HON. ROBERT D. WEISEL @ NY DAILY NEWS: Universal Representation Is A Necessary & Achievable Requirement For Due Process In Immigration Court — Representation Increases Chances Of Success for Migrants 12X!

https://www.nydailynews.com/opinion/ny-oped-everyone-in-immigration-detention-needs-a-lawyer-20190307-story.html

Retired U.S. Assistant chief Immigraton Judge Robert Weisel writhes in the NY Daily News:

As the Trump administration’s immigration agenda sows fear and instability, New Yorkers should be proud that our state is the national leader in ensuring due process for all. In New York, no detained person is forced to face immigration court without an attorney.

Having served nearly three decades as an immigration judge, I can affirm that access to counsel for people facing deportation is an essential component of fairness and an important way to strengthen communities throughout our state.

Consider “Louis’s” story. A lawful permanent resident for more than two decades, “Louis” was a devoted father and beloved basketball and football coach in Rochester when Immigration and Customs Enforcement detained him based on a 10-year-old conviction. While he was detained in Batavia, Louis’s family faced crippling emotional and financial hardship without his income and support. His oldest child suffered a substantial deterioration in his mental health and his young children struggled to cope with their father’s absence.

Had Louis not been a New Yorker, odds are he would have faced deportation without a lawyer. His family would have continued to struggle without their father and, based on the statistical outcomes for unrepresented immigrants, he likely would have been deported — permanently separated from his children and fiancée.

Thankfully, Louis’s case did take place in New York. Louis and his attorneys worked together and won his immigration case. He is now back with his family and coaching sports in his community.

Unlike in criminal court, immigrants in deportation proceedings are not guaranteed an attorney if they cannot hire one. As a result, nearly 70% of detained immigrants and approximately 30% of non-detained immigrants nationwide in deportation proceedings lack legal representation, facing the terrifying prospect of separation from their families while confronting the complexities of U.S. immigration law alone. Representation doesn’t guarantee any outcome, but it does ensure that everyone has access to due process and a fair day in court.

I was the assistant chief immigration judge for New York City and New Jersey in 2013 when a small pilot project, The New York Immigrant Family Unity Project, guaranteed attorneys for immigrants at one New York City immigration court. NYIFUP demonstrated the importance of publicly-funded deportation defense, raising the level of practice in the court and strengthening both fairness and efficiency.

The Vera Institute of Justice evaluated NYIFUP, finding that 48% of immigrants succeeded in their cases, while unrepresented immigrants in the same court were successful only 4% of the time. NYIFUP also produced other benefits — including keeping families together and generating $2.7 million in annual tax revenues from clients who established the right to remain in the United States.

The success of the pilot soon spread NYIFUP statewide. I was proud to partner with Vera when it launched a similar assigned counsel project in the Hudson Valley. Now, as a part of Gov. Cuomo’s Liberty Defense Project, New York State funds deportation defense at all immigration courts upstate, while the New York City Council supports it in New York City.

New York should be proud of its national leadership in ensuring that every detained immigrant in our state has access to representation. However, gaps remain in our state’s approach to ensuring due process for all. Notably, there are 19,000 New Yorkers living in our communities while in deportation proceedings — as opposed to being in detention — who are unable to afford an attorney to represent them.

New York must continue to guarantee counsel for all immigrants facing deportation, and other states should join in our successful experiment.

Weisel served first as an immigration judge, and then as assistant chief immigration judge, in the New York Immigration Court from 1989 until his retirement in 2016. He currently serves as a Senior Consultant to the United Nations High Commissioner for Refugees, advising on issues relating to access to counsel in immigration court proceedings.

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

My good friend and colleague Bob Weisel is “one of the best ever” going back to the early days of EOIR when folks on all levels were actually committed, however imperfectly, to fashioning a better, more professional, and fairer U.S. Immigration Court that would exemplify and promote Due Process.

Of course, our efforts were sometimes flawed. But those of us involved (I happened to be working for the “Legacy INS” at that time which had “spun off” the Immigration Courts into a new entity, EOIR) believed we were learning from our mistakes and successes and were part of an “upward arc” of justice that would, at an appropriate time, evolve into a truly independent court system.

Today, that noble quest has been abandoned in favor of a “race to the bottom” where worst practices are encouraged, “judges” are expected to function like enforcement officers, and Due Process is, at best, an afterthought.

Private attorneys, most serving on a pro bono or “low bono” basis, are among those committed to preserving some semblance of justice and fairness in this broken and dysfunctional system. And, attorneys are making a difference!

There are lots of good ideas out there on how to increase representation — something that actually helps the system produce fair and efficient results and reduce backlogs. For example, a better trained, better regulated, larger corps of “certified non-attorney representatives” working for religious and charitable organizations presents great potential.

But, with the Federal Government interested solely in mindless, wasteful, and ultimately “built to fail” enforcement efforts, at the expense of fairness and correct decisions, the burden falls to states, localities, NGOs, and private sector groups to essentially do the Government’s job for them — uphold and improve our legal system in the face of U.S. Government intransigence and incompetence.

PWS

03-13-19

“DUE PROCESS FOREVER, XENOPHOBIA NEVER!” — Here’s An Inspirational Creation By The Courageous Students Of Professor Claire Thomas Of NY Law School, Stalwart Members Of The New Due Process Army!

This is derived from the closing lines of my speech to the 2019 FBA New York Asylum and Immigration Law Conference at NY Law School last Friday, March 8!

“Practicing what they preach,” Professor Claire Thomas of NY Law School and her courageous, smart, and dedicated students are now at the Southern Border saving lives and making a historical record of the cruel, ineffective, illegal, and bias-driven policies of the Trump Administration.

Thanks again to Professor Thomas, who was also one of the primary organizers of the “sold-out” Conference, and her inspiring students for all they are doing to preserve America and our system of justice against the attacks on the rule of law, our Constitution, and simple human decency by the scofflaw and incompetent Trump Administration.

Here’s the amazing Professor Thomas:

Due Process Forever, Xenophobia Never!

PWS

03-11-19

THE ART OF SOCIAL JUSTICE — HON. POLLY WEBBER’S TRIPTYCH “REFUGEE DILEMMA” HITS THE ROAD!

a) “Fleeing From Persecution;” b) “Caught in the Covfefe;” c) “Safe Haven;”
The stories behold each rug by the artist, Hon. Polly Webber;
Hon. Jeffrey S. Chase & Hon. Polly Webber admiring “Caught in the Covfefe” during a break at the 2019 FBA New York Asylum & Immigration Law Conference at NY Law School on March 8, 2019;
Closeup of “Caught in the Covfefe.”

Art powerfully expresses the overwhelming need to fight for social justice and human dignity in the age of Trump’s unabashed cruelty, racism, and White Nationalism.

It’s even more powerful when the artist is Retired U.S. Immigration Judge Polly Webber (a proud member of “Our Gang” of retired judges) who has spent her life promoting Due Process, fundamental fairness, justice, and the rule of law in American immigration. She has served as an immigration attorney, former President of AILA, U.S. Immigration Judge, and now amazing textile artist bringing her full and rich life and deeply held humane values to the forefront of her art.

Thanks, Polly, for using your many talents to inspire a new generation of the “New Due Process Army!”

I’m only sorry that my photos don’t do justice to Polly’s art. Hopefully, the “real deal” will come to a venue near you in the future!

PWS

03-10-19

“SHAFTING KIDS” — Reuters’ FOIA “Dig” Exposes How USCIS Wastes Time & Resources Developing New Ways Of Using Bureaucracy To Undermine Public Service & Deny Protection To The Most Vulnerable!

https://www.reuters.com/article/us-usa-immigration-abuse-exclusive/exclusive-for-migrant-youths-claiming-abuse-u-s-protection-can-be-elusive-idUSKCN1QO1DS

Mica Rosenberg reports for Reuters:

NEW YORK (Reuters) – Growing up in eastern Honduras, Jose said his father would get drunk and beat him with a horse whip and the flat side of a machete. He said he watched his father, a coffee farmer whose crops succumbed to plague, hit his mother on the head with a pistol, sending her to the hospital for three days.

At 17, Jose said, he hired a coyote to ferry him to the United States, seeking to escape his home life and violent feuding among his relatives, as well as seek better opportunities for himself and his siblings. He was picked up by border agents, then released pending deportation proceedings.

After struggling to get a good lawyer, Jose applied at 19 for special protection under a program for young immigrants subjected to childhood mistreatment including abuse, neglect or abandonment.

But like a growing number of applicants, his petition hit a series of hurdles, then was denied. Now he is appealing.

“It’s like being stuck not going forward or backwards,” said Jose, now 22 and living in New York. He spoke on condition his last name not be used because he is working without a permit and does not want to jeopardize his appeal. “You can’t advance in life,” he said.

As President Donald Trump vociferously pushes for a physical barrier across the country’s southern border, young people claiming to be eligible for protection under the Special Immigrant Juvenile (SIJ) program increasingly face a less publicized barrier: heightened demands for paperwork.

Data obtained by Reuters under the Freedom of Information Act shows that the U.S. Citizenship and Immigration Services (USCIS) has recently ramped up demands for additional documents through “Requests for Evidence” and “Notices of Intent to Deny,” which can tie up cases for months.

. . . .

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

Read the rest of Mica’s articles, with graphs, at the above link.

Importantly, the restrictionst group CIS’s claim (in the part of the article NOT set forth above) that SIJ status was intended solely for trafficking victims is untrue. I actually worked on the enactment of the original SIJ provision in IMMACT 90 when I was in private practice. It was intended to be used by various states and localities, the largest number of which were in California, who had significant numbers of foreign-born “wards of the court” (some of them foster children) who otherwise would have been denied work and study opportunities upon becoming adults.

The later amendments to SIJ status were not intended to limit the scope in any way to “trafficked individuals.” The emphasis was on those who had suffered domestic abuse. Here is a link to an excellent report on that legislative history from American University. http://niwaplibrary.wcl.american.edu/wp-content/uploads/Appendix-B-SIJS-Legislative-History.pdf

Indeed, there is scant evidence that SIJ was ever intended to be limited to trafficked juveniles as restrictionists claim, although such juveniles often fit within the remedial scope of SIJ status. First, that’s clearly not what the statute says. Second, Congress has other specific provisions for the protection of trafficking victims and victims of crime under the “T” and “U” nonimmigrant statuses which may also lead to permanent status.

Just another example of how the USCIS and the Trump Administration have improperly incorporated many parts of the false narrative promoted by immigration restrictionists into Government policies and procedures.

PWS

03-09-19

TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d85e48a2-1a59-4182-854b-dfd9a146177c

TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.

And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.

Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.

For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.

But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.

The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.

More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.

The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.

More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1cbd9b3d-f2d0-4249-b602-37223ff3f407

The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.

ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.

Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”

The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.

The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.

Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.

The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.

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

Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”

First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.

Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.

Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.

No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.

While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.

PWS

03-07-19

GOVERNMENT BY MALICIOUS INCOMPETENTS: Trump Administration’s Latest “Backlog Reduction Plan” — Slow Down Hiring Of U.S. Immigration Judges & Support Staff — Abandon E-Filing (Again) — Barr Wins His First “Five Clown” Rating In Record Time! 🤡🤡🤡🤡🤡

https://www.buzzfeednews.com/amphtml/hamedaleaziz/trump-administration-immigration-judges-hiring-pause?__twitter_impression=true

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration will pause its hiring of immigration judges, slow its procuring of support staff, and cancel a training conference, dealing a setback to the government’s efforts to cut down on a crushing backlog of cases, according to a Justice Department email obtained by BuzzFeed News.

James McHenry, director of the Executive Office for Immigration Review, notified immigration court staff in an email Wednesday morning, advising that the timing of the 2019 budget process has left them “considerably short of being able to fulfill all of our current operational needs.”

McHenry cited increases in costs related to transcriptions, operational needs, and interpreters.

“This challenging budget situation has led us to a position where difficult financial decisions need to be made,” wrote McHenry.

As a result of the funding issues, McHenry said, the court does not “anticipate” it will be able to hire additional judges after an already scheduled class of judges is brought on board in April. The budget costs will also impact the court’s hiring of 250 attorneys needed to support immigration judges.

The pause on hiring delivers a blow to an administration that has long complained that the immigration court backlog, which has increased in recent years to more than 800,000 cases, has led to wait times stretching months and years.

The budget signed by President Trump this year had been described as a way for the immigration court to hire an additional 75 immigration judge teams.

A Department of Justice official, Steven Stafford, disputed the notion it would freeze hiring, arguing that it was simply not continuing to hire judges at the same pace. McHenry noted that the administration had hired 174 new immigration judges in the last two years and now has more than 400 judges on staff.

Rebecca Blackwell / AP

A migrant family enters the US near Imperial Beach, Calif., after squeezing through a small hole under the border wall.

The news comes a day before McHenry is set to speak before the House Appropriations Committee and as the court withstands criticisms from the union that represents immigration judges and moves to increase productivity, including quotas.

In recent months, many judges, who oversee asylum claims and deportation cases, have retired or resigned citing interference in how they were handling cases.

“This administration has justified so many of their more draconian policies in terms of ‘we have got to lower the backlog’ and then all of a sudden they don’t have the funds to hire more immigration judges,” said Jeffrey Chase, a former immigration judge. “If their true goal is to provide fair adjudications more quickly, then this is inconsistent with that. More people will wait longer.”

The nationwide rollout of a new online filing system, meant to help improve efficiency, will be frozen, McHenry said, and additional delays on new court spaces will also be possible this year.

“We are doing our best at headquarters to ensure that our funds are spent in the most fiscally responsible manner possible,” he said in the email to staff, “while consistently meeting the needs and mission of the agency.”

Quick takes:

Duh! Who would have thought that hiring more judges would require more interpreters, transcripts, and “operational support.” Certainly not the geniuses at DOJ/EOIR;
After 18 years of fruitless effort, DOJ/EOIR fail yet again to deliver on e-filing (in and of itself enough reason to get this out of DOJ and “can” the EOIR ineffective management structure);
Apparently, building largely useless walls and wasting money on troops at the border are more important “priorities” for reducing the backlog than actually hearing and deciding cases;
Court morale is already at an all time low — this ought to send it even lower;
Count on this touching off yet another round of EOIR’s renowned “Aimless Docket Reshuffling” and more vicious and disingenuous “Victim Blame Shaming;”
Bad start for new AG Bill Barr — Sessions “set the bar on the ground,” but you still might not get over it;
On the bright side, since in the “wacky incompetent world” of DOJ/EOIR more judges actually = more backlog, perhaps fewer judges will = less backlog.

The Immigration Court system is a farce, and EOIR doesn’t have the faintest idea of how to fix it (nor does anyone else in the Trump Kaksitocracy for that matter). Unfortunately, lives are at stake here. To quote Casey Stengel again: “Can’t anyone here play this game?”

TODAY’S FIVE CLOWN AWARD GOES TO RECENTLY APPOINTED AG BILL BARR — SELDOM HAS SOMEONE LOOKED SO STUPID WITHIN SUCH A SHORT TIME OF TAKING AN OFFICE (THAT HE PREVIOUSLY HELD):

🤡🤡🤡🤡🤡

PWS

03-07-19

GW CLINIC REPORT: Justice Finally Triumphs — 7-Year Battle On Behalf Of Abused Refugee Woman Succeeds!

Paulina Vera, Esq.; Professor Alberto Benitez; Rachel Petterson

Friends,

Please join me in congratulating S-P-G-G, from El Salvador, whose asylum application was granted by IJ David Crosland on February 26. We received the decision today. When told of the grant, S-P-G-G screamed. She can start the process of bringing her minor son to the USA. Please also join me in congratulating Rachael Petterson, Julia Navarro, Solangel González, Chen Liang, Xinyuan Li, Abril Costanza Lara, Allison Mateo, and Paulina Vera, who worked on this case.

The IJ found that S-P-G-G warranted humanitarian asylum because she established compelling reasons arising from the severity of her persecution. Among other things, she had been raped by her sister’s ex-boyfriend, which resulted in her becoming pregnant, and giving the child up for adoption. S-P-G-G testified that she experiences recurring nightmares, suicidal feelings, a sense of hopelessness, and fear as a result of her persecution.

FYI. The client’s initial hearing was on December 18, 2012, IJ Crosland denied asylum, she appealed to the Board of Immigration Appeals (BIA), which remanded to the IJ, he denied asylum again, she appealed to the BIA, which denied asylum, she appealed to the 4th Circuit Court of Appeals, which remanded to the IJ, and he finally granted asylum on February 26.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School

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

Congrats to SPGG and her wonderful team at the GW Immigration Clinic! More than six years of litigation, two wrongful denials, two appeals to the BIA, one incorrect BIA decision, and a remand from the Fourth Circuit before justice was finally done.

Illustrates four things:

The absolute BS of those like Sessions and other restrictionists who say asylum cases can be raced through the system on an assembly line;
The further BS of claiming that asylum applicants and their lawyers are “gaming” the system when many delays, like this, are caused by poor anti-asylum decision-making within EOIR combined with the DOJ’s incompetent administration of the Immigration Courts;
The importance of full appellate rights, including review by a U.S. Court of Appeals that is actually an independent, fair, and impartial court, not a Government agency masquering as a court;
The absurdity of claiming that unrepresented asylum seekers can receive anything approaching Due Process in the EOIR system, particularly when they are held in inherently coercive “civil immigration detention.”

What if we had a fair, expert Immigration Court system that made every effort to do right by asylum seekers in the first instance by interpreting and applying the law in the generous and humanitarian manner to protect those in need as originally intended in the Refugee Act of 1980 and described by the Supremes in Cardoza-Fonseca?

What if we had a Government that cared about Due Process and worked to promote it rather than attempting to whack it out of shape to screw the most vulnerable among us at every opportunity?

What if the emphasis in the Immigration Courts was on fairness, scholarship, respect, and teamwork with all concerned (not just “partnership” with the prosecutor and politicized Administration goals) rather than on “haste makes waste” methods and gimmicks.

Hey, we could have a working court system where justice was served and more things got done right in the first place, instead of the disgraceful mess that EOIR has become under DOJ’s highly politicized mismanagement!

PWS

03-07-19

IN MATTER OF A-B-, SESSIONS DISINGENUOUSLY SUGGESTED SALVADORAN POLICE COULD PROTECT ABUSED WOMEN – THE TRUTH IS STARKLY DIFFERENT: American-Trained Cops Flee El Salvador Because Gangs Are In Control – Ex-Cops Granted Asylum While Helpless DV Victims Sent Back To Face Deadly Abuse – Trump Administration Continues To Pervert Asylum Law!

https://www.washingtonpost.com/world/the_americas/its-so-dangerous-to-police-ms-13-in-el-salvador-that-officers-are-fleeing-the-country/2019/03/03/e897dbaa-2287-11e9-b5b4-1d18dfb7b084_story.html

Kevin Sief reports in WashPost:

SAN SALVADOR — They were given one of the most dangerous tasks in policing: Take down MS-13.

They were bankrolled by the United States and trained by FBI agents. But members of the Salvadoran police have been killed by the dozens in each of the past three years, most in attacks that investigators and experts blame on MS-13, an international street gang. At least nine officers were killed in the first month of this year.

Now, a number of El Salvador’s police officers are fleeing the gang they were tasked with eliminating.

There is no list in either El Salvador or the United States of Salvadoran police officers who have fled the country. But The Washington Post has identified 15 officers in the process of being resettled as refugees by the United Nations and six officers who have either recently received asylum or have scheduled asylum hearings in U.S. immigration courts. In WhatsApp groups, police officers have begun discussing the possibility of a migrant caravan composed entirely of Salvadoran police — a caravana policial, the officers call it.

The exodus of Salvadoran police points to how the country’s security forces have failed to break the stranglehold of organized crime. It also shows that among those seeking refuge in the United States during the Trump administration are some of America’s closest security partners.

“These are among the most vulnerable people in El Salvador,” said Julio Buendía, the director of migration at Cáritas El Salvador, a nonprofit organization that works with the United States and United Nations on refugee resettlement.

The United States has been bolstering the Salvadoran police, part of a regional strategy intended to stabilize Central America’s most violent countries and reduce migration. The State Department spent at least $48 million to train police in El Salvador, Guatemala and Honduras from 2014 through 2017, according to the Government Accountability Office.

The department opened a law enforcement training academy in San Salvador, where 855 Salvadoran officers were trained by the FBI and other American law enforcement agencies in those four years.

“The Salvadoran government, with U.S. government support, has made significant gains in the area of security, including reductions in homicides and every other category of violent crime measured,” the State Department said in a statement issued in response to an inquiry by The Post.

Citing “privacy reasons,” the department would not comment on whether it was receiving asylum or refugee applications from Salvadoran police officers.

By some measures, the U.S.-backed security efforts appeared to be showing results. In 2018, El Salvador’s murder rate was 50.3 per 100,000 inhabitants. That was still among the highest in the world, but it was down from 60.8 per 100,000 in 2017 and 81 per 100,000 in 2016.

MS-13 was born in Los Angeles in the late 1970s, expanding as more Salvadorans arrived in the United States after fleeing the country’s civil war. The group splintered, with Barrio 18 becoming a chief rival, and both groups grew in American prisons before reaching El Salvador through mass deportations. Between 2001 and 2010, the United States deported 40,429 ex-convicts to El Salvador, according to the Department of Homeland Security.

El Salvador’s government adopted an “iron fist” response to the gangs, including more police operations. When that approach failed, it tried to broach a truce with the gangs in 2014. The pact quickly disintegrated and was followed by another surge in violence. It was then that the gangs began to explicitly broadcast their threats against police officers.

“If you kill a ‘pig,’ or a police officer, you’re more respected in these gangs. That’s the policy — using death as exchange currency,” said Héctor Silva Ávalos, a journalist and researcher who has written a book on the Salvadoran police and has served as an expert witness at several asylum hearings for former police officers in the United States.

A man with an MS-13 tattoo is detained by Salvadoran security forces during an operation in San Salvador in January. (Marvin Recinos/AFP/Getty Images)

With salaries of $300 to $400 per month, the low-level police officers who make up the majority of the force often have no choice but to live in neighborhoods vulnerable to gangs. And so, in the vast majority of the cases, police officers are killed when they are home from work or are on leave.

In August, Manuel de Jesús Mira Díaz was killed while buying construction materials. In July, Juan de Jesús Morales Alvarado was killed while walking with his 7-year-old son on the way to school. In November, Barrera Mayén was killed after taking leave to spend time at home with his family.

The police investigated a number of the killings since 2014 and found members of the major gangs responsible.

“They have more control than we do. When we go home, we’re in neighborhoods where there’s one police to 100 gang members. We’re easy victims,” said one officer in the country’s anti-gang unit, who, after being threatened by MS-13 in his home, is awaiting refugee status from the United Nations. He spoke on the condition of anonymity out of fear for his safety.

An MS-13 member killed a man on a New York subway platform. The gang dates back to the 1970s.

Police arrested a 26-year-old man, who they said is an MS-13 member, after he fatally shot an alleged rival gang member Feb. 3 in Queens. (Allie Caren/The Washington Post)

Complicating their response to the threats, Salvadoran police are also not legally allowed to take their weapons home with them.

“I bring it home anyway. I sleep with it on my waist,” said a female officer, who is awaiting refugee status from the United Nations and spoke on the condition of anonymity out of fear for her safety. “My husband and I take turns sleeping. We know they are going to come for us.”

Many units in the Salvadoran police are forbidden to wear balaclavas to conceal their identities. In anti-gang units, officers are allowed to wear such masks during operations, but they are frequently asked to testify in court, where they must show their faces and identify themselves by name while gang members look on.

In 2017, El Salvador’s attorney general, Douglas Meléndez, urged the government to do more to protect off-duty police, asking the parliament to pass a “protection law” for police and soldiers that would also provide funding to protect their families. The law was never passed.

Last month, security concerns played a central role in a presidential election won by San Salvador’s 37-year-old former mayor, Nayib Bukele. At least 285 people were killed in January, leading up to the vote, which many saw as the gangs’ attempt to leverage their influence amid the election campaign. In a security plan leaked to the Salvadoran news media, Bukele’s campaign wrote: “The expansion of these criminal groups is undeniable, as is the impact on the lives of ordinary citizens.”

In response to the targeting of police officers this year, El Salvador’s police chief introduced a policy: For their own protection, officers were not allowed to return to their homes. The police chief declined multiple interview requests.

Suspects are detained by police in a neighborhood in San Salvador dominated by MS-13. (Marvin Recinos/AFP/Getty Images)

Many officers, feeling unprotected by their own force, have said their only option is to leave the country.

Organizations that work with the United Nations to resettle Salvadoran refugees in the United States say they have found more and more police officers arriving unannounced at their offices. In addition to the 21 asylum seekers and refugees identified by The Post, several others have recently arrived in Spain and Mexico, according to news reports, applying for humanitarian visas or other forms of protection. Lawyers for police officers and many officers themselves say that far more officers are preparing to flee.

One of the cases that Buendía, the migration director of Cáritas, referred to the United Nations High Commissioner for Refugees is an officer who survived two attacks while off duty. First, he was shot eight times by suspected gang members; then, two years later, he was shot four times. The officer pleaded for protection from his commander.

Buendía included a letter from the commander in the officer’s refugee application. “There’s nothing we can do for you,” the commander wrote. “You need to protect yourself.”

A police spokesman declined to comment on the letter.

In one case, concerning a police officer now applying for asylum in U.S. immigration courts, gang members threatened to kidnap the officer’s child at an elementary school in rural El Salvador.

“That’s not what these guys signed up for. It’s one thing to be shot at on the job. It’s another for your family to be targeted while you’re off duty,” said Emily Smith, the attorney representing the officer.

Lawyers such as Smith who are representing the officers typically try to explain to immigration judges that as former police officers, their clients would be persecuted if they were forced to return to El Salvador. But the attorneys are also aware of how narrowly U.S. asylum law can be applied, and that the courts are unlikely to grant asylum to all former officers.

“What we chose to do is focus on the specific threats facing our client,” said Patrick Courtney, who last year represented a Salvadoran officer who had been physically assaulted in his home before fleeing. “We focused on his anti-gang views, on the fact that the threats were directed at him individually.”

Courtney’s client was granted asylum late last year. They discussed where he would live in the United States, and what he would do next. The former officer had only one goal: He wanted to join the United States military.

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Former policemen have been recognized by BIA precedent as a “particular social group” for asylum for many years. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). However, in their rush to deny asylum to Central Americans, particularly under this xenophobic Administration, some U.S. immigration Judges and BIA panels simply choose to ignore precedent or to manufacture other reasons to deny asylum.

Granting asylum to endangered former police officers clearly is appropriate; but, granting it to the women targeted because of their gender whom those police cannot protect is equally required. Nevertheless, Sessions simply “streamrolled” the asylum law in Matter of A-B-.

While some U.S. Immigration Judges have recognized that even A-B-, properly read without regard to its pernicious dicta, leaves plenty of room for protecting refugee women who have suffered or fear domestic violence, others, and a number of BIA “panels” have jumped on the “Sessions deportation express.” I wouldn’t count on new AG Bill Barr to restore justice to this system, particularly since he has retained some of Sessions’s worst and most unqualified henchmen on his staff.

That’s why we need a legitimate, independent Immigration Court system not beholden to prejudiced “enforcement only” officials in the DOJ and the Executive Branch. It’s also time for a better and wiser Congress to specifically write gender into the asylum law to guard against this and future scofflaw Administrations who seek to inflict cruelty and injustice on some of the most vulnerable and deserving among us.

PWS

03-04-19

ABA PRESIDENT BOB CARLSON PUTS DUE PROCESS CRISIS IN IMMIGRATION @ TOP OF HIS “MUST DO” LIST — Independent Article I U.S. Immigration Court & More Legal Representation Are The Keys!

http://www.abajournal.com/magazine/article/immigration-matters-fair-process

Immigration Matters: A fairer process is needed for those seeking entry to the United States

BY BOB CARLSON

MARCH 20

Photo of Bob Carlson by Tom Salyer

“Give me your tired, your poor, your huddled masses yearning to breathe free.”

These words from an Emma Lazarus sonnet, engraved on a plaque on the pedestal of the Statue of Liberty, are not policy or law. Yet they embody the ideals and spirit of America, a land of immigrants.

Despite the countless ways that immigrants have advanced our country and have helped to fuel innovation and growth, the United States cannot welcome everyone who yearns to breathe free. Our nation needs to regulate and control immigration, have secure borders and keep people safe. But developing clear, comprehensive, practical and humane immigration law is possible—and long overdue.

Policies that separate children from their parents or deny legitimate asylum-seekers due process violate both our values and established law. The ABA has made this clear in a letter sent to the U.S. Attorney General and Secretary of Homeland Security. The ABA has suggested guidelines and compiled thoughtful and well-researched publications such as the recently updated “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States.”

While crafting comprehensive immigration law in a divided society can be difficult, it is imperative. One place to start is immigration courts.

An independent judiciary is a hallmark of our democracy. It encompasses the principle that all people are entitled to fair and impartial legal proceedings where important rights are at stake. Immigration courts decide issues that are life-altering.

Immigration courts, however, lack the safeguards that other parts of our justice system have. Structural and procedural issues have resulted in a backlog of more than 800,000 cases even though in recent years Congress has added resources, including a sizable increase in the number of judges and support staff.

Immigration courts currently exist within the Justice Department. Their personnel and operations are subject to direct control of the attorney general. Immigration judges can be removed without cause and can be at the mercy of whatever policy the attorney general wants followed. It can change from administration to administration. This structure creates a fatal flaw to an independent, impartial judiciary.

Restructuring the immigration adjudication system into an Article I court is the best solution to promote independence, impartiality, efficiency and accountability. Article I legislative courts are established by Congress, and judges would only be subject to removal for cause and not without judicial review. The U.S. Tax Court—where judges are nominated by the president, confirmed by the Senate and serve terms of 15 years—could act as a model. The idea has been endorsed by the National Association of Immigration Judges for more than two decades. The ABA adopted policy in 2010 calling for the creation of Article I immigration courts.

Another problem is representation. Access to counsel and legal information are critical in ensuring fairness and efficiency in the immigration system, yet only 37 percent of people in removal proceedings and just 14 percent of those detained are represented by counsel. The odds of winning an asylum case without legal representation are one in 10 while those with a lawyer win nearly 50 percent of their cases.

The ABA supports the right to appointed counsel for vulnerable populations in immigration proceedings, such as unaccompanied children, and mentally ill and indigent immigrants. Budgetary challenges make this unlikely to happen soon, so access to as much information about the process is critical.

The ABA, supported by its Commission on Immigration, will continue to advocate for fairness and full due process for immigrants and asylum-seekers in the United States and ensure an equitable, effective process for adjudicating immigration cases. This serves the interest of both the government and individuals within the system.

Our efforts to solve the problems must not undermine the fundamental principles that exemplify America and our justice system. Welcoming immigrants has been a strength of America since its founding.

As President George Washington said: “The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”

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I testified before the ABA Commission on Immigration about the “Due Process Crisis in Immigration Court,” the need for an Article I Court, the requirement for more lawyers, and the absolute Due Process disaster engendered by the intentionally misguided policies of the Trump Administration as they related to the abusive, counterproductive, and disingenuous use of the Immigration Courts as a branch of DHS Enforcement. The massive failure of Due Process in the U.S. Immigration Courts, the “retail level” of our justice system, threatens the individuals rights of all of us!

PWS

03-03-19

GREAT NEWS ON THE SIJ FRONT: Legal Aid & Justice Center Reports Major Legislative Change To Help Endangered Juveniles in Virginia — PLUS BONUS COVERAGE: Dan Kowalski Reports On New SIJ Legislative Victory in Colorado! — It’s The “New Due Process Army” In Action Across The Country!

THREE OF THE “DUE PROCESS WARRIORS” FROM THE LEGAL AID & JUSTICE CENTER OF VIRGINIA: Amy Woodard, Tanishka Cruz, & Simon Sandoval-Moshenberg

For Immediate Release

Contact: Amy Woolard, (434) 529-1846, amy@justice4all.org

Simon Sandoval-Moshenberg, (703) 720-5605, simon@justice4all.org

NEW VIRGINIA LAWS HELP IMMIGRANT CHILDREN SEEK PROTECTION FROM ABUSE, NEGLECT, AND ABANDONMENT

RICHMOND: On Friday, February 22, the Virginia General Assembly passed SB 1758 and HB 2679, identical bills that will aid immigrant children fleeing abuse, neglect, and abandonment in their home countries in seeking protection from deportation in Virginia.

Across the country, many immigrant children and DREAMers facing deportation proceedings seek a form of immigration relief called “Special Immigrant Juvenile Status” (SIJS). SIJS is unique in that it requires a state court to issue a certain type of order before the child may even attempt to seek SIJS relief from the federal government. In a 2017 case called Canales v. Torres-Orellana, brought by the Legal Aid Justice Center, the Virginia Court of Appeals sharply restricted state judges’ ability to issue these orders, leaving hundreds of Virginia immigrant children without protection. Virginia became one of the most difficult states in the nation to obtain SIJS.

During this year’s General Assembly session, Legal Aid Justice Center worked closely with legislators and the Governor’s office to pass these bills, which would overturn the Canales case and restore Virginia immigrant children’s ability to apply for SIJS. The bills also address the needs of other children before the juvenile courts, easing the way for any Virginia child to seek a state court’s assistance in proving eligibility for other benefits such as adoption assistance, TANF assistance, and timely public school enrollment.

SB 1758 was introduced by Sen. Scott Surovell (D-Mount Vernon). HB 2679 was introduced by Del. Marcus Simon (D-Falls Church). The bills initially took different approaches to fixing this issue, and each passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into committees of conference in an attempt to gain consensus, and identical bills emerged that combined the approach of both; they garnered unanimous support in the House, and only two dissenting votes in the Senate. The bills now go to Governor Northam’s desk for his signature; once signed, they will take effect on July 1 of this year. The conference report with bill text is available at: http://leg1.state.va.us/cgi-bin/legp504.exe?191+ful+SB1758S1+pdf

“Immigrant children in Virginia can breathe a little more easily now,” said Simon Sandoval-Moshenberg, Legal Director of Legal Aid Justice Center’s Immigrant Advocacy Program. “Our agency has represented over 150 children fleeing truly horrific situations of abuse or neglect in their home countries. Fairness dictates that they be afforded the same rights as immigrant children in any other state. Now these new DREAMers will be able to seek protection and apply to remain in the United States with green cards.”

“This excellent result could not have come about without the leadership and hard work of Senator Surovell and Delegate Simon, and the support of Governor Northam’s administration,” said Amy Woolard, Legal Aid Justice Center Attorney and Policy Coordinator. “Virginia’s Juvenile and Domestic Relations courts should exist to protect the best interests of all children in the Commonwealth, and these bills will now make clear that is true for immigrant children seeking safety through SIJS, as well.”

“The United States has a long history of protecting abused, neglected, and abandoned children, and the Commonwealth will continue to play its part,” said Sen. Surovell. “These bills will clarify and restore Virginia courts’ authority to make factual findings necessary to protect children fleeing abuse, neglect, and abandonment from abroad, and I appreciate the broad bipartisan support of legislators who saw this as consistent with Virginia’s longstanding values.”

“I’m so pleased we were able to pass this important legislation to give our courts the authority they need to be able help some of the most vulnerable and powerless people in our Commonwealth,” said Del. Simon. “It is so important that we not let victims of abuse, neglect, and often abandonment fall through the cracks because of a technical deficiency in our code. Those are the common sense problems we are elected to come down here and fix.”

A downloadable PDF of this statement may be accessed here.

# # #

Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/.

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And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:

Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).

Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth

RMIAN is thrilled to announce the passage of House Bill 19-1042 through the Colorado House and Senate. The bill was sponsored by Representative Serena Gonzales Gutierrez and Senator Julie Gonzales and is now awaiting signature by Governor Polis. This bill will allow immigrant youth who have been abused, neglected, and abandoned to gain access to Colorado State courts for necessary protection and care, and to establish their eligibility for federal immigration relief. Ashley Harrington with RMIAN Children’s Program helped to craft this important legislation with Representative Gonzales Gutierrez, Senator Gonzales, Denise Maes with the ACLU of Colorado, Kacie Mulhern with the Children’s Law Center, Ashley Chase from the Office of the Child’s Representative, Katie Glynn with Grob & Eirich, and Bridget McCann, a RMIAN pro bono family law attorney. Celebrating the law’s passage today Ashley Harrington says, “I am so proud and honored to have been a part of making this law a reality that will impact the lives of many vulnerable immigrant children and ensure that they can find safety and stability in Colorado.”

Denise Maes, Ashley Harrington, Senator Gonzales, Representative Gonzales Gutierrez, Katie Glynn and Kacie Mulhern at the Capitol 3/1/19.

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Compare this with the Trump Administration’s cruel and shortsighted efforts to mindlessly restrict the scope of these important SIJ protections for some of our most vulnerable youth. Here’s my recent blog featuring WNYC’s Beth Fertig reporting on the Federal Judge’s adverse reaction to the DOJ’s disingenuous arguments “in defense of the indefensible” in his court. Talk about abuse of our court system by our Government! https://immigrationcourtside.com/2019/02/27/beth-fertig-wnyc-federal-judge-tires-of-administrations-absurdist-legal-positions-in-court/

SIJ cases also have the huge benefit of being processed outside the clogged U.S. Immigration Court asylum system, thus keeping many cases out of the largely artificially created “backlog” that is handicapping Due Process in Immigration Court.

There are many ways of using and building on current laws to make the immigration and justice systems work better. It’s a national disgrace that the Trump Administration isn’t interested in Due Process, fairness, or making our immigration system function in a more rational manner.

The good news: Eventually, the small minds, incompetence, and “radical White Nationalism” of this Administration and its enablers will be replaced by smarter, wiser, more capable folks like those in the LAJC, the RMIAN, and other members of the New Due Process Army. These are the folks who someday will lead us out of today’s darkness into a brighter and more enlightened future for all Americans!

PWS

03-02-19-

JUSTICE DENIED: U.S. Immigration Judge @ Stewart Detention “Court” (“Where Asylum Cases Go To Die”) Denies “Slam Dunk” Asylum Bid To Unrepresented Refugee From DRC, Threatening Him & Family With Death! — System That Once Promised To “Guarantee Fairness and Due Process for All” Is Now A Bastion Of Injustice!

https://www.sandiegouniontribune.com/news/immigration/sd-me-separated-father-20190227-story.htm

Kate Morrissey writes in the San Diego Union-Tribune:

Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.

Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.

Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.

After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.

Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.

Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.

Bakala lost.

He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.

He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.

Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.

Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.

She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.

When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.

The men didn’t care, she said. She ended up losing the baby.

When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.

One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.

Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.

Finally, one night she heard a knock on her window. It was her husband.

Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.

They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.

“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.

In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.

In Costa Rica, they found a boat that would take them to Nicaragua.

After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.

She started to drown.

“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.

She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.

When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.

When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.

Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.

When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.

Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.

They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.

Constantin Bakala and wife Annie Bwetu Kapongo while the family was in Brazil (Emmanuel Bakala)

Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.

It is only when she reaches this point in the story that she begins to cry.

She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.

The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.

“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”

Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.

“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”

The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.

The Executive Office for Immigration Review said it does not comment on judges’ decisions.

Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.

As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.

In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.

Bwetu Kapongo said the most important thing for her is protection for her children.

“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”

Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.

“After the mountain I went through, I’ve got no more strength,” she said.

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So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?

First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.

Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:

The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.

Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.

Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.

Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”

Second, Bakala’s wife also appears to have a strong asylum claim in her own right. If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.

Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.

Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions. Indeed, persecution, torture, and abuse are daily occurrences in the DRC.

Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.

For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated. Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.

Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”

I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.

Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”

That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”

While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.

Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.

The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.

Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!

Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.

Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and the “theater of the absurd” masquerading as a “court” that operates within its bowels!

PWS

03-01-19

INSIDE THE “NEW AMERICAN GULAG:” Conditions Are Cruel, Inhuman, Degrading, & Life-Threatening — Why Are We Funding The Perpetrators, Rather Holding Them Accountable & Demanding An End To Human Rights Abuses In America?

https://www.latimes.com/opinion/op-ed/la-oe-saadi-immigration-health-care-detention-facilities-2019025-story.html

Altaf Saadi, M.D., writes in the LA Times:

This week, a 45-year-old immigrant in the U.S. illegally died in Border Patrol custody. His death follows the December deaths of 7-year-old Jakelin Caal and 8-year-old Felipe Alonzo-Gomez in United States immigration custody, both of which prompted demands for improving healthcare for immigrants in detention.

As a physician who has evaluated dozens of individuals in Immigration and Customs Enforcement detention for legal groups and human rights organizations, I know that high-profile deaths are only one small piece of the story of severely substandard healthcare in America’s immigration detention system.

For example, in one detention center I met and reviewed the medical records of a man who had been thriving and holding steady employment for years while on schizophrenia medications. Then he was picked up and detained by ICE. In detention, he told me, ICE personnel abruptly stopped his medications. After a nearly two-week delay, an alternative medication was prescribed, but it was not as effective. His mental health deteriorated, and he experienced worsening auditory hallucinations and suicidal thoughts. He attempted suicide four times.

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention.

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Another individual I met with and whose medical records I reviewed had longstanding hypothyroidism, but ICE failed to provide her with thyroid medication in detention. When she was first hospitalized for worsening mental health, her thyroid hormone level was 60 times higher than normal. Despite the hospital medical team’s explicit instructions, ICE still failed to provide her thyroid medication when she returned to detention. It was not until a second hospitalization, again with a critically abnormal thyroid hormone level, that she finally received her medication.

I also met with a man who had developed a stomach ulcer and vomited blood after ICE medical personnel gave him ibuprofen repeatedly for back pain — even though he had reported symptoms of severe heartburn. Any physician applying the proper standard of care would know to minimize prescribing ibuprofen to an individual with severe heartburn.

The kinds of problems I saw are in keeping with the type repeatedly documented by immigrant advocates, filed in litigation and contained in the government’s own reports. According to Freedom for Immigrants, a national advocacy group seeking to end immigration detention, the top complaint they hear from detained immigrants is medical neglect.

In addition, multiple Department of Homeland Security inspector general reports have concluded that detention facilities repeatedly fail to comply with federal standards, including those requiring adequate healthcare. In 2017, a report noted delays in the provision of healthcare and a lack of adequate documentation. And the problems extend beyond healthcare. A report in January 2019 cited more than 14,000 deficiencies found during inspections of 106 immigrant detention facilities nationwide between October 2015 and June 30, 2018.

Substandard conditions can significantly harm an individual’s health. Many of the individuals I met with said they experienced sleep deprivation from lights being kept on 24 hours a day. Some said they had to wear dirty prison uniforms that caused urinary and vaginal infections. Others complained of being served rotten or inadequate food, a violation of standards that has been repeatedly documented in inspection reports.

Enter the Fray: First takes on the news of the minute »

Some detainees also reported verbal and physical abuse by guards, which can significantly worsen the mental health of immigrant detainees. For example, during one of his acute mental health crises, the schizophrenic man I interviewed recalled banging his body against a wall as he wrestled with voices telling him to kill himself. He said a guard referred to his distress as a “tantrum” and told him to “get over it.”

Other detainees told me that staff used frequent racial epithets and also referred to them as “crazies,” or “Loony Tunes,” or “trash.” As one detainee put it: “They see us not like human but as animals here.”

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention. None of the patients I interviewed died from the dangerous neglect they experienced, and so their experiences didn’t garner headlines. But their experiences were dangerous — and not uncommon. We need to hold the U.S. government accountable not just for the deaths that occur of immigrants in their custody, but also for the neglect and abuse that can lead to or exacerbate serious health problems.

Altaf Saadi is a neurologist, clinical instructor of medicine, and fellow at the National Clinician Scholars Program at UCLA. She has performed numerous evaluations for the Physicians for Human Rights Asylum Network.

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

I continue to think that the bipartisan Goverment funding bill was not the right place to deal with the “New American Gulag.” But, Democrats should “keep hammering” on this important “below the radar screen” issue. Making an oversight record of the many abuses, false narratives, cover-ups, and lies underlying the Gulag should be a high priority.

What meaningful civil immigration detention reform could look like:

A “hard cap” probably in the area of 10,000 to 15,000 detention slots;
An end to private detention;
Enactment of strict standards governing the conditions of civil immigration detention;
A specific requirement for proper health and psychiatric care for those detained;
A bar on detention being used for “deterrence” or “punishment;”
Change in the law to permit all individuals in civil immigration detention to seek release on bond in U.S. Immigration Court (obviously, the Immigration Judges would retain the discretion to deny bond on the merits where warranted by the facts) with review by an Article III Court;
Periodic bond hearings every six months for those in “long-term detention;”
A requirement that access to counsel be a primary consideration in establishing immigration detention sites, and that pro bono groups and NGOs be consulted and given an opportunity to comment before any new immigration detention centers are established;
An end to the regulatory practice of allowing ICE Counsel to unilaterally block the order of a U.S. Immigration Judge pending appeal of a decision to release on bond (the Immigration Judge and the BIA would retain discretion to grant stays pending appeal, where appropriate, on application by ICE);
A statutory presumption in favor of ankle monitoring and other “alternatives to detention,” with physical detention being a disfavored, “last resort:”
Accountability for how detention dollars are spent and consequences for those in DHS and DOJ, including political officials, who violate or evade the law, including intentional falsification or misrepresentation of statistics, or who fail to implement the mandated reforms in a timely and reasonable manner.

Remember folks, these aren’t “beds,” or other “pieces of furniture;” these are fellow human beings, most of whose “offenses” consist largely of seeking to exercise their legal rights to fair treatment and Due Process under our laws and our Constitution!

PWS

02-25-19

MARIA SACCHETTI @ WASHPOST: Substantial Majority Of Those Migrants Detained in Trump’s “New American Gulag” Have No Criminal Record!

tohhttps://www.washingtonpost.com/national/when-trump-declared-national-emergency-most-detained-immigrants-were-not-criminals/2019/02/22/a332480e-36ad-11e9-a400-e481bf264fdc_story.html

Maria writes:

Before President Trump declared a national emergency on the U.S. southern border on Feb. 15, he cited concerns that the United States was being flooded with murderers, kidnappers and other violent offenders from foreign countries.

According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

Of the 48,793 immigrants jailed on Feb. 9, the ICE data shows, 18,124 had criminal records. An additional 5,715 people had pending criminal charges, officials said, but they did not provide details. ICE also did not break down the severity of the crimes committed by or attributed to detainees.

An average of 59 percent of detainees in custody during this fiscal year had no criminal history, according to ICE.

“It proves this is a fake emergency,” said Kevin Appleby, policy director at the Center for Migration Studies, a New York-based nonpartisan immigration think tank. “It really shows that what the president’s doing is abusing his power based on false information.”

. . . .

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

Read Maria’s complete article at the above link.

We know that most of the migrants held in the “New American Gulag” (“NAG”) are neither security threats nor realistic dangers to our communities. From my experience many of those held because they are “criminals” have either relatively minor offenses (e.g., driving without a license) or even if the offenses were more serious have long ago completed criminal sentences and have been free in society without recurring problems.

So, why are the “non-criminals” being held in the NAG? Well, DHS would say it’s because they are threats to “abscond” before hearings, citing highly questionable “self-fulfilling” numbers opaquely generated by EOIR and DHS. But outside studies of DHS and EOIR statistics have shown a much different picture.

Individuals with lawyers and applications filed, particularly for asylum, who have the system and their obligations thereunder carefully explained to them in their own language, show up almost all the time for Immigration Court.

Likewise, migrants released on moderate bonds (in the $1.5 to $5K range — much lower than the current “national average”) also appear with regularity, as do those with ankle monitors and other “alternatives to detention.”

Thus, a reasonable Administration genuinely interested in the integrity of the Immigration Court process would severely curtail the use of civil immigration detention, particularly by private entities, which is both wastefully expensive and inhumane.

Instead, they would rely on a proven combination of lower-cost, more humane, and due process promoting alternatives: getting applicants matched with lawyers, pro bono, low bono, or paid; encouraging individuals to locate in communities where lawyers, family resources, and NGOs are available; and using reasonable bonds, ankle monitors and other types of “call in monitoring” to help insure appearance at further hearings.

An improved Immigration Court system where all judges were uniformly fair, impartial, and courteous to applicants and their lawyers, and where asylum was granted more generously in accordance with the standards set forth in the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the regulations establishing a strong presumption of future persecution for those who have been persecuted in the past would also help.

Hope tends to draw people. Hostility and bias understandably tend to repel them. As long as we have a U.S. Immigration Court that tolerates, and even aids, abets, and encourages, some biased, anti-asylum, unprofessional judges in the “Jeff Sessions mode” who deny asylum at rates exceeding 90%, it will lack credibility.

Without credibility and a demonstrable commitment to fairness, impartiality, and due process above the DHS’s and the Administration’s often questionable and other times downright bogus “enforcement priorities,” the system will continue to fail our country, inflict unjustifiable harm and suffering on the most vulnerable among us, and indirectly harm every one of us who believes in Constitutional Government and a firm commitment to respecting human rights. Critical examination of the Government’s positions against a rigorous standard of legality, reasonableness, and fundamenal fairness under the Due Process Clause of the Fifth Amendment to our Constitution is essential to an independent judiciary. It isn’t happening in today’s “captive” Immigration Courts. That’s a national disgrace that must be fixed.

PWS

02-23-19

ORION DONOVAN-SMITH @ WASHPOST: Long-Time Liberian Residents Learn That No Group Is Too Small To Escape The Xenophobic Wrath Of The Trump Administration! — PLUS “BONUS COVERAGE” — My “Saturday Essay” — “ANOTHER PERSPECTIVE”

https://www.washingtonpost.com/national/end-of-immigration-program-gives-liberians-in-us-a-choice-leave-their-american-children-or-become-undocumented/2019/02/20/03b3cae6-30db-11e9-813a-0ab2f17e305b_story.html

Orion writes:

MAPLE GROVE, Minn. — Magdalene Menyongar’s day starts with a 5:30 a.m. conference call with women from her church. They pray together as Menyongar makes breakfast and drives to work, reflecting on everything they are thankful for.

But lately, the prayers have turned to matters of politics and immigration. They pray with increasing urgency for Congress or President Trump to act before Menyongar, 48, faces deportation to her native Liberia, where she fled civil war nearly 25 years ago.

In less than six weeks, the order that has allowed her and more than 800 other immigrants from the former American colony in West Africa to live in the United States for decades will end, the result of Trump’s decision last year to terminate a program that every other president since George H.W. Bush supported. Come March 31, Menyongar will face a choice: Return to Liberia and leave behind her 17-year-old daughter, an American citizen, or stay in the United States, losing her work authorization and becoming an undocumented immigrant.

“It’s hard to think about because you have built a life,” said Menyongar, who works as a certified nursing assistant. “Maybe it’s part of my brain that I try to block out. When I think about it, all I do is pray.”

A portrait of Menyongar outside her home in Maple Grove, Minn., on Feb. 3. She faces a decision: Leave her daughter in the United States and return to Liberia or stay and become an undocumented immigrant. (Jenn Ackerman for The Washington Post)

Menyongar is among thousands of Liberian immigrants who were given temporary permission to stay in the United States in 1999, when President Bill Clinton implemented “deferred enforced departure.” DED was routinely extended by previous administrations but is set to end under Trump’s effort to terminate programs for immigrants without permanent status, which also has endangered Deferred Action for Childhood Arrivals and temporary protected status for immigrants from 10 other countries.

Temporary protected status, or TPS, was established by Congress in 1990 for citizens of countries suffering from war, environmental disaster, health epidemics or other unsafe conditions. They are given temporary permission to work in the United States and travel abroad without fear of deportation.

A class-action lawsuit filed Feb. 12 in a federal court in California seeks to block the Trump administration from ending TPS for immigrants from Honduras and Nepal. In October, a federal judge in the same court issued an injunction that stalled the end of TPS for citizens of four other countries.

But that court action does not apply to the smaller and lesser-known DED program, which operates purely at the president’s discretion and gives no statutory basis on which to sue.

Without a change of heart from the president — or new legislation from Congress — Liberians living in the United States under DED will lose their work authorization and become subject to deportation. Instead of self-deporting, many are expected to stay in the United States in hopes of getting a hearing in immigration courts, a process that could take years.

Trump has made curtailing illegal immigration a central tenet of his agenda, saying in his State of the Union address this month that immigrants should come to the United States “in the largest numbers ever, but they have to come in legally.”

But critics say his move to end protection for Liberians, leaving them undocumented after decades in the country legally, reflects an immigration policy that is capricious and, at worst, driven by racial bias.

Menyongar gets ready for work. Her paychecks from two nursing homes help support relatives in Liberia. (Jenn Ackerman for The Washington Post)

Family photos at Menyongar’s home. (Jenn Ackerman for The Washington Post)

Menyongar and her daughter, Gabby, at home. (Jenn Ackerman for The Washington Post)

“There comes a point where even if relief started as temporary, it needs to end with some possibility for permanence,” said Royce Murray, managing director of programs at the American Immigration Council, an advocacy group. “These are people who have built their lives here, have invested in their communities and are raising American citizens.”

Last week, a group of DED holders from Minnesota traveled to Washington to lobby representatives, and Democrats have responded with legislative efforts. Rep. Dean Phillips, a freshman Democrat who represents Menyongar’s Minnesota district, pushed unsuccessfully for a DED provision to be included in the spending bill Trump signed.

In addition, Sen. Jack Reed (D-R.I.) reintroduced a narrow bill he has pushed in every session of Congress since 1999 to offer Liberians with DED a chance to apply for permanent residency. A spokesman for Rep. Nydia M. Velázquez told The Washington Post the New York Democrat is working to include similar provisions in a broader immigration bill to be unveiled in the coming weeks.

Opponents of the programs say they have outlasted their original intent, to provide temporary protection, and represent a misuse of executive authority.

RJ Hauman, government relations director at the Federation for American Immigration Reform, which favors reduced immigration and greater enforcement, calls DED and TPS “flagrant abuses of our immigration system.”

“Both of these ‘temporary’ designations have been on autopilot for years, with one unmerited, open-ended extension after another,” Hauman said. “These individuals should return to their homeland, which has since recovered, and use their skills to enrich Liberian society.”

Like many Liberians who fled their country’s back-to-back civil wars between 1989 and 2003, Menyongar applied for asylum when she arrived in America in 1994. Her request was denied when she was unable to reach relatives in Liberia to get proof of her family ties to a politician there, whose prominence she feared would make her a target should she return. She was able to remain in the United States under TPS until 1999, when the program expired for Liberians and DED was created to extend protection to about 10,000 people at the time.

Liberians don’t have to register with the federal government to qualify for DED, so there’s no reliable count of how many people depend on the program. But as of March 2018, approximately 840 had work authorization under DED, according to U.S. Citizenship and Immigration Services. Liberians must have lived in the United States continuously since 2002 or earlier to qualify.

Most of the original DED beneficiaries have since left the country, died or gained permanent status, Murray said. She estimates as many as “a few thousand” may remain in the country but have not renewed their optional work permits, which cost a total of $495 in annual fees.

Permanent residency can come through political asylum, marriage to a U.S. citizen, family ties or an employer’s sponsorship. Menyongar’s husband, also a Liberian immigrant, died in 2011. Her attorney has advised that her surest option for a green card would be sponsorship by their daughter, Gabby Gworlekaju — something the teenager can’t provide until she is 21.

[American Girl: A 14-year-old prepares for life without her immigrant parents]

Gabby’s primary focus these days is preparing for college, possibly in Atlanta to be close to her father’s family and escape the frigid Midwest winters. She said she didn’t understand that her mother could have to leave until last March, when Trump declared a one-year “wind-down period” for DED. She has told her best friend how worried she is about the situation but avoids talking about it otherwise.

“It’d be a life-changing choice,” Gabby said. “That would mean that my mother would have to physically be removed out of my life, and I’d have to continue on. I can’t even explain how I would react.”

Some members of Bethel Robbinsdale’s congregation may face deportation when deferred enforced departure ends. (Jenn Ackerman for The Washington Post)

Pastor Natt J. Friday preaches at Bethel Robbinsdale on Feb. 3. “These people, if you grant them permanent residence, they are going to be so patriotic,” he said. (Jenn Ackerman for The Washington Post)

The choir sings at Bethel Robbinsdale on Feb. 3. (Jenn Ackerman for The Washington Post)

A second family, a second home

Minnesota is home to the nation’s largest Liberian community, concentrated in the northwestern suburbs of Minneapolis. A few times each week, Menyongar makes a 20-minute drive to Bethel Robbinsdale — one of several Liberian churches in the Twin Cities area — where she serves as president of the women’s ministry.

After communion during a recent Sunday service, the band and choir struck up a euphoric tune while Menyongar joined the congregation in dancing through the pews. Dressed in a brightly colored jumpsuit and a turquoise head wrap, she exchanged handshakes and hugs along the way.

“The church is my second family,” Menyongar said. “It’s like a support system that we have for each other.”

At one point during the two-hour service, the worship paused so a church member could announce an upcoming rally at the state capitol to raise the alarm about the end of DED. Later, Pastor Natt J. Friday led a prayer for those affected.

Friday knows Menyongar isn’t the only member of his church who could face deportation, but he can’t say for sure how many will. Many keep their immigration status secret.

“These people, if you grant them permanent residence, they are going to be so patriotic,” Friday said. “The burden would be lifted off their shoulders to know that they can finally live a normal life.”

Liberian immigrants have taken prominent positions in Minneapolis and its suburbs, such as Brooklyn Center, which recently elected its first Liberian-born mayor. They moved in part for the job market — a shortage of nurses and other health-care workers drew many, like Menyongar, to work in hospitals and assisted-living facilities.

Mary Tjosvold, who owns group homes for seniors and people with disabilities, employs more than 150 Liberians. Although she does not track how many of her employees are protected by DED, she said losing even a few workers would have wide ripple effects.

“People have had these jobs for a long time. They’re important parts of businesses,” said Tjosvold. “On an economic basis, it doesn’t make any sense, no matter what you think politically.”

[‘I feel this is my home’: Hundreds protest in Washington to support immigrants with temporary protected status]

An end to the policy also has economic implications abroad. Remittances sent from those working in the United States to their relatives in Liberia act as “a source of de facto foreign aid,” said Paul Wickham Schmidt, a former immigration judge and current adjunct professor at Georgetown Law School.

Menyongar works a combined 60-plus hours each week at two nursing homes, and her paychecks support her 97-year-old mother and other relatives in Liberia.

Schmidt said the idea that Liberians losing DED will self-deport is unrealistic.

“My experience is that most people go home not because they’re threatened, but because they deem it in their overall best socioeconomic interest,” he said. “A lot depends on what faces you at home, which is why this administration’s policy doesn’t work.”

Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think tank that supports sharp immigration restrictions, argues that a president should not be able to prolong temporary programs like DED without congressional approval. Even so, he said, “When we’ve permitted people to lawfully reside here for decades, it’s practically and politically and morally problematic to say, ‘Okay, now time is up.’ ”

Liberia has been emerging from war during the past 15 years and last year saw its first peaceful transfer of power since 1944. In a memorandum announcing the end of the temporary status, Trump wrote, “I find that conditions in Liberia no longer warrant a further extension of DED.”

Menyongar strongly disagrees with that assessment, citing violent crime, poor health care and infrastructure, and a lack of jobs in explaining why she could not return to her country of birth.

“The Liberia that I knew and grew up in is not the Liberia of today,” she said.

Menyongar worships at Bethel Robbinsdale. (Jenn Ackerman for The Washington Post)

This article was produced in partnership with the Investigative Reporting Workshop at American University, where Donovan-Smith is a student.

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

ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

Far from being a “problem,” as Trump and his restrictionist “naysayers” like to falsely claim, the TPS/DED program for Liberians has been a tremendous success! With a little “Congressional tinkering,” it could easily become a model for resolving future humanitarian situations without overburdening the US asylum system and adding to the huge existing U.S. Immigration Court backlog.

The US was able to provide humanitarian assistance to at least 10,000 Liberians during the darkest time for their country. This was accomplished without the time, expense, and often inconsistent and unsatisfactory results of forcing them into the formal US asylum system.

While in TPS/DED, Liberians were able to work legally, pay taxes, raise their families, live in peace, and otherwise contribute to American society. Over the years, many were over able to fit within our legal immigration system. Some died. Others found that with changes in Liberia, it made socio-economic sense for them to return there. A very few violated the rules of our hospitality and were duly arrested and removed after receiving Immigration Court hearings (most before the Trump Administration “trashed” due process in Immigration Court). The Government might even have turned a slight profit on the routine renewals of work authorization for which a fee was charged that probably exceeded the actual time it took to adjudicate them.

Now, we have approximately 800 long-term residents remaining who would like to stay here with their families, jobs, and communities. Passing the necessary legislative fix to allow them to get green cards should be a “bipartisan no brainer” — indeed if the Administration introduced and supported such a fix, it almost certainly would pass by huge margins and be signed into law. Presto — problem fixed and everyone wins! At a minimum, a rational Administration would exercise “prosecutorial discretion” (“PD”) to maintain the status quo and allow the few remaining Liberians to reside in the US and work legally pending good behavior and a legislative solution.

The law might or might not have been specifically designed for this outcome. But, wiser Administrations in the past used the available legal mechanisms along with Executive authority and common sense to solve human problems in a practical, efficient manner. Thanks exactly what “good government” is supposed to do.

That the Trump Administration chooses to use laws selectively to create “bogus emergencies” and “engineer problems” where none existed, rather than solving problems in a way that promotes the common good, should be of concern to all of us who favor good government and humane solutions to humanitarian issues.

PWS

02-23-19

U.S. IMMIGRATION COURTS: FEINBLOOM, STEVENS, & SCHMIDT TAKE CASE FOR ARTICLE I IMMIGRATION COURT TO FBA’S 2019 CIVIL RIGHTS ENTOUFFEE IN NEW ORLEANS, LA, FEB. 16, 2019

“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.

Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.

Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.

The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court. We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.

Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America

Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.

PWS

02-21-19

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ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

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