens of thousands or hundreds of thousands of people who can’t really integrate well, you may create more instability, and eventually more migration.”
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Read the rest of the article at the link.
When policy is driven by irrational factors like White Nationalism, xenophobia, and desire to score “points” with a political-cultural “base,” bad things are bound to happen. I strongly doubt that immigration issues can be solved just by enforcement on the “receiving end” without some realistic program to deal with the “push” factors driving human migration (including country conditions and market forces on both ends).
PWS
10-28-17
http://www.cnn.com/2017/10/27/politics/administration-immigration-official-joining-doj/index.html
Tal Kopan reports for CNN:
“Washington (CNN)One of the Trump administration’s top immigration policy staffers is leaving the Department of Homeland Security to join the attorney general’s office at the Department of Justice — reuniting him with Jeff Sessions.
Gene Hamilton, a senior counselor to the Homeland Security secretary since January and top immigration policy expert for the administration, confirmed the move to CNN.
Hamilton’s departure will be a blow to Homeland Security’s policy shop, sources familiar with the situation said. The agency is tasked with managing the vast majority of the administration’s immigration portfolio.
But the move will reunite Hamilton, a former Sessions staffer, with the Cabinet’s strongest immigration policy hardliner, an early supporter of President Donald Trump who has been a key proponent of his aggressive immigration agenda from his perch at DOJ.
Hamilton was a general counsel for Sessions on Capitol Hill and will work directly with the attorney general in his new role. The switch is tentatively expected to begin next week, the sources said.
. . . .
While the move would take Hamilton out of the development of DHS immigration policies, where the secretary’s office oversees components including Immigration and Customs Enforcement, Customs and Border Protection and US Citizenship and Immigration Services, DOJ under Sessions has been taking a stronger role in immigration policy during this administration.
Sessions himself remains a thought leader in the administration on the tough immigration agenda of the President, and DOJ manages the nation’s Immigration courts.
Justice also is charged with representing the government in litigation — which would include all the sanctuary cities litigation, DACA lawsuits and ongoing travel ban litigation.“
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Read Tal’s complete report at the link.
With the DOJ abandoning the last pretenses of objectivity and assuming the “point position” on the Administration’s xenophobic anti-immigrant agenda, how could Immigration Courts held “captive” within the DOJ possibly provide individuals with the “fair and unbiased decision-making” required by the Due Process Clause of our Constitution? Only an independent Article I Court can save this deeply compromised system!
PWS
10-27-17
https://www.jeffreyschase.com/blog/2017/10/26/in-response-sessions-claims-regarding-asylum-fraud
Jeffrey writes:
“In a recent address at EOIR headquarters, Attorney General Jeff Sessions blamed the immigration courts’ present backlog of over 600,000 cases on asylum fraud. In order to lend support to his claim, Sessions conveniently omitted some important facts.
First, Sessions somehow failed to mention that after gaining majority control in the 2010 midterm elections, Republicans in Congress forced a hiring freeze, followed by a “sequester” requiring government-wide budget cuts. EOIR was not able to hire immigration judges or other support staff, while suffering personnel departures. In 2015 testimony to Congress by EOIR’s then director, the late Juan Osuna attributed much of the 101 percent increase in the immigration court’s backlog over the preceding five years to the hiring freeze. Furthermore, the sequester’s budget cuts rendered EOIR unable to replace obsolete computer servers, which resulted in a total system failure in 2014 which wreaked havoc on the courts for more than 5 weeks. These Republican-created problems coincided with the 2014 surge along the southern border of legitimate refugees fleeing increased violence in the Northern Triangle region of El Salvador, Guatemala, and Honduras. The 2014 violence was followed by a 70 percent increase in the murder rate in El Salvador the following year, which, according to a January 2016 article in The Guardian, made it the most dangerous peacetime country in the world.
EOIR publishes a statistical yearbook each year; the most recent is for fiscal year 2016. The report divides asylum claims into affirmative and defensive categories. Defensive applications are filed by individuals who find themselves in removal proceedings facing deportation from the U.S. Some are detained; some are not represented by attorneys. The majority of these individuals are eligible to apply for only one form of relief: asylum. Given the fact that most people in removal proceedings would like to remain in the U.S. and avoid deportation, it is not surprising that a number of these individuals file applications for the only form of relief that might keep them here, even if the likelihood of success is a longshot. Nevertheless, in FY 2016, 31 percent (i.e. nearly a third) of these defensive claims for asylum were granted by immigration judges, according to EOIR’s own numbers.
The second category of asylum applicants listed in EOIR’s annual report consists of affirmative applicants. These are individuals who are not detained or in imminent danger of deportation. Nevertheless, these individuals decided to come forward and apply for asylum, bringing themselves to the attention of DHS and risking deportation should their claims be denied. In FY 2016, EOIR reported that 83 percent of such claims were granted by immigration judges. It should be noted that affirmative applicants are first interviewed by asylum officers with USCIS, a component of DHS. DHS grants asylum to those applicants it deems approvable, and refers the rest to EOIR. So if the cases granted by DHS are added to the EOIR numbers, the grant rate is actually higher.
In removal proceedings, asylum applications are contested by DHS trial attorneys, who nearly always subject asylum applicants to detailed cross-examination.. DHS attorneys may send evidence submitted by asylum applicants for consular investigation in the country of origin, or for forensics examination to determine if there is evidence of fabrication or alteration. The DHS attorneys may also check other databases for evidence that may conflict with the information provided in the asylum application. DHS may offer any results that might indicate fraud into evidence. Sessions falsely claims that “there is no way to reasonably investigate the claims of an asylum applicant in their own country;” in my 12 years as an immigration judge, I was presented with the results of many such in-country consular investigations. I also commonly received reports and heard testimony from forensics examiners employed by DHS.
In addition, in response to reports of fraud, Congress included provisions in the 2005 REAL ID Act that gave immigration judges greater authority to find that asylum applicants lacked credibility. The legislation also made it more difficult to establish asylum eligibility by requiring that one of the five statutorily protected grounds (i.e. race, religion, nationality, membership in a particular social group, or political opinion) be “one central reason” for the feared persecution. Also, the BIA has spent the last 11 years issuing precedent decisions that increase the difficulty of establishing asylum eligibility.
And in spite of all of the above, immigration judges last year found more than 8 of 10 affirmative asylum applicants to be legitimate. The IJs granting these claims are employees of the Attorney General’s own Department of Justice. Immigration Judges are appointed by the Attorney General, and come from a variety of backgrounds. Many previously worked on the enforcement side; many are Republican appointees. Sessions claims that “vague, insubstantial, and subjective claims have swamped our system.” If true, how are more than 80 percent being granted by judges that he and his predecessors appointed?
So then where is the evidence of widespread asylum fraud supporting Sessions’ assertion? What support does he provide in claiming that “any adjudicatory system with a grant rate of nearly 90 percent is inherently flawed?” Why would that be true of the applicants in question chose to come forward and apply for asylum; their claims were screened and prepared by competent attorneys; and where the immigration laws contain significant penalties for filing fraudulent claims, including a lifetime bar on any and all immigration benefits?
About three years ago, while I was the country conditions expert for EOIR, I was one of a number of EOIR employees invited by DHS to attend a training session on country conditions in the Northern Triangle region of El Salvador, Nicaragua, and Honduras. The presenters described horrific conditions in the lawless Northern Triangle, in which murders occur with impunity, boys as young as 7 years old are recruited for gang membership, 11 year old girls are raped, and their fathers killed if they try to intervene. The presenters concluded that in spite of the danger, parents are making very informed decisions in paying to have their children smuggled north under dangerous conditions, considering the horrible conditions at home. Remember, this was not a program put on by Amnesty International; this was DHS training its asylum officers. I enlisted one of the presenters to repeat his presentation for the immigration judges at their training conference the following year. Is Sessions somehow unaware of this information when he portrays such claims as fraudulent?
In support of his fraud claim, Sessions stated that many who were found to have a credible fear of persecution and paroled into the U.S. did not subsequently apply for asylum. However, he neglected to mention that many of those parolees are unaccompanied children. He also did not mention that many parolees cannot afford attorneys, and that pro bono groups’ limited resources are completely overwhelmed by the number of asylum seekers, and that those dedicated pro bono programs who have attempted creative approaches such as providing limited pro bono assistance to pro se applicants have been hampered by EOIR itself, which issued a “cease and desist” letter to at least one such program, the highly regarded Northwest Immigrant Rights Project.
Sessions referenced a 2014 investigation resulting in the arrest of 8 attorneys for engaging in asylum fraud. There are thousands of immigration attorneys in the United States. The overwhelming majority are honest, hardworking and highly respectful of our laws. Since departing the government I been inspired by the seriousness with which private immigration attorneys treat asylum matters. When attorneys speak of a client being granted asylum, they nearly always describe years of preparation, a lengthy hearing, well-researched legal theories, and loads of supporting evidence, often including expert witnesses. These are not half-hour hearings; they are exhausting, contested matters that can last many hours. The attorneys engaged in such work should be applauded for their efforts. And I can’t express enough admiration for the hundreds of immigration judges who, in spite of the pressure created by a daunting workload and biased remarks by the Attorney General they report to, nevertheless continue to afford due process and render fair and impartial judgement on those appearing before them.
Copyright 2017 Jeffrey S. Chase. All rights reserved.”
Reprinted with permission.
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Right on Jeffrey! Thanks for your incisive commentary and analysis!
Gonzo’s extensive record of lies, omissions, intentional distortions, bias, and willful ignorance make him unqualified for any position of public trust, let alone the chief legal official of the US! The inappropriateness of placing such an individual in charge of the US Immigration Courts is simply jaw dropping!
Sen. Liz Warren was right! Our country and our entire system of justice are suffering because a majority of her colleagues “tuned her out!” Speaking truth to power is seldom easy.
PWS
10-26-17
Nolan writes:
“According to an Immigration Department memorandum which was obtained by the Canadian press under Canada’s Access to Information Act, as of the end of April, there were 12,040 asylum claims, and it was viewed as likely that there would be 36,000 of them by the end of the year. If this continues, the wait time for an asylum hearing could reach 11 years by the end of 2021.
The backlog of pending asylum cases reached 24,404 in June 2017.
The Immigration and Refugee Board of Canada has deployed up to half of its capacity to address backlog claims, and it has established a process for disposing of straightforward cases with short hearings.”
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Read Nolan’s complete article over on The Hill at the above link!
PWS
10-26-17
https://www.nytimes.com/2017/10/24/business/economy/immigration-jobs.html
Porter writes:
“Few American industries are as invested in the decades-long political battle over immigration as agriculture. Paying low wages for backbreaking work, growers large and small have historically relied on immigrants from south of the Rio Grande. These days, over one-quarter of the farmhands in the United States are immigrants working here illegally.
This is how the growers will respond to President Trump’s threatened crackdown on immigration: They will lobby, asking Congress to provide some legal option to hang on to their foreign work force. They will switch to crops like tree nuts, which are less labor-intensive to produce than perishable fruits and vegetables. They will look for technology to mechanize the harvest of strawberries and other crops. And they will rent land in Mexico.
There is one thing they won’t do. Even if the Trump administration were to deploy the 10,000 immigration agents it plans to hire across the nation’s fields to detain and deport farmhands working illegally, farmers are very unlikely to raise wages and improve working conditions to attract American workers instead.
“Foreign workers will always be harvesting our crops,” Tom Nassif, who heads the Western Growers Association, told me. The only question for policymakers in Washington is whether “they want them to be harvesting in our economy or in another country.” If they choose the latter, he warned, they might consider that each farmworker sustains two to three jobs outside the fields.”
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Read the complete article at the link.
When policy is driven by ignorance, bias, and political pandering, rather than by facts, common sense, and economic reality, the results are always going to be ugly. So far, our country and our economy have been saved primarily by the overall incompetence of guys like Trump, Sessions, and their minions. But, it’s an expensive and divisive way to (not) “run the railroad.” We’re actually paying scarce taxpayer dollars for misguided policies that if actually successful would threaten our economic well-being and make our country a worse place to live.
PWS
10-24-17
Michelle and Swapna write:
“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?
These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.
Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.
Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.
Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.
And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.
Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”
But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.
The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.
Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.
. . . .
Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.
Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”
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Read the complete article at the link.
Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.
PWS
10-22-17
ATTORNEY GENERAL Jeff Sessions decried the state of the immigration courts in remarks Oct. 12 before the Justice Department’s Executive Office for Immigration Review, lamenting “rampant abuse and fraud” in asylum applications. As part of Mr. Sessions’s push for an overhaul of the immigration system, the department also plans to begin evaluating immigration judges on the basis of how many cases they resolve. This proposal would do little to fix the United States’ backlogged immigration courts and much to undermine their integrity.
The Trump administration hinted at the plan in a wish list of immigration policies, alongside commitments to constructing President Trump’s promised border wall and withholding federal grants from so-called sanctuary cities. According to reporting by The Post, government documents show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.” Such a metric would probably involve assessing judges based on how many cases they complete or how quickly they decide them — a plan that the National Association of Immigration Judges has called a “death knell for judicial independence.”
Unlike other federal judges, immigration judges are technically Justice Department employees. Currently, the collective bargaining agreement between Justice and the judges’ association forbids evaluating judges based on quotas. But the association says the Executive Office of Immigration Review is working now to remove that language from the contract.”
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Read the complete editorial at the link.
Note the “progression” by the DOJ: From “performance evaluations would interfere with judicial independence,” to “performance evaluations won’t involve production quotas,” to “judges are just ‘oyster shuckers in robes!'”
Performance evaluations by the DOJ are just as inappropriate and unnecessary for U.S. Immigration Judges now as they were back in 1983 when EOIR was established. The only difference is the plan by Sessions and his politico cronies to co-opt the U.S. Immigration Courts and use them as an enforcement tool in his xenophobic crusade against immigrants, asylum seekers, due process, and the American justice system.
I actually was part of the NAIJ “negotiating team” that negotiated the current procedures and standards for judicial performance evaluations. We were assured over and over by “EOIR Management” that “case quotas” were not part of the plan and that “management recognized” the need for decisional independence in the Immigration Judge corps.
PWS
10-23-17
Nick Miroff reports for the Washington Post:
“A form of legal immigration status will expire soon for 300,000 Haitians and Central Americans residing legally in the United States, some for nearly two decades, but the Trump administration has given little indication it plans to renew the benefit.
The immigrants have been allowed to live and work in the United States under a program called Temporary Protected Status (TPS) that shields some migrants from deportation if their nations are stricken by natural disasters, civil wars or other calamities.
Permission to stay must be periodically renewed by the Department of Homeland Security, and in the coming weeks, the agency will decide the fate of about 195,000 Salvadorans, 57,000 Hondurans, 50,000 Haitians and 2,550 Nicaraguans. Once the protections lapse, those immigrantswould be subject to deportation.
Their predicament is not as well known as the “Dreamers” who have been allowed to stay under the Deferred Action for Childhood Arrivals (DACA), the program that Trump is canceling. But an end to TPS protections could have wide-ranging consequences, especially in cities such as Los Angeles, Miami, Houston and Washington, where many of the beneficiaries and their U.S.-born children reside.
Democratic lawmakers and advocacy groups are urging the administration to extend the TPS protections, warning that the humanitarian and economic costs of expelling so many long-term U.S. residents would be steep.
Moreover, they say, the countries remain crippled by violence, disease and poverty, and the abrupt loss of the cash remittance payments the immigrants send from the United States would deal a heavy blow to those nations’ feeble economies.
. . . .
But like the DACA debate, the TPS decision has become a proxy for a broader argument about immigration and the enforcement of U.S. laws. The Trump administration has been signaling it wants to break with its predecessors and appears to want to make a statement, said Doris Meissner, the top immigration official under the Clinton administration,
“The deeper point is they don’t want people here from other countries for humanitarian reasons,” said Meissner, now a senior fellow at the Migration Policy Institute in Washington. “They don’t see these various elements of immigration policy as particularly positive for the U.S., or as a broader expression of our values and image in the world.”
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Read the complete article at the link.
Sending folks who are living here legally back to countries in turmoil is a terrible idea, from a humanitarian and a practical standpoint. What would make sense is to offer them some type of legal status. As I’ve pointed out before, even if TPS is revoked, few of these folks are going anywhere soon. With more than 630,000 pending cases in U.S. Immigration Court and the Administration pledged to mindlessly throw many more into the morass, few current TPS holders would be likely to get merits hearings before the end of Trump’s current term.
This is an Administration largely devoid of humanitarian instincts and commitments. Not so much common sense and practicality either.
PWS
10-22-17
http://immigrationimpact.com/2017/10/20/mexican-detained-disadvantaged-immigration-court/
Katie Shepherd reports for Immigration Impact:
“Immigrants facing deportation fare far better if they have a competent attorney representing them. For example, studies show that for asylum seekers, representation generally doubles the likelihood of being granted asylum.
For many, the ability to secure competent representation in immigration court is truly a matter of life and death. Yet fewer than 30 percent of detained individuals and only two thirds of non-detained individuals are represented in their removal case.
Meanwhile, the government is represented by an attorney in every single case.
While immigrants have a right to counsel in deportation proceedings if they can afford one, they do not have a right to counsel at the government’s expense.
New data released this week by the Transactional Records Access Clearinghouse (TRAC) confirms that a noncitizen’s ability to obtain a lawyer—and the opportunity to meaningfully defend him or herself against deportation—is determined primarily by nationality and whether or not he or she is detained.
The data analysis reflects what detained immigrants, their family members, and the very small number of attorneys who do detained work already know too well—detained immigrants who attempt to retain an attorney face substantial obstacles.
There are myriad reasons that detained immigrants cannot obtain representation.
Because they are detained, they are unable to travel to meet with an attorney in person and must rely on telephones in the facility to call potential attorneys. Phone calls can be prohibitively expensive and phones are often not easily accessible.
Attorney visitation rules vary by facility—many of which are located in rural areas, hours from the attorney’s office. Further, many detained immigrants are simply unable to afford a competent attorney.
. . .
The TRAC data also shows that Mexican immigrants are disproportionately disadvantaged in immigration court. They have the highest detention rate (78 percent), yet the lowest representation rate of all nationalities—only 33 percent according to the report.
More than anything, the recent TRAC numbers emphasize the dire need for increased access to counsel for all immigrants facing deportation, particularly those who are detained.”
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Read the complete article at the link.
The policies being followed by Sessions and the DHS — which encourage more detention in out of the way locations — are specifically designed to diminish representation, increase removals, and deny due process to the most vulnerable among us.
PWS
10-22-17
HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES (FULL DISCLOSURE: I am a Retired Member of the NAIJ)
NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017
“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.
Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.
THE SOLUTION
While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court
system….” xviii
The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.
6
NAIJ CONCERNS RE QUOTAS
AILA Doc. No 17102062. (Posted 10/20/17)
We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.
We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.
Thank you.
FOR ADDITIONAL INFORMATION, CONTACT
THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th FloorLos Angeles, CA 90014 (310)709-3580 ashleytabaddor@gmail.com www.naij-usa.org
Read the complete memo at this link:
Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges
“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.
16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.
17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)
18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”
Read this entire memorandum at the following link:
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Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?
PWS
10-21-17
Fred Ramos reports for the Washington Post:
‘We see the police as terrorists’
In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.
As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.
“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.
The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.
If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.
“It’s a miracle that I am alive to tell this story,” the supervisor said.
Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.
“They ran from the police because they were terrified,” she said. “They panicked.”
A truce ends
President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.
“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.
The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.
On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.
Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.
The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.
The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”
The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.
Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.
The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.
“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.
The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.
“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”
