"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
By KATE BRUMBACK, DEEPTI HAJELA and AMY TAXIN, THE ASSOCIATED PRESS
In a locked, guarded courtroom in a compound surrounded by razor wire, Immigration Judge Jerome Rothschild waits — and stalls.
A Spanish interpreter is running late because of a flat tire. Rothschild tells the five immigrants before him that he’ll take a break before the proceedings even start. His hope: to delay just long enough so these immigrants won’t have to sit by, uncomprehendingly, as their futures are decided.
“We are, untypically, without an interpreter,” Rothschild tells a lawyer who enters the courtroom at the Stewart Detention Center after driving down from Atlanta, about 140 miles away.
In its disorder, this is, in fact, a typical day in the chaotic, crowded and confusing U.S. immigration court system of which Rothschild’s courtroom is just one small outpost.
Shrouded in secrecy, the immigration courts run by the U.S. Department of Justice have been dysfunctional for years and have only gotten worse. A surge in the arrival of asylum seekers and the Trump administration’s crackdown on the Southwest border and illegal immigration have pushed more people into deportation proceedings, swelling the court’s docket to 1 million cases.
“It is just a cumbersome, huge system, and yet administration upon administration comes in here and tries to use the system for their own purposes,” says Immigration Judge Amiena Khan in New York City, speaking in her role as vice president of the National Association of Immigration Judges.
“And in every instance, the system doesn’t change on a dime, because you can’t turn the Titanic around.”
The Associated Press visited immigration courts in 11 different cities more than two dozen times during a 10-day period in late fall. In courts from Boston to San Diego, reporters observed scores of hearings that illustrated how crushing caseloads and shifting policies have landed the courts in unprecedented turmoil:
–Chasing efficiency, immigration judges double- and triple-book hearings that can’t possibly be completed, leading to numerous cancellations. Immigrants get new court dates, but not for years.
–Young children are everywhere and sit on the floor or stand or cry in cramped courtrooms. Many immigrants don’t know how to fill out forms, get records translated or present a case.
— Frequent changes in the law and rules for how judges manage their dockets make it impossible to know what the future holds when immigrants finally have their day in court. Paper files are often misplaced, and interpreters are often missing.
In Georgia, the interpreter assigned to Rothschild’s courtroom ends up making it to work, but the hearing sputters moments later when a lawyer for a Mexican man isn’t available when Rothschild calls her to appear by phone. Rothschild is placed on hold, and a bouncy beat overlaid with synthesizers fills the room.
He moves on to other cases — a Peruvian asylum seeker, a Cuban man seeking bond — and punts the missing lawyer’s case to the afternoon session.
This time, she’s there when he calls, and apologizes for not being available earlier, explaining through a hacking cough she’s been sick.
But by now the interpreter has moved on to another courtroom, putting Rothschild in what he describes as the “uneasy position” of holding court for someone who can’t understand what’s going on.
“I hate for a guy to leave a hearing having no idea what happened,” he says, and asks the lawyer to relay the results of the proceedings to her client in Spanish.
After some discussion, the lawyer agrees to withdraw the man’s bond petition and refile once she can show he’s been here longer than the government believes, which could help his chances.
For now, the man returns to detention.
. . . .
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Read the full article at the link.Yes, there’s lots of blame to go around: Administrations of both parties, an irresponsible Congress, several decades of underfunding and poor management.
But that doesn’t change these simple truths:
We have a scofflaw regime that glories in committing “crimes against humanity” directed at migrants;
We have a feckless Congress that won’t legislate responsibly as long as “Moscow Mitch” McConnell and his Trump-toady GOP control the Senate;
The only branch of Government that could put a stop to this unconstitutional and unconscionable mess is the Article III Federal Judiciary;
And, this highly privileged group of jurists, the only public officials I’m aware of with the “protective insulation” of life tenure, has stood by and watched their fellow humans being “thrown to the lions” in this disgraceful display of unconstitutional injustice.
Do your duty Article IIIs and put an end to the EOIR Clown Show! History is recording your failures to act, every day!
Due Process Forever; Clown Courts 🤡 and Their Complicit Enablers, Never!
Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…
—“Another One Bites The Dust” by Queen
ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire
By Paul Wickham Schmidt
Exclusive for Courtside
Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.
Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.
Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.
Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.
Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.
Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.
Thanks for your service, Judge Wendtland, and best wishes in the future.
ACLU files lawsuit to halt Trump policy of sending asylum-seekers to Guatemala
Washington — The American Civil Liberties Union on Wednesday mounted the first legal challenge against the Trump administration’s policy of sending migrants who seek protection at the U.S.-Mexico border to Guatemala, a country with a skeletal asylum regime that has seen an exodus of hundreds of thousands of its own citizens in the past two years because of extreme poverty and endemic violence.
The lawsuit filed in the U.S. District Court in Washington, D.C., seeks to halt the implementation of a controversial asylum agreement with the Guatemalan government. Under the deal forged last summer, the U.S. has sent more than 150 asylum-seekers from Honduras and El Salvador to Guatemala, denying them access to America’s asylum system and requiring them to choose between seeking refuge in the Central American country or returning home.
The agreement, the ACLU said in its 54-page complaint, amounts to “a deadly game of musical chairs that leaves many desperate asylum-seekers without a safe haven, in violation of U.S. and international law.”
“If this rule remains in effect, it means that the U.S. can completely wash their hands of any responsibility to provide safe haven for people fleeing persecution,” Lee Gelernt, the ACLU’s top immigration litigator, told CBS News. “It would end asylum at the southern border, plain and simple.”
A spokesperson for the Department of Homeland Security told CBS News that while it cannot comment on litigation, “the U.S. Government and the Government of Guatemala remain committed to the asylum cooperative agreement and stand behind the integrity of the program.”
For lead plaintiff, returning home isn’t an option
As of last week, 158 Honduran and Salvadoran migrants have been rerouted by the U.S. to Guatemala, including dozens of families and at least 43 children, according to the Guatemalan migration institute. Nine people initially chose to request protection in Guatemala, but five of them have since abandoned their claims, the institute said. The rest have asked for help returning to their home countries.
The lead plaintiff in the ACLU’s lawsuit is a gay man from El Salvador who was sent by the U.S. to Guatemala after asking for asylum at the southern border. The man, identified only by the initials U.T., says he was sexually abused as a child, disowned by his family because of his sexuality and threatened by a gang member who solicited him for sex in El Salvador.
When he arrived at the U.S.-Mexico border, he was told he would be sent to Guatemala. He told Customs and Border Protection (CBP) officials, who make the initial determination about whether migrants should be subject to the U.S.-Guatemala deal, that he feared being sent to Guatemala. His concerns fell on deaf ears.
He was then referred for an interview with an asylum officer and again expressed fear of persecution in Guatemala. Nonetheless, he was deported to the country shortly afterward.
During these types of interviews, migrants must affirmatively say they fear being sent to Guatemala. Even if they do, they have to meet a fear of persecution threshold that is much higher than that of the typical “credible fear” interviews most asylum-seekers at the southern border are subject to.
The ACLU says the man applied for asylum once in Guatemala, but officials there advised him to seek protection in Mexico instead, since Guatemala is “unsafe for gay people.” The State Department warns of “societal discrimination” and police abuse against LGBTI people in Guatemala.
Returning to El Salvador is not an option for the asylum-seeker, who is currently in Mexico, since he “fears that he will be attacked or killed for his sexual orientation if he tries to live openly as a gay man,” according to the ACLU.
“A way for the U.S. to simply pass the buck”
There are five other individual plaintiffs in the ACLU’s lawsuit, including a woman and two families who were sent to Guatemala by the U.S. The Tahirih Justice Center and Las Americas Immigrant Advocacy Center, two organizations that provide legal services to asylum-seekers, are also named as plaintiffs in the lawsuit — which the National Immigrant Justice Center, Center for Gender & Refugee Studies and Human Rights First joined the ACLU in filing.
The group is asking the court to prohibit officials from enforcing a regulation the administration unveiled in November to implement the Guatemala deal and similar agreements that the U.S. brokered with Honduras and El Salvador which have not yet been implemented. The suit also challenges a U.S. Citizenship and Immigration Services (USCIS) guidance document for asylum officers carrying out the agreement.
The ACLU alleged that both measures violate U.S. statutes designed to prevent officials from sending asylum-seekers to places where they may face persecution and that provide legal safeguards for migrants the government seeks to deport quickly. The group also said the policy violates administrative law, since the administration did not give the public a chance to comment on it and failed to provide “reasoned explanations” for dramatically changing the asylum system at the southern border.
The administration maintains that its agreements with Guatemala and the other countries in Central America’s Northern Triangle will foster the “distribution” of asylum claims among nations in the region and provide protection to migrants “closer to home.” But the ACLU says the so-called “Asylum Cooperative Agreements” represent a dramatic departure from the “safe third country” provision in U.S. law that the administration is using to defend their legality.
In 1996, President Bill Clinton signed into law an act that codified the “safe third country” concept, allowing the U.S. to enter into bilateral or multilateral agreements to send asylum-seekers to third countries, as long as the U.S. government made sure those asylum-seekers would not face persecution based on a protected ground under U.S. asylum law and would have access to a “full and fair” process to request protection in those nations.
Gelernt and his group believe the accords with Guatemala, El Salvador and Honduras violate this law because the countries do not have fully functioning asylum regimes, unlike Canada — the only nation which has an official “safe third country” agreement with the U.S.
“There is no way the administration can plausibly claim that Guatemala can provide a safe, fair and full asylum process. This administration has simply thumbed their nose at Congress,” Gelernt said, noting that Canada, a developed country with a robust asylum system, is a safe place for refugees.
“This is not a way to provide people with a fair asylum process but a way for the U.S. to simply pass the buck,” he added.
Guatemala has experienced moderate economic growth since the end of a bloody civil war in the 1990s, but it continues to grapple with high homicides rates, drug trafficking, political instability and widespread poverty, especially among its large indigenous communities in the Western highlands of the country. Only about 262 migrants sought refuge in Guatemala in 2018, according to the United Nations.
The ACLU also noted in its lawsuit that the Trump administration hasn’t publicly revealed any designations certifying that the Northern Triangle countries have the capacity to take in migrants rerouted there by the U.S., despite a requirement that such a certification be included in the government regulation to enforce the asylum agreements.
Sweeping implications for asylum-seekers
All three agreements the U.S. made last year suggest that they could grant the U.S. the power to reroute most asylum-seekers from any country in the world, barring a few exceptions, like unaccompanied children, to Central America. The ACLU underscored the sweeping nature of the deals in its suit, saying that in practice, the U.S. could send asylum-seekers from Afghanistan to one of the Northern Triangle countries, even if they did not travel through there to get to the U.S. southern border.
The administration believes it can include “all populations” in the agreements, and it recently announced it was planning to send Mexican asylum-seekers to Guatemala. The move sparked scathing criticism at home and abroad, with Mexico’s government objecting to the proposal.
Unlike migrants from Honduras and El Salvador, Mexican asylum-seekers do not travel through Guatemalan territory to reach the U.S.-Mexico border. A plan to subject Mexicans to the U.S.-Guatemala accord could, in practice, lead to the U.S. flying a Mexican asylum-seeker from Tijuana, San Diego’s neighboring city, some 1,500 miles away, asking her to seek protection in Guatemala.
How Guatemala continues to implement its “Asylum Cooperative Agreement” with the Trump administration will now be decided by conservative government of President Alejandro Giammattei, who took office on Tuesday.
The asylum agreements with countries in Central America are part of a series of policies the administration rolled out over the past year to restrict asylum at the U.S.-Mexico border. These also include a sweeping rule that renders most non-Mexican migrants ineligible for asylum and the Migrant Protection Protocols program, which has required more than 57,000 asylum-seekers from Central America to wait in dangerous Mexican border cities for the duration of their U.S. immigration proceedings.
The bogus “Safe Third Country Agreements” with Guatemala, El Salvador, and Honduras, clearly unsafe countries without functioning asylum systems, in violation of U.S. and international laws, are daunting acts of malicious fraud. This fraud is undertaken, in the open, by a neo-fascist regime that has contempt for humanity and human rights, believes itself above the law, and has no fear of being held accountable by the Federal Courts or Congress (notwithstanding Trump’s impeachment).
The regime’s unlawful fraudulent actions are defended in court by DOJ lawyers who believe the obligation of truthfulness before tribunals and other ethical requirements simply don’t apply to them. And, that’s probably with good reason.
The Trump regime has been peddling lies, false narratives, and bad faith legal arguments to the Federal Courts, all the way up to the Supremes, for nearly three years now with no consequences to the lawyers or their political clients. Indeed, Wilbur Ross lied under oath in the “Census Case,” but continues to be the Secretary of Commerce; to my knowledge, the Government lawyers who tried to present, defend, and rationalize. Ross’s census fraud are still on the payroll. A few Supremes even voted to sweep it all under the rug. It took an unusual display of backbone by Chief Justice Roberts to prevent the fraud from being perpetrated on American voters, particularly targeting voters of color.
Private lawyers who conducted themselves in a similar manner would likely be facing state disciplinary proceedings. A private executive who lied under oath like Ross probably would have been referred for a perjury prosecution or held in contempt of court.
But, Federal Judges, who are used to giving U.S. government lawyers pretty much a “free pass,” don’t seem to “get” that they are now dealing with a willfully corrupt, thoroughly dishonest, neo-fascist regime, not “just another Administration.”
When the laws, rules, and our Constitution don‘t apply to our Government, and nobody is held accountable for outrageous official wrongdoing (arguably “crimes against humanity” in the “Safe Third Country Fraud”) we all lose!
Due Process Forever! Complicity In The Face Of Tyranny, Never!
Judge rules in favor of Trump administration in family separation case
(Reuters) – A U.S. federal judge has ruled that the Trump administration’s ongoing separations of families at the U.S.-Mexico border based on parents’ criminal history or health exclusions are being carried out with proper discretion.
Mexican asylum seekers camping near the Paso del Norte international border crossing bridge while waiting to apply for asylum to the U.S. are evicted by the local government, who will move them to a local shelter, in Ciudad Juarez, Mexico January 7, 2020. REUTERS/Jose Luis Gonzalez
The ruling, by U.S. District Judge Dana Sabraw in San Diego, California, on Monday, was a rare victory for the government in a case that has been ongoing since 2018.
The American Civil Liberties Union (ACLU) first brought the case over President Donald Trump’s “zero tolerance” policy of criminally prosecuting all border crossers, which led to the separation of hundreds of families and sparked national outrage. Sabraw had ordered the administration to find and reunite separated families.
Trump officially halted the practice with an executive order on June 20, 2018. But the ACLU claimed in court that since then, the government has continued the practice and separated more than 1,000 families in violation of Sabraw’s order.
The government has said it separates families when it suspects the parent has a criminal record, a communicable disease, or when there are questions about the relationship between the adult and the migrant child. It claimed its current practice is no different than prior administrations.
The rights group argued, however, that the administration was taking children from parents when they had only minor infractions like traffic violations or previous illegal border crossings.
Sabraw found government officials were “generally exercising their discretion to separate families at the border” in a manner consistent with migrants’ “rights to family integrity and the Court’s orders.”
The judge added there was no evidence before the court that the government has “returned to systematically separating families at the border.”
Sabraw did say that the government should use its rapid DNA testing technology to confirm parentage and not separate families based on “subjective concerns” alone.
The ACLU highlighted that part of the ruling in a statement: “The court strongly reaffirmed that the Trump administration bears the burden if it attempts to separate families based on an accusation that the adult is not the child’s parent,” ACLU attorney Lee Gelernt said.
The group said it was considering its next move in the case.
The U.S. Department of Justice did not immediately respond to a request for comment.
Reporting by Kanishka Singh in Bengaluru and Mica Rosenberg in New York; Editing by Chizu Nomiyama and Matthew Lewis
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While most news commentators to date have viewed this as a “victory” for the Trump Administration,” Judge Sabraw did reaffirm the principles of his original injunction that had forced a change in Government policy. He did, however, reject the ACLU’s request for expanded injunctive relief, except for timely DNA testing. He found no evidence that the DHS had failed to comply with the terms of the prior injunction on a systemic basis.
For another viewpoint on the urgency of defeating Trump’s politics of hate against immigrants and other minorities in he upcoming election this November, see Kristian Ramos in The Hill (January 11):
We can’t let ‘white nativism’ politics cloud 2020 election
Two late-breaking January 10 news stories show that Trump and his Republican allies are ramping up the hate against legal non-European immigrants in preparation for this November’s election.
The Washington Post reports that Texas has become the first state to bar resettlement of refugees under Trump’s executive order giving them the authority to do so. Admission to the UIS of legal refugees this year is already at an historic low under the agenda of Trump and Miller. Miller reportedly didn’t want to any refugees at all to be admitted this year.
For more on this latest show of bigotry by Texas Republican governor Greg Abbot, see:
Both of these developments, which involve barring legal immigrants whose ethnicity or religion doesn’t happen to fit in with Trump’s avowed goal of admitting only immigrants from “Countries like Norway” and with Miller’s goal (expressed in almost 1,000 recent emails) of taking America’s immigration system back to the openly racist 1924 regime (which Adolf Hitler expressed so much admiration for in Mein Kampf) show that exploiting and stirring up more hate against nonwhite immigrants, including those eligible to come to the US legally, will be the order of the day for Trump’s re-election campaign.
My earlier comment follows below:
While the media remain focused on Donald Trump’s apparently now-abandoned threat to commit a war crime by blowing up cultural heritage sites in Iran, as an end result of his dehumanizing 2017 Muslim Ban order; or on the travesty that Senate Republicans are planning in order to “acquit” Trump of cravenly timid Democratic impeachment charges which entirely ignore his High Crimes and Misdemeanors against the basic human rights of nonwhite immigrants, what could very arguably be considered a Crime Against Humanity that the Trump administration is carrying out against desperate asylum seekers at the Mexican border in service of Stephen Miller’s white supremacist agenda is growing worse and worse.
The Guardian reports on January 9 that an obviously desperate Mexican asylum-seeker killed himself on the international bridge after being refused entry to the United States.
This may be less surprising than it seems in light of the appalling, inhuman conditions that legitimate asylum seekers fleeing gang violence and other life-threatening conditions in Central America are forced to endure as a result of Trump’s racist and inhuman (as well as almost certainly illegal) “Remain in Mexico” asylum policy. See Vox (December 20, 2019):
In camps on the US-Mexico border, asylym-seekers have been abandoned
This horrendous display of inhumanity by the Trump administration as led to a protest by a leading Jewish religious leader, Arnold Eisen, Chancellor of the Jewish Theological Seminary (in New York City) America’s leading institution for the Conservative branch of Judaism against what he calls America’s failure to carry out its moral obligation toward desperate asylum seekers and immigrants and other immigrants. See, The Hill, January 9:
After visiting overcrowded immigrant border shelters , an ICE detention center and an asylum hearing courtroom along with other Jewish clergy, Eisen writes:
“What we saw was profoundly sobering. The predicament of those trapped at the Mexican border looks increasingly bleak as the federal government enacts more restrictive policies in the name of protecting Americans from the alleged invasion.”
Eisen then explains what motivated him to write:
“When people asked me why I was making this journey, my answer was simple: ‘Because I am a Jew.’ My grandparents arrived in this country seeking a better life, in some cases fleeing pogroms and persecutions, and the Torah’s command to care for the stranger summons me in a voice I dare not ignore. The Bible tells us that Jews are not permitted to stand by in the face of suffering and injustice.”
He then explains that this is not only a Jewish issue.:
“But the crisis at the border is a non-denominational issue and it should be non-partisan.”
Unfortunately, in today’s America, the crisis caused by the Trumps administration’s egregious violations of essential human rights of nonwhite immigrants is anything but non-partisan. One party is blindly following its Leader into making hatred of non-European immigrants, both legal and “irregular”, as the centerpiece of its agenda, while the other party’s leaders are too cowardly to mount an effective defense of immigrants’ human rights which are being trampled on.
Ironically, the driving force of this agenda of anti-immigrant persecution, Stephen Miller, is also the grandchild of a Jewish immigrant. What kind of understanding of the Jewish heritage of care and compassion for the suffering of the stranger in our midst is he showing?
And how much understanding of this tradition of essential humanity does Miller’s boss Donald Trump, who claims to be a great friend of Israel and the Jewish people, show in his immigration policy, which includes drastic measures against even the most highly skilled and educated legal immigrants, not only asylum seekers and unauthorized immigrants?
Unfortunately, for America and the world, Roger has it pegged exactly right. Humanity, compassion, decency, and equal justice for all have disappeared from U.S. foreign and domestic policy under Trump. That’s the essence of a White Nationalist kakistocracy. And, as Roger also recognizes, there is more than a little anti-semitism and racism mixed in and driving these policies. It just so happens that Hispanics and folks with brown skins are the current “target of the day.”
But, actually, nobody is safe in the “Age of Trump” as his sycophants and supporters have found out (see., e.g., Jeff “Gonzo Apocalypto” Sessions, Kristjen Nielsen, Steve Bannon, John Bolton, Michael Cohen, et al.). The only thing or person that Donald Trump has ever cared about is (surprise): Donald Trump. Everybody else, including our nation, the environment, and world civilization, is expendable.
I also appreciate Roger’s “outing” of bigoted Texas Gov. Greg Abbott for his ridiculous and disingenuous attempt to “bar” refugee resettlement in Texas. For the record, quite contrary to Abbott’s racist whining, few states have benefitted more than Texas from migrants, whether they be refugees, asylum recipients, documented, or undocumented. See, e.g., https://www.americanimmigrationcouncil.org/research/immigrants-in-texas
In the “race to the bottom,” never count out Donald Trump and his GOP stalwarts!
The comparisons have come hard and fast, at least since 2015. Trump is like Silvio Berlusconi, like Adolf Hitler, like Boris Johnson. A 2018 film called “The Trump Prophecy” took the evangelical route, comparing Trump to Cyrus the Great, the 6th century BC Persian monarch chosen by God to free Jewish captives in Babylon.
But maybe it’s time to stop searching for the exact analogy for Trump, be he Cyrus or Boris, Adolf or a Silvio. What demands analysis is less the arrogant 73-year-old mediocrity in the Oval Office, but the worshipful attitude so many Americans have toward him.
A lot of nut jobs have peddled lies to Americans before, and even styled themselves as messianic. But at no time in history have so many Americans been drawn to what’s looking increasingly like a cult. I don’t use the term recklessly.
When Steven Hassan, an expert in cults and an ex-Moonie (as in the Unification Church, founded by a Korean businessman, the Rev. Sun Myung Moon), published “The Cult of Trump” last spring, some reviewers objected to his use of the cult framework as incendiary and not all that useful.
Indeed, for Trump critics to call his admirers cult members might be just another salvo in our nasty political warfare. It’s similar to the Trump psychologizing over the years that often doubles as name-calling: He’s a baby, a psychopath, a stone-cold narcissist.
The discourse around cults partakes of some woolly theories. “Mind control” and “brainwashing” are shibboleths from the 1950s, when the coinages were used to describe what Chinese Communists did to convert freethinkers to their cause. The implicit suggestion is that unsavory ideas and ideologies can only win adherents using extreme and witchy measures.
All that put me off the notion of Trumpism as a cult. But then in August, Trump looked heavenward and called himself “the chosen one.”
Suddenly, among evangelicals, it wasn’t enough to make comparisons with Cyrus or even King David. He had to be the savior himself. The far-right radio host Wayne Allyn Root called Trump “the second coming of God.” Then former Energy Secretary Rick Perry straight up affirmed Trump’s craziness, telling him, “You are here in this time because God ordained you.”
As 2019 drew to a close, my doubts about Trumpism as a cult dissolved. And I’m not alone.
What the cult diagnosis may lack in scholarly rigor, it makes up for in explanatory power. When polled, far too many Republicans come across as having abandoned their commitment to libertarianism, family values or simple logic in favor of Trump worship. They’re lost to paranoia and factually unmoored talking points, just the way Hassan was lost to Sun Myung Moon.
It can be heartbreaking when loved ones succumb to Trumpism. (It’s a double whammy when your grief is dismissed as liberal tears.) A true believer undergoes a “radical personal change,” as Hassan puts it. The person you once knew seems somehow … not there.
Journalists Luke O’Neil and Edwin Lyngar, as well as Jen Senko in “The Brainwashing of My Dad,” have compiled stories of Americans who have gone over. O’Neil summarized the transformation this way: “A loved one … sat down in front of Fox News, found some kind of deep, addictive comfort in the anger and paranoia, and became a different person.”
Sounds about right.
Hassan — who remembers, during his Moonie days, shouting, “I don’t care if Moon is like Hitler. I’ve chosen to follow him, and I’ll follow him to the end” — broke free, and became an expert on cults and how to leave them. He has spent his career proving it’s possible.
To see Trumpism as a cult is not to refuse to engage with its effects, the crimes committed in its name or the way it has awakened and emboldened the cruelest and most destructive beliefs and practices in the American playbook. Instead, the cult framework should relieve the pressure many of us feel to call Trumpites back to themselves, to keep arguing with them. They are stuck in a bad relationship with a controlling figure.
Understanding Trump is a fool’s errand. He’s sui generis, and far too erratic and finally insubstantial to reward close attention. Trump zealots are another matter. They are part of the tradition of radical converts in American history who elected to forfeit their authentic personalities and principles rather than refine or strengthen them. We need to stay focused on how so many Americans came to this pass and took this destructive course. The Trump cult will define American politics for decades to come, even after its dear leader is gone.
Heffernan’s analysis leads to the conclusion that it’s naive for Dems to keep wishing, hoping, and thinking that they can just speak truth and advance facts and thereby expect Trump’s followers to wake up, discover decency,and suddenly embrace humanity and rationality again.
No, the way the Democratic majority takes back the White House is by making sure that they get maximum turnout among the majority of Americans not enthralled by Trump and, particularly, that they fight through concerted GOP voter suppression efforts to appeal to, register, and get out the many new and younger voters who don‘t identify with Trump’s dark, White Nationalist view of America and the unfailingly false, cruel, and negative values that he so arrogantly projects to his cult followers.
Immigration judges decided a record number of asylum cases in FY 2019. This past year judges decided 67,406 asylum cases, nearly two-and-a-half times the number from five years ago when judges decided 19,779 asylum cases. The number of immigrants who have been granted asylum more than doubled from 9,684 in FY 2014 to 19,831 in FY 2019. However, the number of immigrants who have been denied asylum or other relief grew even faster from 9,716 immigrants to 46,735 over the same time period.
More Chinese nationals were granted asylum than any other nationality. Next came El Salvadorian nationals, followed by asylum seekers from India.
Six-nine percent of asylum seekers were denied asylum or other relief in 2019. Nevertheless, 99 out of 100 attended all their court hearings.
Access to an attorney impacted the asylum outcomes. Only 16 percent of unrepresented asylum applicants received asylum or other forms of deportation relief. In contrast, twice the proportion (33%) of asylum applicants with an attorney received asylum or other relief.
Overall, asylum applicants waited on average 1,030 days – or nearly three years – for their cases to be decided. But many asylum applicants waited even longer: a quarter of applicants waited 1,421 days, or nearly four years, for their asylum decision.
To examine these results in greater detail by nationality and court location, TRAC’s free asylum app is now updated with data through the end of November 2019 at:
Additional free web query tools which track Immigration Court proceedings have also been updated through November 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
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SOME INTERESTING TAKEAWAYS:
Contrary to regime false narratives, non-detained asylum seekers continued to show up for their hearings approximately 99% of the time.
Contrary to recent EOIR claims, representation of asylum seekers continued to make a huge difference: twice as many represented asylum seekers received relief.
Nearly 20,000 individuals were granted asylum in FY 2019, twice as many as in FY 2014, although the number of cases denied grew even faster by 4.5x, to 46,735.
The three “Northern Triangle” countries, El Salvador, Guatemala, and Honduras ranked among the top five in number of asylum claims granted.
Session’s biased decision in Matter of A-B- appears to have been responsible for artificially depressing asylum grant rates starting in June 2018.
Even with extraordinary efforts by the regime to “game” the asylum system against applicants, 31% of the applicants still were successful in gaining relief in FY 2019.
The New Due Process Army continues to “take the battle” to the regime: despite regime efforts to inhibit and discourage representation, nearly 85% of asylum applicants were represented in FY year 2019, a slight increase over the previous FY.
Unrepresented asylum applicants are “railroaded” though the system at a much higher rate than represented applicants: nearly half of the unrepresented asylum cases that started in 2019 were completed, as opposed to approximately 10% of the represented ones.
Non-detained, represented asylum applicants wait an average of three years for a merits hearing in Immigration Court.
The number of asylum cases decided by Immigration Judges has risen 250% over the past five fiscal years.
Asylum cases were 22.6% of the Immigration Court final decisions in FY 2019, as opposed to 10.7% in FY 2014.
Deciding more asylum cases while intentionally “stacking” the system against asylum seekers has not stopped the mushrooming Immigration Court backlogs.
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Irony, declared dead after 9/11, is alive and kicking in Trump’s America. It’s the concepts of truth and shame that are on life support. The definition of “facts” has been so thoroughly vandalized that Americans can no longer agree on what one is, and our president has barreled through so many crimes and misdemeanors with so few consequences that it’s impossible to gainsay his claim that he could shoot someone on Fifth Avenue and get away with it. Donald Trump proves daily that there is no longer any penalty for doing wrong as long as you deny everything, never say you’re sorry, and have co-conspirators stashed in powerful places to put the fix in.
No wonder so many fear that Trump will escape his current predicament scot-free, with a foregone acquittal at his impeachment trial in the GOP-controlled Senate and a pull-from-behind victory in November, buoyed by a booming economy, fractious Democrats, and a stacked Electoral College. The enablers and apologists who have facilitated his triumph over the rule of law happily agree. John Kennedy, the Louisiana senator who parrots Vladimir Putin’s talking points in his supine defense of Trump, acts as if there will never be a reckoning. While he has no relation to the president whose name he incongruously bears, his every craven statement bespeaks a confidence that history will count him among the knights of the buffet table in the gilded Mar-a-Lago renovation of Camelot. He is far from alone.
If we can extricate ourselves even briefly from our fatalistic fog, however, we might give some credence to a wider view. For all the damage inflicted since Inauguration Day 2017, America is still standing, a majority of Americans disapprove of Trump, and the laws of gravity, if not those of the nation, remain in full force. Moral gravity may well reassert its pull, too, with time. Rather than being the end of American history as we know it, the Trump presidency may prove merely a notorious chapter in that history. Heedless lapdogs like Kennedy, Devin Nunes, and Lindsey Graham are acting now as if there is no tomorrow, but tomorrow will come eventually, whatever happens in the near future, and Judgment Day could arrive sooner than they think. That judgment will be rendered by an ever-more demographically diverse America unlikely to be magnanimous toward cynical politicians who prioritized pandering to Trump’s dwindling all-white base over the common good.
All cults come to an end, often abruptly, and Trump’s Republican Party is nothing if not a cult. While cult leaders are generally incapable of remorse — whether they be totalitarian rulers, sexual Svengalis, or the self-declared messiahs of crackpot religions — their followers almost always pay a human and reputational price once the leader is toppled. We don’t know how and when Donald Trump will exit, but under any scenario it won’t be later than January 20, 2025. Even were he to be gone tomorrow, the legacy of his most powerful and servile collaborators is already indelibly bound to his.
Whether these enablers joined his administration in earnest, or aided and abetted it from elite perches in politics, Congress, the media, or the private sector, they will be remembered for cheering on a leader whose record in government (thus far) includes splitting up immigrant families and incarcerating their children in cages; encouraging a spike in racist, xenophobic, and anti-Semitic vigilantes; leveraging American power to promote ethnic cleansing abroad and punish political opponents at home; actively inciting climate change and environmental wreckage; and surrendering America’s national security to an international rogue’s gallery of despots.
That selective short list doesn’t take into account any new White House felonies still to come, any future repercussions here and abroad of Trump’s actions to date, or any previous foul deeds that have so far eluded public exposure. For all the technological quickening of the media pulse in this century, Trump’s collaborators will one day be viewed through the long lens of history like Nixon’s collaborators before them and the various fools, opportunists, and cowards who tried to appease Hitler in America, England, and France before that. Once Trump has vacated the Oval Office, and possibly for decades thereafter, his government, like any other deposed strongman’s, will be subjected to a forensic colonoscopy to root out buried crimes, whether against humanity or the rule of law or both. With time, everything will come out — it always does. With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it — whether they were active participants in the wrongdoing like Jared Kushner, Stephen Miller, Kirstjen Nielsen, Mike Pompeo, and William Barr, or the so-called adults in the room who stood idly by rather than sound public alarms for the good of the Republic (e.g., Gary Cohn, John Kelly, Rex Tillerson), or those elite allies beyond the White House gates who pretended not to notice administration criminality and moral atrocities in exchange for favors like tax cuts and judicial appointments (from Mitch McConnell and Paul Ryan to Franklin Graham and Jerry Falwell Jr.).
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Read the rest of Rich’s article at the link.
“Tomorrow will come, eventually.” Yup!
Just yesterday, the usually reliable “Trump Toadies” Sen. Mike Lee (R-UT) and Rand Paul (R-KY) were whining and sputtering upon learning what toadyism really means after being “treated like Democrats” during an insulting and clownish “after the fact briefing” on Iran. https://www.cnn.com/2020/01/09/politics/impeachment-watch-january-8/index.html .
But, that moment of lucidity and outrage will pass quickly, and they will undoubtedly rejoin their colleagues like Sen. Marco Rubio (R-FL), Sen. Teddy Cruz (R-TX), Sen. John “Vladimir” Kennedy (R-LA), Lindsey “Braindead” Graham (R-SC), and the rest of the “Party of Putin” in groveling before their Clown-in-Chief.
I would include the Article III judges who tanked in the face of tyranny and failed to protect the legal and human rights of the most vulnerable in the list of those whose misdeeds, spinelessness, and complicity in the face of tyranny eventually will be “outed.”
TIJUANA, Mexico—If you go early in the morning to the plaza in front of El Chaparral, the border crossing where a person can walk from Mexico into the state of California, you’ll hear shouts like “2,578: El Salvador!” and “2,579: Guatemala!”—a number, followed by a place of origin. Every day, groups of families gather around, waiting anxiously underneath the trees at the back of the square. The numbers come from La Lista, The List: When a person’s number is called, it’s their turn to ask for asylum in the United States.…
We should never forget the life-tenured Article III judges, mostly on the appellate level including the Supremes, whose abandonment of both their oaths of office and their humanity has enabled the Trump Regime’s all-out assault on the rule of law and our democratic institutions to succeed to the extent it already has.
Trump’s dismantling of the U.S. justice system and all the laws he doesn’t like or doesn’t want to follow counts heavily on the complicity or the outright assistance off Article III Federal Judges. To date, notwithstanding some wimpy disingenuous protests from Chief Justice Roberts, bemoaning the predictable lack of respect for the judicial system that he and his colleagues enabled by their complicity, the higher level Article IIIs haven’t disappointed Trump. That’s how the regime’s scofflaws can, without any legislative action, create“exile cities” in “unsafe third countries” right at our border, in violation of both the guarantees of our asylum laws and the Constitutional right to Due Process!
I spent many years of my career dealing daily with the results of failed states, authoritarian regimes, and fallen democracies. I know a lot about how oppression works and how democracies and constitutional republics fail.
I have some very bad news for the “life-tenured ones” in their ivory towers: failed states, authoritarian regimes, and failed democracies ultimately have no use for anything approaching an independent judiciary. Maybe those Article III appellate judges should think and reflect before they cast their next votes to empower autocracy over democracy.
NDPA NEWS: THE ROUND TABLE OF FORMER IMMIGRATION JUDGES: An Impressive Body Of Work Advancing & Defending Due Process!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog
Our fearless leader, Judge Jeffrey S. Chase reports on the list of Amicus Briefs we have filed since the summer of 2017:
1. BIA Matter of Negusie (7/10/2017) 7 White & Case
2. AG Matter of Castro-Tum (2/16/2018) 14 Akin Gump
3. 9th Cir. CJLG v. Sessions (3/15/2018) 11 Simpson Thacher
4. 10th Cir. Matumona v. Sessions (3/21/2018) 11 Sidley Austin
5. AG Matter of A-B- (4/27/2018) 16 Gibson Dunn
6. 5th Cir. Canterero v. Sessions (5/23/2018) 13 Sidley Austin
7. 9th Cir. Rodriguez v. Sessions (7/27/2018) 20 Wilmer Hale
8. BIA Matter of M-J- (8/07/2018) 20 Gibson Dunn
9. 4th Cir. N.H. v. Whitaker (2/14/2019) 27 Gibson Dunn
10. 10th Cir. Matumona v. Whitaker (2/19/2019) 24 Sidley Austin
11. 1st Cir. OLDB v. Barr (3/11/2019) 27 Gibson Dunn
12. 2d Cir. Orellana v. Barr (4/09/2019) 26 NYU Law School
13. 2d Cir. Kadria v. Barr (4/05/2019) 25 NYU Law School
14. 2d Cir. Banegas-Gomez v. Barr 26 NYU Law School
15. 2d Cir. Pastor v. Barr (4/10/2019) 26 NYU Law School
16. 3d Cir. Giudice v. Att’y Gen.(2 briefs) 26 NYU Law School
17. 1st Cir. De Pena Paniagua v. Barr (4/22/2019)29 Gibson Dunn
18. 9th Cir. Karingithi v. Barr (4/25/19) Boston College Law School
19. 1st Cir. Pontes v. Barr (4/25/2019) Boston College Law School
20. 10th Cir. Zavala-Ramirez v. Barr (5/01/2019) Boston College Law School
21. 10th Cir. Lopez-Munoz v. Barr (5/01/2019) Boston College Law School
22. Sup. Ct. Barton v. Barr (7/03/2019) 27 Pillsbury Winthrop
23. N.D. Ca. East Bay Sanctuary v. Barr 24 Covington
24. 9th Cir. Padilla v. ICE (9/04/2019) 29 Wilmer Cutler
25. 5th Cir. Sorev v. Barr (9/25/2019) 30 White & Case
26. 1st Cir. Boutriq v. Barr (9/25/2019) 31 Harvard Law School
27. 3d Cir. Ramirez-Perez v. Att’y Gen. (10/03/19) 31 Harvard Law School
28. 3d Cir. Nkomo v. Att’y Gen. (10/07/2019) 30 Boston College Law School
29. 9th Cir. Martinez-Mejia v. Barr (10/25/2019) 23 Texas A&M Law School
30. 4th Cir. Quintero v. Barr (11/04/2019) 27 Akin Gump
31. 3d Cir. Campos-Tapia v. Barr (11/25/19) 30 Texas A&M Law School
32. 2d Cir. Guasco v. Barr (12/11/2019) 31 Harvard Law School
33. Sup. Ct. Nasrallah v. Barr (12/16/2019) 33 Gibson Dunn
34. 1st Cir. Doe v. Tompkins (12/23/2019) 34 Jerome Mayer-Cantu, Esq.
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Great work!Proud and honored to be a member ofthe Round Table!
And, of course, special appreciation and a big shout out to all of of those wonderful firms, lawyers, institutions, and organizations listed above who have “given us a voice” by providing beyond outstanding pro bono representation!
IMMIGRATION DETENTION IS PART OF MASS INCARCERATION: THE CASE FOR ABOLISHING ICE AND EVERYTHING ELSE
NOT MANY PEOPLE besides immigration law wonks had probably heard of “Section 1325,” before Julián Castro called for repealing it during the first Democratic presidential primary debate this summer. The law in question makes it a federal crime to enter the U.S. without permission — turning an immigration offense into a criminal one. President Donald Trump used a policy of “zero tolerance” for breaking that law to justify separating families at the border, but under George W. Bush and Barack Obama before him, 1325, along with illegal reentry — coming back after being deported — was already being used to jail and deport more and more immigrants. In fact, immigration-related crimes now make up the majority of all federal criminal prosecutions.
Castro’s proposal to repeal 1325 might have seemed to come out of left field, but it’s the exercise of the law that is historically the outlier: While laws criminalizing entry have existed since 1929, they “were largely ignored for a century,” the lawyer and scholar César Cuauhtémoc García Hernández reminds us in a new book, “Migrating to Prison: America’s Obsession with Locking Up Immigrants.” In 1975, he noted “a mere 575 people” were charged with an immigration crime; in 1993, only 2,487. Contrast that with fiscal year 2018, when prosecutors brought 105,692 federal immigration charges.
T he criminalization of immigration, especially the scale at which it happens now, is a relatively recent trend, Hernández argues. And it ought to be reversed. His book joins a number of recent works that put contemporary immigration politics in the same light that scholars and activists have shone on mass incarceration — showing it to be a phenomenon inextricably linked to the history of land, race, and capitalism in the United States. “The immigration prison is a reminder that human bondage based on racial and economic markers of undesirability can’t be relegated to some distant past,” Hernández writes. “If we’re willing to lock people up, we’ll find a reason. Most of the time the targets will be people of color. We can call this coincidence, but we would be lying to ourselves.”
Hernández lays out in a lucid, linear fashion the evolution of immigration law and its enforcement in the United States, from laws restricting the movement of certain people across state lines — formerly enslaved people, for instance — to the Chinese Exclusion Act of 1882, the first in a series of acts that barred Asian immigrants for decades.
Any history of how the notion of “illegality” in migration took root has to consider the experience of Mexicans. While the first U.S. immigration laws focused with explicit racism on excluding Asians, Mexicans were the ones often physically targeted by Border Patrol — harassed, removed, or allowed to pass to satisfy the desires of powerful Southwest planters. In Hernández’s words, Border Patrol “detained and deported their way to a scared workforce.” Many of those workers, whether unauthorized or sanctioned under the bracero program, which ran from 1942 to 1964, were rendered “illegal” by the 1965 Immigration and Nationality Act, which got rid of national quotas and more or less established the United States’ current immigration regime, wherein countries are allotted a certain number of visas. Though ostensibly a progressive measure doing away with the racist quotas and nationality bans of previous eras, when it came to Mexico, the act, also known as Hart-Celler, ignored the closeness of the nations and subjected Mexicans to a national cap nowhere near high enough to accommodate traditional migration levels. “Perversely, the Hart-Celler Act’s formal equality turned immigration law against Mexican migrants,” Hernández writes. Mexicans became “illegal,” and “illegal aliens” became racially coded as Mexican.
Its focus on detention sets Hernández’s book apart from other recent histories of immigration and the border, including Kelly Lytle Hernández’s history of the Border Patrol; “Undocumented Lives: The Untold Story of Mexican Migration,” by Ana Raquel Minian; and Greg Grandin’s “The End of Myth: From the Frontier to the Border Wall in the Mind of America.” Early immigration prisons were “atrocious” “dockside facilities,” like a two-story wooden shed on the San Francisco wharf run by the Pacific Mail Steamship Company, where Chinese migrants waited to be approved entry by U.S. officials. Ironically, it was to address these terrible conditions in company-run centers that the federal government got involved, creating facilities like Ellis Island in the New York Harbor, which opened in 1892, and Angel Island in the San Francisco Bay. For the first time, Congress required inspection officers “to detain anyone not ‘clearly and beyond doubt entitled to admission,’” César Cuauhtémoc García Hernández writes in “Migrating to Prison.” In 1896, the Supreme Court “emphatically declared that immigration imprisonment was constitutionally permissible.”
Yet it was a relatively brief experiment. By 1954, under Dwight D. Eisenhower, Immigration and Naturalization Service (the precursor to today’s immigration agencies) “had all but abandoned its detention policy.” Ellis Island shut down with little fanfare. Hernández concludes that, “in fact if not in law, the United States came remarkably close to abolishing immigration imprisonment.” While that was, in the words of the attorney general at the time, a step in the direction of “humane administration of the immigration laws,” it was also self-interested, Hernández notes. Immigration prisons were costly, and, as has been the case throughout U.S. history, businesses wanted migrants out of prison so they could be used as cheap labor.
Again, Hernández connects this history to that of incarceration writ large in the U.S. There was a time when, even within Richard Nixon’s Justice Department, the utility of prison was questioned. But the ’70s ushered in a politically orchestrated crime panic, and the war on drugs, which led to mandatory minimum prison terms and sentencing disparities for powder cocaine and crack. A parallel process played out with immigration. Migrants, like black Americans, were linked to drugs, crime, and unrest, and portrayed as leeches on government services.
In the 1980s and ’90s, legislation introduced new levels of criminality for immigrants, which in turn expanded the population of imprisoned people. As Hernández writes, “Congress denied immigration judges the discretion to release anyone convicted of an aggravated felony,” which includes serious offenses like murder but also shoplifting and tax fraud. Detention and deportation, once decided with considerable discretion, became mandatory for all sorts of offenses. The link between mass incarceration and immigrant incarceration is clear in the legislative history: The same 1986 law that created mandatory minimum sentences for crack cocaine created “detainers,” requests to local police to hold someone in jail until they can be picked up by immigration. Liberals were complicit too. As Grandin notes, Bill Clinton played a key role, signing “a number of extremely punitive crime, terrorism, and immigration bills into law, which created the deportation regime that exists today.”
Muslims and other immigrants from majority-Muslim countries suffered the racist expansion of immigration detention after September 11, 2001, as counterterrorism enveloped immigration into the ballooning national security apparatus. And, as with the incarceration of U.S. citizens, black migrants have been disproportionately impacted by the shift to “crimmigration,” as scholars call it — more likely to be detained for a crime, and more likely to be removed.
Considering the recent explosion in immigration detention, Hernández explores federal contracts with local law enforcement and private prison companies. He looks not just at U.S. Immigration and Customs Enforcement but also the U.S. Marshals Service, which holds some 60,000 people a day in pre-trial detention, making deals with state and local jails around the country (the deaths of immigrants in Marshals custody were recently investigated by Seth Freed Wessler for Mother Jones). Again, the degree to which immigration offenses dominate the criminal justice system is stark — in 2013, marshals detained 97,982 people on immigration crimes, compared with 28,323 drug defendants. The Office of Refugee Resettlement, under the Department of Health and Human Services, had 49,000 children in custody in 2018, in “shelters” that range in comforts offered but which are all tightly controlled. Whatever agency officially holds them, Hernández argues, “to the migrants who are under constant surveillance and whose liberty has been denied there is little difference.”
Detention is also used with the idea that it will dissuade people from coming. Although Hernández points out this is legally suspect — detention of asylum-seekers and people accused of other non-criminal immigration offenses is not supposed to be a punishment — multiple administrations have invoked deterrence as a reason to keep people locked up.
Trying to separate immigrants who deserve imprisonment and those who don’t, distinguishing between shelters and detention centers and jails, obscures the workings of the whole system, Hernández says, which is designed to punish people for nothing more than being born in the wrong place. “Migrants are expected to live out the exceptionalism that U.S. citizens imagine in themselves,” he writes. The legal immigration system rewards wealth, education, and family connections, while the immigration enforcement system has no tolerance for human error.
Daniel Denvir’s forthcoming book, “All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It,” complements Hernández’s by focusing on political history. He, too, traces the development of anti-immigrant sentiments and policies alongside anti-black ones, arguing that “resistance to desegregation, a white identity politics of racial grievance, mass incarceration, the war on terror: all were dedicated to a quixotic mission to keep dangerous others from crossing U.S. borders and to restrict the free movement of those inside them.”
Democrats likewise fell into the trap of demonizing “illegal immigrants” and “criminal aliens,” believing that by doing so they could protect legal immigration from hard-right restrictionists and defend themselves from soft-on-crime accusations (just as they’d attempted to do by jumping on the war-on-drugs bandwagon).
T he bipartisan embrace of immigration enforcement, Denvir argues, was the product of the elusive quest for so-called comprehensive immigration reform, which would combine a path to legalization for people already in the country with the liberalization of legal immigration — goals sought by immigrant rights groups and big business alike. In order to get it, Democrats and some Republicans, from Clinton through Bush and Obama, tried to appease nativists with promises of “border security,” miles of fencing, massive increases in the Border Patrol, and surveillance systems befitting a war zone. Each time, however, the nativists were not, in fact, appeased, crying “amnesty” and sabotaging the prospect of reform. “The long-term advantage,” of focusing on enforcement, Denvir writes, “would accrue to the Right, which was better positioned to link the immigrant threat to crime, welfare, black people and terrorism.” Trump’s attempt to demand funding for his pet wall in order to save the Deferred Action for Childhood Arrivals, or DACA, program last year, was a repeat of the same pattern. In the end, Trump plowed ahead with construction (literally, through delicate desert ecosystems), and DACA’s fate remains unsettled.
Over time, the left flank of immigration activism has grown wary of both comprehensive immigration reform (finding those “reforms” incremental) and the attempt to distinguish “good” immigrants from “bad” ones. As Denvir notes, “lots of ‘good’ immigrants were being deported too. And how bad were the bad ones, given the vast number of individuals convicted of crimes in the carceral state?”
Hernández ends his book with the case for abolishing immigration detention, while admitting that few people have a specific vision for how to do it. Denvir ends with an analysis of an electorate that might be willing to try. As he puts it, “record deportations and a radicalizing racist right has triggered a revolt among the Democratic Party’s increasingly young and diverse base,” and Democrats under Trump have become “staunchly pro-immigrant” and “more hostile to enforcement.” Hernández also decides to see Trump’s hostility to immigrants not just as horror but also as opportunity. Has the bipartisan consensus of “immigration is a ‘problem’ that needs fixing” finally broken? Will Trump’s nativist wish list of anti-immigrant, anti-refugee policies permanently shift Democrats away from their position that enforcement is always necessary?
Decriminalization of entry and reentry is a start, as Denvir and Hernández advocate (among the remaining Democratic presidential candidates, Bernie Sanders, Elizabeth Warren, Pete Buttigieg, Cory Booker, and Andrew Yang have said they agree). Denvir also calls for downsizing the Border Patrol, destroying existing physical barriers, breaking up agreements between ICE and local law enforcement, and increasing opportunities for legal immigration, especially from Central America and Mexico. Hernández urges, on a personal and institutional level, divestment from private prison companies. Eliminating cash bail and giving every migrant the right to a lawyer would drastically increase their odds of success, as would case management — offering help with housing and legal assistance.
These types of measures might actually lead to better compliance with immigration law, satisfying the obsession with people migrating “the right way.” But they would not offer concessions to a nativist right that wants any and all nonwhite immigration restricted, and they would have to resist the scare tactics bent on tying immigrants to crime and the rhetoric of scarcity that will inevitably accompany an economic downturn and worsening climate conditions. The court cases challenging the most horrendous aspects of confinement in immigrant detention centers are important. But if radical changes come, Hernández writes, “it won’t be because the law demands it. It will be because people demand it.”
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This is a study in how a motivated minority can shove bad and fiscally irresponsible policies down the throats of a complicit majority.
The legal, fiscal, and humanitarian arguments against the NAG are out there, but the Dems keep getting “sidetracked” by buying into the bogus concept that “hard line enforcement and a little cruelty” is a necessary “quid pro quo” for rational immigration reform. But, the truth is that no amount of repression, cruelty, and irrational enforcement will ever satisfy the White Nationalists who have taken over the GOP.
Maybe, rather than trying to appease the unappeasable, the Dems’ strategy needs to be getting 100% of Democrats out to vote and registering the large number of new and younger potential voters who don’t favor racially driven policies of unrelenting cruelty and wasteful immigration restrictionism.
For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.
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Go to the link for complete individual Immigration Judge asylum stats.
The idea that a “court” system is providing “fair and impartial” decisions toasylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!
Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.
That suggests that under a fair and impartial judicial system asylum seekerscould and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.
The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.
Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremeshave taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.
Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.
With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?
In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:
“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).
Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”
Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.
Due Process Forever; Corrupt, Complicit Federal Courts Never!
Washington (CNN)Lisa Dornell loved her job. For 24 years, she sat on the bench in Baltimore’s immigration court, hearing hundreds of cases of immigrants trying to stay in the United States.
“It was an honor. It was a privilege to be able to preside over so many different cases and be able to grant relief to people who needed relief,” Dornell told CNN in an interview.
But she walked away from that job in April — a decision that still invokes a wave of emotion when she recalls it. “The toxic environment made it both harder and easier to leave,” Dornell said.
Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.
The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority.
Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. The bogged-down system has led to immigration cases being pushed out years in the future, leaving many immigrants residing in the US unsure if they’ll be allowed to stay or be ordered removed.
President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, the administration has sought to hire more immigration judges. Most recently, the immigration judge corps hit a record high, though the Justice Department still has to contend with judges leaving over policy disagreements.
In a statement to CNN, the Justice Department’s Executive Office for Immigration Review spokeswoman, Kathryn Mattingly, said the agency “continually plans for attrition, and both improvements to the hiring process and a policy of ‘no dark courtrooms’ help minimize the operational impact of (immigration judge) separations and retirements.”
The agency doesn’t track individual reasons for retirements or departures, Mattingly said.
Immigration judges — employees of the Justice Department — are charged with following the policies set by each administration.
“The nature of the job ebbed and flowed as administrations changed,” Dornell recalled. “It was always tolerable. We all work with a realization that it’s the prerogative of the administration to implement policies as they see fit.”
The Trump administration was no exception. Trump’s first attorney general, Jeff Sessions, implemented a series of changes to the immigration court system that have continued under his successor, William Barr.
The Justice Department has imposed case quotas, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges’ ability to exercise discretion in some cases and moved to decertify the union of immigration judges.
Over time, those actions prompted immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department despite initial plans to stay longer.
“I felt then and I feel now that this administration is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general,” said Ilyce Shugall, who served as an immigration judge in San Francisco from 2017 until March of this year. “And I just couldn’t be a part of that.”
‘It started to wear on me’
Over his nearly two-year tenure as attorney general, Sessions transformed the courts by flexing his authority to overrule decisions, hire more immigration judges and set a case quota for judges.
One of Sessions’ addresses to the workforce, in particular, resonated with judges. In a June 2018 speech in Washington, Sessions denounced the system, which he believed was encouraging migrants to make baseless asylum claims, and reminded judges of their role in cracking down on those claims.
“You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly and consistently,” Sessions said. Later that day, he issued a ruling that removed asylum protections for victims of domestic violence and gang violence.
“To be honest with you, in that meeting room, there were a number of judges that cheered and clapped when he announced it,” said former immigration judge Rebecca Jamil, referring to the ruling that would follow his address. “It was grotesque to me.”
Jamil, who had been based in the San Francisco immigration court, had a docket that included migrants who had fled their home countries, claiming they were victims of domestic violence. Sessions’ decision took direct aim at those cases.
Another judge in attendance at Sessions’ speech, Denise Slavin, recalled jaws dropping. Slavin had become a judge in 1995, serving in Florida before finishing her tenure in Baltimore in April of this year.
Sessions’ address and follow-up ruling was among a series of policy changes that began to wear on judges.
“When you’ve been around that many administrations, you learn to adapt. You see a lot of different things. Nothing like this,” said James Fujimoto, a former Chicago immigration judge who started on the bench in 1990 and also retired in April.
In particular, the administration began rolling out changes that dictated the way judges were expected to proceed with cases, thereby tightening control of the immigration courts. For example, the Justice Department said it would evaluate immigration judges on how many cases they close and how fast they hear cases.
Earlier this year, the Justice Department also issued a new rule that gives more power to the director of the Executive Office for Immigration Review. It allows the Justice Department-appointed director — currently James McHenry — to step in and issue a ruling if appeals are not completed within a certain time frame.
“It started to wear at me,” said Jennie Giambastiani, a former Chicago immigration judge who joined the bench in 2002 and left this year. “The great number of cases coming in and the way it was expected we handle them.”
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told CNN that for the majority of people leaving their roles it’s a result of the “hostility and insulting working conditions.”
Tabaddor noted that there’s been a pattern of new judges either leaving to return to their old jobs or taking other jobs within the government.
“This is not what they signed up for,” Tabaddor said, referring to policies designed to dictate how judges should handle their dockets.
Judges who have since left the department expressed similar concern over those policies. Dornell called the situation “intolerable.”
Shugall recalled the challenges she had faced in trying to move forward with cases in a way she thought was appropriate. “I felt like as more and more policies were coming down, it was making it harder and harder to effectively hear cases in the way that I felt was appropriate and in compliance with the statute regulations and Constitution,” Shugall said.
At an event earlier this year, McHenry rejected criticism that judges are vulnerable to pressures from the attorney general.
“Most judges that we’re familiar with, and I don’t think that immigration judges are any exception, when they’re on the bench, they know what their role is as a judge,” he said. “We’ve had no allegations of anyone reaching down to specific judges telling them, ‘You have to rule this way; you have to rule that way.’ ”
Justice Department hires new judges
Earlier this month, the Justice Department announced 28 new immigration judges, bringing the number of such judges to more than 465, a record high. The majority come from government backgrounds.
It’s not unusual for administrations to hire people who’ve worked in government, but under the Trump administration, Booz Allen Hamilton, at the direction of the Justice Department’s Executive Office for Immigration Review, issued a report recommending that the agency diversify the experience of immigration judges.
The direction of the nation’s immigration courts is also a source of concern among immigrant advocate groups. This month, groups filed a wide-ranging lawsuit, alleging that the Trump administration has manipulated the immigration court system to serve an “anti immigrant agenda.”
It remains to be seen what changes, if any, are in store for the court system, but some of those who have already left their posts as judges carry guilt for departing, concerned about who may fill their jobs.
“The biggest thing I contended with is who is going to replace me,” Jamil said. “I knew I was a fair judge.”
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I’m proud to say that all of the quoted former Immigration Judges are members of our Round Table of Former Immigration Judges, committed to preserving and advancing Due Process and judicial independence.
Apparently, EOIR headquarters and DOJ bureaucrats now refer to Immigration Judge decisions as “policy decisions,” thereby dropping any pretense that they are fair and impartial quasi-judicial adjudications under the law.
As for the ludicrous claim that this is anything approaching a legitimate independent judiciary, as one of my Round Table colleagues succinctly put it: “The political arm of DOJ’s assertion that IJs are treated independently is so much BS.”
Yup! Congratulations and many thanks to Judge Dornell and the others who spoke out in this article!
So, Immigration Judges, who lack the life tenure and protections of independence given to Article III Judges, put their careers and livelihoods on the line for Due Process and the rule of law, and, frankly, to save vulnerable lives that deserve saving. Meanwhile, the majority of Supreme Court Justices and far too many Article III Courts of Appeals Judges just bury their judicial heads in the sand and pretend like the outrages against Due Process, fundamental fairness, and the rule of law aren’t really happening in Immigration Court and that human lives aren’t being ruined or lost by their derelictions of duty. Has to make you wonder about their ethics, courage, and commitment to their oaths of office, as well as what the purpose of life tenure is if all it produces is complicity in the face of tyranny that threatens to destroy our Constitution and bring down our republic.
The Article IIIs are providing some rather sad examples and bad role models for today’s aspiring lawyers.
As the Jewish festival of Hanukkah, which has been a symbol of liberty and freedom from oppression for 2,000 years approaches, 25 Jewish members of Congress, all Democrats, have signed a letter demanding the resignation of Donald Trump’s main architect of oppression and persecution against nonwhite immigrants. This is even as Miller is reportedly preparing a new secret plan to inflict more appalling cruelty and violations of basic human rights against detained immigrant children because he objects to the color of their skin.
For more on the Congressional members’ letter, which was in reaction to the shocking revelation of Miller’s almost 1,000 recent extremist white supremacist anti-immigrant emails, see CNN (December 20):
The letter, addressed to Donald Trump (who will now forever be known as the third president in US history to be impeached by the House of Representatives) states in part:
“As Jewish members of Congress, we are calling on you to immediately relieve White House Senior Advisor Stephen Miller of all government responsibilities and to dismiss him from your administration…His documentation of white nationalist and virulently anti-immigrant tropes is wholly unacceptable and disqualifying for a government employee.”
But even as the above letter was written a news item has now come to light about a secret new policy that Miller has reportedly launched that will make it harder for detained immigrant children to be released by ICE to the custody of family members or friends who are willing to come forward to take custody of them.
This vicious new policy represents a new low in the appalling cruelty that Trump and Miller have shown toward young children whom Trump and Miller do not think should be welcome in the US because, as Trump reportedly said almost two years ago (in January 2018), they are not from “Countries like Norway.”
Details of Miller’s plan, which has not been publicly announced are contained in a December 20 Washington Post article entitled:
Under secret Stephen Miller plan, ICE to use data on migrant children to expand deportation efforts
The Post reports that senior officials at the Department of Health and Human Services:
“…agreed to allow Immigration and Customs Enforcement agents to collect fingerprints and other biometric information from adults seeking to claim children at migrant shelters. If these adults are deemed ineligible to take custody of children, ICE could then use their information to target them for arrest and deportation.”
The Post;s report also shows that this appears to be yet another attempt by the Trump-Miller regime to defy the intention of Congress, in keeping with the virtual dictatorship over immigration policy that America’s third president to be impeached by the House (and the second for abuse of power) is imposing under the authoritarian “unitary executive” theory which directly conflicts with the Constitution and with our basic principles of democracy.
The Post report states:
“The arrangement appears to circumvent laws that restrict the use of the refugee program for deportation enforcement. Congress has made clear that it does not want those who come forward as potential sponsors of minors in U.S. custody to be frightened away by potential deportation.”
But this is precisely what Stephen Miller is attempting to do, according to the above report.
How ironic that this appalling attack against children in pursuit of the Trump-Miller administration’s racial immigration agenda came to light just before the Hanukkah holiday This holiday, which began this year on the evening of December 22, celebrates the heroic resistance of the Maccabees, Jewish freedom fighters, against an oppressive ruler, Antiochus, king of Syria, in 169 B.C.
Rabbi Sid Schwarz explains the meaning of Hanukkah as follows:
“Hanukkah is the Jewish festival of religious liberty and freedom.”
But Hanukkah stands for more than just freedom of religious persecution – such as Donald Trump instituted within days after taking office ac president by imposing his Muslim ban – a blatant violation of the Constitutional guarantee of religious freedom which should have immediately led to impeachment proceedings at that time.
As Rabbi Schwarz also writes concerning the tradition that a small amount of oil for the temple lamp lasted for eight days, Hanukkah is also a celebration of Human Rights in general:
“Whether one believes literally in the miracle of the high-octane oil, on a spiritual level Hanukkah is about a much bigger miracle. It is the miracle of faith conquering fear. of the few overcoming the many, of liberty winning out over oppression.
Hanukkah falls close to Human Rights Day which we celebrate every year on December 10. We ignore this day at our peril. The date was based on the 1948 ratification of the Universal Declaration of Human Rights by the general Assembly of the United Nations.
Enshrines in the Universal Declaration of Human Rights are principles at the core of democracy: the right to life, liberty and security of person; equal justice before the law; protection against cruel and degrading forms of punishment…”
www.rabbisid.org/hanukkah-and-human-rights/
What could be a more cruel and degrading practice than keeping young children incarcerated while intimidating their parents or other family members against coming to pick them up because of fear of being deported? It would be hard to imagine any greater form of deliberate sadism.
Therefore I would like to make the following proposal to Stephen Miller, the great grandson of an impecunious early 20th century Jewish immigrant who would without any question be barred from entry to the US under Miller’s own vastly expanded Public Charge rules (if they ever go into effect).
I would ask Miller, who seems to be totally oblivious to the history of persecution and exclusion that Jewish immigrants were subjected to by the US government for much of the 20th century, including the 1930’s and 1940’s at the time of their most desperate need, whether he would be willing to agree to the following proposal:
If Stephen Miller and Donald Trump, who claims to be a great friend of the Jewish people and whose own daughter and son-in-law are Jewish, are unwilling to abandon their inhuman and arguably illegal practice of frightening parents or other relatives of detained immigrant children from coming to pick them up and arrange their release, through fear of action by ICE, would Trump and Miller be willing to suspend this barbaric practice for at least the eight days of Hanukkah as a gesture of good will, and in the spirit of the holiday?
Or would that be too much to ask?
With the above thoughts, I wish all readers a Happy Hanukkah and a very Merry Christmas.
************************************
Roger Algase
Attorney at Law
At the time when President Barack Obama instituted DACA, there was a warning from the opposition side that one day, under a different president, DACA might make it easier rather than harder to deport immigrants registering for that program. The reasoning was that by registering for DACA, millions of unauthorized immigrants would be providing the government with personal information which could later be used against them for deportation purposes.
However, the fact that DACA information might later on be misused by a future malevolent president for a purpose opposite the the one intended was certainly no reason for scrapping the entire program. At least it is unlikely that the 800,000 immigrants who are now benefiting from DACA would agree. Almost any action that is taken with regard to immigration might have results in the future different from those initially contemplated.
To give an example of a different immigration program, at the time that Trump instituted the Muslim ban executive orders, supporters of the ban didn’t seem to realize that if a current president were given the power to defy the guarantee of religious freedom enshrined in our Constitution by banning immigrants from Muslim countries, a future president whose bigotry might run in a different direction form Trump’s bigotry, might use the same power to ban Jewish immigrants from Israel, or to ban Catholic immigrants from Europe (as was in fact done in the 1924 immigration law..
In any event, warnings about possible misuse of DACA in the future were not taken seriously, because at the time that he announced the termination of DACA, Trump put out the line that, of course, he would never dream of doing anything as nasty as actually deporting DACA recipients. Later on, during Supreme Court argument on DACA, Chief Justice Roberts bought into these assurances hook, line, and sinker, as Frank Sharry of America’s Voice describes in a December 23 press release entitled:
Chief Justice Roberts, You were wrong. Trump does want to deport DACA recipients
Sharry quotes Roberts during the Supreme Court’s oral argument on DACA as saying:
“…the whole thing [about DACA] was about work authorization and these other benefits. Both administrations have said that they’re not going to deport the people.”
Now, with a December 21 CNN report that the Trump-Miller administration is moving to reopen previously closed deportation cases against DACA recipients who have no or only minor criminal records, Trump’s assurances are turning out to be a hollow, if not actually fraudulent, as so many of his other statements on immigration have been.
For this reason, Roberts was either in denial, as Frank Sharry asserts, or was being misled by the Trump administration about the real issue involved in DACA. See CNN:
Is this about-face (one might call it turncoat action) by Trump and Miller the fault of former president Barack Obama? That would seem to be an example of convoluted, if not Orwellian, reasoning at best – the idea being that a president who saved neatly a million immigrants from deportation through DACA really hurt them instead, while a different president who is actually threatening to deport them has no responsibility for this action.
CNN reports as follows:
“ICE confirmed to CNN that DACA recipients whose deportation cases have been administratively closed can expect to see them reopened. In an email, the agency states that ‘re-calendaring of administratively closed cases is occurring nationwide and not isolated to a particular state or region.'”
The same CNN report also states:
“The move to reopen deportation cases against Dreamers comes as the US Supreme Court considers whether to let the Trump administration end the program – and during oral arguments in November, at least some justices made it clear that they were accepting the president’s assurances that ending DACA would not mean deporting Dreamers.”
The only possible conclusion is that the Trump administration either deliberately misled the Supreme Court, whose Chief Justice and, as CNN also mentions, other justices as well, relied on its assurance that no Dreamers would be deported; or else that the no deportation assurance is now “inoperative” (to use a famous expression from the Nixon administration during the Watergate scandal).
The above raises a few questions:
1) Is this act of outright deception (worst case) or sleight of hand (at best) on the part of the Trump administration with regard to its intention to deport Dreamers if DACA is terminated the fault of former President Obama?
2) Full information about Dreamers whose deportation cases were closed was already known to the government at the time that President Obama established DACA. Otherwise, the deportation cases would not have been started in the first place. How could establishing DACA and closing their cases have put these deportation respondents at any greater risk than they already were subject to?
3) President Obama established DACA to try to save the “Dreamers” from being deported. Donald Trump is now trying to end DACA in order to deport them. If they are eventually deported, will that be President Obama’s fault? That kind of argument could only come out of a George Orwell novel.
4) Finally, we must ask, why is it so important to the Trump and Miller administration to deport the “Dreamers”? To answer that question, we need look no further than Miller’s recently revealed almost 1,000 emails contending that non-white immigrants are not welcome in the United States, with or without legal status.
Deporting 800,000 “Dreamers” would be only one part of Miller’s drive to accomplish this sweeping, white supremacist agenda, which would take America back to the 1924 Europeans-only immigration regime that Miller reportedly holds up as his ideal in the above mentioned emails, and which has very arguably become the basis of the Trump administration’s entire immigration agenda.
As The Atlantic states regarding Miller’s recently revealed immigration related emails (November, 2019):
” That Miller himself possesses a Jewish background is no obstacle to his believing that the racist and anti-Semitic restrictions of the 1920’s were a great achievement and that the law that repealed them was a great tragedy. These comments shed a great deal of light on Miller’s motives in shaping administration policy.”
Nothing could be clearer about who will be responsible for deporting up to 800,000 Dreamers if Chief Justice Roberts and the other Supreme Court “conservatives” buy into the Trump administration’s worthless assurances that the Dreamers will be safe from deportation even if DACA is terminated.
The president responsible for that exercise in ethnic cleansing will not be named Barack Obama.
Thanks, Roger, for sharing your thoughts and for “telling it like it is!”
It’s pretty obvious that Solicitor General Noel Francisco lied to the Supremes about the Dreamers’ fate! He also misrepresented the dire consequences of depriving them of employment authorization and other aspects of being allowed to reside here “under color of law” as opposed to just “not being removed.” That’s in addition to his mental gymnastics of substituting a non-existent “policy” rationale (hint, there is no legitimate policy rationale for dumping on the Dreamers) for the original “bogus legal rationale” put forth by Sessions.
It’s by no means the first time that DOJ lawyers have lied to or mislead Federal Courts about immigration policies and the motives for actions by the Trump regime. How about the “Census Case,” providing bogus rationales for the Travel Ban, reprogramming money for “the Wall” based on a fabricated “national emergency,” denying the existence of a child separation program, claiming that reuniting children was “too difficult,” the “Let ‘Em Die in Mexico” program, or papering over Session’s nativist bias and motives for the “A-B- Atrocity,” to name just a few of the more obvious and egregious ones? Essentially, it’s like claiming that “poll taxes” were about “raising revenue” or that “separate” was “equal.”
For most lawyers, lack of candor to a Federal Court would be a serious matter, putting their licenses to practice law at risk. Why are Francisco and the rest of his merry band at DOJ, all the way up to Barr and Sessions before him, exempt from the normal rules of ethics and professional conduct? Why do the Supremes continue to reward his dishonesty by time and again granting his largely frivolous requests to “short circuit” normal judicial procedures and get an immediate audience with the Supremes?
Since Trump and “Moscow Mitch” are stacking the Article III Judiciary with what they believe to be reliable Trump sycophants, it probably would be a mistake to think that “equal justice for all” will reappear in the Article IIIs any time soon.
On this week’s episode of Amicus, Slate’s podcast about the Supreme Court, Dahlia Lithwick was joined by Kristin Clarens, an attorney with Project Adelante, a group of multidisciplinary professionals, including lawyers, doctors, ministers, and psychologists, working across the country to help mobilize and concentrate support for asylum-seekers at the border. A transcript of the interview, which has been edited and condensed for clarity, follows.
Dahlia Lithwick: Can you just start by explaining what it is that you do and how as a lawyer you were able to kind of amble in and out of border facilities, detention facilities?
Kristin Clarens: People who previously would have been detained [in the U.S.] are now living in sort of makeshift refugee camps on the Mexico side of the border because of the “Remain in Mexico” policy. So now it’s incredibly easy to amble in and out, as easy as it is for the cartel members and other organized criminals who are circulating in these camps.
The Remain in Mexico policy, the Migrant Protection Protocols, is just about a year old. Can you describe what the world was like before it, what the world has been like since?
The estimates are that there are around 3,000 people [in the tent camp in Matamoros] living just in squalor and in tents, and that 80 percent of them are families with young children. A year ago, in the Rio Grande Valley, most of those people would come to the United States either after asking for permission at a port of entry or after crossing without permission and they would be apprehended, put into one of the temporary facilities that so many of us have seen on the news with the kids in cages and the very overcrowded conditions, lack of sanitation and medical care. After that, the families and young kids were sent to longer-term detention centers where many of us, many lawyers who speak Spanish, have worked across the country.
As of June or July of this year, the United States government started implementing something that they call, I think very ironically, the Migrant Protection Protocols, which is a policy guideline that says that border patrol agents are able to return asylum-seekers to Mexico for the duration of their immigration hearings. So now an asylum-seeker who comes up from Central America arrives in these incredibly sketchy and stressful border towns, asks for asylum at the port of entry, and after a quick trip to one of the cage facilities, they are sent back into the streets of Mexico.
That moment where they’re shoved back into Mexican territory from the U.S. officials is an incredibly vulnerable one. It’s kind of like bad guys lurking on the sides.
Now that you’re looking at the tent cities in Mexico, what kinds of things are you seeing, what kinds of legal aid are you able to provide if you are in Matamoros trying to help?
The legal aid that we’re able to provide at this point is becoming so much more limited because the statistics out now are that 0.1 percent of asylum-seekers who have their cases heard in the MPP courts—many of whom have valid claims, who would have succeeded with time and due process and legal support—0.1 percent are succeeding. Nothing has changed with respect to the nature of the cases—single women who have been persecuted specifically because they’re vulnerable in their home countries by gangs and by other types of organized crime. They’re incredibly vulnerable living in these—it’s just like a tent, the kind of tent that you would take to go camping in the woods in the summer. Except for single women—sometimes pregnant with young children with no other form of support, no network whatsoever—living for months at a time in freezing cold conditions in rain and in superhot conditions the next day, just incredibly exposed on every single level.
The circumstances change almost weekly with respect to the parameters and expectations, the due process provided in the MPP camp, and also, with respect to just the feasibility of [the legal support] we can offer as the numbers of people on the ground grow and the backlog increases in the MPP courts.
The camp facility where people are sort of constrained physically has somewhere between 2,600 and 3,000 people in it at any given day, and it’s growing. But the total number of people who’ve been returned to Mexico under MPP is closer to 68,000. So only a small fraction of the people who need legal services are even visible at this point.
On the ground and at least at Matamoros, people don’t have enough showers, they don’t have enough food. There’s rampant illness. I mean, you are seeing kids with tremendous medical and nutritional and other needs that are not getting that.
There’s sort of a group that’s come onto the scene over the past month that’s providing mobile health care via a clinic and also a humanitarian support to try and improve the shelters. They’re all volunteer based. It’s kind of all of us rolling up our sleeves and trying to figure out the best way to get support in there. But it’s subject essentially to the whims of the Mexican government. At any point, this could be shut down, or relocated, or people could just be forced to scatter. You just don’t know how things are going to unfold when the United States government’s policies might be enjoined, or when the Mexican government may decide that it can no longer tolerate these large refugee camps.
“How many 7-year-old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?”
— Kristin Clarens
The Mexican government initially restricted humanitarian groups’ access to sort of building things like toilets and showers and did so themselves in Matamoros. But the facilities that they built were really not adequate. They have showers that are not linked to any sort of drainage systems so there’s just big puddles of disgusting water that smelled bad and it’s just really kind of dehumanizing. Prior to the existence of the showers though, people were bathing in the river, which is contaminated with human waste, and people were getting sick and these awful skin infections all over. Little kids were swimming in the same place where little kids were also vomiting and having diarrhea. It’s just kind of a recipe for humanitarian crisis, within 100 feet of an American city.
You’ve been dealing this week with a critically ill child.
It’s really difficult for people who could die at any minute of their illnesses to get medical care in Matamoros for a variety of reasons. It’s hard for them to get around. It’s a scary city and it’s not safe. And so, this past week, we heard about several more critically ill migrants waiting at the tent city, including a 7-year-old who had, I think it can best be described as, sort of a breach in her abdominal wall.
So her fecal matter was leaking out and kind of reinfecting her, kind of getting reabsorbed by parts of her body as she wasn’t able to access clean water or water at all, to drink or to bathe herself to prevent just massive infection that could really quickly turn to a life-and-death situation. So, we did the best we could. I’ve been on the bridge trying to cross with people and been kind of mistreated and treated aggressively by the Border Patrol agents, and I know how scary and hard that is. I can’t imagine having gotten that experience as a 7-year-old girl who has to wear a diaper because her stomach is no longer able to contain her intestines. Fortunately, she was able to cross after, I think, a collective eight or nine hours waiting on the bridge and advocating and negotiating with Border Patrol. She was able to get across and get to the hospital on Tuesday night.
I had to try to twist your arm to get you to come talk about her story, because nobody died so it feels like nobody is going to care?
That’s the sense that I get in trying to focus attention on this in such a stressful time in America. It seems scary. Our government is unstable and stressful right now, and at the same time, these incredible egregious human rights violations are happening at our Southern border. And it’s like, how do we cut through this noise and really stand up for the weakest people that our country is negatively impacting right now? And I don’t have those answers, but we keep wondering, how many 7-year-old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?
Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Divided Realities
Lawyers on the crisis at the border, and a cacophony of bad faith in the Capitol.
01:10:57
SHARESUBSCRIBECOOKIE POLICY
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As the article points out, vulnerable refugees with valid asylum claims that might well have been granted prior to the Trump White Nationalist kakistocracy are now being railroaded without legal representation or any semblance of fairness, impartiality, or due process.
Another way of putting Kristin Clarens’s very valid concerns: “How many seven-year old girls would have to die before complicit, tone-deaf, life-tenured Supreme Court Justices and Article III Appellate Judges take off their blinders, get out of their ivory towers, stop kowtowing to Trump and the forces of White Nationalist darkness and evil, and start seeing Trump’s victims as human beings, or even as their own children or grandchildren?”
Thank goodness for courageous, talented, dedicated folks like Kristin who represent the “True Spirit of Christmas” in an age where kindness, compassion, mercy, and justice have been forgotten and are daily being trampled by the regime, its supporters, and enablers.
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