“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”

Zuniga Romero – CA4 Decision (8-29-2019)

ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published

PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.

OPINION BY: Judge Agee

KEY QUOTE:

In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.

*** *

In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.

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

A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit. Our brief was, of course, ignored by “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.

Finally, an Article III Court “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!

The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.

With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts.

Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.

PWS

08-29-19

MOLLY O’TOOLE @ LA TIMES: Trump & The 9th Circuit Carrying Out Illegal “Remain In Mexico Program” — And, They Are Are Getting Away With It!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=4451c711-f803-4861-ada0-9558eff71923

By Molly O’Toole reporting from mexicali, mexico

From the roadside, Oswaldo Ortiz-Luna offered a box of candy to the cars idling in the golden dust of northern Mexico. His wife hawked another box of sweets farther up the line of traffic, perching their 18-month-old daughter on one hip. Sticky fruit and tears smudged the baby’s cheeks.

As the sun went down, Oswaldo and his family of six hadn’t yet sold enough candy for the roughly $6 they needed to spend the night at a nearby shelter. They are among the thousands of asylum seekers trapped just beyond the border under the Trump administration’s signature policy — “Remain in Mexico.”

Under the Migrant Protection Protocols — better known as Remain in Mexico — Trump administration officials have pushed 37,578 asylum seekers back across the southern U.S. border in roughly seven months, according to Homeland Security Department reports reviewed by the Los Angeles Times. One-third of the migrants were returned to Mexico from California. The vast majority have been scattered throughout Mexico within the last 60 days.

While their cases wind through court in the United States, the asylum seekers are forced to wait in Mexico, in cities that the U.S. State Department considers some of the most dangerous in the world. They have been attacked, sexually assaulted, and extorted. A number have died.

In dozens of interviews and in court proceedings, current and former officials, judges, lawyers and advocates for asylum seekers have said that Homeland Security officials implementing Remain in Mexico appear to be violating U.S. law, and the human cost is rising.

Testimony from another dozen asylum seekers confirmed that they were being removed without the safeguards provided by U.S. law. The alleged legal violations include denying asylum seekers’ rights and knowingly putting them at risk of physical harm — against federal regulations and the Immigration and Nationality Act, the foundation of the U.S. immigration system. U.S. law grants migrants the right to seek protection in the United States.

U.S. Customs and Border Protection officers are writing the phrase “domicilio conocido,” or “known address,” on asylum seekers’ paperwork instead of a legally required address, making it nearly impossible for applicants stuck in Mexico to be notified of any changes to their cases or upcoming court dates. By missing court hearings, applicants can be permanently barred from asylum in the U.S.

Meanwhile, some federal asylum officers who are convinced they are sending asylum seekers to their deaths told The Times that they have refused to implement the Remain in Mexico policy at risk of being fired. They say it violates the United States’ decades-long legal obligations to not return people to persecution.

Officials at Homeland Security headquarters as well as Customs and Border Protection, the agency charged with primary enforcement of the policy, refused repeated requests for interviews or data on the policy, citing “law enforcement sensitivity.”

For President Trump, however, whose political priority is to restrict even legal immigration to the United States, the Remain in Mexico policy has been his single most successful effort: Just one asylum seeker subjected to the policy is known to have won the ability to stay in the U.S.

Oswaldo said his family fled their hometown outside Guatemala’s capital in February after his older sons refused to join the MS-13 gang and members threatened to kill them. While in Mexico, he said, police beat and robbed them, and local gangs tried to kidnap his 7-year-old daughter. They rode freight trains to the U.S. border, Oswaldo running for the trains with the baby on his chest in a bright-pink carrier.

The family claimed asylum in April with U.S. authorities in Calexico, a small agricultural city in southeastern California across from Mexicali. Officials sent them back to Mexico, telling them to report to the border again a month later and about 100 miles west, in Tijuana. There, they’d be brought into the U.S. for a court hearing in San Diego, then sent back to Tijuana. Officials separated the case of Oswaldo’s eldest son, 21, from the rest of the family’s case.

“Life was already so difficult,” Oswaldo said. When U.S. officials returned them to Mexico, he said, “it was hard to take.”

After unveiling the policy in December, Homeland Security officials did not push the first asylum seekers back to Mexico until Jan. 28, launching the program in San Ysidro, south of San Diego. By the end of March, they’d expanded the policy east to El Paso. In May, a federal appeals court ruled that the policy could continue until hearings on its legality in October. With the court’s blessing, the administration expanded the policy to the rest of the U.S.-Mexico border, and to any Spanish speaker, not just Central Americans. In less than three months, the number of removals quadrupled.

In July, U.S. officials began returning asylum seekers from the rest of Texas to Nuevo Laredo and then Matamoros, in the Mexican state of Tamaulipas.

The State Department gives Tamaulipas a level 4 “do not travel” warning — the same as Syria’s.

At least 141 migrants under the Remain in Mexico program have become victims of violence in that country, according to Human Rights First, a nonpartisan advocacy group.

At a media briefing earlier this month, Mark Morgan, the acting head of Customs and Border Protection, told The Times, “I would never participate in something I thought was illegal.” He added that the judicial system would ultimately “determine the legality” of the policy.

He said he was unaware of any incidents in which an asylum seeker was harmed under Remain in Mexico, but he said the U.S. didn’t track what happened to migrants once they were returned to Mexico. “That’s up to Mexico,” he said.

Roberto Velasco, spokesman for Mexico’s Foreign Ministry, said the policy was a “unilateral action” and that the U.S. was “solely responsible” for ensuring due process for asylum seekers returned to Mexico.

While saying the policy is for the migrants’ own protection, Morgan said it was also intended to deter asylum seekers. He claimed, as the president often does, that many asylum applicants had fraudulent cases.

“If you come here with a kid, it’s not going to be an automatic passport to the United States,” Morgan said. “I’m hoping that that message will get back.”

In November, the Trump administration was engaged in intense negotiations with Mexico to get them to agree to take asylum seekers headed for the U.S. During that time, administration officials drafted a pilot Remain in Mexico program in California. In email exchanges, the officials struck key protections for asylum seekers. But when plans were leaked, the policy was put on hold.

In late January, officials pushed back the first asylum seekers from San Ysidro, but it was short-lived — in April, a federal judge in San Francisco temporarily blocked Remain in Mexico.

Then, just a few weeks later, the U.S. 9th Circuit Court of Appeals allowed the Trump administration to resume the policy.

But two of the three judges raised concerns about its legality. One judge said the government’s legal argument to send migrants to Mexico was an “impossible” reading of the law.

“The government is wrong,” the judge wrote. “Not just arguably wrong, but clearly and flagrantly wrong.”

Diana Diaz, 19, is among the asylum seekers caught up in the policy’s complexities. She fled El Salvador last year after a Barrio 18 gang member threatened to kill her when she refused to become his girlfriend. A local police officer said he’d protect her but began to harass her instead, she said.

“He said, ‘I can rape you — I can do whatever I want to you — and make it look like the gangs did this, not me,’ ” she recounted the police officer saying.

She crossed alone from Guatemala into southern Mexico in November. In January, she arrived in Tijuana to join thousands of people waiting at the San Ysidro port of entry to register asylum claims.

In March, Diaz’s number finally came up. U.S. officials brought her into the San Ysidro entry, took her fingerprints, asked her a few questions and then sent her to the “icebox,” migrants’ term for U.S. immigration detention, she said. But shortly after, Customs and Border officials took her to the gate leading back to Tijuana and gave her a notice to come back the next month for a court hearing.

“I can’t go back there — my life is at risk,” she recounted telling them.

She said they told her: “That’s not my problem anymore.”

Now, U.S. officials are returning asylum seekers at a rate of nearly 3,300 a week.

Courtroom battles

Judge Lee O’Connor’s raised voice ricocheted through his near-empty courtroom in San Diego.

“If I were to issue an in absentia order, where would it even be served?” O’Connor asked a Trump administration lawyer.

“Your honor, on the address the court has.”

“The ‘general delivery,’ Baja California, Mexico?”

“Yes, your honor.”

“How is that an address?”

“Those are the addresses I was given,”the government lawyer responded. “I don’t know where they came from.”

Lawyers, advocates, U.S. asylum officers and judges see more than just bureaucratic dysfunction and sloppy policymaking — Trump officials, they say, intended to make it nearly impossible to win asylum in the United States under Remain in Mexico.

In the 9th Circuit ruling in May, one judge said Homeland Security’s procedures for implementing the policy were “so ill-suited to achieving that stated goal as to render them arbitrary and capricious.”

Remain in Mexico has added to a backlog of more than 975,000 pending immigration cases. In July, one out of every four new cases was assigned to the Remain in Mexico program.

Sitting behind piles of paper earlier this summer in San Diego, O’Connor weighed the government’s request to issue removal orders for a handful of asylum seekers who hadn’t shown up for their hearings that day. If O’Connor ruled in the administration’s favor, the decision could bar each applicant from the United States for at least a decade, if not permanently.

He launched into the administration lawyer, rattling off a list of legal violations.

The majority of asylum seekers returned to Mexico under the policy are originally from Central America, and a sizable number speak only indigenous languages. But Homeland Security officials routinely don’t provide translation or use phone interpreters in removal proceedings, according to internal communications obtained by the nonprofit American Oversight and shared with The Times.

The Times reviewed a number of asylum seekers’ paperwork on which Customs and Border Protection officers had put incomplete addresses or provided no translation. And the free phone number the government provided for applicants to call for updates on their cases was an 800 number, which can only be used from within the United States.

“There’s some things that we’re still working through,” said Sidney Aki, a CBP official in charge of the San Ysidro port. He conceded that officers had made mistakes implementing the policy, saying they were in uncharted territory.

As of the end of July, only 2,599 Remain in Mexico cases had been decided, with another 23,402 cases pending in immigration courts across the country — nearly double the number from one month earlier, according to the Transactional Records Access Clearinghouse at Syracuse University. At that point, not one person had won asylum.

O’Connor ordered that the government’s removal proceedings against the absent asylum seekers be terminated. He’s not the only one; overall, in roughly 60% of the decisions reached so far under Remain in Mexico, immigration judges have closed the government’s case against the asylum seekers, according to the clearinghouse data.

“If the government intends to carry out the program,” O’Connor ruled, “it must ensure due process is strictly complied with and statutory requirements are strictly adhered to. That has not been shown in any of these cases.”

Worse by the day

Nora Muñoz Vega watched her son kick a soccer ball at Buen Pastor shelter in Juarez. As 9-year-old Josue David played, his 29-year-old mother weighed a difficult decision: Keep waiting in Juarez on their asylum case or take a bus, sponsored by the Mexican government, back to Honduras.

Asylum seekers stuck in Juarez under Remain in Mexico have hearings scheduled into 2020. But unable to find work in Mexico without a permit, and too scared to venture out, Muñoz Vega said the few weeks until her second hearing seemed like an eternity.

In its May ruling allowing Remain in Mexico to resume, the 9th Circuit relied in part on assurances from the U.S. that Mexico was providing for the asylum seekers. Yet none of the migrants to whom The Times spoke had been able to obtain a work permit: All were staying in shelters run by churches or non-governmental organizations, or hotels when shelters filled up.

Through “voluntary return,” the Mexican government, along with the United Nations, is facilitating the Trump administration’s effort to get asylum seekers to give up on their cases. More than 2,000 Central Americans have taken free rides back to their home countries under the U.N. program, which is funded by the U.S. government.

Although it’s unclear exactly how many asylum seekers under Remain in Mexico have gone home, a number appear to be growing tired of waiting and are crossing the border illegally.

On the viaduct between Juarez and El Paso, Border Patrol Agent Mario Escalante watched from the U.S. side as Mexican National Guard units patrolled on theirs.

Escalante was born in El Paso but said he practically grew up in Juarez, with family on both sides of the bridge for generations. Grisly murders had become commonplace in Juarez, he added. “It’s the culture; you get used to it.”

But asked whether Juarez was safe for the asylum seekers U.S. officials had sent there, Escalante brushed off the question.

When his radio crackled, he sped toward a popular crossing just beyond the international bridge. A group of Central American women and children cowered in the shade.

“It’s difficult to watch,” Escalante said. “The need’s gotta be pretty great.”

One woman with her son raised her head. It was Muñoz Vega, the Honduran mother.

Across the country, a number of federal asylum officers have quit, and a handful are refusing to implement Remain in Mexico, half a dozen asylum officers and U.S. Citizenship and Immigration Services personnel told The Times.

They say the Trump administration is forcing them to violate the law in implementing the policy, end-running standards set by Congress and intentionally putting vulnerable asylum seekers in harm’s way. Most requested anonymity due to fears of retaliation.

In June, the union representing federal asylum officers in the Washington, D.C., area filed a brief in support of the lawsuit against Remain in Mexico.

“Every day, it gets a little bit worse,” said one asylum officer in California who refused to screen migrants under the policy.

Generally, before Remain in Mexico, asylum seekers at the border would receive a “credible fear” interview. The asylum officers, many of whom are attorneys, screen for fear of persecution in the asylum seeker’s home country based on race, religion, nationality, political opinion or being part of a particular social group. Congress set “credible fear” as an intentionally low bar to help ensure the U.S. did not violate the law by returning people to harm.

But according to administration guidelines under Remain in Mexico, only asylum seekers who proactively express a fear of returning to Mexico — not their home countries — are referred by CBP officials to asylum officers, and for an entirely new interview process. That process screens them for likelihood of persecution in Mexico.

In these interviews, asylum officers also have to use a much higher legal standard. Essentially, instead of proving a 10% likelihood of persecution in their home country, asylum seekers have to prove a 51% likelihood of persecution in Mexico. That standard is generally reserved for a full hearing before an immigration judge.

In reality, the standard being used under Remain in Mexico is nearly impossible, another asylum officer said: “No one can pass.”

According to interviews with asylum seekers and officers, as well as Citizenship and Immigration Services statistics shared with The Times, many asylum seekers under Remain in Mexico are being removed without any interview at all.

Against its own guidelines, those sources say, Homeland Security officials also are returning children, people with disabilities and other medical conditions, and pregnant women. Lawmakers have demanded an inspector general investigation of the alleged violations.

The second asylum officer said she recently sounded the alarm after seeing a spate of women in late stages of pregnancy being turned back to Mexico. She was told that Customs and Border Protection does not consider a late-stage pregnancy to be a serious medical condition.

“They don’t want them to drop any babies on U.S. soil,” the asylum officer said.

A third asylum officer said they’re required to conduct the more complex Remain in Mexico interviews — sometimes lasting more than five hours — with children too young to speak.

Four officers described cases of asylum seekers who said they had been kidnapped in Mexico, then beaten and raped. Once their families sent money, the kidnappers released them. But when the victims fled for the border, the asylum officers had to turn them back. Kidnappers are now waiting outside ports of entry for the U.S. returns, officers said.

“In 99% of the interviews, they said they faced harm in Mexico, and we sent them back,” the third asylum officer said.

One asylum officer said she routinely woke up in a sweat from nightmares.

“How long can I do this and live with myself?” she said. “I think about these people all the time … the ones that I sent back. I hope they’re alive.”

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

Molly’s article strongly suggests that the “myth” that U.S. institutions are successfully stranding up to Trump and his White Nationalist gang is just that — a myth.

Actually, with the help of “go along to get along” Federal Courts, increasingly dominated by Trump’s hand-picked far right flunkies, and a GOP-controlled legislature that has abandoned any pretense of protecting the Constitution and acting in the common good, Trump appears to be successfully dismantling the U.S. legal system right before our eyes.

The Ninth Circuit Judges who knowingly engineered this human rights and legal disaster are immune from legal liability for their wrongdoing. But, they shouldn’t be allowed to escape the judgment of history on their dereliction of duty, abandonment of fundamental human values, and the human carnage it has caused and continues to cause every day.

Thanks, Molly, for keeping us informed of what the 9th Circuit’s “Let ‘Em Die In Mexico Policy” really means in human terms.

PWS

08-29-19

MAINE AND OTHER STATES ARE HURTING BECAUSE OF POPULATION LOSS — The Answer — More Legal Immigration Across The Board — Is Staring Us Right In The Face — But, Trump’s White Nationalist Nativist Agenda Stands In The Way Of Rational Solutions!

Boothbay Harbor, ME
Looking West from the Whales Tails Restaurant & Seafarer Pub

From the Washington Post:

https://www.washingtonpost.com/opinions/a-rational-immigration-system-is-the-answer-to-us-worker-shortages/2019/08/25/b396bada-c5c4-11e9-b72f-b31dfaa77212_story.html

A rational immigration system is the answer to U.S. worker shortages

Add to list

By Editorial Board

August 25

OCCUPATIONAL AND physical therapists. Religious workers. Plant operators. Railway personnel. Construction workers. Maintenance and repair workers. Firefighters. Social workers. Nurses. Funeral workers. Truckers. That’s only a brief sampling of the jobs in the United States for which there are severe shortages of available employees, and way more openings than applicants.

A recent article in The Post detailed the heartbreaking effects of a drastic deficit in just one employment category — home health aides — in just one state, Maine, which has the nation’s second-highest percentage of people over age 65 . They and their relatives who cannot afford private home health aides (who charge roughly $50 an hour) are suffering. Nursing homes, similarly, are closing for want of workers. Even attempts to lure employees by raising wages have hit a brick wall; there simply aren’t enough job applicants in the state nor, apparently, enough people willing to move there.

Maine’s problems in that regard will soon be a national epidemic. Within a decade or so, at least a fifth of the population in roughly 28 states will be 65 or older. The effects of aging baby boomers will be compounded by a national fertility rate that has fallen to its lowest level in nearly five decades. That means younger people will not be available to replenish the ranks of older workers as they retire.

A rational immigration system, one that meets the labor market’s demands for workers in an array of skill categories and income levels, is the obvious antidote to chronic and predictable labor deficits. Unfortunately, the Trump administration, heedless of the pleas of employers, has implemented and proposed measures whose effect will deepen existing and future shortages. And it has done so even as the unemployment rate, now 3.7 percent, continues to bump along at near-historic lows.

A policy announced by the administration this month would impede large numbers of low-income legal immigrants from remaining in the United States, or coming in the first place, if they are judged likely to use public benefits to which they are entitled, including noncash ones such as housing subsidies and health care. The impact would be a dramatic reduction in newcomers, and in existing immigrants eligible to become legal permanent residents, or green-card holders, the final step before full citizenship. By targeting low-income and low-skilled migrants, the rule would perpetuate severe worker shortages in a variety of sectors.

Earlier this year, the administration unveiled a blueprint for legal immigration that, in a reversal, maintained overall levels of immigrants. That recognized that slashing immigration is a recipe for economic decline. However, the Trump plan, by favoring educated, skilled English speakers with strong earnings prospects over relatives of current residents, ignored the reality that retail, landscaping, food processing and dozens of other industries rely on relatively low-skilled labor — and are desperate for workers.

The critical role ICE plays in Trump’s immigration push

President Trump has found a crucial tool to carry out his sweeping immigration polices: U.S. Immigration and Customs Enforcement. (John Parks, Luis Velarde/The Washington Post)

President Trump has leveraged nativist policies to his political advantage. He has been indifferent to their corrosive long-term economic impact. Far from making America great again, the president’s policies are likely to transform the United States into a second Japan, where an aging population and barriers to immigration have sapped the dynamism and prospects of what was once one of the world’s most dynamic economies.

Here’s a link to Jeff Stein’s August 14 article on the crisis in Maine:

https://www.washingtonpost.com/business/economy/this-will-be-catastrophic-maine-families-face-elder-boom-worker-shortage-in-preview-of-nations-future/2019/08/14/7cecafc6-bec1-11e9-b873-63ace636af08_story.html

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

One reason our current immigration system is failing is that it has ignored market forces both in the U.S. and in sending countries.

That’s particular true with what we consider “manual labor” (which usually takes skills that most Americans either lack or have no interest in developing).

Working with market forces, rather than futilely trying to override or reverse them, would be a win-win-win. It would benefit the migrants, our country, and would greatly reduce the amount of time and money we waste on cruel, controversial, legally questionable, and ultimately ineffective “civil enforcement” of unrealistic and unworkable restrictive immigration laws.

Even now, what if we welcomed qualified asylum seekers, screened and processed them rapidly for legal status, and worked with NGOs and states like Maine to place them in localities where their skills could be put to immediate use or they could be trained to make critical contributions to our society’s needs while improving their own situations?

Indeed, Maine already has an outstanding record of welcoming refugees and asylum seekers. Notwithstanding initial climate and cultural differences, an amazing number of forced migrants from Africa have resettled in Maine and contributed to their communities and the state’s well-being, as well as adapted to the “Maine way of life.” It’s a process of give and take integration that enriches both the immigrants and the communities in which they settle.

PWS

08-29-19

TRUMP END RUNS CONGRESS, DIVERTS DISASTER RELIEF AND LEGITIMATE SECURITY FUNDS FOR BOGUS DETENTION BED BUILDUP!

https://www.nbcnews.com/politics/immigration/trump-admin-pulling-millions-fema-disaster-relief-send-southern-border-n1046691

Julia Ainsley — Julia Edwards Ainsley
Investigative Reporter, NBC News

Julia Edwards Ainsley & Frank Thorp report for NBC News:

Aug. 27, 2019, 2:48 PM EDT

By Julia Ainsley and Frank Thorp V

WASHINGTON — The Trump administration is pulling $271 million in funding from the Department of Homeland Security, including the Federal Emergency Management Agency’s Disaster Relief Fund, to pay for immigration detention space and temporary hearing locations for asylum-seekers who have been forced to wait in Mexico, according to department officials and a letter sent to the agency by a California congresswoman.

To fund temporary locations for court hearings for asylum-seekers along the southern border, ICE would gain $155 million, all from FEMA’s Disaster Relief Fund, according to the letter from Rep. Lucille Roybal-Allard, D-Calif., which was seen by NBC News.

The allocations were sent to Congress as a notification rather than a request, because the administration believes it has the authority to repurpose these funds after Congress did not pass more funding for ICE detention beds as part of an emergency funding bill for the southwest border in June.

Click here to read the notification.

Specifically, the Department of Homeland Security will lose $116 million previously allocated for Coast Guard operations, aviation security and other components in order to fund nearly 6,800 more beds for immigrant detainees, the officials said.

“We would not say this is with no risk but we would say that we worked it in a way to…minimize the risk. This was a must pay bill that needed to be addressed,” said a DHS official, who noted that the funds would begin transfer immediately to fund ICE through Sept. 30.

New Trump admin rule to detain migrant families indefinitely

AUG. 21, 201910:19

Combined with existing space, the funding would allow ICE to detain nearly 50,000 immigrants at one time.

The Trump administration has claimed that the sudden rise in border crossings in 2019 has overwhelmed resources at the border, and that the lack of detention space at ICE has caused backlogs at border stations that offer migrants substandard conditions.

In July, there were 82,049 undocumented migrants who were apprehended or presented themselves at the southwest border, a sharp decline from over 144,000 in May, but still double the number seen the same month the previous year.

Recommended

The $155 million for court hearings was originally allocated to FEMA in 2006 and 2007, but would have been used in the current budget to prepare to respond to natural disasters, such as hurricanes.

The administration began sending Central American migrants back to Mexico to await their court hearings in the U.S. as a means of slowing down the number of asylum-seekers who present themselves for asylum and remain in the U.S. until their court hearing. The funding will allow those immigrants waiting in Mexico to have their cases heard at the border, rather than being transported to locations within the interior of the country.

“I object to the use of funds for that purpose because the Department has provided no substantiation for a claim that this transfer is necessary due to ‘extraordinary circumstances that imminently threaten the safety of human life or the protection of property,’” Roybal-Allard said, referring to a provision that would allow DHS to repurpose funds at this point in the budget cycle without notifying Congress.

Sen. Jon Tester of Montana, the ranking Democrat on the Senate Appropriations Subcommittee on Homeland Security, also expressed reservations about the administration’s plan.

“I have grave concerns about DHS’s proposed end-run around laws passed by Congress that would drain millions from agencies tasked with protecting the homeland from security threats and natural disasters like hurricanes and wildfires — including CBP, TSA, FEMA and the Coast Guard,” Tester said in a statement.

“Congress has already deliberated DHS’s request and appropriated the highest-ever funding for border security and immigration enforcement, which passed on a bipartisan basis and was signed by President Trump,” he added.

Julia Ainsley

Julia Ainsley is a correspondent covering the Department of Homeland Security and the Department of Justice for the NBC News Investigative Unit.

Frank Thorp V

Frank Thorp V is a producer and off-air reporter covering Congress for NBC News, managing coverage of the Senate.

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

So, this is how Trump “rewarded” those Democrats who voted for his emergency funding, ostensibly to help out children being held in substandard detention. (There is actually no hard evidence that I am aware of that this “emergency” money has been spent on improving conditions for children, rather than more mindless family detention.) More cruel, wasteful, and totally unnecessary detention in the face of Congress’s very specific refusal to increase detention funding.

Perhaps it’s time for the Democrats to wise up and play “hardball” with DHS funding. Much of the restrictionist “uber enforcement” nonsense on which Trump is squandering money has little or nothing to do with true “national security.” DHS detention could be cut to a small fraction of its current scope without any discernible harm to real national security.

PWS

08-27-19

DUE PROCESS: I Speak Out Against Latest DOJ Attack On Due Process & Judicial Independence!

https://apple.news/AF5h6SB1USvW1DbhapvzZLw

Alan Pyke reports for ThinkProgress:

Shakeup of immigration court system threatens migrants’ due process

Migrants may soon have a much harder time finding lawyers and understanding their rights in immigration court, as the Trump administration pursues a major overhaul of the agency that oversees those proceedings.

The crucial office that provides basic legal information to migrants and helps connect some of them to pro-bono immigration lawyers will be merged into a Trump-created unit widely viewed as the nerve center of his immigration power grab. Though Friday’s reorganization rule makes no specific threat to shutter those legal assistance programs, the president has wanted to kill them for more than a year.

The bureaucratic reshuffle leaves the assistance programs “buried deep in the bowels” of an agency that today “never does anything without some ulterior political motive relating to the restrictionist immigration agenda,” retired immigration judge Paul Schmidt told reporters Friday.

The regulations concern the Executive Office of Immigration Review (EOIR), where the work of applying immigration laws to individual human cases gets done. In addition to burying the legal-assistance work in a team Trump created, the rule endows EOIR’s director with vast new power to change how immigration laws are applied.

The proposal “shows [the] Trump Administration’s ‘weaponization’ of EOIR as a means of implementing restrictionist policies by precedent decision without going through legislation or rule making,” Schmidt told reporters in an email.

Immigration courts, despite their name, are not independent judicial forums. And because deportation is a civil proceeding rather than a criminal one, migrants who come before the courts are not guaranteed counsel.

Any given migrant’s ability to vindicate the rights they do have in immigration court therefore ends up resting, in many cases, with the presiding judge. If the law says a given migrant’s case might merit a stay of deportation or other relief, and an immigration judge applies the law accordingly, the system slows down and fewer people are evicted from the country.

The Trump administration has repeatedly pushed immigration judges to set aside those legal niceties in favor of rapid removal orders for almost everyone they see. Judges now face discipline if they fail to clear 700 cases per calendar year, a speed judges have repeatedly said makes a mockery of due process.

The big winner in Friday’s order is EOIR’s new Office of Policy, created at the start of President Donald Trump’s term. That team will take over management of a key legal orientation program for giving migrants a basic overview of the legal process they’re facing and the rights they have within it.

The Office of Policy has become the prime mover behind various Trump efforts to create a deportation assembly line that favors speedy removals over the fuller individual consideration envisioned in immigration law, experts said.

“The Office of Policy… has in many ways led the Trump administration’s agenda to reduce the independence of the immigration court system,” American Immigration Council policy analyst Aaron Reichlin-Melnick said in an interview.

Currently, EOIR’s Office of Legal Access Programs helps link some migrants to pro-bono immigration attorneys as part of its legal orientation work. Having a lawyer “is arguably the single most important factor in determining whether someone is allowed to remain in the United States” at the conclusion of their immigration case, Reichlin-Melnick said.

The new rule moves the pro-bono program into the Trump-created policy office, along with the legal orientation system that’s meant to give migrants without attorneys a fighting chance.

There is nothing in the rule that says the DOJ is killing the pro-bono system or the legal orientation program, Reichlin-Melnick stressed.

“But we know in the past this is something the administration has gone after,” he said, noting that the White House tried to defund the legal orientation work in 2018 only for a bipartisan coalition of lawmakers to insist it continue.

“It’s a popular program with pretty much everybody,” he said, “except those inside the Trump administration who think we shouldn’t be spending money on helping people know their rights, because that slows things down.”

The same Office of Policy is widely blamed for concocting the 700-case-per-year standard that judges and experts view as an intentional demolition of immigrants’ due process rights. It is also seen as the driving force behind a new piece of technology that displays a speed gauge on judges’ desks while they work, glaring red when they take the time to explore factual disputes or delve into process issues of a given case and fall behind the administration’s speed requirements.

“That kind of pressure creates problems, even if it doesn’t mean that people are going to explicitly deny cases because of it,” Reichlin-Melnick said. “Even the most well-minded people are affected by someone essentially standing behind them tapping their watch.”

The case-completion rule in question technically came from a different EOIR office. But Trump’s new policy office is understood to have crafted it and passed it to the appropriate internal authority to promulgate.

Last year, National Association of Immigration Judges union head Ashley Tabaddor urged her colleagues to take whatever time a case requires regardless of the administration’s pressure tactics. This summer, the administration announced its intention to dissolve the NAIJ and strip judges of labor protections.

These maneuvers “create the appearance of coercion” of a professional legal staff who are responsible for applying the law to a complex array of individual circumstances, Reichlin-Melnick said. A political team that isn’t getting the results it wants from immigration courts when they scrutinize the facts is turning to threats – judges can be denied raises or terminated outright over the running-clock rules – and increasing the authority its Office of Policy holds over those judges.

The new rule “raises a number of concerns about conflict of interest that could play out. Maybe they won’t – at this point it’s a little bit premature to panic, or to make large declaratory statements about how this rule will affect the process,” he said. “But it certainly raises concerns.”

Former immigration judge Schmidt was blunter.

The new policy office’s “primary role appears to be to ensure that EOIR functions as an adjunct of DHS Enforcement and that any adjudication trends that enhance Due Process or vindicate Immigrants rights are quickly identified so that they can be wiped out by precedents or policy changes,” Schmidt wrote.

“Look for the [EOIR] Director over time to reinsert himself in the adjudicative activities of EOIR,” he wrote, “for the purpose of insuring subservience to [the] Administration’s political enforcement priorities.”

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

Thanks, Alan, for “telling it like it is.”

Pro bono lawyers have been very successful in both helping asylum applicants vindicate their rights and winning cases. They have also given those who lose before the Immigration Judge the ability to exhaust their remedies before the BIA and challenge wrongful denials in Circuit Courts. Almost every day, one or more Circuit Courts find that the BIA has erred or improperly cut corners in some way.

The success of the pro bono program in achieving asylum and other forms of protection is what the White Nationalists in the Trump Administration hate. They don’t like their immorality and illegality constantly exposed to public view. They would much rather “beat up on” defenseless, unrepresented applicants who can’t even understand English, let alone understand the system and the hyper-technical, intentionally restrictive criteria confronting them. Also, lots of denials, even if completely unfair, bolsters the Administration’s false statistical claim that most asylum claims are without merit.

PWS

08-26-19

“I Don’t Want To Do Your Dirty Work No More” — Is Mexico Tiring Of Committing Human Rights Violations In The Name Of Trump & The 9th Circuit?

“Times are hard

You’re afraid to pay the fee

So you find yourself somebody

Who can do the job for free

When you need a bit of lovin’

‘Cause your man is out of town

That’s the time you get me runnin’

And you know I’ll be around

I’m a fool to do your dirty work

Oh yeah

I don’t wanna do your dirty work

No more

I’m a fool to do your dirty work

Oh yeah”

From “Dirty Work” by Steely Dan (1972)

Listen on Youtube here: https://m.youtube.com/watch?v=ghcsrblhn7A

Songwriters: Donald Jay Fagen / Walter Carl Becker

Dirty Work lyrics © Universal Music Publishing Group

https://apple.news/AzGaEoYZJR_KtFInPtWScxA

Gaby Del Valle reports for Vox News:

The Mexican government is finally pushing back against the controversial Trump policy of forcing some asylum-seekers to wait in Mexico while their immigration cases play out in court, according to an internal Department of Homeland Security Briefing obtained by BuzzFeed News.

More than 35,000 migrants have been returned to Mexico under the Migrant Protection Protocols, colloquially referred to as the Remain in Mexico policy, since its start in January, according to the DHS document. That’s put migrants in danger and strained resources in Mexican Border Communities. Now, Mexican officials have reportedly begun limiting the days and times U.S. immigration agencies can send asylum-seekers back to Mexico and have cracked down on which migrants can be returned.

Mexican officials in El Paso, for example, have stopped accepting migrants after 1 p.m., even though some migrants have to return to Mexico after crossing into the U.S. for court hearings, according to the memo. As a result, Customs and Border Protection has had to detain more than half of the migrants who came to the city for hearings in August. The Mexican government has also occasionally refused to accept migrants who have been issued deportation orders but are fighting their cases, the memo says..

The policy has led to overcrowding at migrant shelters along the border, many of which are operated by nonprofits and religious organizations. At cities along the border, migrants have become easy prey for cartels and gangs. The people helping them have become targets, too: In Nuevo Laredo, members of an organized crime group kidnapped the director of a migrant shelter earlier this month. The violence against migrants is so pervasive that advocates refer to the MPP as the Migrant Persecution Protocols.

The Mexican government has attempted to alleviate the strain by busing migrants to cities further from the border, like Monterrey and Tapachula, the later of which is close to the country’s border with Guatemala. That has only complicated things further, since migrants have to return to the U.S. for their court hearings.

Being forced to wait in Mexico has also had legal consequences for migrants, many of whom struggle to find lawyers. A recent report by the Transactional Records Access Clearinghouse at Syracuse University found that less than 1% of migrants who have been forced to wait in Mexico as part of the MPP have lawyers.

Cover image: A security guard accompanies a group of U.S. asylum-seekers out of Mexican immigration offices after they were returned by U.S. authorities to wait in Mexico under the so-called Remain in Mexico program, in Ciudad Juarez, Mexico, Wednesday, July 17, 2019. (AP Photo/Christian Chavez

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

As I’ve been saying all along, the bogus “Migrant Protection Protocols” (a/k/a “Return to Mexico,” a/k/a “Let “em Die In Mexico”) are nothing more than a very transparent scheme to deprive asylum applicants who have passed “credible fear” of their statutory, regulatory, and Due Process Constitutional right to be represented by counsel of their choice.

DHS has intentionally made it functionally impossible for U.S. pro bono groups to effectively represent those asylum seekers returned to Mexico. As we all know, without counsel, applicants have little, if any, realistic chance of succeeding on asylum claims, particularly under Trump’s restrictionist, openly anti-asylum regime.

For some reason, a complicit 9th Circuit Court of Appeals is allowing this legal travesty to proceed. Vulnerable asylum applicants are being abused by Trump on the 9th Circuit’s watch with impunity.

PWS

08-25-19

NAIJ LASHES OUT AT BARR’S EVISCERATION OF JUDICIAL INDEPENDENCE

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Press release 8.23.2019

BREAKING: STATEMENT BY IMMIGRATION JUDGES UNION ON MAJOR CHANGE ANNOUNCED TO IMMIGRATION COURTS

Statement by the Hon. Ashley Tabaddor, Pres. of the National Association of Immigration Law Judges

In an unprecedented attempt at agency overreach to dismantle the Immigration Court, the Department of Justice, Executive Office for Immigration Review (EOIR) today published a new interim rule, effective next Monday, which takes steps to dismantle the Immigration Court system. DOJ’s action ends any transparency and assurance of independent decision making over individual cases.

By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled,” said Ashley Tabaddor, President of the National Association of Immigration Judges.

The new rule is a wolf in sheep’s clothing. While couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators. The creation of a mini-Attorney General in the EOIR’s Director, who

is a political appointee, not confirmed by the Senate and currently not empowered to

adjudicate cases, will in effect abolish the separation of functions where the Attorney General’s duties as a law enforcement agent are distinct and separate from his adjudicatory duties. The unprecedented creation of an Office of Policy within EOIR under the Director’s authority, designed to formulate, coordinate, and implement the executive branch’s immigration law enforcement policies

combined with the Director’s new direct adjudicatory role over individual cases, removes any semblance of an independent, non-political court system which ensures due process rather than political expediency.

Furthermore, this bold-faced power-grab undermines oversight by the public through the established notice and comment procedure.

The National Association of Immigration Judges received notice of this action only today when the press was advised. We are currently studying the regulation carefully to provide a more detailed analysis in the days ahead.

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

As I pointed out in my post earlier today, this is nothing less than a vicious attack on our Constitution and the rule of law. https://immigrationcourtside.com/2019/08/23/heres-my-quick-take-on-eoirs-interim-rule-on-reorganization/

Will Congress and the Article IIIs stand up to this grotesque abuse and prevent the DOJ from destroying democracy. Or, will impotent legislators and “go along to get along” Article III Judges continue to look the other way as a system driven by racist authoritarianism eats us up!

PWS

08-23-19

HATE ON THE DOCKET: As Administration’s Attacks On Judicial Independence Mount, DOJ/EOIR Pelt Immigration Judges With White Nationalist Hate Group’s Racist, Anti-Semitic Propaganda! — Slurs Target Union Officials Leading The Resistance To DOJ’s Union-Busting Effort!

https://apple.news/AAsWdQ8tyR365PO0Me_6IZg

Hamed Aleaziz reports for BuzzFeed News:

The Justice Department Sent Immigration Judges A White Nationalist Blog Post With Anti-Semitic Attacks

BuzzFeed News Reporter

Attorney General William Barr

An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “ directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.

According to the National Association of Immigration Judges, the Justice Department’s Executive Office for Immigration Review (EOIR) sent court employees a link to a blog post from VDare, a white nationalist website, in its morning news briefing earlier this week that included anti-Semitic attacks on judges.

The briefings are sent to court employees every weekday and include links to various immigration news items. BuzzFeed News confirmed the link to a blog post was sent to immigration court employees Monday. The post detailed a recent move by the Justice Department to decertify the immigration judges union.

A letter Thursday from union chief Ashley Tabaddor to James McHenry, the director of the Justice Department’s EOIR, said the link to the VDare post angered many judges.

“The post features links and content that directly attacks sitting immigration judges with racial and ethnically tinged slurs and the label ‘Kritarch.’ The reference to Kritarch in a negative tone is deeply offensive and Anti-Semitic,” wrote Tabaddor. The VDare post includes pictures of judges with the term “kritarch” preceding their names.

Tabaddor said the term kritarchy is a reference to ancient Israel during a time of rule by a system of judges.

“VDare’s use of the term in a pejorative manner casts Jewish history in a negative light as an Anti-Semitic trope of Jews seeking power and control,” she wrote.

Tabaddor called on McHenry to take immediate action over the distribution of white nationalist content.

“Publication and dissemination of a white supremacist, anti-semitic website throughout the EOIR is antithetical to the goals and ideals of the Department of Justice,” she wrote. The court, Tabaddor wrote, should immediately withdraw the email and issue an apology to all immigration judges, including those mentioned in the post.

“Separately, EOIR should take all appropriate safety and security measures for all judges given the tone and tenor of this posting,” she wrote.

After publication of this article, a DOJ spokesperson told BuzzFeed News the email briefing was compiled by a contractor and should not have included a link to the VDare post.

“The daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included,” the spokesperson said.

EOIR Assistant Press Secretary Kathryn Mattingly told BuzzFeed News that “the daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included. The Department of Justice condemns Anti-Semitism in the strongest terms.”

A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”

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

So, it’s “mere coincidence” that the two Judges leading the NAIJ’s resistance are specifically targeted with slurs within a few days of the DOJ’s filing of a petition to “decertify” the NAIJ? Not credible!

Coincidence that a White Nationalist racist Administration biased against asylum seekers distributes White Nationalist hate propaganda directed at Immigration Judges who stand up for Due Process? Unlikely!

No, starting with Trump & Sessions, this Administration has had a long-term love affair with White Supremacist hate groups. It’s no coincidence that acts of violence by White Nationalist domestic terrorists have increased under Trump. While the DOJ and DHS are busy reviving up baseless fear and loathing of foreigners, the real threats to our national security by White Nationalist domestic terrorists, and frankly by the Trump Administration itself, are left unaddressed and not so subtly encouraged.

There are lots of scummy characters involved in the latest assault on Due Process, fundamental fairness, and simple human decency by Trump’s DOJ.

But there is another major enabler at fault here: the unconstitutional and unethical placement of “judges” within a law enforcement agency has been painfully obvious for years. Yet, life tenured Federal Judges have looked the other way as clearly substandard adjudications have emanated from the Immigration Courts under the last three Administrations. Kind of a “who cares” attitude where rights of foreign nationals are involved.

Now, however, as in the Bush II Administration, U.S. citizen judges are being targeted for harassment and career derailment because of their views.

Trump and his henchmen have already made it clear that they will target anyone who fails to roll over for their White Nationalist agenda, judge or not. Myopic Federal Judges who fail to hold the Administration accountable for abuses and to put an end to the “EOIR travesty” might well find themselves on the receiving end of the Administration’s racist hate campaign at some point. Who will stand up for the rights of those unwilling to stand up for others?

PWS

08-22-19

PWS

WASHPOST: Catherine Rampell Takes The Measure Of Stephen Miller’s Neo-Nazi View Of American Immigration History – Exposing A Lifelong Hater’s Knowingly False, Misleading & Existentially Dangerous Narrative!

WASHPOST: Catherine Rampell Takes The Measure Of Stephen Miller’s Neo-Nazi View Of American Immigration History – Exposing A Lifelong Hater’s Knowingly False, Misleading & Existentially Dangerous Narrative!

https://www.washingtonpost.com/opinions/2019/08/20/stephen-miller-is-right-about-immigration-not-way-that-he-means/

By Catherine Rampell

Columnist

August 20 at 4:58 PM

In a Post profile over the weekend, White House senior policy adviser and de facto immigration czar Stephen Miller explained why he cares so much about immigration policy:

“Immigration is an issue that affects all others,” Miller said, speaking in structured paragraphs. “Immigration affects our health-care system. Immigration affects our education system. Immigration affects our public safety, it affects our national security, it affects our economy and our financial system. It touches upon everything, but the goal is to create an immigration system that enhances the vibrancy, the unity, the togetherness and the strength of our society.”

Miller is right: Immigration does touch all those realms. Though perhaps not in quite the way he suggests.

For instance, immigration affects our health-care system in many ways — including by supplying it with talent.

In fact immigrants are overrepresented in the health industry. About 16.6 percent of the health industry is foreign-born, 13.7 percent of the U.S. population overall. A whopping 29.1 percent of physicians are foreign-born, according to a recent analysis of Census Bureau data published in the Journal of the American Medical Association. Immigrants also are overrepresented among dentists (23.7 percent); pharmacists (20.3 percent); registered nurses (16 percent); and nursing, psychiatric and home health aides (23.1 percent).

Immigration also plays an important role in our education system. International students, who generally pay full freight, have helpedkeep public universities afloat even as state legislatures have slashed their budgets. Their tuition dollars help schools cross-subsidize in-state students. Immigrants also have populated the STEM study programs that Americans show little interest in, especially at the graduate level — where many of those same immigrant students help educate American undergrads.

Here’s the share of students in a selection of STEM graduate programs who are in the United States on temporary visas, according to the National Science Foundation’s Science & Engineering Indicators 2018 report. Note that this measure likely understates the fraction of students who are foreign-born, as it does not include those who are permanent residents or naturalized citizens.

Source: National Science Foundation, National Center for Science and Engineering Statistics, special tabulations (2016), 2015 Survey of Graduate Students and Postdoctorates in Science and Engineering. (Washington Post)

As for the relationship between immigration and public safety, the data suggest you might conclude that greater immigration leads to greater public safety.

ADVERTISING

At least, a study of immigration and crime trends across 200 metropolitan areas over four decades found that “immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime throughout the time period.” Other studies have found a similar relationship between the two trends. We don’t know that the link is actually causal, of course, but we do have evidence thatundocumented immigrants commit (non-immigration-related) crimes at lower rates than do native-born Americans.

With respect to national security, Miller might do well to remember that immigrants serve in our military. As of 2018, there were 527,000 foreign-born veterans, according to a Migration Policy Institute analysis of Census Bureau data. About 1.9 million veterans are the U.S.-born children of immigrants.

Some of those noncitizen military members with in-demand skills were expecting that their service would expedite their naturalization process, under a program launched in 2008 called Military Accessions Vital to the National Interest. However, changes in recent years, under first the Obama administration and then under Trump, have effectively frozen that program.

What about our economy?

There’s a lot to be said about how immigrants contribute to the economy, including through high rates of entrepreneurship. For example, immigrants have started more than half of the United States’ start-up companies valued at $1 billion or more, according to a National Foundation for American Policy study. They start lots of smaller companies, too, at much higher rates than native-born Americans, according to data from the Kauffman Foundation.

Without immigration, the U.S. working-age population would be falling, which would weigh on economic growth. (Just look at Japan’s struggles). And as I’ve written elsewhere:

There’s reason to believe that new immigrants may depress wages for earlier waves of immigrants who have similar skill sets. However, recent studies suggest that immigration (both authorized and unauthorized) actually boosts labor force participation rates, productivity and wages and reduces unemployment rates for native-born American workers, whose skills these immigrants tend to complement.

But don’t these people drain the public coffers?

Immigrants, including undocumented immigrants, pay taxes — taxes that fund government benefits that in many cases they are not legally eligible to collect.

A report from the National Academies of Sciences, Engineering, and Medicine found that the net fiscal impact of first-generation immigrants, compared to otherwise similar natives, is positive at the federal level and negative at the state and local levels. That’s due mostly to the costs of educating their children. When their children grow up, though, they are “among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.” In other words, by the second generation, immigrants are net-positive for government budgets at all levels.

What about the most destitute immigrants who come here, though? Surely they’re sucking the government dry!

Nope.

An internal government report commissioned by Trump found that refugees brought in $63 billion more in tax revenue over the past decade than they cost the government. Finding those results inconvenient, the administration suppressed them, though they were ultimately leaked to the New York Times last year.

So by all means, Miller, please remind the public that immigration has consequences for the broad policy landscape. But remembering the directionality of those consequences seems pretty important, too.

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

Thanks, Catherine, for setting the record straight!

Catherine’s wonderful article would have fit well within the readings for the Bjorklunden Seminar that Professor Jenn Esperanza and I did earlier this month. Basically, those who oppose and demean immigrants have forgotten that we are all immigrants, we are all very similar, and without immigrants there would be no America.

No, our country isn’t “full” by any means and no, the “quality” of recent immigrants hasn’t “dropped off.” If anything, we are more dependent on the skills, hard work, and loyalty (sometimes hard to fathom, considering how they are treated) of recent immigrants, both documented and undocumented, than at any time in our history since the founding.

Unlike Miller, “Cooch Cooch,” Pence, Trump himself, and the other political hacks charged with making immigration policy these days, I actually spent years dealing face to face with migrants of all types, races, religions, backgrounds, and situations in performing my duties as a U.S. Immigration Judge. Contrary to the false narratives promoted by the “Millers of the world,” most of them wanted just three things 1) the chance to live a relatively safe and stable life; 2) an opportunity to use their skills to support themselves and others; and 3) a better future for their children.

That’s largely what I wanted out of life and accurately describes the aspirations of probably 90%+ of the people I have known as I move into my seventh decade of life.

I don’t know what entitles folks like Trump, Miller, and their followers to demean and dehumanize the contributions of other humans who are just as, or in many cases more, worthy as they are – simply because they didn’t have the same fortune of birth or circumstances.

Undoubtedly, there is somewhere out there a point at which admitting larger numbers of refugees and other types of immigrants would be counterproductive, at least for our country, if not for the migrants themselves. Even then, there might still be moral and religious arguments for helping our fellow men even when it ceases to demonstrably benefit our economy and our society.

But, the factual and moral bankruptcy of the “case for fewer immigrants” put forth by Trump, Miller, and the White Nationalists shows that whatever that “magic number’” might be, it’s multiples of the number of legal immigrants we are admitting at present. That’s why Trump, Miller, and the White Nationalists don’t want to have the real national dialogue that we should be engaging in: How do we expand our current refugee and legal immigrant admission systems to more realistically reflect the market forces that cause migration, and how do we as a country put ourselves in the best position to benefit from the ongoing phenomenon of human migration?

The longer we screw around with and are diverted by the racist myths of the Trumps and Millers, the longer it will take us to get around to the hard work of addressing immigration issues in a smart, humane, and realistic way that benefits the immigrants, our country, and humanity as a whole.

PWS

08-21-19

BJORKLUNDEN REPORT, PART I: “American Immigration: A Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issues Dominating Our National Dialogue”

I had the pleasure of co-teaching this course with my good friend Professor Jennifer Esperanza of the Beloit College Anthropology Department. The venue was Lawrence University’s amazing Northern Campus, known as Bjorklunden, on the wildly beautiful shores of Lake Michigan in Door County, Wisconsin, from August 4-9, 2019. This was a “derivative” of an immigration component of a summer session of Jenn’s class for undergraduates at Beloit. This time we had a group of 15 enthusiastic, well-informed post graduate students from a variety of professional backgrounds.

Here’s what we set out to achieve:

Class Description:

All Americans are products of immigration. Even Native Americans were massively affected by the waves of European, involuntary African-American, Asian, and Hispanic migration. Are we a nation of immigrants or a nation that fears immigration? Should we welcome refugees or shun them as potential terrorists? Do we favor family members or workers? Rocket scientists or maids and landscapers? Build a wall or a welcome center? Get behind some of the divisive rhetoric and enter the dialogue in this participatory class that will give you a chance to “learn and do” in a group setting. Be part of a team designing and explaining your own immigration system.

Class Objectives:

_Understand how we got here;

_Understand current U.S. immigration system and how it is supposed to work;

_Learn more about the various lived experiences of immigrants and refugees through their personal stories and ethnographic accounts

_Develop tools to become a participant in the ongoing debate about the future of American immigration;

_Get to know a great group of people, enjoy Door County, and have some fun in and out of class

Here are our “five major themes:”

Day 1: An Introduction to Immigration (From the Top Down and the Bottom Up)

Highlight: Getting the “immigration histories” of the participants

Day 2: Labor Migration: Push/Pull Factors

Highlight: Stories and examples of the “hard-work culture” created by various groups of hard-working immigrants to the U.S. both documented and undocumented with a particular emphasis on the culture created by Hispanic restaurant workers

Day 3: “Making Home”

Highlight: Watching and discussing NPR broadcast on German immigrants in rural Wisconsin which related directly to the family histories of many of us in the class (including me)

Day 4: “Well Founded Fear”

Highlights: Jenn’s live storytelling performance of her own family immigration experience, watch on Youtube here: https://www.youtube.com/watch?v=OEODrtuj_Pk&t=323s

My coverage of the entirety of refugee history and modern U.S. refugee and asylum laws in 70 minutes (favorite student comment/compliment: “I expected this to be deadly, but it wasn’t.”)

Day 5: Contemporary Issues: The Future of Immigration, Refuges, & Asylum

Highlight: The class presentations of the famous (or infamous) “Mother Hen v. Dick’s Last Resort” “Build Your Own Refugee System” Exercise

Here’s the complete Course Outline (although admittedly we varied from this when necessary):

Bjorklunden 2019 Syllabus_American Immigration

Here’s my “Closing Statement:”

“CLOSING STATEMENT”

Lawrence University

Bjorklunden Campus

Bailey’s Harbor, WI

August 9, 2019

Jenn and I thank you for joining us. We’ve had our “Last Supper” and our “Final Breakfast” here at beautiful Bjorklunden. That means that our time together is ending.

In five days, we have completed a journey that began on Monday with hunter-gatherers in Africa thousands of years ago, and ends inside today’s headlines about ripping apart families in Mississippi and trying to develop better approaches to refugees: individuals who are an integral part of the human migration story as old as man, and who will not be stopped by walls, prison cells, removals, or cruel, inhuman, and degrading treatment or rhetoric from our so-called “leaders.” On the way, we wound through our own rich immigration heritages and personal stories about how migration issues continue to shape our lives, including, of course, bringing this wonderful group together in the first place.

Jenn shared with you some very personal stories about her own family’s recent immigration experiences and how it shaped, and continues to mold her own life and future. I introduced you, at least briefly, to a key part of my own life, the U.S. Immigration Court, the retail level of our immigration system, where “the rubber meets the road” and where the maliciously incompetent actions of unqualified politicos have created “Aimless Docket Reshuffling” and made a bad joke out of the precious Constitutional right to Due Process under law for all in the U.S. regardless of status or means of arrival.

Our lively class discussions have not been “merely academic,” but real and practical. We have discussed real life scenarios literally “ripped from today’s headlines,” involving real people and real human dilemmas, including the challenges facing those whose job it is to ensure that justice is served. Although this class is done, the learning, the intense human drama, and the “living theater” of American immigration will continue.

Jenn and I have enjoyed working with all of you over this week. The past five days have certainly been a high point for us this summer.

We have communicated our shared values of fairness, scholarship, timeliness, respect, and teamwork! And, we hope that our ability to bond and bridge generational, age, academic, gender, professional, cultural, and geographic gaps to bring you this learning experience has served as a “living example” of how those shared values play out in “real life.”

For me and others like me, our “time on the stage” is winding down. Others, like Jenn and Chuck, are still very much engaged in the production. Still others, like Mary’s inspiring grandchildren, Jenn’s boys, and my eight grandchildren, are “waiting in the wings” to take the stage and assume their full roles in the ongoing drama of human history.

Our hope and challenge for each of you is that no matter where you are in the process of lifelong learning and doing, you will reach your full potential as informed, caring, and compassionate human beings, and that you will continue to strive to make our world a better place! We also hope that something that you have learned in this class will make a positive difference in your life or the life of someone you care about.

Thanks again for inviting us into your lives, engaging, participating, and sharing. Journey forth safely, good luck, and may you do great things in all phases of life!

Here’s our “Class Photo” taken on the deck outside the Lakeside Seminar Room where we met:

Left to right: Steve Handrich, Judge Charlie Schudson, Nancy Behrens, Mary Poulson, Jeff Riester (fellow LU ’70), Chuck Meissner, Genie Meissner, Chuck Demler (LU ’11, Associate Director of Major and Planned Giving), Greta Rogers, Me, Professor Jennifer Esperanza (Beloit College), Renee Boldt, Susan Youngblood, Chris Coles, Cynthia Liddle, Fred Wileman (my cousin), Mary Miech

Here are some shots of Bjorklunden:

Bjorklunden -- Lake Michigan South — Looking South Along Lake Michigan Shore

Exploring the Ice Age With “Naturalist Jane”

Lake Michigan North — AM on Lake Michigan Looking North Toward Bailey’s Harbor

And, this is Jenn and me conducting our “exit session” @ the Door County Brewing Co. in Bailey’s Harbor:

Jenn & Paul — “Oh, the beauty of exam-free teaching!”

Thanks again to Mark Breseman (LU ’78), Executive Director; Kim Eckstein, Operations Manager; Alex Baldschun, Assistant Director; Jeff Campbell, Head Chef; Mark Franks, General Maintenance Mechanic; Lynda Pietruszka, Staff Assistant/Weekend Program Manager, and, of course, the amazing, brilliant, personable, and talented LU student staff at Bjorklunden for taking care of our every need and making everything work.

The student staff basically runs the place from an operational standpoint. While many universities brag about their hotel and hospitality management programs, as far as I could see the student staff at Lawrence was getting great “hands on” experience and training in hospitality management from the ground up. How do I know? Well, in the “corporate phase” of my career, I represented some of the largest international hotels and hospitality corporations in the world. The “hands on” training that these students were getting appeared to be very comparable to those of well-known hotel management programs and just the type of skills that major hotel chains are always looking for in their executives and managers.

Special thanks to Alex and Kim, for emergency copying and technical services; to Kim for showing me the only “Level 2” Electric Vehicle Charger in Bailey’s Harbor (I’ve recommended that as a proudly eco-friendly institution Lawrence install Level 2 EV Chargers and dedicated plugs for Level 1 EV Chargers in convenient locations on both the Appleton and Northern Campuses); to Jeff for giving me tasty vegan options for every meal; and to Lynda and Mark Franks for their general cheerfulness and “can do” attitude. I also appreciate the student staff who resided on my corridor for putting up with my constant whistling.

I thank Chuck Demler for getting me involved in the Bjorklunden teaching program. I am indebted to Jeff Riester for not sharing his recollections (if any) of our time together as undergraduates at Lawrence with particular reference to our two terms at the Lawrence Overseas Campus then located in Boennigheim, Germany.

Finally, thanks to my good friend and professional teaching colleague Professor Jenn Esperanza of Beloit College (who also happens to be “best buds” with my daughter Anna and her husband Daniel, a fellow Professor at Beloit College) for undertaking this adventure together and being willing to share so much of her very moving and relatively recent personal experiences with immigration and being part of the “American success story.” Jenn and I appreciated the enthusiastic participation of all the members of our group and their signing up for our class.

Due Process Forever!

PWS

08-21-19

AN “OPEN LETTER PROPOSAL” FROM TWO UW LAW ‘73 RETIRED JUDGES — We’ve Spent 90+ Collective Years Working To Improve The Quality & Delivery Of Justice In America On Both The State & Federal Levels, In The Private & Public Sectors — What We’re Seeing Now Is Shocking, Heartbreaking, Inexcusable, & Unnecessary — It’s Time For Legislators & Policy Makers To Start Listening To Those Of Us With New Ideas Based On “Real Life” Experiences & Observation!

Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge

A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY

By

Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals

&

Thomas Lister, Retired Wisconsin Circuit Judge

Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.

To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.

No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.

All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.

On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary.

Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.

We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.

To name just a few areas of “low hanging fruit,” we believe that:

• Most bonds;

• Initial “Master Calendars” (arraignments);

• Master Calendar scheduling for Individual Hearings;

• Motions Calendars;

• “Status” Calendars;

• Stipulated Final Order and Withdrawal Calendars;

• Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;

• Uncontested Adjustments of Status and other types of equitable waivers; and

• Voluntary Departure as the sole application cases

have elements in common with most other types of judicial work.

Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.

In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.

It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.

We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.

By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.

Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.

Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.

Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.

Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.

As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.

The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).

The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.

It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.

Respectfully submitted,

Thomas Lister, Middleton, WI

Paul Wickham Schmidt, Alexandria, VA

August 19, 2019

THE “GOOD GUYS” STRIKE BACK: NAIJ, AILA Issue Statements Strongly Condemning Administration’s Attempt to “Decertify” Immigration Judges’ Union!

NAIJ Press Release on Attempt to Decertofu 8-12-19

For immediate release – August 12, 2019

Contact: Jamie Horwitz,jhdcpr@starpower.net, 202/549-4921

Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges

Retribution for Speaking Out and Exposing Problems in the Courts

Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence

WASHINGTON — On Friday, August 9, the U.S. Department of Justice filed legal documents with the Federal Labor Relations Authority (FLRA) seeking to eliminate the rights of federal Immigration Judges (IJs) to be represented by a union. The petition filed by the administration asserts that IJs are “management officials” who formulate and advance policy.

“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hears cases in Los Angeles, speaking in her capacity as the president of the National Association of Immigration Judges (NAIJ). “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff,” she added.

The nation’s immigration courts are not part of the judicial branch of the government. The courts where immigration cases are heard are managed by the DOJ, allowing the

nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power to hire, fire, and control the judges who preside over immigration hearings.

Over the past two years, NAIJ has been highly critical of the administration’s moves to create a quota of 700 cases per year for every IJ and to pressure judges to process cases faster, irrespective of the law and the facts of the case. The NAIJ has also documented and publicly commented on how the government shutdown earlier this year added to the case backlog. Other issues raised by the NAIJ during the Trump years have included challenges to the Attorney General’s stripping IJs of needed docket management authority and depriving IJs of adequate support staff and resources such as interpreters, courtrooms, law clerks, and access to current technology. The move to decertify NAIJ is a clear effort to thwart criticism.

“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t even have the authority to order pencils.”

This is not the first time that the DOJ has floated the theory that Immigration Judges are managers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’ union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since that decision, the role and responsibilities of IJs has further been reinforced as trial judges rather than as managers. In the last two years, for example, the DOJ has eliminated any opportunity for IJs to serve in an advisory capacity to management officials and has repeatedly refused even to consult NAIJ on decisions affecting daily court operations. Additionally, the docket schedule of each IJ is micromanaged to advance law enforcement priorities rather than priorities or scheduling set by an individual judge.

NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a much larger union that represents thousands of highly-educated federal employees including NASA rocket scientists, engineers employed by the U.S. Navy and the Army Corp of Engineers, and administrative law judges who hear cases involving Social Security claims. According to IFPTE’s president Paul Shearon, “This is nothing

more than union busting plain and simple, and part of a disturbing pattern. The White House has

signed a series of executive orders that limit the ability of federal unions to raise questions about abuses and inefficiencies, and they have tried to hinder a union’s ability to fully represent federal workers who are often stuck in a bureaucratic maze.” Added Shearon, “This administration doesn’t want to be held accountable, and they especially don’t want anyone looking over their shoulder on immigration issues.”

“It’s in the best interests of the American people for judges to hear cases based solely on the law and the facts presented, free from political considerations,” said Judge Tabaddor. “This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocated for Immigration Judges to be placed in an independent agency, similar to the nation’s bankruptcy and tax courts, rather than under the control of the DOJ. In recent months, this move to create an independent agency to operate the immigration courts has been gaining traction on both sides of the aisle in Congress.

“We think many on Capitol Hill, from both parties, will oppose this effort to mute the nation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, we will redouble our efforts to maintain judicial independence and due process through the creation of an independent court. The DOJ’s actions, designed to silence judges and their union, further demonstrates why judges who hear immigration cases need to be placed in an independent agency. Our rallying cry as we make the rounds in the halls of Congress will be ‘remember August 9’.”

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

# # #

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

AILA – AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independen

AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independence

AILA Doc. No. 19081591 | Dated August 15, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Tessa Wiseman
202-507-7661
twiseman@aila.org

WASHINGTON, DC – On Friday, August 9, 2019, the U.S. Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ asserts that immigration judges should be considered “management officials” and therefore should be excluded from forming or joining labor unions. The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of our nation’s immigration judges, deemed DOJ’s claim as “absurd” and said that DOJ’s actions are “designed to silence judges and their union.” Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) of the House Judiciary Committee also decried the move in a statement this week.

Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA) responded, “DOJ’s petition to decertify the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.

Congress must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ. Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system. America can no longer afford to have a system that can be so easily manipulated. AILA urges Congress to pass legislation establishing an independent immigration court under Article I of the Constitution.”

Cite as AILA Doc. No. 19081591.

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

An outrageous waste of our taxpayer money, abuse of our legal system, and unlawful attempt to silence the Administration’s critics. Note that the ONLY U.S. Immigration Judges who have a right to “speak out” against the fraud, waste, and abuse of the system by the current Administration (in other words, to “speak truth”) are senior officials of the NAIJ.

The DOJ and EOIR have effectively “muzzled” the rest of the active Immigration Judges. They are not allowed to speak to the press. Under this Administration, they aren’t even allowed to participate in educational programs and seminars aimed at educating the public about practice before the Immigration Courts.

Yet, while treating the judges little better than well-paid but overworked clerks, the Department of Justice asserts, with a straight face, that they are “management officials.” Just what, one might ask, are they “managing?”

Moreover, since judges generally need support but little if any day to day “management” in a functioning system (I wonder how much time Chief Justice Roberts spends “managing” his colleagues or how much time any Chief Judge in a legitimate system spends “managing” his or her judicial colleagues), what’s the purpose of the bloated management structure in the “EOIR Tower” in Falls Church, VA?

The real needs of the Immigration Judges — more clerks, more time off the bench to prepare, more educational opportunities, better equipment, better courtrooms, less time spent on non-productive work like reporting progress on case quotas — remain unaddressed by what passes for “management” at today’s EOIR. The filing of this meritless “decertification petition” by EOIR appears to be yet another in the long series of disingenuous efforts by DOJ and EOIR to deflect attention from their own gross mismanagement of the Immigration Court system that has helped to create monumental, unprecedented backlogs even as more resources are thrown into the maelstrom.

A truly horrible system — essentially a “Rube Goldberg Contraption — that must be abolished by Congress and reinstituted as an independent Article I Court dedicated to delivering “Due Process with efficiency.”

Due Process forever; malicious incompetence never!

PWS

08-19-19

JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

New from JMHS | An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

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A publication of the Center for Migration Studies

Donald Kerwin, Executive Editor
John Hoeffner and Michele Pistone, Associate Editors

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

By Paul Wickham Schmidt (Georgetown Law)

This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:

The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs

Download the PDF of the article

Read more JMHS articles at http://cmsny.org/jmhs/

Want to learn more about access to asylum on the US-Mexico border? Join the Center for Migration Studies for our annual Academic and Policy Symposium on October 17.

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

My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.

So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.

Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.

Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.

Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):“Juan would be truly honored.”

Donald M. Kerwin
Executive Director
Center for Migration Studies

Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process

Wendy Young
President, Kids In Need of Defense (“KIND”)

PWS

08-19-19

HON. JEFFREY CHASE: Barr Intended To Attack The “Quintessential Particular Social Group In Society” — The Family — As Part Of His Restrictionist Deconstruction of Asylum Protections For Vulnerable Refugees — But, Can He Really Rewrite Reality? — Chase On Matter of L-E-A-!

https://www.jeffreyschase.com/blog/2019/8/11/l-e-a-how-much-did-the-ag-change

Aug 11 L-E-A-: How Much Did the AG Change?

In June 2018, the Attorney General issued his precedent decision in Matter of A-B-. The AG intended his decision to lead to the denial of asylum claims based on domestic violence and gang violence by asylum officers, immigration judges, the BIA, and the circuit courts. The decision also aimed to compel asylum officers to find those arriving at the southern border to lack the credible fear necessary for entry into the court system, allowing for their immediate deportation.

However, the decision failed to achieve these goals. A U.S. District Court decision, Grace v. Whitaker, prohibited USCIS from applying A-B- in credible fear determinations. And Immigration Judges have continued to grant significant numbers of domestic violence claims, concluding that A-B- did not prevent them from doing so, but only required their decisions to contain an in-depth analysis of their reasoning. The case of A-B- herself presently remains pending before the BIA.

More recently, the Attorney General took the same approach to the question of whether family may constitute a particular social group. While once again, the administration’s goal is to prevent such claims from passing credible fear interviews and from being granted asylum, the effort also seems likely to fail.

* * *

“There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family. Indeed, quoting the Ninth Circuit, we recently stated that ‘a prototypical example of a “particular social group” would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people.'”

The above language is from a 1994 decision of the U.S. Court of Appeals for the First Circuit, Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1994). It pretty much reflects the view of every circuit court over the past 25 years. Since Gebremichael, the BIA has added additional requirements of particularity and social distinction to the particular social group (“PSG”) requirements in a series of six precedent decisions issued between 2006 and 2014. But as a recent practice advisory of CLINIC points out, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits have all recognized that family can constitute a PSG, and all have reiterated that opinion in decisions issued in 2014 or later, meaning that those courts have not found the BIA’s subsequent requirements to alter their longstanding view on the matter.

For this reason, when L-E-A- was first decided by the BIA in 2017, the parties were not in disagreement on this point – the issue had acquired a “the sky is blue” certainty. The issue before the BIA was rather about nexus – i.e. what was required to show that one’s feared persecution was in fact “on account of” such family membership. The Board settled on a highly restrictive standard for establishing nexus, illustrated by the single example of the Romanov family in 1918 Russia.

Possibly fearing an influx of asylum-seeking Romanovs, Matthew Whitaker, during his very brief tenure as Acting Attorney General, felt the need to certify the decision to himself. And on July 29, his successor, WIlliam Barr, issued a decision very reminiscent of A-B-.

As in A-B-, Barr justified vacating the Board’s decision because it relied on the parties’ stipulation to the issue in question. In Barr’s view, this caused the resulting decision to lack the rigorous analysis deserving of a precedent decision. While it remains unclear why rigorous legal analysis is required where everyone agrees to the correctness of the assertion (do we require rigorous mathematical analysis to the proposition that 2+2 = 4?), it should be noted that unlike Matter of A-R-C-G-, which was the single precedent decision holding that victims of domestic violence could be eligible for asylum, there is 25 years worth of circuit court case law on this point, plus the BIA’s own statement in Matter of Acosta that kinship could be a basis for a PSG, which dates to 1985, a point that the BIA reaffirmed over the next three decades, in Matter of C-A- (2006), and then, by reference to that case, in Matter of M-E-V-G- (2014). Barr’s excuse is that, in his view, multiple circuits “have relied upon outdated dicta from the Board’s early cases.”

As in A-B-, the AG’s decision affects no change in the applicable legal standard. The holding is quite narrow, simply overruling the part of the BIA’s decision discussing the cognizability of family as a PSG. The decision doesn’t preclude such findings, but rather requires adjudicators to spend more time on each case, providing a detailed, step-by-step analysis before granting relief. This is a critical point, as at least one IJ has said that L-E-A- has closed the door on family-based PSGs. IJs had a similar reaction in the immediate aftermath of A-B-, stating that they can no longer grant domestic violence claims, only to realize otherwise over time. Barr specifically states that his decision “does not bar all family-based social groups from qualifying for asylum,” adding “[t]o the contrary, in some societies, an applicant may present specific kinship groups or clans that, based on the evidence in the applicant’s case, are particular and socially distinct.” He also cautions adjudicators to “be skeptical of social groups that appear to be “defined principally, if not exclusively, for the purposes of [litigation] . . . without regard to the question of whether anyone in [a given country] perceives [those] group[s] to exist in any form whatsoever.” These are restatements of long-existing law. Of course, the concept of family was not artificially created for litigation purposes.

In L-E-A-, Barr specifically referenced the canon of ejusdem generis, which the BIA applied in Matter of Acosta to conclude that a particular social group should not be interpreted more broadly than the other four terms (race, religion, nationality, and political opinion) that surround it in the statute.1 As the canon was applied to counter the argument that the legislative intent of the PSG ground was to serve as a broad, catch-all “safety net” for those deserving of protection but unable to fit within the other four protected categories, the AG is happy to rely on the premise in his decision as well.

However, ejusdem generis is a two-edged sword. In the same way as it prevents the PSG category from being interpreted more broadly than its fellow protected grounds, it similarly prevents those other categories from being interpreted more broadly than PSG.

And therein lies the flaw in Barr’s argument that “as almost every [noncitizen] is a member of a family of some kind, categorically recognizing families as particular social groups would render virtually every [noncitizen] a member of a particular social group. There is no evidence that Congress intended the term “particular social group” to cast so wide a net.”

Every noncitizen is also a member of a race and a nationality. And most believe in a religion of some type. But no court has suggested that those categories are therefore too wide to form a protected ground for asylum purposes. Barr fails to explain that belonging to a protected ground does not make one a refugee; everyone in the world belongs to one or more such categories; many of us belong to all five. Asylum requires persecution (either suffered in the past, or a sufficient likelihood of suffering in the future), as well as a showing that such persecution was motivated more than tangentially in the persecutor’s view by the victim’s possessing one or more of the protected bases. When one also considers how extreme the harm must be to be constitute persecution; that such harm must either be by the government, or by a person or group that the government is unable or unwilling to control, and that the asylum seeker must not be able to avoid such harm through reasonable relocation to a safer place within their own country, it is not an easy standard to satisfy.

Barr then further errs in claiming that the test for social distinction is not whether the nuclear family carries societal importance (which in fact is the test), but rather, whether the applicant’s “specific nuclear family would be ‘recognizable by society at large.’” In that sentence, Barr supported his erroneous claim by misquoting Jeff Sessions in Matter of A-B-, by omitting the word “classes.” The actual quote, “social groups must be classes recognizable by society at large,” actually supports the argument that nuclear families would enjoy social distinction. By manipulating the language of case law, Barr attempts to equate “social distinction” with fame. Under his proposed interpretation, an asylum seeker must be a Kardashian to satisfy the PSG standard, and a Romanov to then prove nexus. (While such interpretation is clearly incorrect, I am nevertheless coining the term “Czardashian” here).

The true test for social distinction is whether the proposed group is consistent with how society divides itself. And families are the most basic way that society divides itself into groups. We are often identified in society as someone’s child, spouse, parent, or sibling. When we meet someone with a familiar last name, the first thing we ask is “are you related to so and so?” The reason we care to ask such question is precisely because families are socially distinct. By comparison, no one has ever asked me if I’m a member of the group of “tall, gray-haired, left-handed immigration lawyers with glasses,” because that is the type of artificially concocted group that in no way reflects how society divides itself.

Barr’s statement that “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the INA for purposes of asylum” is nonbinding dicta, expressing the likelihood of success in claims not before him.2 Nevertheless, his statement also overlooks an important aspect of PSG analysis: the impact of persecution on public perception. Social distinction is measured not in the eyes of the persecutors, but of society. But as UNHCR points out in its 2002 Particular Social Group Guidelines, at para. 14, even though left-handed people are not a particular social group, “if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group.” So even if we were to accept Barr’s flawed premise that a regular, non-celebrity family lacks his misconstrued version of social distinction, as word spread of the targeting of its members, that family would gain social recognition pretty quickly.

And as CLINIC’s practice advisory astutely notes, societies accord social distinction to even non-famous families in its laws determining how property is inherited, or to whom guardianship of surviving children is determined.

Notes:

For a highly detailed analysis of the Chevron deference test as applied to Matter of A-B-, including the use of ejusdem generis as a canon of construction in step one of Chevron, see Kelley-Widmer, Jaclyn and Rich, Hillary, A Step Too Far: Matter of A-B-, ‘Particular Social Group,’ and Chevron (July 15, 2019). Cornell Legal Studies Research Paper No. 19-30. Available at SSRN: https://ssrn.com/abstract=3410556 or http://dx.doi.org/10.2139/ssrn.3410556

See CLINIC’s Practice Advisory at 3. Much thanks to CLINIC attorneys Victoria Neilson, Bradley Jenkins, and Rebecca Scholtz for so quickly authoring this excellent guide.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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There can be no doubt of Bill Barr’s anti-asylum bias, his poor lawyering skills, his lack of ethics, and his willingness to serve as a weapon of White Nationalist racist nonsense. If you serve the cause like a toady, whether or not you “truly believe” becomes irrelevant.

But, as Jeffrey points out, no matter how much the Barrs of the world would like to rewrite the law without going through the legislative or regulatory process, there is a long history of Article III Courts and the Immigration Courts themselves recognizing family-based asylum cases.

There is also an irreducible truth staring Barr and his fellow restrictionists in the face: folks have been identifying themselves based on kinship ties from the beginning of history and other folks have been protecting, rejecting, joining, or excluding themselves from those family-based kinship groups since humans first walked the earth. Sometimes these processes have been peaceful, other times violent, sometimes cooperative, and sometimes coercive.

But, the reality is that family-based persecution happens every day of the week, through out our world. In many many instances it’s “at least one central reason” for the persecution.

Ironically, folks like Trump and Barr are doing their best to divide our country into as many hostile and sometimes violent, ethnic, racial and social groups as it can. But, in the end, whether within my lifetime or not, the truth will “eat up” the lies and false ideologies that drive Barr and the rest of the Trumpists. Sadly, however, by the time they are rightfully dislodged from power, too many will have died or been irrevocably harmed by their false doctrines and conscious disregard for human life, human decency, and well-established truths of human history.

PWS

08-17-19

CTGN VIDEO: “THE HEAT: MIGRATION, ASYLUM & DEPORTATION” – “New Due Process Army Warrior” Paulina Vera Makes Mincemeat Of FAIR’s Matthew O’Brien & His Bogus White Nationalist Narrative!

Paulina Vera
Lecturer in Law
George Washington Law

The Heat: Migration, Asylum and Deportation

Anand Naidoo

@anandnaidoo

Published August 14, 2019 at 5:50 PM

Hundreds more undocumented immigrants are being rounded up by U.S. law enforcement and processed for deportation. But the United States is not the only country dealing with these issues.

In 2015 and 2016, a wave of migrants and refugees sought asylum in Europe as they fled wars in Syria and Iraq. Thousands more have died, or have been rescued at sea, as they tried to reach Europe from Africa. And, Italy is taking a tough stance on migrants by closing reception centers and trying to prevent rescue boats from docking at Italian ports. Meanwhile Australia has long had some of the toughest asylum policies in the world, as it tries to prevent migrants and refugees from entering its country.

To discuss all of this:

Daniel Ghezelbash is a senior lecturer at Macquarie Law School and author of “Refuge Lost: Asylum Law in an Interdependent World.”

Reuven Ziegleris an associate professor in international refugee law at the University of Reading.

Paulina Vera is a lecturer in law at The George Washington University Law School.

Matthew O’Brien is director of research at the Federation for American Immigration Reform.

See the video here:

https://america.cgtn.com/2019/08/14/the-heat-migration-asylum-and-deportation

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

Wow! O’Brien is a shameless liar. Hopefully, his descendants will view this video and see for posterity just what a racist apologist opportunist and vile White Nationalist he is.

Unfortunately, this isn’t a “debate.” It’s a question of O’Brien’s lies, fabrications, and false narratives versus truth. Even DHS’s OWN studies refute many of O’Brien’s White Nationalist talking points!!

It’s sad that in an attempt to present “ both sides” of a picture that has only one legitimate side, the media has to dredge up guys like O’Brien and give them a forum for their ugly, callous, and demonstrably untrue false narratives. Very much like the debate about climate change where lying “pseudo scientists” get equal time with those stating the truth, while the world disintegrates.

In the end, elections and political pandering can determine who holds power, but they can’t change truth. Contrary to Trump and his lackeys, there are no “alternative facts” and Trump himself is a living example of “fake news” and its toxic effects on our country and humanity. In this case, the truth is that under Trump and with support from folks like FAIR, our world is spiraling downward toward chaos and destruction.

ANYBODY, like O’Brien, who claims that “sound judicial practices” are being followed in today’s unfair and dysfunctional Immigration Courts should not be taken seriously by the media or anyone else.

Many congrats to Paulina, a courageous graduate of the “Arlington Immigration Court Internship Program” and a “Charter Member of the New Due Process Army” for taking a stand and speaking truth to the lies and liars who currently hold power.

PWS

08-15-19

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Tessa Wiseman 202-507-7661 twiseman@aila.org

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BREAKING: STATEMENT BY IMMIGRATION JUDGES UNION ON MAJOR CHANGE ANNOUNCED TO IMMIGRATION COURTS

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BJORKLUNDEN REPORT, PART I: “American Immigration: A Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issues Dominating Our National Dialogue”

Here’s what we set out to achieve:

Here are our “five major themes:”

Day 1: An Introduction to Immigration (From the Top Down and the Bottom Up)

Highlight: Getting the “immigration histories” of the participants

Day 2: Labor Migration: Push/Pull Factors

Highlight: Stories and examples of the “hard-work culture” created by various groups of hard-working immigrants to the U.S. both documented and undocumented with a particular emphasis on the culture created by Hispanic restaurant workers

Day 3: “Making Home”

Highlight: Watching and discussing NPR broadcast on German immigrants in rural Wisconsin which related directly to the family histories of many of us in the class (including me)

Day 4: “Well Founded Fear”

Highlights: Jenn’s live storytelling performance of her own family immigration experience, watch on Youtube here: https://www.youtube.com/watch?v=OEODrtuj_Pk&t=323s

My coverage of the entirety of refugee history and modern U.S. refugee and asylum laws in 70 minutes (favorite student comment/compliment: “I expected this to be deadly, but it wasn’t.”)

Day 5: Contemporary Issues: The Future of Immigration, Refuges, & Asylum

Highlight: The class presentations of the famous (or infamous) “Mother Hen v. Dick’s Last Resort” “Build Your Own Refugee System” Exercise

Here’s the complete Course Outline (although admittedly we varied from this when necessary):

Here’s my “Closing Statement:”

Here’s our “Class Photo” taken on the deck outside the Lakeside Seminar Room where we met:

Here are some shots of Bjorklunden:

And, this is Jenn and me conducting our “exit session” @ the Door County Brewing Co. in Bailey’s Harbor:

Due Process Forever!

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A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY

By

Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals

&

Thomas Lister, Retired Wisconsin Circuit Judge

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Due Process forever; malicious incompetence never!

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