LEGAL ANALYSIS YOU CAN USE FROM JASON DZUBOW AT THE ASYLUMIST: “INTERNATIONAL GOLD STANDARD” TO ANTI-ASYLUM SCREED – The Disturbing Fall Of U.S. State Department Country Reports & Why Advocates Must 1) Disabuse Courts Of The View That They Are Reliable; & 2) Develop & Present Objective Alternatives

http://www.asylumist.com/2018/05/02/disingenuous-state-department-report-seeks-to-block-refugee-women/

Disingenuous State Department Report Seeks to Block Refugee Women

by JASON DZUBOW on MAY 2, 2018

The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.

A lie is a lie, no matter how many times they try to tell you otherwise.

Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.

There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.

That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.

Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.

The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.

Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:

Country 2016 Report 2017 Report % Reduction

El Salvador 1364 423 69%

Guatemala 1212 283 77%

Honduras 1235 365 70%

As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence” (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.

The 2017 Report for Honduras states:

The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.

Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:

Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….

So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).

How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.

I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.

Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.

Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at joanna.m.gaughan@gmail.com.

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The outright lies, distortions, intentional misuse of statistics, and knowingly false narratives from Trump, Sessions, Nielsen, Miller and the rest of the White Nationalist crowd is all part of the “de-humanization effort.”

Truth be told, the two previous Administrations returned refugees and others entitled to protection to countries where they were in danger. This Administration has ramped up the deadly, illegal, and inhumane program. De-humanization is just part of the effort to mask the full scope of their human rights violations. Not that Trump supporters care too much about human rights, Constitutional rights, or indeed anybody’s rights except their own (which are by no means safe from Trump if he turns on them, as he is wont to do — just ask Jeff “Gonzo Apocalyoto” Sessions or Steve Bannon). Selfish Government for selfish people.

But, the key message here is that the advocacy community needs to inform courts about the biases of the Country Reports and present viable alternatives!

PWS

06–03-18

LAW YOU CAN USE: Jason Dzubow, “The Asylumist,” With Tips On How To Deal With The One-Year Filing Bar To Asylum!

The One-Year Asylum Filing Deadline and What to Do About It
by JASON DZUBOW on JANUARY 18, 2018
The law requires that people who wish to seek asylum in the United States file their applications within one year of arriving here. See INA § 208(a)(2)(B). Those who fail to timely file are barred from asylum unless they meet an exception to the rule (they may still qualify for other—lesser—humanitarian benefits such as Withholding of Removal and relief under the United Nations Convention Against Torture).

If you arrived in the U.S. on this day, you are still eligible to apply for asylum, even if it seems like a hundred years ago.
So why do we have this rule? And what are the exceptions?

Congress created the one-year bar in 1996. Its ostensible purpose is to prevent fraud. If you really fear return to your home country, the theory goes, one year should be enough time to figure things out and get your application filed.

For most people, I suppose that this is true—they can ask questions, find help, and file for asylum within a year. But this is easier for some than for others. People who are less educated, people whose life experiences have taught them to mistrust and avoid authority, people who are isolated and socially disconnected, people who are depressed; such people might have a harder time with the one-year bar (and of course, many of these characteristics are common among asylum seekers). Others will have an easier time: Well-educated people, people who speak English, people who have a certain level of self-confidence, and people who are engaged with the community.

There are also certain populations that seem to have difficulty with the one-year rule. At least in my experience, many LGBT asylum cases were filed after the one-year period. I suspect there are several reasons for this. For one, an immigrant’s primary connection to mainstream America is her community in the U.S. But if she is afraid to reveal her sexuality to her countrymen living here, and she cannot get their help with the asylum process, she may be unable to file on time. Also, there is the coming-out process itself. People in certain countries may not have even conceptualized themselves as gay, and so the process of accepting their own sexuality, telling others, and then applying for asylum may be lengthy and difficult.

Asylum seekers like those discussed above are sometimes blocked by the one-year rule, but in these cases, the rule is not preventing fraud; it is harming bona fide applicants.

Where the rule seems more likely to achieve its intended purpose is the case of the alien who has spent years in the United States without seeking asylum, and now finds himself in removal proceedings. Such aliens often file for asylum as a last-ditch effort to remain in the U.S. (or at least delay their deportation). Many people from Mexico and Central America are in this position, and the one-year rule often blocks them from obtaining asylum (in addition, such applicants often fear harm from criminals; this type of harm does not fit easily within the asylum framework and contributes to the high denial rate for such cases).

Although there may be situations where the one-year bar prevents fraud, the vast majority of immigration lawyers—including this one—think it does little to block fake cases, and often times prevents legitimate asylum seekers from obtaining the protection they need. In short, we hate this rule, and if I ever become king, we will find other, more effective ways, to fight fraud. Until then, however, we have to live with it.

So for those who have missed the one-year filing deadline, what to do?

There are two exceptions to the one-year rule: Changed circumstances and extraordinary circumstances. See INA § 208(a)(2)(D). If you meet either of these exceptions, you may still be eligible for asylum. Federal regulations flesh out the meaning of these concepts. See 8 C.F.R. §§ 208.4(a)(4) & (5). First, changed circumstances–

(4)(i) The term “changed circumstances” … refer to circumstances materially affecting the applicant’s eligibility for asylum. They may include, but are not limited to: (A) Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or (C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

It is a bit unclear how long this “reasonable period” is. A few months is probably (but no guarantee) ok, but six months is probably too long. So if there are changed circumstances in your case, the sooner you file for asylum, the better.

The regulations also define extraordinary circumstances–

(5) The term “extraordinary circumstances” … shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish… that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;

(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel….

(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and

(vi) The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.

Again, if you have extraordinary circumstances, you must file within a “reasonable period.” How long you have to file has not been clearly defined, so the sooner you file, the safer you will be in terms of the one-year bar.

When it comes to asylum, the best bet is to file within one year of arrival. But if you have missed that deadline, there are exceptions to the rule. These exceptions can be tricky, and so it would probably be wise to talk to a lawyer if you are filing late. It is always a shame when a strong asylum case is ruined by a one-year issue. Keep this deadline (emphasis on “dead”) in mind, and file on time if you can.

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In the outstanding tradition of former Arlington Immigration Court Judicial Law Clerks, Jason thinks creatively and writes clearly.

PWS

01-25-18

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “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.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… 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. 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.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

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“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.

For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.

For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.

Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)

So, we’re dealing with a basically conservative, government-oriented judiciary of “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.

Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)

So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.

Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).

It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.

I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.

But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).

Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.

Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!

JUST SAY NO TO GONZO!

PWS

12-21-17

THE ASYLUMIST, JASON DZUBOW ON GONZO’S “WAR ON ASYLUM APPLICANTS & DUE PROCESS” – “His maliciousness is exacerbated by his incompetence.”

http://www.asylumist.com/2017/10/17/the-attorney-generals-jaundiced-and-inaccurate-view-of-asylum/

Jason writes:

“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

by JASON DZUBOW on OCTOBER 17, 2017

In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.

Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.

Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”

Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”

First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.

Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.

And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.

The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.

I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”

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Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.

Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.

Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.

PWS

10-18-17

THE WORLD HAS MORE REFUGEES THAN AT ANY TIME SINCE WWII; REFUGEES NEED THE U.S. TO SAVE THEM & WE NEED REFUGEES’ ENERGY, BRAVERY, & TALENTS! — THE RESPONSE OF WHITE NATIONALISTS LIKE MILLER & SESSIONS IS TO RECOMMEND CUTTING REFUGEE ADMISSIONS TO AN ALL-TIME LOW OF 15,000! — Don’t Let These Racist Xenophobes Get Away With It!

http://nymag.com/daily/intelligencer/2017/09/trump-considers-cutting-refugee-cap-to-lowest-in-decades.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20September%2013%2C%202017&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

Adam K. Raymond reports in New York Magazine:

“In 2016, the last year of President Obama’s administration, the U.S. accepted 85,000 refugees and set a goal of bumping that number up to 110,00 this year. Those plans changed with President Trump’s so-called travel ban, which set the refugee limit at 50,000 for 2016. Now, the administration is considering setting that number even lower for 2018, despite the worst refugee crisis since World War II.

The President has until October 1 to set a refugee ceiling and, the Times reports, there’s a debate raging in the White House about whether the number should be reduced to numbers not seen in decades. Leading the arguments against cutting the totals is Trump senior adviser Stephen Miller, an immigration hawk and ally of Steve Bannon and Attorney General Jeff Sessions. Miller has reportedly produced cutting the number all the way to 15,000. The Department of Homeland Security has proposed its own cut to 40,000.

The Times explains their purported thinking:

Two administration officials said those pushing for a lower number are citing the need to strengthen the process of vetting applicants for refugee status to prevent would-be terrorists from entering the country. Two others said another factor is a cold-eyed assessment of the money and resources that would be needed to resettle larger amounts of refugees at a time when federal immigration authorities already face a years long backlog of hundreds of thousands of asylum seekers.
This reasoning doesn’t align with the facts. Refugees are far more likely to be victims of politically motivated attacks than perpetrators. Limiting refugees does not keep America safer because refugees are not dangerous. It’s difficult not to see nativism as the motive behind pretending that they are: fear makes it easier to convince people that suffering people should be excluded from the United States. As for the cost concerns, the GOP’s feigned fiscal prudence should never be taken seriously.

By setting the refugee cap at 50,000 this year, Trump has already pushed the number lower than it’s been in decades. In the 37 years since the Refugee Act of 1980 gave the president a role in setting the cap, it hasn’t slipped lower than the 67,000 President Reagan set in 1987.

Cutting the refugee ceiling would leave tens of thousands of vulnerable people out in the cold, the International Rescue Committee said in a report last month. The humanitarian organization advocates for a ceiling no lower than 75,000 people. “An admissions level of at least 75,000 is a critical signal to the world that the United States remains a safe haven for those fleeing persecution, terror and ideologies antithetical to American democratic values,” the report says. “Anything less would be to turn our backs on the United States’ humanitarian tradition and global leadership.”

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

Under the last three Administrations, the US has made an absolute muddle out of two ill-advised wars and Middle East policies in general. The idea that guys like Trump, Tillerson, Miller, Bannon, Sessions, and even “the Generals” can come up with a constructive solution borders on the ludicrous. Nope. They going to to fight the 21st Century version of the “100 Years War” with similar results.

If there is a solution out there that will help achieve stability and provide a durable solution to the terrorist threats, it’s more likely going to be coming from one of today’s refugees who have a better idea of what’s actually going on and how we might become part of the solution rather than making the problems worse.

Refugees represent America’s hope. The Sessions-Miller-Bannon cabal represents America’s darkest side — one that threatens to drag us all into the abyss of their dark, distorted, and fundamentally anti-American world view.

PWS

09-13-17

THE ASYLUMIST — JASON DZUBOW: AS TRUMP FANS THE FLAMES OF FEAR, HATE, & DESPAIR, IMMIGRANTS & REFUGEES INSPIRE & GIVE US HOPE FOR A BETTER FUTURE!

http://www.asylumist.com/2017/08/17/in-a-time-of-hate-my-refugee-clients-give-me-hope/

Jason’s complete blog is reprinted below:

“In a Time of Hate, My Refugee Clients Give Me Hope

by JASON DZUBOW on AUGUST 17, 2017

As an ordinary citizen, it is not easy to decide the best way to confront a Nazi march. Show up to peacefully protest? That might give additional attention to the other side. Protest violently? Not only could that elevate the Nazis, it might also de-legitimize the resistance to the Nazis (even those who peacefully resist). Ignore them? That might be viewed as condoning their views. Reasonable people can differ about what to do, at least as far as the peaceful responses are concerned.

As a great American philosopher once said, “I hate Nazis.”

But when you are a public figure, especially an elected official, the decision about how to respond is clear: First, ensure safety and free speech. Second, denounce the evils of Nazism and make it plain that Nazis, Klan members, and anyone who might march side-by-side with such people are un-American, illegitimate, and unworthy of a seat at the table of public discourse.

Fortunately, the vast majority of our country’s elected leaders knew what to say in response to the Nazi march last weekend. But unfortunately, there was one important exception–our President, Donald J. Trump. To me, Mr. Trump’s contemptible silence, followed by a reluctant “denunciation” of the Nazis, followed by a denunciation of the “denunciation” is an utter disgrace. It is a green light to Nazis. It is yet another attack on common decency and on our shared national values. It is complicity with Nazism. By the President of the United States. (As an aside, one of my lawyer-friends at the Justice Department told me–perhaps half jokingly–that she wanted to post a sign in her office that reads, “Nazis are bad,” but she feared it might get her into trouble–that is where we are under Mr. Trump.)

Frankly, I am not particularly worried about the Nazis themselves. They certainly can do damage–they murdered a young woman and injured many others. But they do not have the power or support to threaten our democracy. This does not mean we should take them for granted (few would have predicted Hitler’s rise when he was sitting in prison after the Beerhall Putsch), but we should not be unduly fearful either.

On the other hand, I am very worried about our President’s behavior. His governing philosophy (perhaps we can call it, “trickle down histrionics”) is poisoning our public debate, and it weakens us domestically and internationally. Thus far, his incompetence has served as a bulwark against his malevolence, but that can only go on for so long (see, e.g., North Korea). So there is much to be concerned about.

Here, though, I want to talk about hope. Specifically, the hope that I feel from my clients: Asylum seekers, “illegals,” and other immigrants. There are several reasons my clients give me hope.

One reason is that they still believe in the American Dream. Despite all of the nastiness, mendacity, and bigotry coming from the White House, people still want to come to America. They are voting with their feet. Some endure seemingly endless waits, often times separated from their loved ones, in order to obtain legal status here. Others risk their lives to get here. They don’t do this because (as Mr. Trump suggests) they want to harm us. They do it because they want to join us. They want to be part of America. My clients and others like them represent the American ideal far better than those, like our embattled President and his racist friends, who disparage them. When I see my country through my clients’ eyes, it gives me hope.

My clients’ stories also give me hope. Most of my clients are asylum seekers. They have escaped repressive regimes or failing states. Where they come from, the government doesn’t just tweet nasty comments about its opponents, it tortures and murders them. The terrorist groups operating in my clients’ countries regularly harm and kill noncombatants, women, children, and even babies. My clients have stood against this depravity, and many of them continue to fight for democracy, justice, and human rights from our shores. My clients’ perseverance in the face of evil gives me hope.

Finally, I have hope because I see the courage of my clients, who refuse to be cowed by the hateful rhetoric of our Commander-in-Chief. Since the early days of his campaign, Mr. Trump has demonized foreigners and refugees, and after he was sworn in as President, these individuals were the first to come into his cross hairs. If he can defeat people like my clients, he can move on to new targets. But many refugees and asylum seekers have been subject to far worse treatment than Mr. Trump’s bluster, and they are ready to stand firm against his bullying. Their fortitude encourages others to stand with them. And stand with them we will. The fact that vulnerable, traumatized people are on the front lines of this fight, and that they will not surrender, gives me hope.

I have written before about the tangible benefits of our humanitarian immigration system. It demonstrates to the world that our principles–democracy, human rights, freedom, justice–are not empty platitudes. It shows that we support people who work with us and who advance the values we hold dear. When such people know that we have their backs, they will be more willing to work with us going forward. And of course, that system helps bring people to the United States whose talents and energy benefit our entire nation. Add to this list one more benefit that asylees and refugees bring to our nation in this dark time–hope.”

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

Thanks, Jason!

The irony and extreme contrast between those hollowly claiming to “Make America Great” and those who are actually “making America great” is simply stunning.

PWS

08-18-17

NEW FROM TAL KOPAN AT CNN: DACA ON THE ROPES — “Only Congress can enact a permanent solution to the DACA situation!”

http://www.cnn.com/2017/08/15/politics/daca-anniversary-peril/index.html

Tal reports:

“Washington (CNN)Tuesday marks the fifth anniversary of a program that protects young undocumented immigrants from deportation — but supporters worry this one could be its last.

The Deferred Action for Childhood Arrivals program, or DACA, was implemented in 2012 under President Barack Obama, and President Donald Trump’s administration has continued running despite heated rhetoric against it from Trump on the campaign trail.

But DACA has arguably never been on shakier ground, and advocates for the program are desperately trying to protect it, including with a planned march Tuesday on the White House.

Nearly 800,000 undocumented immigrants have benefited from DACA, which protects individuals who were brought to the US illegally as children from deportation, and offers them the ability to work, study and drive legally. Applicants must meet certain criteria, pass a background check and maintain a clean record.

A storm is brewing for DACA this September

But despite the fact that the administration has continued to issue permits, concerns are increasing that the program could be ended.

“DACA is under grave threat,” Nevada Democratic Sen. Catherine Cortez Masto said on a conference call with reporters Monday.

Ten state attorneys general, led by Texas Attorney General Ken Paxton, have issued an ultimatum to the Trump administration — sunset DACA by September 5, or we’ll challenge it in court. The attorneys general have threatened to petition a court that’s considering a similar but separate Obama administration deferred action program, for parents, to also weigh the legality of DACA.

Experts believe that given the makeup of the court hearing the case, and its previous ruling against the parents program, the judges involved would likely strike down DACA as well.

If the court allows arguments against DACA, the Justice Department would be forced to decide whether it will defend the program. While Trump has recently spoken about how sympathetic he is to the “Dreamers” who receive DACA, saying the choice is “very, very hard to make,” he campaigned on a pledge to immediately rescind it. And the US attorney general, former Sen. Jeff Sessions, has been a chief opponent of the program.

The White House offered a cryptic statement on the program’s future, expressing only concern with illegal immigration.

“The President’s priority remains protecting the jobs, wages and security of American workers, families and communities — including the millions of Hispanic and African American workers disadvantaged by illegal immigration,” an administration official said.

On the call with reporters and a DACA recipient, Masto and California Democratic Sen. Kamala Harris extolled its virtues, citing estimates that the US economy would lose hundreds of billions of dollars without the contributions of DACA recipients.

Trump: DACA decision ‘very, very hard to make’

“This is not just about what is morally right, this is not only a point about what is right in terms of fighting for the ideals of our country,” Harris said. “This is also right and smart in terms of public benefits.”

Both are co-sponsors of one bipartisan proposal to make the program permanent in Congress, the Dream Act, which also has three Republican co-sponsors. It’s one of four proposed bills that would codify DACA if the administration were to rescind it or the courts were to strike it down.

The Department of Justice did not respond to a CNN request for comment.

US Citizenship and Immigration Services, the division of the Department of Homeland Security, said the program remains under review.

“The Department of Homeland Security’s stance remains the same — the future of the DACA program continues to be under review with the administration,” said USCIS press secretary Gillian Christensen. “The President has remarked on the need to handle DACA with compassion and with heart. As a matter of policy, we do not comment on pending litigation, but we have said before only Congress can enact a permanent solution to the DACA situation.”

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

Here is some of Tal’s earlier reporting on the DACA issue: http://immigrationcourtside.com/2017/08/07/two-new-ones-from-cnns-amazing-tal-kopan-september-may-bring-dark-clouds-for-dreamers-trump-administration-lags-in-filling-top-spots/

I think the last statement in Tal’s article, from USCIS, hits the nail on the head. Congress has to come up with a solution to this issue or there will be chaos. Imagine another 800,000 cases of young people thrown into the U.S. Immigration Courts on top of the 610,000 cases already there! It’s Jason Dzubow’s vision of “Trump’s 100 year deportation plan” in action. http://immigrationcourtside.com/2017/08/14/jason-dzubow-in-the-asylumist-trumps-101-year-plan-for-removals-malevolence-tempered-by-incompetence/

As Nolan Rappaport has pointed out, it’s unlikely that any of the pending bills, in their present forms, will attract enough GOP support to be enacted. http://immigrationcourtside.com/2017/08/07/n-rappaport-in-the-hill-dems-dreamer-bill-offers-false-hope/

But perhaps Democrats and some willing Republicans can work on a compromise legislative solution. Otherwise, the results aren’t likely to be pretty — for the Dreamers or for our country’s future.

PWS

08-15-17

JASON DZUBOW IN THE ASYLUMIST: TRUMP’S 101 YEAR PLAN FOR REMOVALS! — “Malevolence tempered by incompetence!”

http://www.asylumist.com/2017/07/27/president-trumps-101-year-deportation-plan/

Jason writes:

“Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.”

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Amen!

PWS

08-14-17

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

IN IMMIGRATION CIRCLES, THE ATLANTA COURT IS KNOWN AS “WHERE DUE PROCESS GOES TO DIE” –WILL IT BE THE “NEW NORM?” — The Asylumist, Jason Dzubow, Says “We’re All In Atlanta Now!”

We’re All in Atlanta Now
by JASON DZUBOW on JULY 19, 2017
Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

If you’re feeling down about Georgia exports, here’s something to love.
Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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Somewhat predictable for an Administration that has little or no regard for Constitutional Due Process. That’s why folks need to join the “New Due Process Army” and carry on the fight until better times arrive (and they eventually will)!

As always, thanks to Jason for his incisive analysis!

PWS

07-20-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality. And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

THE ASYLUMIST: The Importance Of Courtesy, Professionalism, Respect & Collegiality In Immigration Court

http://www.asylumist.com/2017/06/08/us-versus-them-in-immigration-court/#comments

Jason Dzubow writes in The Asylumist:

“Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.

Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.

All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.

With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.

While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers–the immigration bar and DHS–should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country’s leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.”

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Read Jason’s complete blog at the link.

This is terrific advice for lawyers and judges, particularly those just starting out.

Fairness, scholarship, timeliness, respect and teamwork are the things I have tried to promote throughout my career. I found all of them at the Arlington Immigration Court. “No way” I would have lasted 13 years on the trial bench without lots of help and cooperation from the whole “court team.”

PWS

06-14-17

Georgetown Law Journal Of National Security Law & Policy Announces Annual Symposium: The Border and Beyond: The National Security Implications Of Migration Refugees And Asylum Under U.S. And International Law, Feb. 28, 2017 — Elisa Massimino Of Human Rights First To Be Keynote Speaker — See Agenda And Register (Free) Here!

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Please Save the Date for the Journal of National Security Law & Policy annual symposium!
This year’s symposium is The Border and Beyond: The National Security Implications of Migration, Refugees, and Asylum under U.S. and International Law.
Please join us on Tuesday, February 28, 2017 at Georgetown Law.
In addition to the following three panels, the symposium will also feature a lunchtime keynote speech by Elisa Massimino, President and CEO of Human Rights First, one of the nation’s preeminent human rights advocacy organizations.
Panel 1: Immigration, Homeland Security, and the Constitution (9:05 – 10:30 AM)
Panelists will engage in debate on various constitutional issues, such as the separation of powers and the protection of civil liberties, in the context of recent events in the U.S. in which both migration and national security have been implicated.
Panelists:
Jen Daskal, Professor of Criminal, National Security, and Constitutional Law at American University Washington College of Law; former Assistant Attorney General for National Security at the Department of Justice
Lucas Guttentag, Professor of the Practice of Law at Stanford Law School; Founder and former National Director of the ACLU Immigrants’ Rights Project
Marty Lederman, Professor of Constitutional Law at Georgetown University Law Center; former Deputy Assistant Attorney General at the Department of Justice’s Office Legal Counsel
Moderator: William Banks, Professor of Law and Founder of Institute for National Security and Counterterrorism, Syracuse University College of Law

Panel 2: The U.S. Refugee and Asylum Legal Regime (10:35 AM – 12:00 PM)
Panelists will explore the current status of U.S. asylum and refugee laws and how the screening processes factor into national concerns. The panel will also discuss the Trump administration’s recent executive orders relating to border security and refugee policy in the U.S.
Panelists:
Mark Hetfield, President and CEO of HIAS, the oldest international migration and refugee resettlement agency in the U.S.
Anne Richard, Assistant Secretary of State for Population, Refugees, and Migration; Former Vice President of Government Relations and Advocacy for the International Rescue Committee
Shibley Telhami, the Anwar Sadat Professor for Peace and Development at University of Maryland-College Park
Moderator: Jason Dzubow, Partner at Dzubow & Pilcher, PLLC; Adjunct Professor of Asylum Law at George Washington University Law School
Luncheon and Keynote Address by Elisa Massamino (12:30 pm – 1:05 pm)
Panel 3: Migration and Security Threats Abroad (1:15 PM – 2:40 PM)
Panelists will discuss the security implications of the refugee crisis in Europe and the potential legal obligations that the U.S. might have under international law to assist its allies in handling the situation.
Panelists:
Bec Hamilton, Professor of National Security, International, and Criminal Law at American University Washington College of Law
Karin Johnston, Professor of International Politics at the American University School of International Service
A. Trevor Thrall, Senior Fellow for the Cato Institute’s Defense and Foreign Policy Department; Associate Professor at George Mason University’s Schar School of Policy and Government
Mark Iozzi, Democratic Counsel at the House Foreign Affairs Committee
Moderator: David Stewart, Professor of Law, Georgetown University Law Center

A reception will follow the event.

Please RSVP for the symposium here.

https://docs.google.com/forms/d/e/1FAIpQLSclFTIhYVbMzFNC5BHRIuTWrGgBNte_dVzmzcSe4vL5i59i1w/viewform

Thank you!
– The 2017 JNSLP Symposium Team

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Looks like a great program! And, with free lunch (just for you, Judge Larry Burman) and a free reception thrown in, what’s not to like about that!

Some of you might have seen Elisa Massimino on TV as she and Ashton Kutcher testified on human trafficking before a Senate Committee on Wednesday. These are all-star panels with my good friends Professor David Stewart and Adjunct Professor, blogger, and immigration practitioner Jason “The Asylumist” Dzubow serving as panel moderators.

See you there!

PWS

02/16/17

Read The Winter 2017 Edition Of “The Green Card” From The FBA — Includes My Article “Immigration Courts — Reclaiming the Vision” (P. 15) & “The Asylumist” Jason Dzubow’s Reprise Of The “Schmidt Interviews” (See “Immigration Rant,” P. 2)!

Green Card Winter 2017 Final

Here are some excerpts:

“Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. I have often spoken about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration Court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized Immigration Judges.”

Another one:

Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge

“Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (BIA) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.”

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Read the complete articles plus lots of other “great stuff” both practical and more philosophical at the above link.

And, for all of you “aspiring writers” out there, Green Card Editor and my good friend and former colleague from the U.S. Immigration Court In Arlington, VA, Hon. Lawrence Owen “Larry” Burman, and the Publications Director, Dr. Alicia Triche, are always looking for “new talent” and interesting articles. Instructions on how to submit manuscripts are on page one.

PWS

02/01/17

Looking Back At The Refugee Ball — The REAL America Celebrates What Makes America REALLY GREAT!

http://www.asylumist.com/2017/01/19/the-refugee-ball-post-game-report-why-it-matters/

Jason Dzubow (“The Asylumist”) who got the idea and made it happen (see what can be accomplished when one person energizes the many) writes:

“For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball–singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can’t help but be inspired by their examples.

So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.

To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.”

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Celebrate the real America and what makes us really great, every day!

Due process forever!

PWS

01/21/17

Country	2016 Report	2017 Report	% Reduction
El Salvador	1364	423	69%
Guatemala	1212	283	77%
Honduras	1235	365	70%

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