"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.
Opinion: Court decisions are falling Trump’s way on a bad immigration policy
Just because two of three pending appeals have gone Trump’s way, that doesn’t mean his ‘public charge’ rule for immigrants is good policy.
Two down, one to go.
Federal judges in three separate circuits issued injunctions — two nationwide, one limited to the 9th Circuit — against President Trump’s pending “public charge” rule, which would make immigrants ineligible for green cards if they sign up for certain public benefits.
On Monday, the 4 Circuit Court of Appeals in Richmond, Va., joined fellow jurists in the San Francisco-based 9th Circuit Court of Appeals in lifting injunctions after the federal government persuaded them that it likely had the legal authority to adopt the new restrictions.
That leaves the 2 Circuit Court of Appeals, which is mulling an appeal of a nationwide injunction issued in October by a district court in New York City, as the last barrier.
The lower court decisions hinged on complaints by immigrant advocates and several state attorneys general (including California) that the government violated the federal Administrative Procedure Act by adopting an “arbitrary and capricious” policy that exceeded its authority under immigration law. But two appellate courts now say the government likely had the authority to do what it did.
Even if that is true, that doesn’t make the new rule good policy. Much like the government’s effort to require potential immigrants to prove they could cover anticipated healthcare costs (that also has been held up in the courts), the public charge rule is clearly aimed at reducing the number of poor people admitted to the country and increasing the ranks of the wealthy.
You know, fewer people from those infamous “shithole countries” in Africa, South American and the Caribbean, and more from wealthier nations in Europe, such as Trump expressed favorite, Norway (good luck with that, as my colleague Paul Thornton once pointed out).
In typical fashion, the White House used the Monday decision as a point of attack.
“The 4th Circuit’s lifting of the lawless nationwide injunction imposed against the administration’s public charge immigration regulation is a major step forward for the rule of law,” the White House said. “It is our hope that the 2nd Circuit will, like the 9th and 4th Circuits have already done, lift the meritless nationwide injunction a New York district court has imposed against the rule so that it can be enforced, consistent with the plain letter of the law, for the benefit of all citizens and lawful residents of this country.”
But the “public charge” rule is not a benefit to all. It makes life tougher for people who have already immigrated and who are hoping to be joined by their families — allowed under decades of U.S. policy — and it counters our national economic interest.
“The government estimates that the new regulations would negatively affect 382,000 people, but advocates say that is likely an undercount. And the rules would keep people from coming to the country who economists say are vital for the nation’s future economic growth. President Trump’s xenophobic view of the world stands in sharp contradiction not only to American values, but to the nation’s history. We are a country of immigrants or descendants of immigrants, and as a maturing society we will rely more and more on immigration for economic growth. Research shows that even those who start out in low-wage jobs, and thus are likely to get some financial help from the government, often, over time, learn or improve skills that move them into higher income brackets and help the overall economy.”
So in the administration’s efforts to reduce immigration of all stripes, it continues to push policies that appease Trump’s narrowing base while working against our collective national interest.
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Wonder who’s going to stand up for the legal rights of anti-democracy judges like Wilkinson and Niemeyer once Trump and his White Nationalists no longer need the courts? Would their immigrant ancestors have passed Trump’s nativist tests?
Last March, after Robert Mueller submitted the results of his investigation into Russian interference in the 2016 presidential election and obstruction of justice by Donald Trump and his campaign, but before the world got to see it, Attorney General William Barr sent a summary of the findings to Congress. In it, Barr wrote that the Mueller probe did not come to a conclusion about whether the president had obstructed justice, leading the A.G. to decide on his own not to charge him. Trump, naturally, was thrilled by this assessment, but others, like House Speaker Nancy Pelosi, were not content to take Barr’s word for it, saying, effectively, that Barr was a bootlicking hack who could not be trusted, in light of the fact that the guy literally got the job by sending an unsolicited 19-page memo to the Justice Department in which he called the special counsel’s inquiry “fatally misconceived,” described Mueller’s actions as “grossly irresponsible,” and insisted “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction.”
Pelosi, of course, turned out to be right: Mueller’s report, in fact, found numerous instances of obstruction by Trump that, were Mueller’s hands not tied by Justice Department guidelines that say you can’t indict the president, could have resulted in Trump being charged with a crime, a far cry from Barr’s rosy interpretation of the findings. That didn’t stop Barr from continuing to undermine the almost two-year-long investigation by his good friend, likening it to the birther movement, claiming that, actually, it’s “not a crime” for the president to demand that staffers lie to investigators, and coordinating with the White House to make Trump look good. And now it appears that Barr is still trying to discredit the entire Russia investigation, even if it means going against the word of his own agency, according to the Washington Post:
Attorney General William P. Barr has told associates he disagrees with the Justice Department’s inspector general on one of the key findings in an upcoming report—that the FBI had enough information in July 2016 to justify launching an investigation into members of the Trump campaign, according to people familiar with the matter. The Justice Department’s inspector general, Michael Horowitz, is due to release his long-awaited findings in a week, but behind the scenes at the Justice Department, disagreement has surfaced about one of Horowitz’s central conclusions on the origins of the Russia investigation. The discord could be the prelude to a major fissure within federal law enforcement on the controversial question of investigating a presidential campaign.
Barr has not been swayed by Horowitz’s rationale for concluding that the FBI had sufficient basis to open an investigation on July 31, 2016, these people said…. The Russia investigation was opened after the FBI was told of statements made by a then Trump campaign aide, George Papadopoulos, that the Russians possessed hacked Hillary Clinton emails. Papadopoulos’s alleged comments were key because they were made well before any public allegation that Russian intelligence operatives had hacked the Democratic National Committee. The attorney general has privately contended that Horowitz does not have enough information to reach the conclusion the FBI had enough details in hand at the time to justify opening such a probe…the prospect of the nation’s top law enforcement official suggesting the FBI may have wrongly opened an investigation into a presidential campaign, even after the inspector general announces the agency was justified in doing so, will probably generate more partisan battles over how the Justice Department and the FBI operate.
People familiar with Horowitz’s report told the Post that while it included some criticism of the FBI, it did not agree with Trump’s claim that the investigation was a politically motivated “witch hunt,” an assessment Barr, as Trump’s chief toady, obviously cannot abide. While the special counsel’s probe may seem like ancient history, it is actually a key part of the impeachment inquiry; last month the general counsel for the House of Representatives asked a federal appeals court to grant Congress access to secret grand jury evidence from the Russia investigation, saying that “there is evidence, very sadly, that the president might have provided untruthful answers…. Did the president lie? Was the president not truthful in his responses to the Mueller investigation? The House is trying to determine whether the current president should remain in office. This is unbelievably serious and it’s happening right now, very fast.”
Covering for Trump re: Russia isn’t the only criticism that has been (justifiably!) lobbed in Barr’s direction of late. Democrats were also enraged by the Justice Department’s quick decision not to investigate Trump over his attempt to convince Ukraine to investigate Joe Biden, and telling the acting director of national intelligence he had no obligation to send an “urgent” whistle-blower report to Congress that has become the basis of the impeachment inquiry. “The attorney general has gone rogue,” Pelsoi told CNN in September, adding that “he has for a long time now.”
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Bess doesn’t even get to Barr’s “maliciously incompetent” mismanagement of the unconstitutional Immigration Courts in support of Trump’s racist White Nationalist agenda.
AMEZCUA-PRECIADO v. U.S. ATTORNEY GENERAL, 11th Cir., 12-03-19, published (per curium)
PANEL: BRANCH, FAY and HULL, Circuit Judges.
Maria Amezcua-Preciado, a native and citizen of Mexico, along with her two minor children, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her application for asylum and denying her withholding of removal. The BIA concluded, based on recent precedent from the Attorney General, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group of “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the Immigration and Nationality Act (“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to establish membership in a particular social group. We thus deny Amezcua- Preciado’s petition for review.
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Wow, what an amazingly gutless and disingenuous performance! Complicit Article III courts have become one of the Trump Regime’s key White Nationalist tools for “deconstructing” U.S. immigration, refugee, and asylum laws.
These aren’t legal disagreements; they are a derelictions of ethical and moral responsibilities. Matter of A-B- was a biased, legally incorrect, factually distorted, unethical attack on asylum law by a Sessions, who was not a “fair and impartial adjudicator.” It ignored a generation of well-developed jurisprudence, legal analysis, and overwhelming factual support for recognizing gender-based domestic violence as a basis for asylum.
Matter of A-R-C-G-, overruled by A-B-, represented a broad consensus within the legal community. Indeed, much of the impetus for that decision came from DHS itself, who had been successfully and efficiently applying its principles in Asylum Offices and in Immigration Courts long before A-R-C-G- actually became a precedent. Remarkably, no actual party requested Sessions’s intervention in A-B-; he rejected ICE’s request to vacate his interference and return the case to the BIA for adjudication under A-R-C-G- criteria. Obviously, the fix was on. But, that made no difference to Branch, Fay, and Hull in their disingenuous haste to “roll over” for the White Nationalist agenda.
I hope that when future historians eventually dissect the rancid racism, misogynism, and White Nationalism of the current regime they will fully expose jurists like Branch, Fay, & Hull who used their privileged positions to “go along to get along,” enabling and furthering the regime’s illegal and unethical “war on asylum seekers, migrants of color, and women.”
The president would always like to be the president. And he’s bending the law to his will to do so.
November 27 2019 4:41 PM
It is a Thanksgiving tradition to spend time thinking about what one is thankful for; a healthy practice that reminds us to see the world in a positive light. Gratitude is good for us and we should not take it for granted. This year, though, I feel compelled to spend at least a bit of time focusing not only what I am thankful for, but on what I am freaking out about. And the thing that concerns me greatly these days is simple: The president seems to have no intention of leaving office and we seem to have no meaningful plan to address that.
The growing hysteria about imaginary past Ukranian election interference, a ludicrous impeachment defense, will be used to deflect from the emphatically certain future Russian election interference (as well as interference from other nations who reasonably want in on the fun). The Mitch McConnell-dominated Senate has declined to do anything to protect against that certainty and instead is building a judiciary that will permit it. Please consider, as well, that the geniuses among us who claim that we should ignore Trump’s effort to conscript Ukraine into working on his 2020 presidential run, and just defeat him roundly at the polls, are forgetting that Donald Trump’s entire raison d’etre, his past and future destiny, is to manipulate presidential elections in ways that preclude his round defeat at the polls. That is why he worked—as we now know—with Roger Stone to distort the outcome of the 2016 elections, it is also why he withheld almost $400 million in appropriated aid to Ukraine this summer. Insisting that we will let the voters decide this matter in a free and fair election in 2020 has to be the Lucy-football-est move ever, in a three-year festival of Lucy-footballing.
Don McGahn thinks someone else is responsible for taking care of all this, as, evidently, does John Bolton. Robert Mueller made the same mistake last spring, when he decided it was Congress’s responsibility to act on what he had found. And so, to be frank, did most of the impeachment witnesses, many of whom only came forward to corroborate the whistleblower’s anonymous report, and some of whom only came forward only pursuant to a subpoena. Everyone seems to assume vast quantities of courage in other people that they cannot seem to find in themselves. Yet somehow, our greatest worry in the coming days will be how to remain civil with one another over a large bird and its cute little cranberry accessories. The president believes that he is above the law and has foreclosed any attempt to prove otherwise. The president seems unable to conceive of himself losing an election. The president is counting on all of us to merely hope that something somewhere gets done about all this stuff at some point, but to never actually do anything ourselves beyond passing the stuffing around. This year, what I am most thankful for is the people who are trying to do that something themselves.
I’m most thankful for all of my wonderful, dedicated colleagues in our Roundtable of Former Immigration Judges, an important “brigade” of the New Due Process Army. The NDPA does more than “merely hope that something somewhere gets done about all this stuff at some point.”
We’re out there leading “the Resistance” (yes, Billy Barr, not everyone is a sleazy sycophant like you) and fighting the forces of White Nationalism, xenophobia, racism, and “legal nihilism” every day in every possible way! Thanks for all you do my friends and colleagues for America, American justice, and to see that the most vulnerable among us get the rights to which they are legally entitled but which are being denied by a fundamentally dangerous and dishonest regime assisted by complicit courts.
Due Process Forever; Legal Nihilism & Complicit Courts Never!
My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:
Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.”The written decision of the IJ, Julie L. Nelson in SF, is also included.
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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”
And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!
What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?
BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.
Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.
Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”
It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!
With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.
Help the New Due Process Army fight for a better, more just, future for America and the world.
Immigration court backlog has nearly doubled under Trump
November 25, 2019 05:00 PM EST
The nation’s backlog of active immigration court cases has surpassed the 1 million mark and has nearly doubled since President Donald Trump took office, a new analysis shows. In Ohio, 12,851 cases are pending in Cleveland’s immigration court, which includes Columbus-area cases. That’s up from 3,295 in 2009.
While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.
The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.
“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.
Nationwide, the backlog has almost doubled, from 542,411 pending cases when President Donald Trump took office in January 2017 to just over 1 million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.
In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.
Hearings are scheduled in the Cleveland court through Dec. 30, 2022.
Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.
Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.”
“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.
Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s immigration court isn’t the worst in the country. In areas such as New York, Chicago and Philadelphia, immigrants are waiting an average of 1,450 days, or just under four years, to see a judge.
Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.
“The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention,” the TRAC report states. “This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.”
Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country illegally a priority for deportation. The norm had been to prioritize those who had committed crimes.
“It is a senseless waste of taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus immigration lawyer, told The Dispatch in an email.
The backlog has grown despite the Trump administration having given the immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.
The nation has 442 immigration judges, according to TRAC. Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who have left have expressed feeling like the Trump administration doesn’t allow them to do their jobs properly while adding quotas and micromanaging their work.
Each judge has about 2,000 cases, according to TRAC.
In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than once a month.
Hiring more judges hasn’t fixed the backlog, Bittner said.
“It is very frustrating because justice delayed is justice denied, and while foreign nationals wait years for the adjudication of their cases, they are putting down roots here and having families, which makes removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.
She said some of her clients are grateful for the wait because they have more time to build a life here. Others, however, are frustrated, Bittner said, because they feel that they are constantly in limbo, and once they’ve built a life, it could all come crashing down when their day in court finally arrives.
A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.
“It just seems to be getting worse,” Bittner said.
Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!
And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”
It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.
The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!
We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!
Every day, courageous women and girls arrive at our southern border seeking refuge from unimaginable violence. Under our laws, they have the right to apply for asylum and have their cases heard. But rather than offering protection, the Trump administration is determined to send them back to the countries they have fought so hard to escape.
On Thursday, Sen. Patrick J. Leahy (D-Vt.) and Rep. Zoe Lofgren (D-Calif.) introduced the Refugee Protection Act. The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.
It’s no secret that this administration is systematically dismantling our asylum law. Women and children have borne the brunt of the suffering — from the egregious policies of family separation and “Remain in Mexico,” to the quiet publication of decisions by the attorney general that have closed door after door to those seeking safety.
The Refugee Protection Act would rectify many of these inhumane actions, and includes language to reverse recent decisions that have made it nearly impossible for women fleeing domestic violence or gang brutality to qualify as refugees.
One of those decisions — known as Matter of A-B- — was handed down by then-Atty. Gen. Jeff Sessions in 2018. That decision has been used to limit the legal definition of “refugee” in an attempt to eliminate the possibility of asylum in the U.S. for victims of domestic violence, sex trafficking and other gender-based human rights violations. Since then, we have seen asylum approval rates plummet for women, children and families arriving at our southern border.
The Matter of A-B- case involves a domestic violence survivor from El Salvador who fears she will be killed if she is sent back to her country. My organization, the Center for Gender & Refugee Studies, has represented A.B. in her asylum case for nearly two years.
In El Salvador, A.B., a courageous and resilient woman, endured over 15 years of beatings, rapes, death threats and psychological abuse at the hands of her husband. She secured a divorce and even moved to another part of El Salvador, desperate to escape her abuser. But no matter where she went, he tracked her down. When she requested a restraining order, the police provided her one — and told her to hand-deliver it to him. Fearing that he would make good on his threat to kill her, she fled to the United States.
In 2016, A.B. was granted asylum by the highest administrative tribunal in the immigration system, the Justice Department’s Board of Immigration Appeals. But in a highly unusual procedural move, Sessions seized upon A.B.’s case, overturned the grant of asylum, and used it to declare that the United States should no longer extend protection to domestic violence survivors.
A.B. has appealed Sessions’ action, but until a final decision is reached, she remains terrified that she will be deported. Countless other women who have made the arduous journey to the United States also face a hostile immigration system and, post-Matter of A-B-, an even harder legal battle.
Congress has an opportunity to correct this. The new bill would clarify legal requirements for asylum and provide clear guidance for cases involving gender-based violence. It would ensure that asylum seekers like A.B. get a fair opportunity to argue her claim before a judge.
The United States has a long history of giving refuge to people who’ve come to our shores. This measure would be a step toward restoring that tradition.
Karen Musalo is a law professor and the founding director of the Center for Gender & Refugee Studies at UC Hastings College of the Law. She is also lead coauthor of “Refugee Law and Policy: An International and Comparative Approach (5th edition).”
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Here’sa link to an ImmigrationProf Blog summary and the text of the Refugee Protection Act, a recently introduced bill:
AN UNCONSTITUTIONAL “COURT” SYSTEM WHERE POLITICOS & PROSECUTORS DETERMINE JURISDICTION CONTINUES TO DISPENSE INJUSTICE IN LIFE OR DEATH MATTERS AS FECKLESS ARTICLE III COURTS TANK & AN EMBOLDENED ADMINISTRATION COMMITS OVERT HUMAN RIGHTS, STATUTORY, AND CONSTITUTIONAL VIOLATIONS BY RETURNING ASYLUM APPLICANTS TO UNSAFE COUNTRIES WITHOUT FUNCTIONING ASYLUM SYSTEMS!
Alexandra, VA. Nov. 21, 2019. It’s one of the most elementary principles in law: a court has jurisdiction to determine its own jurisdiction. But, in the so-called U.S. Immigration Courts, where individuals are often essentially on trial for their lives, sometimes without the benefit of legal counsel or time to prepare, Department of Justice politicos and DHS prosecutors tell the Immigration Judges what jurisdiction, if any, they possess.
Thus, in a memorandum issued on November 19, 2019, the Director of EOIR, a non-judicial “mouthpiece” for DOJ politicos that run these unconstitutional administrative “courts,” instructed Immigration Judges on the requirements of clearly fraudulent “Safe Third Country Agreements” put in place by the Administration to deter, punish, and in some cases likely kill asylum applicants in dangerous, non-statutorily-qualifying countries, without credible asylum systems. He told them how and when they could exercise jurisdiction over certain cases and when they only had jurisdiction if DHS prosecutors determined in their sole discretion that it was “in the public interest.”
Remarkably, in the face of a statute that clearly gives individuals a right to apply for asylum in the U.S. “regardless of status,” the DHS now will determine whether in the exercise of their prosecutorial discretion an individual will actually be allowed to apply for asylum before an Immigration Judge. And, that clearly won’t happen often, if at all.
Otherwise, under blatantly fraudulent “Safe Third Country” agreements, newly arriving asylum seekers will be “orbited” to three of the most dangerous countries in the world — Guatemala, Honduras, & El Salvador — that don’t even have functioning asylum systems. Indeed, these failed states, overrun by gangs and cartels, are among the world’s most notorious “sending counties” for asylum seekers! How would countries that can’t even provide minimal protection for their own citizens and without functional asylum systems possibly provide a safe opportunity for individuals to apply for asylum? Clearly, they won’t.
Of course, the Administration has put out a litany of outrageous lies in support of its fraud. One of the most patently absurd claims is that this illegal scheme will offer asylum applicants “protection in the area” without making the “dangerous journey.”
But, there is no chance that some of the most corrupt and inept governments in the world, unable to protect their own citizens, would be able to offer reasonable protection to asylum seekers from third countries. Some of the victims of the Trump Administration’s racist malfeasance probably won’t survive long enough to even make their claims. And, there isn’t any credible process for them to apply anyway. It took the U.S. decades to develop the asylum system that Trump has now dismantled. The idea that poor countries with no expertise and resources to devote to the process will be able to adjudicate asylum claims under a comparable “fair” system doesn’t pass the “straight face test.”
Beyond that 1) the hapless individuals being returned (with no access to counsel) have already made the “dangerous journey;” and 2) the gangs and cartels operate with government acquiescence, cooperation, and/or impunity throughout the small area of the Northern Triangle. Therefore, individuals are likely to be in danger and targeted for harm, kidnapping, extortion, or all three, the minute they set foot in any of these failed states.
That’s certainly been the experience of those returned to Mexico under the dishonestly named “Migrant Protection Protocols,” more accurately known as the “Let ‘Em Die in Mexico Program.” So outrageously unlawful has this program been that some Asylum Officers and Immigration Judges have resisted or actually quit over being required to engage in illegal acts and human rights violations.
Yet, a complicit Ninth Circuit Court of Appeals has allowed these deadly attacks on our system of justice and human dignity to continue. Perhaps the “lowlight” of that court’s judicial malfeasance has been the well documented cases of DHS officials issuing fake hearing notices to their victims. Just imagine if those abuses happened to the spouse, son, or daughter of one of the these feckless judges! Judges who place themselves above justice to the humanity they serve are a systemic problem.
There’s also the matter of no transparent procedures being in place to determine what will happen to these individuals and where they will be where housed once “orbited.” Finally, even if against the odds someone actually got asylum in a Northern Triangle country, they clearly would not be “protected” by countries incapable of offering protection to most of their citizens.
By comparison, the one pre-existing “Safe Third Country” agreement with Canada, a country that actually appears to qualify under the statute, bears no resemblance whatsoever to the broadly worded fraudulent agreements with the Northern Triangle countries. The Canadian agreement is carefully circumscribed with many protections and qualifications and applies to only a small number of individuals annually.
By contrast, the fraudulent agreements with the Northern Triangle potentially apply broadly to individuals from countries like Cuba and Haiti who have never passed through the Northern Triangle and have no connection whatsoever with those countries. That’s because Canada is a real country that negotiated at arm’s length with the U.S. By contrast, the failed states of the Northern Triangle had these bogus agreements shoved down their throats with threats to cut off aid and assistance by corrupt officials like “Big Mac With Lies” McAleenan acting on Trump’s and Miller’s instructions.
But, complying with statutory requirements and protecting asylum seekers under the law never has been an objective of the Trump Administration. Killing and mistreating asylum seekers as a “deterrent” and then feeding the results to a White Nationalist base as “success” is the sole objective of these corrupt programs.
Nobody, and I mean nobody, who understands and cares about honest implementation of U.S. refugee and asylum law could have contemplated in their worst nightmares that we would be discussing the Northern Triangle countries as “Safe Third Countries.” Yet, here we are.
But, perhaps the most amazing and discouraging fact is that in the face of such blatant public fraud and illegal behavior, over and over in disregarding asylum laws and Constitutional requirements, the Article III Federal Appellate Courts, all the way up to the Supremes, have failed to consistently stand up to the dishonest thugs in the Trump Administration who are running roughshod over our asylum laws and our Constitution. They daily ignore the clear unconstitutionality of an Immigration “Court” system that denies individuals the “fair and impartial” adjudicators to which the are entitled under the Fifth Amendment. In the process they are dehumanizing all of us.
The statute purports to bar judicial review of individual claims denied under the “Safe Third Country” exception. But, surely some smart member of the New Due Process Army can come up with a theory to challenge the Constitutionality of such blatantly dishonest and overtly fraudulent agreements that subvert the statute and clearly deny Due Process to individuals within the jurisdiction of the U.S.
And, let’s not forget the Congress where all constructive immigration reforms are blocked by a GOP Senate. In a rational world, Congress would have acted by veto-proof margins to withdraw the Executive’s authority to enter into “Safe Third Country Agreements” in light of the Administration’s well-publicized plans to clearly ignore and abuse the Congressionally-mandated standards. They also would have created independent Article I Immigration Courts outside of the Executive Branch. But, that would be a Congress other than one beholden to today’s GOP and their slavish devotion to Trumpism.
Those involved in negotiating, implementing, enabling, and defending these fraudulent agreements are committing major human rights violations. While there might currently be no ways of holding them legally and personally accountable, the the truth eventually will come out. History will be their judge. And, when all the ugliness, dishonesty, racism, cowardice, and dereliction of legal duties are finally exposed, I wouldn’t want to be in their shoes or the shoes of their descendants who will have to live with the eternal shame of those who abuse and deny the humanity and legal rights of the most vulnerable among us.
Due Process Forever!
Here’s the EOIR’s bogus “Guidance” for those who have the stomach to wade through it:
U.S. has world’s highest rate of children in detention: U.N. study
The United States has the world’s highest rate of children in detention, including more than 100,000 in immigration-related custody that violates international law, the author of a United Nations study said on Monday.
Worldwide more than 7 million people under age 18 are held in jails and police custody, including 330,000 in immigration detention centres, independent expert Manfred Nowak said.
Children should only be detained as a measure of last resort and for the shortest time possible, according to the United Nations Global Study on Children Deprived of Liberty.
“The United States is one of the countries with the highest numbers – we still have more than 100,000 children in migration-related detention in the (U.S.),” Nowak told a news briefing.
“Of course separating children, as was done by the Trump administration, from their parents and even small children at the Mexican-U.S. border is absolutely prohibited by the Convention on the Rights of the Child. I would call it inhuman treatment for both the parents and the children.”
There was no immediate reaction from U.S. authorities. Novak said U.S. officials had not replied to his questionnaire sent to all countries.
He said the United States had ratified major international treaties such as those guaranteeing civil and political rights and banning torture, but was the only country not to have ratified the pact on the rights of children.
“The way they were separating infants from families only in order to deter irregular migration from Central America to the United States to me constitutes inhuman treatment, and that is absolutely prohibited by the two treaties,” said Nowak, a professor of international law at the University of Vienna.
The United States detains an average of 60 out of every 100,000 children in its justice system or immigration-related custody, Nowak said, the world’s highest rate, followed by countries such as Bolivia, Botswana and Sri Lanka.
Mexico, where many Central American migrants have been turned back at the U.S. border, also has high numbers, with 18,000 children in immigration-related detention and 7,000 in prisons, he said.
The U.S. rate compared with an average of five per 100,000 in Western Europe and 14-15 in Canada, he said.
At least 29,000 children, mainly linked to Islamic State fighters, are held in northern Syria and in Iraq – with French citizens among the biggest group of foreigners, Nowak added.
Even if some of these children had been child soldiers, he said, they should be mainly treated as victims, not perpetrators, so that they could be rehabilitated and reintegrated in society.
(Reporting by Stephanie Nebehay; Editing by Mark Heinrich)
Why is Trump not being held accountable for leading the “race to the bottom” while littering the track with illegalities and trampling on our Constitution?
This is how we will be remembered by future generations!
Contrary to the rants of dangerous subversive Billy Barr, “The Resistance” may be the only thing that can save American and our national values.
And, let’s “lose” all the GOP/Fox News BS about “reversing election results.” Not only is impeachment an authorized Constitutional process, but, in fact, removal of Trump would result in his replacement by his hand-picked GOP stalwart successor VP Mike Pence. Hardly a “reversal” of results.
As I’ve said before, in some ways Pence could be worse than Trump, because he’s much more competent and knowledgeable on how Government actually works. Where Trump often trips over his own two feet (or, perhaps, “tweet”), Pence might be able to get things done even where they aren’t in the national interest. Nevertheless, that shouldn’t stop anyone from voting to remove Trump, because it’s the right thing to do. Unlikely to happen, though, given the blind commitment of the GOP to Trumpism and its ugly messages of cruelty, intellectual dishonesty, and dehumanization.
Heather Cox Richardson Historian Professor, Boston College
American Historian Heather Cox Richardson writes in her daily e-mail for today:
A friend read the proofs for me, and asked why I had not mentioned the Brooks Brothers Riot. I had no good answer, so today I went back to the sources.
For those of you who don’t remember everything that happened in those crazy days when we were all trying to figure out what the heck had happened in the 2000 election, the Brooks Brothers Riot was made up of a bunch of Republican operatives, many of whom had flown in from other states, who gathered on November 22, 2000 at the Miami-Dade polling station where Florida officials were attempting to recount the confusing ballots, to insist that the Democrats were trying to steal the election. Their noise and outrage helped to get the recount called off. As I was reading through the articles about the riot, the name Roger Stone jumped out at me. That name meant nothing to me in 2000, but it sure does today.
This is the same Roger Stone who advised the Trump campaign and who has just been convicted for lying to Congress about his connections to Wikileaks before the 2016 election. Wikileaks worked to hurt Democratic presidential nominee Hillary Clinton and promote Donald Trump by dumping emails that Russia had hacked from the Democratic National Committee. Stone is a no-holds-barred political operative who got his start on the 1972 reelection campaign of Richard Nixon, whose face is tattooed on Stone’s back (no, I’m not kidding) and who, after Nixon’s fall, went on to start a political consulting firm with Paul Manafort, Trump’s campaign chairman from June to August 2016 (who is also now a convicted felon), and Lee Atwater, the man behind the viciously racist Willie Horton ad that sank Democratic candidate Michael Dukakis in 1988 (Atwater apologized for his actions as he was dying).
At the time of the Brooks Brother’s Riot, Stone claimed he was there “as a volunteer,” and “knew nothing about the protesters other than the fact I approve of Republicans expressing their First Amendment rights.”
This was a lie. In reality, Stone was a key operative, eavesdropping on the Democratic recount team with a walkie-talkie and determined to undermine the recount to get Bush in office, regardless of the popular vote or the real outcome in Florida. “What I admire about Nixon was his resilience,” he later told a reporter, “It’s attack, attack, attack. Al Gore thought the recount was a high-minded policy debate. He didn’t understand that it was an extension of a war, of a political campaign.”
That comment jumped out to me, just as Stone’s name had. That’s it, isn’t it? While the rest of us believe in the rules of democracy, people like Stone and Manafort see political engagement as a war in which winning is everything. It is worth lying, cheating, and stealing, because the goal is not better government, the goal is to win, and then to use that victory to reward your friends and hurt your enemies. After working for Ronald Reagan, George H. W. Bush, and George W. Bush, Stone and Manafort advised dictators. Then they turned their hands to the Trump campaign. Their approach to politics appears by now to be embedded in today’s Republican Party. Jennifer Rubin, a conservative writer at the Washington Post, had a story today entitled “The Party of Lying Liars,” in which she laid out a litany of Republican whoppers, designed solely to appeal their base and thus stay in office.”
As we begin the second Bush administration, let’s take a moment to reflect upon one of the most historic episodes of the 2000 battle for the White House — the now-legendary “Brooks Brothers Riot” at the Miami-Dade County polling headquarters.
This was when dozens of “local protesters,” actually mostly Republican House aides from Washington, chanted “Stop the fraud!” and “Let us in!” when the local election board tried to move the re-counting from an open conference room to a smaller space.
With help from their GOP colleagues and others, we identified some of these Republican heroes of yore in a photo of the event.
Some of those pictured have gone on to other things, including stints at the White House. For example, Matt Schlapp, No. 6, a former House aide and then a Bush campaign aide, has risen to be White House political director. Garry Malphrus, No. 2 in the photo, a former staff director of the Senate Judiciary subcommittee on criminal justice, is now deputy director of the White House Domestic Policy Council. And Rory Cooper, No. 3, who was at the National Republican Congressional Committee, later worked at the White House Homeland Security Council and was seen last week working for the Presidential Inaugural Committee.
Here’s what some of the others went on to do:
No. 1. Tom Pyle, who had worked for Rep. Tom DeLay (R-Tex.), went private sector a few months later, getting a job as director of federal affairs for Koch Industries.
No. 7. Roger Morse, another House aide, moved on to the law and lobbying firm Preston Gates Ellis & Rouvelas Meeds. “I was also privileged to lead a team of Republicans to Florida to help in the recount fight,” he told a legal trade magazine in a 2003 interview.
No. 8. Duane Gibson, an aide on the House Resources Committee, was a solo lobbyist and formerly with the Greenberg Traurig lobby operation. He is now with the Livingston Group as a consultant.
No. 9. Chuck Royal was and still is a legislative assistant to Sen. Jim DeMint (R-S.C.), a former House member.
No. 10. Layna McConkey Peltier, who had been a Senate and House aide and was at Steelman Health Strategies during the effort, is now at Capital Health Group.
(We couldn’t find No. 4, Kevin Smith, a former GOP House aide who later worked with Voter.com, or No. 5, Steven Brophy, a former GOP Senate aide and then at consulting firm KPMG. If you know what they are doing these days, please e-mail shackelford@washpost.comso we can update our records.)
Sources say the “rioters” proudly note their participation on résumés and in interviews. But while the original hardy band of demonstrators numbered barely a couple of dozen, the numbers apparently have grown with the legend.
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How to build a great GOP resume!
Interestingly, “Rioter # 2,” Garry D. Malphrus (face partially obscured in the photo) went on to become a U.S. Immigration Judge and later an Appellate Immigration Judge on the Board of Immigration Appeals (“BIA”), supposedly the highest administrative tribunal in immigration (although it now functions within the Department of Justice more or less as an extension of DHS Enforcement and Stephen Miller’s White Nationalist, anti-immigrant agenda).
Judge Malphrus was recently named the Acting Chair of the BIA by Billy Barr. Although Barr is a notorious “law enforcement hard liner,” I guess his strong commitment to “law and order” only goes so far.
Got to focus on the “real threats” to our democracy: the Dreamers and other hard working, law abiding, tax paying long-time American residents who are propping up our society and our economy so that Barr, Stone, Trump, and the former rioters can “live the good life.” And certainly, insuring the death or abuse of as many asylum applicants and kids as possible should be high on the list of worthy expenditures of our taxpayer dollars and moral capital.
The moral: Liberals get in trouble for rioting; conservatives get promoted!
Meanwhile, who knows? Could the Supremes be the next stop for Judge Malphrus?
Today’s biggest story set the scene for news that continues to develop about the Ukraine scandal.
The big story, in terms of its ability to frame the crazy events coming at us at top speed, happened last night, when Attorney General William Barr gave a speech to the Federalist Society, a group of conservative and libertarian lawyers who argue for an originalist interpretation of the Constitution. The conviction of members of the Federalist Society that courts should not do anything that is not listed in the original Constitution makes them great friends to business and to white men, since they focus on the protection of property and deny that laws can regulate business, provide a basic social safety net, or protect minority or women’s rights. The Federalist Society organized in 1982 to push back against what its members felt was an activist court system that tried to reorganize society from the bench. It has been extraordinarily successful in taking over the courts: currently five members of the nine-member Supreme Court are current or past Federalist Society members: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his speech, Attorney General William Barr claimed he was going truly to be an originalist, and explained by taking American history back to its roots. In contrast to every single American historian in, well, American history, Barr argued that Americans had rebelled not against King George III in 1776, but rather against Parliament. What the Founders feared, he said, was not a strong executive, but rather a strong Parliament. (You can tell where this is going, right?) Barr was setting up the idea that Congress has grown far too strong lately (in fact, virtually every scholar will tell you that it is the Executive that has grown terribly strong since 1981) and that it is badly hampering the president’s ability to do his job. The president should be able to act on his own initiative, and not be checked by either congressional or judicial oversight, Barr insisted, in a theory known as that of the “unitary executive.”
Barr did not stop there, though. He went on to blame “The Resistance” for sabotaging the Trump administration, and claimed that its members were “engaged in a war to cripple, by any means necessary, a duly elected government.” More, he claimed “the Left” is “engaged in the systematic shredding of norms and the undermining of the rule of law.” Conservatives, he said, were at a disadvantage against progressive’s “holy war” because they “have more scruple over their political tactics” especially when facing “a hyper-partisan media.” (You might want to reread those last two sentences.)
Richard Painter, who was George W. Bush’s ethics lawyer, called this a “lunatic authoritarian speech.” Attorneys General are supposed to be non-partisan, and Barr lumped all opposition to Trump as the dangerous far left. The “Left,” in America, generally refers to those few people who advocate for communism—a system in which the government owns and controls all industries and businesses– or anarchy, a system in which there is no central authority at all. It’s actually a pretty small group. But Barr, and other recent Republicans, have included in “the Left” everyone who believes that the government has any role to play in regulating business, providing a basic social safety net, and promoting infrastructure, all those things the Federalist Society opposes. In fact, most of us, regardless of whether we vote Republican or Democratic, want some basic regulations, social welfare programs, and infrastructure development.
But now the Attorney General, who is charged with overseeing our justice system, has declared that anyone standing in the way of Trump is not just a member of “the Left” but also is waging war against America. Painter is quite right: this is the language that enables a leader to imprison people he considers his enemies.
Barr is not saying all this in a vacuum. More news dropped today about the Ukraine scandal, filling in the lines we already suspected. Congress released transcripts today from Tim Morrison and Jennifer Williams, both of whom were deeply involved in the Ukraine mess and were on the July 25 call between Trump and Zelensky. A long-time career official in the State Department, Morrison replaced Fiona Hill as the Senior Director for Russia and Europe in July 2019. Williams is another long-standing career officer in the State Department. Since April 2019, she has been the Special Adviser for Europe and Russia for Vice President Mike Pence. Morrison said that Ambassador to the European Union Gordon Sondland made it clear that aid was being withheld until there was an announcement about an investigation into Burisma, the company on whose board Hunter Biden sat.
This jibed with the opening statement of David Holmes, the political counselor at the Embassy in Kyiv, who testified for seven hours yesterday behind closed doors. Holmes was an eye-witness to the efforts of Trump, his lawyer Rudy Giuiliani, and Ambassador to the European Union Gordon Sondland, to pressure the new Ukraine president Volodymyr Zelensky into announcing an investigation into Burisma, the company on whose board Hunter Biden sat. Holmes’s opening statement was explosive. It was not only first hand, but also it tied Trump directly into the efforts, and it made very clear that the administration was demanding the announcement of an investigation before it would release the money Congress had appropriated for Ukraine’s fight against Russian incursions. Holmes also said that he had reported what he had heard to John Eisenberg, Legal Advisor to the National Security Council, the same man to whom Lt. Col. Alexander Vindman had reported the July 25 call, and, once again, Eisenberg had done nothing. (Eisenberg is refusing to honor a subpoena to testify.)
Then, CNN dropped the story that at last year’s White House Hanukkah party Lev Parnas and Igor Fruman met privately with Trump and Giuiliani. After the meeting, Parnas told two people that the president had given him a secret mission to pressure the Ukraine government to investigate Joe and Hunter Biden. The Wall Street Journal reports that in February, Parnas and Fruman met with the Ukraine President at the time, Petro Poroshenko, and his Prosecutor General Yuriy Lutsenko, offering to invite Poroshenko to a White House State dinner if he publicly announced an investigation. As I wrote here two days ago, this would have boosted both Poroshenko’s and Trump’s reelection campaigns. In March, Lutsenko smeared U.S. Ambassador to Ukraine Marie Yovanovitch to an American reporter and Sean Hannity ran with the story on his show, but the scheme fell apart when voters elected Zelensky instead of reelecting the corrupt oligarch Poroshenko. Then they had to scramble to come up with a new plan, and the whole ham fisted Ukraine scandal took off.
The Ukraine scandal is fleshing out, and it is truly astonishing that there is not more evidence that can be read in Trump’s favor. This increasingly just looks like a shakedown that weakened national security to help Trump rig the 2020 election. Meanwhile, in northern Syria, where Turkish and Russian troops moved in when we moved out, the Russians boasted yesterday that they have now occupied a former U.S. air base.
Trump spent several hours today at Walter Reed hospital. The visit was unexpected and unannounced, but the White House said he had decided to have portions of his annual physical done three months early.
Attorney General Bill Barr Is Getting Roasted for His Outrageous Speech Blasting Progressives
As the impeachment hearings continued, Attorney General Bill Barr on Friday trash-talked Democrats for attempting to “drown the executive branch with oversight demands,” saying they were working for political gain without thinking of the consequences.
“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Barr told a room of attorneys at the annual gathering of the Federalist Society, a conservative legal group that has been influential in determining President Donald Trump’s nominees for federal judges.
The remarks about Democrats ignoring the rule of law were especially ironic because they came a mere hours after Roger Stone, one of Trump’s previous advisers, was convicted on all counts for lying to Congress during its probe into Russia’s interference in the 2016 election. The attorney general’s speech also came on the second day of presidential impeachment hearings examining allegations that Trump attempted to interfere in the 2020 elections by asking Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter.
Barr criticized Democrats for launching a “holy war” and using “any means necessary to gain momentary advantage,” while he said conservatives “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
. . . .
Barr reportedly received a standing ovation, but outside the halls of the Federalist Society, his remarks sparked outrage and intensified calls from the left to impeach not only the president, but the attorney general himself. Others were quick to roast Barr for his statements. “Bill Barr is the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases,” Richard Painter, a former White House ethics counsel, tweeted.
. . . .
“Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer,” Rep. Bill Pascrell (D-N.J.) tweeted Saturday morning. “Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”
. . . .
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Read Samantha’s complete article which includes the full the two of a number of tweets at the link.
Hours after a new witness testified in the House’s latest impeachment hearing on Friday, Attorney General William Barr railed against Democrats for declaring a “war of resistance against this administration.”
In a speech before the conservative Federalist Society, Barr rebuked lawmakers for probing President Donald Trump’s potential power abuses, suggesting their efforts are illegitimate.
“The sheer volume of what we see today ― the pursuit of scores of parallel investigations through an avalanche of subpoenas ― is plainly designed to incapacitate the executive branch, and indeed is touted as such,” Barr said. “The costs of this constant harassment are real.”
Barr’s portrayal of oversight as harassment echoes Trump’s repeated claims that he is the victim of a partisan “witch hunt” rather than the subject of a justified inquiry into his dealings with Ukraine, which remain at the heart of Democratic-led impeachment proceedings.
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law,” Barr added. “This highlights a basic disadvantage that conservatives have had in contesting the political issues of the day.”
President Trump is convinced he has the “absolute right” to do anything from asking other countries to investigate his political opponents to pardoning himself. But he couldn’t possibly tell you why — aside from his innate conviction that “when you’re a star, they let you do it” — you can get away with anything. Enter Attorney General William P. Barr to put a pseudo-intellectual gloss on Trump’s authoritarian instincts. In a Friday night speech to the Federalist Society, Barr gave a chilling defense of virtually unlimited executive authority.
Barr’s wrongheaded assumption was that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government.” His view faithfully reflects the conservative consensus of the 1970s when he was a CIA analyst and a law student. Few serious analysts share that view today at a time when the president claims the authority to kill suspected terrorists anywhere in the world without any judicial oversight. In fact, conservatives decried President Barack Obama’s tendency to rule by fiat — for example, in protecting “dreamers” from deportation or reaching a nuclear agreement with Iran that wasn’t submitted for Senate ratification.
Trump has now taken rule-by-executive-order to the next level by declaring a “state of emergency” to spend money on his border wall that Congress refused to appropriate. Trump has also misused his authority in myriad other ways, including obstructing justice (as outlined in a special counsel report that Barr deliberately mischaracterized) and soliciting a bribe from Ukraine to release congressionally appropriated military aid.
Yet, to hear Barr tell it, Trump is somehow denied power by the nefarious “Resistance.” Barr decried Trump critics who do not view “themselves as the ‘loyal opposition,’” but rather “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
Earth to Barr: Trump does not treat his critics as “the loyal opposition.” He calls them “human scum,” “traitors” and “the enemy of the people,” using the language of dictators. And it is Trump and his toadies — not his opponents — who are “willing to use any means necessary to gain momentary advantage.”
Barr went on to blame the “Resistance” for Trump’s failure to get more nominees confirmed. The real problem is Trump’s incompetence and his preference for “acting” appointees to dodge the constitutional requirement to seek the Senate’s “advice and consent.” (Trump has not nominated anyone for nearly 20 percent of the top federal jobs.) If Barr wants to find a real abuse of the confirmation process, he should talk to Merrick Garland.
As devoid of self-awareness as his master, Barr whines about “the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas.” He conveniently forgets that Republicans tried to impeach President Bill Clinton for lying about sex and spent years probing the Benghazi, Libya, attack in a failed attempt to blame Hillary Clinton. Trump is stonewalling congressional subpoenas at an unprecedented rate, forcing Congress to seek judicial assistance to enforce legitimate requests for documents and witnesses. But Barr denies that the courts have any right to “resolve … disputes” between the executive and legislative branches — effectively allowing the president to act like a king.
The attorney general went on to rail against judicial review of administration actions such as “the travel ban.” This was ultimately upheld by the Supreme Court after the administration rewrote the initial versions, which constituted clear discrimination on religious grounds. Yet Barr is still aggrieved that the courts dared “to inquire into the subjective motivation behind governmental action” — i.e., to look at Trump’s own words about banning Muslims rather than accept the administration’s disingenuous explanations.
Barr blamed the courts and the president’s critics for the fact that so many administration actions have been challenged in court. The truth is Trump has nobody but himself to blame. Many of the lawsuits accuse the administration of violating the Administrative Procedure Act, which the executive branch can comply with simply by showing that its actions are not “arbitrary and capricious.” This is an incredibly low standard, which is why the normal “win rate” for the government in such cases is about 70 percent. According to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate is less than 7 percent.
Trump likes to blame such setbacks on “Obama judges,” but many of the judges ruling against him are Republican appointees. Chief Justice John G. Roberts Jr., for example, wrote the 5-to-4 decision in June in which the Supreme Court blocked Trump’s attempt to include a citizenship question on the 2020 Census.
“In this partisan age,” Barr sanctimoniously concluded, “we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” He is right, but not in the way he intended. The real threat to “our Constitutional structure” emanates not from administration critics who struggle to uphold the rule of law but from a lawless president who is aided and abetted in his reckless actions by unscrupulous and unprincipled partisans — including the attorney general of the United States.
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Mary Papenfuss Contributor HuffPost
Finally, let’s hear from Mary Papenfuss, also at HuffPost:
Attorney General William Barr’s latest extreme defense of Donald Trump has triggered a wave of calls for his impeachment — and disbarment.
Richard Painter, the former chief White House ethics attorney in the George W. Bush administration, tweeted that Barr’s remarks Friday before the conservative Federalist Society were “another lunatic authoritarian speech” amid an impeachment investigation into the president. He claimed that Barr — a member of the conservative Catholic society Opus Dei — is “the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases.”
. . . .
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Read the rest of Mary’s article at the link.
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Somewhat “below the radar screen:” Barr’s repetition of Session’s blatantly unethical performance by acting as a “quasi-judicial decision maker” in Immigration Court cases where he clearly has both an actual and apparent bias in favor of a party, the DHS, and against another party, the individual migrant, particularly any asylum seeker.
Obviously, viewed through Barr’s perverted historical lens, we’ve made some seriously wrong moves.According to Barr’s interpretation, we should have allied ourselves with Hitler during World War II. Now, there’s a guy who understood the concept of the “Unitary Executive.” And, he sure knew how to deal with opposing legislators, “the resistance,” and others who were “enemies of the state” or of “inferior stock.” Why on earth would we have aligned ourselves with, and helped rebuild, the noxious parliamentary democracies of the West?
One of our allies, Stalin, did actually demonstrate the wonderful power of the “Unitary Executive” — talk about a guy who WAS the State and annihilated all opposition, real and imagined! He certainly would have known what to do with subversives who preached “impeachment” under the Constitution!
But, concededly, Stalin’s godless communism doesn’t fit in well with Barr’s Catholic Christian theocracy (minus, of course, the social justice teachings of Christ and the Catholic Church). Hitler’s pure Aryian Christian superiority was a much better fit with Barr’s historical outlook.
Of course, according to the Barr view, the seminal figure in Republicanism, Abe Lincoln, erred by not aligning himself with Jeff Davis and the Confederacy. Davis certainly knew how to operate without much legislative accountability. And the founders of the Confederacy also possessed Barr’s superior understanding of the relationship between the State and the Divine: “establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God.”
Sure, easy to believe that God was always a big fan of enslavement, rape, brutality, white privilege, and theft of services from enslaved African Americans, who also happened to be believers in God. Fits right in with Barr’s dehumanization of Hispanic workers, trashing of LGBTQ Americans, denial of rights to asylum seekers, threats to political opponents, and war on Hispanic Americans who have the audacity of wanting to vote and live peacefully in their communities without being terrorized by DHS enforcement.
George Washington, who wrongly refused to install himself as either King or “President for Life” was, according to Barr’s historical perspective, a dangerous wimp who diminished the potential powers of the “Unitary Executive.”
Undoubtedly, our Founders had their flaws. After all, the Constitution not only enshrined the dehumanization of African Americans, who had actually made the success and prosperity of the American Republic possible, but also excluded the majority of inhabitants from political participation.
But, unlike Barr and his fellow “originalists,” our Founders were largely persons of vision and good will who had enough self awareness and humility to see a better and more dynamic future. They would certainly be shocked and dismayed to find out that rather than viewing our Constitution rationally, as a blueprint to be built upon for a better, more inclusive, more tolerant future, two plus centuries later, individuals like Barr holding supposedly responsible positions under our Republic, would be mindlessly and immorally urging us never to escape the limitations and mistakes of our distant past.
Disturbingly unqualified as he is to serve as our Attorney General, Barr does illustrate the moral and legal bankruptcy of the “fake doctrine” of “originalism.” It’s actually an intellectually indefensible excuse for an empowered, largely White, predominantly male, minority to exclude the majority of America’s inhabitants and their hopes and dreams from full participation in our democracy. It’s as ugly and dishonest as Barr’s own tenure as Attorney General.
Asylum officers rebel against Trump policies they say are immoral and illegal
In collaboration with the radio program “This American Life,” the Los Angeles Times takes an exclusive, front-line look at a much-criticized Trump administration policy to restrict asylum — the Migrant Protection Protocols — from the perspective of the asylum officers implementing it.
It only took Doug Stephens two days to decide: He wasn’t going to implement President Trump’s latest policy to restrict immigration, known as Remain in Mexico. The asylum officer wouldn’t interview any more asylum seekers only to send them back to danger in Mexico.
As a federal employee, refusing to implement the government policy probably meant that he’d be fired, and an end to his career as a public servant. He’d only been assigned five of the interviews so far. But it was five too many — to the trained attorney, the policy officially termed “Migrant Protection Protocols” was not only unethical, it was against the law.
When Stephens told his supervisor in San Francisco his decision, he said he was stunned.
“I told him, ‘You don’t understand. I’m not doing these interviews,’” Stephens said, speaking publicly for the first time in an exclusive interview. “I think they’re illegal. They’re definitely immoral. And I’m not doing them.’”
Stephens is believed to be the first asylum officer to formally refuse to conduct interviews under the program, according to Michael Knowles, a spokesman for the National CIS Council, the union that represents some 13,000 asylum officers and other employees of Citizenship and Immigration Services worldwide.
But he isn’t alone. Across the country, asylum officers are calling in sick, requesting transfers, retiring earlier than planned and quitting, all to resist this and other Trump administration immigration policies that they view as illegal, according to Stephens, as well as other asylum officers and officials.
In a collaboration with the radio program “This American Life,” the Los Angeles Times takes an exclusive, front-line look at one of the Trump administration’s most successful policies to restrict asylum — the Migrant Protection Protocols — from the perspective of the asylum officers forced to implement it.
The asylum officers’ primary job is to make sure that the U.S. government is not returning people to harm in their home countries, a foundational principle in both U.S. and international law. But under MPP, instead of allowing asylum seekers who come to the southern border to wait in the U.S. for their immigration hearings, U.S. officials are forcing them to wait in Mexico.
Since the Trump administration announced the policy in December, U.S. officials have pushed roughly 60,000 asylum seekers back to Mexico, to wait in areas that the U.S. State Department considers some of the most dangerous in the world.
While U.S. officials downplay the danger in Mexico, kidnappings, rape and other violence against asylum seekers under the program are widespread and well documented, according to other officials, advocates, lawyers and academic researchers.
Homeland Security officials concede that the program is designed to discourage asylum claims. The president is running for reelection on renewed promises to limit immigration. Under the policy, only 11 asylum seekers have been granted some kind of relief, according to Syracuse University’s TRAC database.
The half-dozen asylum officers interviewed by The Times say that in almost every interview they’ve conducted under the policy, the asylum seeker expressed a fear of returning to Mexico — many said they’d been harmed there already. But under the new standards, the officers say they had to return them anyway.
“What’s my moral culpability in that?” said an asylum officer who’s conducted nearly 100 interviews. She requested anonymity because she feared retaliation. “My signature’s on that paperwork. And that’s something now that I live with.”
The asylum officers rebelling against Trump’s immigration policies say they run counter to the laws passed by Congress, as well as their oath to the Constitution and extensive training, which includes how to detect fraud or any potential national security concerns.
Under U.S. law, migrants have the right to request asylum. Some 80% of asylum seekers pass the first step in the lengthy process, an interview with an asylum officer that’s known as a credible-fear screening. Congress set a low standard for the officers to use at this initial stage, to minimize the risk of sending someone back to harm, or even death. But ultimately, only about 15% of applicants win asylum before an immigration judge.
Trump and his top officials use this difference between the percentage of asylum seekers who pass the first step versus the percentage who ultimately win asylum to claim that asylum itself is a “hoax” or “big fat con job.”
Ken Cuccinelli, the acting head of Citizenship and Immigration Services, has publicly criticized the officers, saying they approve too many requests and oppose Trump’s initiatives for partisan reasons. On Wednesday, Cuccinelli was named acting deputy Homeland Security secretary.
Cuccinelli’s spokesperson stopped responding to requests for an interview. But The Times asked Cuccinelli during an October media breakfast about concerns from officers.
“So long as we’re in the position of putting in place what we believe to be legal policies that haven’t been found to be otherwise,” Cuccinelli said, “we fully expect them to implement those faithfully and sincerely and vigorously.”
Citizenship and Immigration Services also declined requests for data on staffing for the Homeland Security agency, and the asylum section specifically, to try to quantify what officers and officials called an “exodus” primarily because of the policy.
Last month, the 9th U.S. Circuit Court of Appeals heard arguments in the ongoing litigation against the policy. The panel’s ruling on whether the policy is legal is pending.
When Stephens refused to do the interviews, his supervisors started disciplinary proceedings, issuing him formal warnings, he described at the time. He decided to quit, but not before he sent out a legal memo he’d drafted arguing why the policy violates the law, which he sent to his entire San Francisco office, supervisors, the union and a U.S. senator. He later got his own legal representation, at Government Accountability Project, a nonpartisan nonprofit.
He says he’s still trying to draw attention to the program, encouraging others to speak out against it.
“You’re literally sending people back to be raped and killed,” he said. “That’s what this is.”
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So, what happened to the integrity of 9th Circuit Appellate Judges and Congress? Why are they OK with blatant violations of our laws, our Constitution, and human rights that actually kill people? You could call it “accessory to murder.”
Folks like Doug Stephens, Molly O’Toole, and many other courageous, dedicated members of the “New Due Process Army” are making a public record. While the cowardly abusers might be “getting away with murder” in “real time,” they will eventually be held accountable by history for their illegal, immoral, and unconscionable actions. And, that includes not only the “perpetrators” in the Trump Administration, but also their many disgraceful enablers in the judiciary and Congress.
Many innocent people might die or be sent to oblivion. But, their bloodstains won’t be washed away, even by time.
Republican lawmakers seem to be having self-esteem issues.
The legislature, after all, is an equal branch of government with constitutionally granted powers. Lately, nearly all of those powers have been siphoned off by the president and his team of unelected bureaucrats. Yet, again and again, GOP lawmakers meekly submit to this constitutional castration.
To wit: Congress’s power of the purse? Gone. Regardless of how much money Congress appropriates for, say, a border wall or military aid to Ukraine, President Trump has made clear that he’ll ignore the number and pencil in his own.
Congress’s power to regulate commerce with foreign nations? Hijacked by a president who cites bogus “national security” rationales to impose tariffs whenever he likes.
Congress’s duty to “advise and consent” on major appointments? Cabinet and other senior government posts that require Senate confirmation have been atypically littered with “acting” officials instead. In fact, while immigration is ostensibly the president’s signature issue, Trump hasn’t had a single Senate-confirmed director of Immigration and Customs Enforcement since he took office. And though Democratic lawmakers may complain, nothing will change as long as Republicans control the Senate.
Which brings me to the most significant power Trump has stripped from Congress: its lawmaking authority. This is best illustrated by the administration’s actions basically rewriting immigration law wholesale, with nary a peep from GOP legislators.
Sure, on some immigration matters, Congress has relinquished its responsibilities, effectively giving Trump the ability to contort immigration policy as he sees fit.
Consider the “dreamers,” the young immigrants brought here as children who know no other country than the United States. They have long been in a legal limbo. Congress could resolve that limbo swiftly and easily by granting the dreamers permanent legal status and a pathway to citizenship. Thiswould have the support of majorities of voters from both parties, and the Democratic-controlled House has already passed such legislation.
Meanwhile, lawmakers in the GOP-controlled Senate wrung their hands and watched helplessly from the sidelines as Trump announced his decision to kill the Obama-era program that protects the dreamers from deportation. Based on a hearing this week, the Supreme Court appears poised to uphold the president’s decision. Yet, despite claiming to care about the issue, Republicans remain unwilling to act.
Similarly, Congress long ago gave the president authority to set the annual cap on refugee admissions. Not surprisingly, if disappointingly, the Trump administration has used that authority to ratchet the ceiling down to a record low of 18,000. For context, during President Barack Obama’s last year of office, the ceiling was 110,000.
But there are other areas of immigration law on which Congress has acted, definitively and clearly, with legislative language that leaves little room for maneuvering by the executive. The Trump administration has flouted these laws anyway.
Take asylum law.
“Refugees” and “asylum seekers” both refer to immigrants fleeing violence or persecution, but, technically, “refugees” apply for sanctuary while still abroad, and asylum seekers apply while in the country of their destination. Unlike with refugeeadmissions, there are no legal caps on the number of people who may qualify for and receive asylum. The law does not allow the executive branch to set them, either.
But the Trump administration has effectively set its own limits.
Last year, for instance, the Trump administration tried to ban people from applying for asylum if they crossed between ports of entry — as most asylum seekers are now forced to do, because the administration has severely throttled (or “metered”) the number of people who may apply through a given port of entry per day.
This “asylum ban” was blocked by the courts — because Congress has explicitly said asylum seekers can apply whether or not they entered the United States “at a designated port of arrival.”
“The law is crystal, crystal clear on this,” says Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
With virtually no pushback from Republicans in Congress, Trump administration then implemented a sort of asylum ban 2.0. This one disqualifies asylum seekers who passed through another country on their way to the United States without first applying for asylum there. A separate legal challenge — one among many — is now working its way through the courts.
A host of other changes designed to serve as a backdoor limit on asylee admissions have also been announced in recent weeks. Last week, the administration announced a new processing fee for asylum seekers, which would effectively disqualify families fleeing with nothing but the clothes on their backs. This week, it proposed a rule denying many asylum seekers authorization to work while their cases are being adjudicated, which can take years. This will force more immigrants into the shadows, contrary to Congress’s intentions.
The Trump administration keeps scolding desperate immigrants to shape up and “follow the law.” When will cowardly members of Congress insist that the president do the same?
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Catherine and some other reporters “get it” as to what Trump is doing to the law, our democratic institutions, and our Constitution. How come Federal Appellate Judges, Supreme Court Justices, and GOP legislators stick their collective heads in their sand and pretend not to understand the true long-term ramifications of what they are letting Trump do? Why aren’t they protecting our Constitutional and civil rights, not to mention human rights?
It’s all part of “Dred Scottification” – the degradation and dehumanization of individuals while stripping them of their rights combined with a constant barrage of outright lies and false narratives. And, contrary to the apparent belief of many “Trump Toadies” throughout our system and the electorate, once Trump turns on them, which he eventually will, the rights they counted on for protection will be long gone. The total lack of empathy, the ability to understand and appreciate the pain and suffering of others, is perhaps the worst aspect of the Trump kakistocracy.
Thanks, Catherine, for your courageous and insightful writing!
Please join me in congratulating our dear friend and wonderful colleague Michele Pistone on winning the JM Kaplan Innovation Prize for her project, VIISTA. Michele has been developing this idea for a few years now, with the thoughtful contributions of many on this list. It is wonderful to see her work recognized and even more exciting to imagine how VIISTA will vastly expand high-quality, low cost legal services for immigrants.
Here is the text from the Kaplan announcement, but please go to this link and watch the video, too. It is inspiring.
Immigrants in America face a profound justice gap: six out of ten confront the immigration system without a lawyer. And that carries dire consequences: the Vera Institute of Justice found that immigrants with legal representation had an 1,100% increase in successful immigration court outcomes compared to unrepresented cases—leaving far fewer families torn apart by deportation orders. Unlike criminal proceedings in which defendants have the right to representation, immigrants are not entitled to court-appointed lawyers. And in a vast number of cases, immigration attorneys are out of reach due to access or cost constraints. As a bold solution, the Villanova University Interdisciplinary Immigration Studies Training for Advocates (VIISTA) program will offer the first university-based, online certificate program to train non-lawyers to assist immigrants. VIISTA seeks to revolutionize immigration law by educating a new category of legal advocates, much like the role nurse practitioners play in health care. Under existing regulations, graduates will be eligible to apply to become Department of Justice “accredited representatives” who can provide low-cost representation. VIISTA’s scalable and affordable platform will build a nationwide pipeline for hundreds, if not thousands, of passionate advocates fighting to advance immigrants’ rights.
Unlike criminal proceedings in which defendants have constitutional rights to representation, immigrants are not entitled to court appointed lawyers. Six out of ten immigrants confront the immigration system without a lawyer. Even child migrants are not granted free representation. The consequences are substantial: the Vera Institute found that immigrants are 12 times more likely to obtain available relief when they have an advocate. Lack of advocacy disrupts families and communities in life-altering ways. With each deportation order, families are separated, employers lose employees, and communities lose valued neighbors and friends. It is understood within the immigrant-serving community that we need more immigrant advocates. Most look to lawyers for the solution. However, they are out of reach for poor migrants. The problem requires an innovative approach. VIISTA represents a bold new solution.
Every time I walk into an immigration court I feel angry and ashamed. Angry and ashamed that we have an immigration legal system designed for failure. A system that is not primarily designed to focus on truth or justice. But that is primarily designed—like a shoddy assembly line —to push the product through. In this case the product is immigration cases—just get them out the door; send them back home. I believe that immigrants confronting the immigration system deserve justice. That belief drives me every day as I work to establish the first university-based, comprehensive, online, scalable, and affordable immigration-focused education. VIISTA will create a nationwide pipeline of advocate champions committed to securing justice for immigrants.
I have three broad challenges: First, how to build a vibrant, cohesive, online community? Prospective and pilot students want to study in community, share resources, post questions to mentors, and form study groups, and to feel part of a community of like-minded advocates for immigrant justice. Second, how to scale the educational program without losing its teaching effectiveness? The need for advocates is huge, but immigrant allies need education so they can meaningfully help. At scale, VIISTA is a bridge that links two growing needs. And third, how best to evaluate the impact of the program, set goals, develop benchmarks, and collect data?
I am blessed to have been and continue to be informed by many leaders in the immigration field. Many of the largest national organizations working with immigrants are helping me to build the curriculum, including Catholic Relief Services, Immigrant Justice Corps, and Kids in Need of Defense (KIND).
The Prize will help me to scale VIISTA. My goal is to graduate 10,000 immigrant advocates over the next ten years. And, it is realistic. Then, if every one of those new immigrant advocates helped just one immigrant family each month, they would help 660,000 immigrant families over ten years. And, the impact could be even greater than that because this program could be a model for using non-lawyers to provide legal services in other areas of law as well, like housing, evictions, simple divorces, and veteran’s affairs. Just like the medical field provided space for nurse practitioners and physician assistants.
I was privileged to have assisted in some small ways my good friend Michele with some of the early planning and development of this amazing program, including early “brainstorming sessions” and a video appearance before one of her first classes.
Suppose our Government “immigration bureaucracy” were led by brilliant, humane, yet practical individuals like Michele instead of the White Nationalist kakistocracy now in charge! Even the current, concededly broken, system could be made fairer, more efficient, and more functional with real leaders, out to solve pressing problems rather than intentionally aggravate them, instead of the “malicious incompetents” foisted on us by the Trump Administration.
Representation is perhaps the biggest single positive factor in immigration proceedings.Represented individuals understand the system, appear for nearly 100% of hearings, are released from detention more often, and succeed in their claims at multiples of those who are unrepresented. Those who truly have no defense are much more likely to accept results when competently represented by those who can realistically advise them as to their chances of success and their realistic alternatives in language they can understand. Courts at all levels are aided when competent representatives sharpen and present the legal issues for adjudication. (Although non-attorney representatives can’t appear in Article III Courts, they can certainly work with pro bono attorneys in a “paralegal capacity” to assist and facilitate such representation when necessary.)
In an Administration that trusted and honored its prosecutors’ judgement and expertise, representatives could work with Assistant Chief Counsel and the Immigration Courts to reduce the number of unnecessarily backlogged cases on the dockets.
A smart, humane Administration would “can” all of the expensive, inhumane, time wasting, and often illegal “gonzo enforcement” gimmicks and instead put the time and money toward working with states, localities, NGOs, and other private entities to achieve at least something approaching universal representation. Without minimizing the need for Article I Immigration Courts and other legislative reforms, an enlightened Administration, committed to due process and responsible enforcement, could drastically reduce Immigration Court backlogs, advance the delivery of justice, and improve conditions for everyone involved, including the Assistant Chief Counsel and the Immigration Judges who suffer many of the effects of this Administration’s “malicious incompetence” along with migrants, their families, and their representatives.
Congrats again, Michele! You’re amazing, and a spectacular role model for what America could and should be in a better future under wiser, honest leaders committed to our Constitution and human values!
The 81-page report released Thursday compiles whistleblower accounts and media reports to provide an overview of the administration’s crackdown on migrants seeking asylum in the United States and attempts to curb migration to the southern border.
In one email, dated August 12, 2019, and obtained by Merkley’s office, an asylum officer denounced one of the administration’s policies as “clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States.” The email was first reported by The Washington Post.
<img alt=”Trump administration proposes rule that would deny work permits to some asylum seekers” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/190813111158-ken-cuccinelli-presser-uscis-081219-large-169.jpg”>
The officer was referring to the so-called Migrant Protection Protocols program, which requires some migrants to stay in Mexico for the duration of their immigration proceedings. The program is being challenged in court, but has been allowed to proceed for the time being.
It’s not the first time asylum officers have expressed frustration over the program, which advocates argue puts migrants, many of whom are from Central America, in harm’s way.
In June, the union representing US asylum officers asked a federal court to end the policy, saying the directives are “fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”
Merkley’s report, titled “Shattered Refuge,” emphasizes the frustrations held by some officials in the administration who are responsible for carrying out its policies and raises alarm over departmental actions that it alleges exacerbated the crisis at the southern border.
The report included details about:
Six pregnant women in Customs and Border Protection custody were sent back to Mexico in May to await their immigration proceedings despite being several months pregnant, according to whistleblowers. The report cites a letter the American Civil Liberties Union directed to the Department of Homeland Security inspector general in September elevating concerns about the placement of pregnant women in the Migrant Protection Protocols program.
The former head of the US Citizenship and Immigration Services asylum division, John L. Lafferty, was pushed out by then-acting Director Ken Cuccinelli. Whistleblowers perceived this to be “the result of acting as a committed, civil servant who played it by the book,” according to the report.
In April, US Citizenship and Immigration Services moved to raise the standard for credible-fear screenings, the first step in the asylum process. A lawsuit was filed in June challenging the change.
The Trump administration assigned CBP agents to conduct credible fear interviews in what appeared to be an attempt to curb the number of asylum applicants, the report states. (More than 50 Border Patrol agents are conducting credible fear screenings, according to USCIS. As of October 2019, Border Patrol agents have completed around 2,000 credible fear determinations.)
The report states that limiting entry at CBP ports of entry, a practice known as “metering,” has led to long wait lines and put migrants at heightened risk.
“America should be a land of hope and refuge — the place President Reagan called a shining city on a hill. We’ve seen the betrayal of that vision by the Trump administration’s intentional infliction of trauma on children and families as a warning to others to stay away,” Merkley said in a statement. “Their draconian actions were so contrary to American values and law that at least one whistleblower felt they could not morally or legally carry out their orders.”
The Trump administration has argued that the nation’s immigration system has incentivized people to journey to the southern border. President Donald Trump directed the Justice Department and DHS in April to propose regulations to staunch the flow of migrants, many of whom claim to be seeking asylum in the United States.
Within the last week, USCIS, an immigration agency within DHS, has rolled out proposed changes that would deny work permits to asylum seekers who cross the border illegally and apply a charge to asylum applications, among other things. Immigrant advocates and lawyers have pushed back on the proposed regulations, arguing that the rules penalize a swath of migrants who are seeking refuge in the United States.
Merkley’s report acknowledges the proposed changes to the asylum system and also resurfaces documents that found the controversial policy that led to the separation of thousands of families at the US-Mexico border was intended to deter migrants from coming to the border. It also reflects on the overcrowding at CBP facilities over the summer.
Here’s the information on the House Oversight hearings of “Let ‘Em Die In Mexico,” dishonestly referred to by DHS as the “Migrant Protection Protocols” (“MPP”):
EXAMINING THE HUMAN RIGHTS AND LEGAL IMPLICATIONS OF DHS’ ‘REMAIN IN MEXICO’ POLICY
Make no mistake about it, the bogus MPP never had anything whatsoever to do,with “protecting” migrants! No, it was designed specifically to harm (kill on some occasions), punish, and “deter” asylum applicants from exercising their rights under U.S. and international law.
