"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
On Monday, President Donald Trump made it clear: He was not answerable to any law, constitutional or otherwise. “I have the absolute right to PARDON myself,” he tweeted. His attorney, Rudy Giuliani, even said that Trump could shoot former FBI Director James Comey in the Oval Office and, legally, be in the clear.
Many were stunned. They shouldn’t have been.
The rule of law has been under siege for a long time. Most Americans haven’t noticed because it appeared that they weren’t directly affected, and that the system worked. But African Americans have lived with the reality of abuse of power and contempt for the law for generations. For more than a century, each lynching, each murder, each ethnic cleansing, each wink, wink, nod, nod “not guilty,” especially in the face of overwhelming evidence, loosened and discredited the norms of a law-abiding society and put American democracy in Trump’s crosshairs.
That is what should stun so many who are now apoplectic about his threat. The destruction of the rule of law has actually been going on for a long, long time.
The destruction of the rule of law has actually been going on for a long, long time.
In 1918, Walter White, the associate secretary of the National Association for the Advancement of Colored People, futilely demanded that Georgia’s governor bring to justice the known killers of Mary Turner, who had lived near Valdosta. Turner, eight-months pregnant at the time of her murder, was stripped naked, hanged upside down and burned to death; her stomach was cut open to let her baby fall to the ground and its head was stomped into the red Georgia dirt. Her murderers never spent a day in jail.
In 1921, whites burned and bombed black Tulsa, Oklahoma, to the ground, destroying a thriving, vibrant community and killing up to 300 African Americans. One photo of the destruction happily proclaimed “running the Negro out of Tulsa.” Pleas from Walter White went unheeded. As did the 21st-century work of Harvard law professor Charles Ogletree, who attempted to wrench from the warped system some semblance of justice for the surviving victims. Over the span of more than 80 years, though, despite the carnage and the destruction, the lawyers, the politicians and the courts couldn’t fathom that any law had been broken.
In 1951, Florida Sheriff Willis McCall, who saw himself as the alpha and omega of the law in citrus-growing Lake County, was determined to stem the tide of liberalism that appeared to be encroaching on his world. He loved running slave labor camps for the growers. He loved having interracial couples taken into the woods and savagely beaten by his deputies. And he loved putting “uppity” Negroes in their place. When a white woman falsely accused several black men of rape, he was ready for their execution, until the U.S. Supreme Court ordered a new trial. An angry McCall then drove two of the men into the woods and gunned them down. One survived to tell the grisly story of murder and attempted murder. McCall, however, as I previously wrote in LitHub,“kept his job for twenty-one additional years until he finally lost a re-election bid (but was found ‘not guilty’) after bludgeoning yet another black man to death.”
OKLAHOMA HISTORICAL SOCIETY VIA GETTY IMAGES
Black residents search through rubble after the Tulsa Race Riot of June 1921.
As the deaths in Valdosta, Tulsa, and Florida make clear, the rule of law, one of the bedrocks of American democracy, was brutally and willfully trampled on, then dismissed. The justice system looked at the killers ― sheriffs, deputies, store owners, salesmen, and farmers ― and saw nothing untoward, nothing villainous, nothing murderous. Nothing except white respectability.
Even the incredible power of the Civil Rights Movement and the seismic transformation of American society couldn’t shake that reality and make the rule of law viable.
Even the incredible power of the Civil Rights Movement couldn’t make the rule of law viable for black citizens.
In 1969, the Chicago Police Department, aided by the FBI, raided the apartment headquarters of Black Panther Fred Hampton, killing him and fellow Panther Mark Clark, and seriously wounding four others. The next day the Cook County state’s attorney, Edward V. Hanrahan, told the tale of a massive gun battle in which the Panthers opened fire, their shotguns blasting through the door. In this retelling, the police had no choice but to defend themselves with deadly force. Hanrahan pointed to pictures of bullet holes that riddled the small apartment, leaving plaster and wood looking like dirty Swiss cheese.
The Black Panthers’ Fred Hampton speaks at a rally in Chicago’s Grant Park in September 1969. Hampton and fellow Panther Mark Clark were killed by police later that year.
This isn’t ancient history or living in the past. This is the condition of justice and the rule of law right now. It was apparent when four NYPD officers fired 41 shots at unarmed Amadou Diallo in 1999 and were found “not guilty” of any wrongdoing. And when George Zimmerman walked out of court a free man, although the unarmed teenager, Trayvon Martin, whom he had stalked through the neighborhood with a loaded 9 mm in 2013, lay dead with a bullet in his heart. And when 12-year-old Tamir Rice… when 7-year old Aiyana Stanley Jones… when Jonathan Ferrell… when Philando Castile…
This willingness on the part of court systems, law enforcement and the respectable folk in society to ignore or explain away egregious violations of the law has consequences beyond the black lives it ruins. Eventually, rampant but selective disregard for the rule of law taints and corrupts the entire system ― it leads to a culture of impunity. Trump’s recent boast makes clear that lawlessness can’t be contained to cops on the ground killing black people.
Eventually, rampant but selective disregard for the rule of law taints and corrupts the entire system.
Nevertheless, many whites believed for so long that they were safe; that this contempt didn’t and couldn’t affect them. They were wrong. A culture of impunity is dangerous and seductive. It creates a heady sense of immunity ― so heady that a presidential candidate can brag that he could shoot someone on Fifth Avenue in New York and not lose a single vote. Trump is already in the habit of circumventing procedures without consequence, having pardoned Joe Arpaio, a known torturer who defied a federal court order. He also pardoned I. Lewis ”Scooter” Libby, who was convicted of outing a CIA agent and lying to federal authorities about it. Just last week, he pardoned Dinesh D’Souza, a blatant racist and anti-Semite who used straw donors to make illegal campaign contributions.
Trump now insists that he has more pardons in his pocket, including one for himself, for whatever crimes he may or may not have committed. The president of the United States, a man long accustomed to circumventing the rules that apply to most other people, looks around and sees a system that hasn’t deigned to hold the powerful accountable.
And so, he declares that he might make himself president for life, and appears to exchange U.S. national security for some Chinese trademarks for his daughter, and rails against “fake news” and calls the media “the enemies of the American people,” and attacks the Department of Justice and special counsel Robert Mueller because they won’t do his bidding. When he does those stunning-to-some things, remember that this unrelenting assault on the rule of law is just another version of the same contempt for the nation’s statutes and American democracy that left Mary Turner hanging upside down, disemboweled and burning.
The canary in the American mine is once again gasping for breath. The air is toxic and the poison of lawlessness is likely to take us all down. Maybe this time America will listen.
Carol Anderson is the Charles Howard Candler Professor of African American Studies at Emory University. She is the author of White Rage: The Unspoken Truth of Our Racial Divide and the forthcoming One Person, No Vote: How Voter Suppression is Destroying Our Democracy.
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The White Nationalist approach to the Constitution and law has been with us since the founding of our republic (by a group that contained many slaveholders, smart enough to know that slavery was wrong but too corrupted by it to do the right thing).
But, Trump is more than a “garden variety” racist/White Nationalist (that’s Jeff Sessions, Tom Cotton, Stephen Miller, etc.). He is a dangerous, lawless, “populist” authoritarian in the Mussolini mold. Although many of Trump’s supporters don’t recognize it, they and their rights will be “expendable” at his pleasure.
That leaves it to the rest of us (who actually are the majority of Americans) to save folks from Trump and, in far too many cases, from themselves and their short-sighted prejudices and selfishness. It’s a tall order; but the alternative is the end of our republic and a descent into the worst type of authoritarian dystopia.
Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules
By Tal Kopan, CNN
She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.
The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.
According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”
Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.
But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.
Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.
“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.
Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”
Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.
“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”
For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.
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Judge slaps Sessions, feds over ‘sanctuary cities’
By: Tal Kopan, CNN
A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.
The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.
The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.
Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.
House GOP immigration negotiations continue ahead of key Thursday meeting
By: Tal Kopan and Lauren Fox, CNN
House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.
“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.
Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.
On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.
Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!
Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”
(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.
(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.
CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND
KEY QUOTES FROM MAJORITY:
The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.
KEY QUOTE FROM CONCURRING & DISSENTING OPINION:
In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.
Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.
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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?
The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”
Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant? Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result? And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.
This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?
We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.
Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!
“All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers.”
“We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”
Clinton is not the only Democrat who has spoken out against illegal immigration. The Republicans provide a number of examples in a blog they posted recently: “The Democrat Hard Left Turn on Illegal Immigration.”
In 1993, then-Senator Harry Reid (D-Nev.), said, “When it comes to enforcing laws against illegal immigration, we have a system that will make you recoil in disbelief. … Yet we are doing almost nothing to encourage these people to go home or even to deter them from coming here in the first place.”
In 1994, Senator Dianne Feinstein (D-Calif.) ran a political ad showing illegal immigrants crossing the border and promised to get tough on illegal immigration with more “agents, fencing, lighting, and other equipment.”
In 2006, then-Senator Barack Obama (D-Ill.) said “Better fences and better security along our borders” would “help stem some of the tide of illegal immigration in this country.”
In 2009, during a speech at Georgetown Law, Senator Chuck Schumer(D-N.Y.) said, “When we use phrases like ‘undocumented workers,’ we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.”
The blog also provides video clip links, including one that shows Clinton receiving a standing ovation for his remarks about Americans being disturbed by the large numbers of illegal aliens entering the country.
. . . .
A recent report from the Economic Policy Institute (EPI) on the labor laws California has enacted to protect unauthorized immigrant workers indicates that many of the immigrants who have been attracted to California by its sanctuary policies are being exploited by unscrupulous employers.
In fact, the main beneficiaries of California’s sanctuary policies are the employers who exploit undocumented immigrant workers and deportable immigrants in police custody who otherwise would be turned over to ICE when they are released.
California has had to enact seven laws to protect undocumented workers from being exploited by their employers.
EPI found that the ability of U.S. employers to exploit unauthorized workers undercuts the bargaining power of U.S. workers who work side by side with them. When the wages and labor standards of unauthorized immigrants are degraded, it has a negative impact on the wages and labor standards of U.S. workers in similar jobs.
In reality, we could meet all of our immigration needs with legal immigration. We do not need nor ultimately benefit from uncontrolled illegal immigration.
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Go on over to The Hill to read Nolan’s complete article.
I’m all for replacing the uncontrolled flow of undocumented migrants with legal migrants. That’s why I favor a “smart” immigration policy that would:
Legalize the vast majority of those currently here without documentation who are working in needed jobs, law-abiding, and contributing to our society. Legalization would allow them to be screened, brought into the tax system (if they aren’t already), and protected by U.S. labor laws.
Expand legal immigration opportunities, particularly for so-called “non-professional,” manual labor skills and jobs that are badly needed in the U.S. and which now often are filled by undocumented labor. That would allow screening of visa applicants abroad, a controlled entry process, and protections under the labor laws. To the extent that undocumented migration is being driven by unfilled market forces, it would decrease the flow of undocumented individuals, thus saving us from expensive, unneeded, inhumane, and ineffective “enforcement overkill.” Immigration enforcement would be freed to concentrate on those who might actually be a threat to the U.S.
Create more robust, realistic refugee laws that would bring many more refugees through the legal system, particularly from the Northern Triangle. This, along with cooperation with the UNHCR and other nations would reduce the need for individuals to make they way to our borders to apply for asylum. Asylum processing could be improved by allowing the Asylum Office to review and grant “defensive” as well as affirmative applications, thus lessening the burden on the Immigration Courts.
More investment in Wage and Hour, NLRB, and OSHA enforcement to prevent unscrupulous employers from taking advantage of workers of all types.
We have full employment, surplus jobs, a declining birth rate, and we’re losing the “STEM edge” to the PRC, Canada, Mexico, the EU and other nations that are becoming more welcoming and attractive to “high skill” immigrants. We’re going to need all of the legal immigration we can get across the board to remain viable and dynamic in a changing world.
Sessions, Justice Department take lead as public face of Trump’s immigration policy
By: Tal Kopan, CNN
If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.
“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.
“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”
Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”
Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”
When Attorney General Jeff Sessions issues his decision in Matter of A-B- (the case he certified to himself to decide whether “being a victim of private criminal activity” can constitute a particular social group for asylum purposes), it may negatively impact those asylum applicants who fear gang violence on account of their membership in a particular social group. Attorneys representing such claimants should consider whether their clients may alternatively claim a well-founded fear of persecution based on their political opinion under a “third-generation gang” theory, supported by country condition evidence.
In their article ‘Third Generation’ Gangs, Warfare in Central America, and Refugee Law’s Political Opinion Ground,1 Deborah Anker and Palmer Lawrence make a very important point: that “the Refugee Convention’s concept of political opinion incorporates ‘any opinion on any matter in which the machinery of the State, government, and policy may be engaged,’ or that of other persecutory agents where the state is unwilling or unable to provide protection” (citing Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 746 (Can.)).
Relying on this broad interpretation of political opinion, Anker and Lawrence next note that some military and law enforcement experts have concluded that the larger Central American gangs (including MS-13 and Mara 18) “have developed a degree of politicization, sophistication, and international reach to qualify them as ‘third generation gangs,’” which “function as de facto governments, controlling significant territory (competing with the state for power).” Anker and Lawrence cite Lieutenant Colonel Howard L. Gray, Gangs and Transnational Criminals Threaten Central American Stability, 7 U.S. Army War College, Strategy Research Project (2009)); in documenting such claims, practitioners should also reference John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies: An Introduction,” 14-4 Journal of Gang Research 1 (Summer 2007), and “Third General Gangs Strategic Note No. 1: Mara Salvatrucha (MS-13) 500 Man Commando Unit Planned for El Salvador,” Small Wars Journal, Sept. 10, 2016. The last article quotes Douglas Farah, Visiting Senior Fellow, National Defense University Center for Complex Operations as stating that “The MS has strong political and military ambitions and now views itself as political/military rather than a gang…MS 13 now has troops, weapons, and a cause…efforts to form a joint force with the 18 is less likely but both sides are in discussion to at least have lines of communication open.”2
Under the definition of political opinion cited above, gangs such as MS-13 and Mara 18 are at least other persecutory agents from which the state is unable or unwilling to provide protection. Such gangs might also be the de facto “state” itself in areas they control. The idea that opinions or matters that engage such gangs might constitute political opinion finds support from the Office of the United Nations High Commissioner for Refugees (UNHCR), which has recently published Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Guatemala (January 2018), El Salvador (March 2016), and Honduras (July 2016). These can be found on the website Refworld.org. UNHCR has been described as “the entity that most resembles a supervisory body of the [1951] Convention.”3 Although U.S. courts and the BIA have been inconsistent in the deference accorded to its opinions, given the clearly stated intent of Congress in passing the Refugee Act of 1980 to conform U.S. asylum law to the language of the 1951 Convention (which was binding on the U.S. based on its ratification of the 1967 Protocol Relating to the Status of Refugees), it has been argued that courts should defer more consistently to UNHCR’s interpretations of the Convention’s provisions.4
UNHCR’s 2016 Eligibility Guidelines for El Salvador includes an “Assessment of International Protection Needs of Asylum-seekers from El Salvador.” The agency concludes that “depending on the particular circumstances of the case, UNHCR considers that persons perceived by a gang as contravening its rules or resisting its authority may be in need of international protection on the grounds of their (imputed) political opinion…”5 The UNHCR Guidelines report at p. 12 that “gangs are reported to exercise extraordinary levels of social control over the population of their territories.” According to UNHCR, residents in such gang-controlled zones “are reportedly required to ‘look, listen and keep quiet’ (‘mirar, oir, callar’), and often face a plethora of gang-imposed restrictions on who they can talk with and what about, what time they must be inside their homes, where they can walk or go to school, who they can visit and who can visit them, what they can wear, and even, reportedly, the color of their hair.”
At p. 28 of its Guidelines, UNHCR states:
The ground of political opinion needs to reflect the reality of the specific geographical, historical, political, legal, judicial, and sociocultural context of the country of origin. In contexts such as that in El Salvador, expressing objections to the activities of gangs may be considered as amounting to an opinion that is critical of the methods and policies of those in control and, thus, constitute a “political opinion” within the meaning of the refugee definition. For example, individuals who resist being recruited by a gang, or who refuse to comply with demands made by the gangs, such as demands to pay extortion money, may be perceived to hold a political opinion.
Anker and Lawrence note in their conclusion that many denials of such claims “reflect adjudicators’ and courts’ lack of knowledge (often because they are not presented with evidence) of regarding the political nature and context of the present conflict in that region.” This is an extremely important point. The U.S. Court of Appeals for the Second Circuit stated in Castro v. Holder6 that “a claim of political persecution cannot be evaluated in a vacuum….” The court noted that it has “remanded cases in which the agency denied an application for asylum based on its failure to properly engage in the “complex and contextual factual inquiry” that such claims often require…Nevertheless, in this case, the agency has once again embraced an ‘impoverished view of what political opinions are, especially in a country where certain democratic rights have only a tenuous hold’” in denying the asylum claim “without any coherent examination of the surrounding political environment.”
Immigration judges dealing with seriously overloaded dockets, limited authority to grant continuances, and completion quotas will be hard pressed to engage in “complex and contextual factual inquiry.” Practitioners should do their best to educate adjudicators through country condition evidence, expert testimony, memoranda of law, and through detailed direct examination of the asylum-seeker.
Practitioners should also rely on the BIA’s precedent decision in Matter of S-P-, 21 I&N Dec. 486 (BIA 1996), which held that imputed political opinion may satisfy the refugee definition (relying in part on the UNHCR Handbook and Procedures for Determining Refugee Status under the 1951 Convention; and that asylum applicants need not show conclusively why persecution may occur, but need only produce facts to establish that a reasonable person would fear that the danger arises on account of a protected ground. The Board in S-P- also set forth five elements to consider in identifying motive, including “indications in the particular case that the abuse was directed toward modifying or punishing opinion rather than conduct (e.g., statements or actions by the perpetrators or abuse out of proportion to nonpolitical ends)” (Id. at 494). With the support of the UNHCR Guidelines, a strong argument can be made that death threats or actual killings for offenses such as “looking mistrustfully at a gang member,” “wearing certain clothing.” or “accidentally turning up uninvited in a gang zone” constitute “statements or actions…out of proportion to nonpolitical ends” under the criteria found in Matter of S-P-.7
Where another motive exists for the feared harm, practitioners should argue that mixed motives will support a grant of asylum where one of the motives is tethered to a statutory ground. See Matter of S-P-, supra at 495. In Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994), the U.S. Court of Appeals for the Second Circuit responded to INS’ argument that a labor union leader could not establish a nexus to political opinion because his dispute with the Guatemalan government was economic in nature by finding “any attempt to unravel economic from political motives is untenable in this case.” The court concluded that the petitioner’s union activities “imply a political opinion,” concluding that “the Government’s view of what constitutes a political opinion is too narrow.” Or, as Anker and Lawrence explain, “gangs can, for example, view a person who refuses extortion as an enemy opposing them and, at the same time, also want the funds.”
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Notes:
1. 14-10 Immigration Briefings 1 (October 2014).
2. I first heard Farah speak at a country condition training on gang violence in the Northern Triangle held by USCIS for its asylum officers; at my invitation, Farah was a speaker on the same topic at the 2015 EOIR Training Conference for its immigration judges and BIA staff.
3. American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis (Note), 131 HARVARD L.R. 1399 (March 2018).
4. See, e.g., American Courts and the U.N. High Commissioner for Refugees, supra; Bassina Farbenblum, Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron,” 60 DUKE L.J. 1059 (2011); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERKELEY J. INT’L L. 1 (1997).
A mother unleashed a piercing scream as her baby was ripped from her arms during a slave auction. Even as a lash cut her back, she refused to put her baby down and climb atop an auction block.
The woman pleaded for God’s mercy, Henry Bibb, a former slave, recalled in an 1849 narrative that is part of “The Weeping Time” exhibit at the Smithsonian’s Museum of African American History and Culture, which documents the tragic history of children being separated from their parents during slavery. “But the child was torn from the arms of its mother amid the most heart-rending shrieks from the mother and child on the one hand, and the bitter oaths and cruel lashes from the tyrants on the other.”
Her mother was sold to the highest bidder.
Enslaved mothers and fathers lived with the constant fear that they or their children might be sold away.
“Night and day, you could hear men and women screaming … ma, pa, sister or brother … taken without any warning,” Susan Hamilton, another witness to a slave auction, recalled in a 1938 interview. “People was always dying from a broken heart.”
The Trump administration’s current crackdown on families that cross the border illegally has led to hundreds of children, some as young as 18 months, being separated from their parents. The parents are being sent to federal jails to face criminal prosecution while their children are being placed in shelters operated by the Department of Health and Human Services. Often, the children have no idea where their parents are or when they will see them again.
The policy has generated outrage among Democrats and immigration advocates. And it has conjured memories of some of the ugliest chapters in American history.
“Official US policy,” tweeted the African American Research Collaborative over the weekend. “Until 1865, rip African American children from their parents. From 1870s to 1970s, rip Native American children from their parents. Now, rip children of immigrants and refugees from their parents.”
Henry Fernandez, co-founder of the collaborative and a senior fellow at the Center for American Progress, said he drafted the tweet based on his research into several periods in U.S. history when government officials sanctioned the separation of children from their parents, including during slavery.
Another period of family cruelty, Fernandez said, began in the late 1800s and lasted well into the 1970s, when indigenous children across the country were forcibly separated from their families and sent to “Indian schools.” At the boarding schools, the children were required to assimilate. They were stripped of their language and culture. Often they were physically and sometimes sexually abused.
“In each case, we look back at the programs as barbaric,” Fernandez said. “History will similarly consider the Trump administration’s ripping children from their parents as an unconscionably evil government action.”
According to the Smithsonian’s National Museum of the American Indian, beginning in the late 1800s, thousands of American Indian children were sent to government-run or church-run boarding schools.
“Families were often forced to send their children to these schools, where they were forbidden to speak their Native languages,” according to the museum.
The exhibit includes a quote from Richard Henry Pratt, founder of the Carlisle Indian Industrial School: “In Indian civilization I am a Baptist,” Pratt wrote, “because I believe in immersing the Indian in our civilization and when we get them under, holding them there until they are thoroughly soaked.”
A teacher and students at the Carlisle Indian Industrial School in Pennsylvania in 1901. (Library of Congress)
At boarding schools, “children were forced to cut their hair and give up their traditional clothing,” according to the museum. “They had to give up their meaningful Native names and take English ones. They were not only taught to speak English, but were punished for speaking their own languages. Their own traditional religious practices were forcibly replaced with Christianity. They were taught that their cultures were inferior. Some teachers ridiculed and made fun of the students’ traditions. These lessons humiliated the students and taught them to be ashamed of being American Indian.”
“They tell us not to speak in Navajo language. You’re going to school. You’re supposed to only speak English. And it was true. They did practice that, and we got punished if you was caught speaking Navajo,” John Brown Jr., a Navajo who served in World War II as a code talker, using his Navajo language for tactical communications the Japanese could not decode, told the National Museum of the American Indian in a 2004 interview.
“When we got talking, ’cause we’re not allowed to talk our tribal language, and then me and my cousin, we get together and we talk in Indian, we always hush up when we see a teacher or faculty coming,” Charles Chibitty, a Comanche code talker, told the museum in 2004. “And then we always laughed and said, ‘I think they’re trying to make little white boys out of us.’ ”
Government Indian school on the Swinomish Reservation in La Conner, Wash., in 1907. (Library of Congress)
Until the end of the Civil War, it was common for slave owners to rip families apart by selling the children or the parents to other slave owners.
“Along with ongoing rape and the use of the whip to discipline human beings,” Fernandez said, “destroying families is one of the worst things done during slavery. The federal government maintained these evils through the fugitive slave laws and other rules which defined African Americans as property with which a slave owner could do whatever they wanted.”
Each of these U.S. policies, Fernandez said, begins with the assumption “that the idea of family is simply less important to people of color and that the people involved are less than human. To justify ripping families apart, the government must first engage in dehumanizing the targeted group, whether it is Native Americans, African Americans or immigrants from Central America fleeing murder, rape, extortion and kidnapping.”
“There is no question these children are innocent,” Fernandez said, “but Trump associates them with the idea that these are not like your children and thus less than human.”
Slave narratives reveal the heart-wrenching stories of children taken from families.
According to the Maryland State Archives: “For most slave children, the separation from their parents and the siblings was the hardest aspect of being sold. Slaves went to great lengths to keep their family together, but there was often limits to what they could do.”
The report includes a narrative from Charles Ball, who was enslaved as a child and remembered the day he was sold away from his mother.
“My poor mother, when she saw me leaving her for the last time, ran after me, took me down from the horse, clasped me in her arms, and wept loudly and bitterly over me,” Ball recalled. “My master seemed to pity her and endeavored to soothe her distress by telling her that he would be a good master to me, and that I should not want anything.”
Still, his mother would not let go. She walked beside the horse, begging the slave owner to buy her and the rest of her children.
“But whilst thus entreating him to save her and her family,” Ball recalled, “the slave-driver, who had first bought her, came running in pursuit of her with a raw hide in his hand. When he overtook us, he told her he was her master now and ordered her to give that little Negro to its owner and come back with him. My mother then turned to him and cried, ‘Oh, master, do not take me from my child!’ Without making any reply, he gave her two or three heavy blows on the shoulders with his raw hide, snatched me from her arms, handed me to my master, and seizing her by one arm, dragged her back towards the place of sale.”
After the end of the Civil War, thousands of former slaves looked for lost relatives and children who had been sold away from their families. They placed thousands of ads in newspapers.
Mary Bailey searches for her children, Nancy, Ben, Polly, Tempa and Isham Bailey. The ad ran in the Daily Dispatch newspaper in Richmond on Nov. 24, 1866.
Those ads are now being digitized in a project called “Last Seen: Finding Family After Slavery,” which is run by Villanova University’s graduate history program in collaboration with Philadelphia’s Mother Bethel AME Church.
The ads started appearing about 1863. By 1865, when the Civil War ended, they were coming out in streams, thousands of “Information Wanted” notices in black-owned newspapers across the country, seeking any help to find loved ones.
Mothers looked for their children; children looked for their mothers; fathers placed ads for lost sons; sisters looked for sisters; husbands sought their wives; wives tried to find their husbands.
The ads often gave detailed physical descriptions of the missing, names of former slave owners, locations where family members were last seen, and sometimes maps, tracing how many times they were sold from one owner to the next until they were so far from family members all they had to cling to were sketchy memories.
Elizabeth Williams, who had been sold twice since she last saw her children, placed a heart-wrenching ad in the Christian Recorder newspaper in Philadelphia:
“INFORMATION WANTED by a mother concerning her children,” Williams wrote March 17, 1866.
In four column inches, the mother summed up her life, hoping the details would help her find the children. She listed their names — Lydia, William, Allen and Parker — and explained in a few words that she last saw them when they were “formerly owned together” by a man named John Petty, who lived about six miles from Woodbury, Tenn.
She explained how her family was split apart when she was sold again and taken farther south into captivity.
“She has never seen the above-named children since,” the ad said. “Any information given concerning them, however, will be gratefully received by one whose love for her children survives the bitterness and hardships of many long years spent in slavery.”
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Resist the toxic, inhumane, immoral, and illegal immigration policies of Trump, Sessions, Nielsen, Miller, and the rest of their White Nationalist Gang. “Just say no” to the “Make America Grotesque Again” Mob. Join the New Due Process Army and stand up for the Constitutional rights of everyone in America, regardless of color, creed, or status!
This essay explores the contemporary practice of detaining immigrant women and children — the vast majority of whom are fleeing violence in their home countries and seeking protection in the United States — and the response by a diverse coalition of legal advocates. In spite of heroic advocacy, both within and outside the detention centers from the courts to the media to the White House, family detention continues. By charting the evolution of family detention from the time the Obama Administration resurrected the practice in 2014 and responsive advocacy efforts, this essay maps the multiple levels at which sustained advocacy is needed to stem crises in legal representation and ultimately end family detention.
Due to a perfect storm of indigent detainees without a right to appointed counsel, remote detention centers, and under-resourced nonprofits, legal representation within immigration detention centers is scarce. While the Obama Administration largely ended the practice of family detention in 2009, the same administration started detaining immigrant families en masse just five years later. In response to the rise in numbers of child migrants seeking protection in the United States arriving both with and without their parents, and with the purported aim of deterring future flows, the Obama administration reinstituted the policy of detaining families. The Ad- ministration calls these detention centers “family residential centers,” while advocates use the term “baby jail.”
The response from the advocate community was swift and overwhelming. Lawyers and law students from all over the country traveled to the detention centers, in remote areas of New Mexico and later Texas, to meet the urgent need for representation of these asylum-seeking families. This essay calls for continued engagement by attorneys throughout the nation in filling the justice gap and providing representation to these asylum-seeking families and other detained immigrants.
The crisis in representation for detained immigrants is deepening. Given the success of intensive representation at the family detention centers discussed in this article, advocates are beginning to experiment with the same models in other locations. For example, at the Stewart Detention Center in Lumpkin, Georgia, the Southern Poverty Law Center, in conjunction with four other organizations, launched the Southeast Immigrant Freedom Initiative in 2017. This initiative enlists and trains lawyers to provide free legal representation to immigrants detained in the Southeast who are facing deportation proceedings. The American Immigration Lawyers Association and the American Immigration Council have partnered to create the Immigration Justice Campaign, where pro bono attorneys are trained and mentored when providing representation to detained immigrants in typically underserved locations. Given the expansion of the volunteer model of providing legal services to detained immigrants, opportunities will continue to arise for lawyers, law students, and others to engage in crisis lawyering and advocacy. This article provides the background to understand the government’s practice of detaining families, to the extent that it can be understood, and to emphasize a continuing need for legal services for this population.
The introduction explains the population of asylum seekers and the law and procedure governing their arrival, detention, and release into the United States. The essay then traces the evolution of the U.S. government’s most recent experiment in detaining families from the summer of 2014 to present. The next part outlines the access to counsel crisis for immigrant mothers and children in detention and highlights the difference that representation makes. The article concludes with a call to action to attorneys and non-attorney volunteers nationwide to commit and re-commit to providing services to detained immigrant families and individuals.
MY FAVORITE QUOTE:
We are in an era of incredible need for immigration legal services. That need is most acute within detention centers located outside of major metro- politan areas, including within the family detention centers.
Ultimately, neither the Trump nor the Obama administration can claim to have won or be “winning” with the policy of family detention. The vast majority of women and children still receive a positive result during their credible fear interviews, because they are indeed individuals fleeing persecu- tion under the Refugee Convention. It is a poor use of resources, then, to continue to detain this population. Instead, tax-payer dollars, government energy, and resources, should be invested in providing representation and case management for this population to ensure that they appear in court and follow all required procedures to pursue their claims for protection.125 In the current era of intense immigration enforcement, combined with the Trump Administration’s plans to increase detention bed space and Attorney General Jefferson Beauregard Session’s clear attacks on asylum-seekers,126 family de- tention is, however, likely here to stay.
In light of this reality, crowdsourcing refugee rights, as Stephen Man- ning articulates, is more important than ever.127 It is heartening to see the expansion of the model of lawyering within immigration detention centers expand to centers in Georgia and Louisiana, where asylum grant rates are dismal, conditions of detention dire, with a historical extreme lack of access to counsel. Lawyers are needed to ensure that individuals can properly ac- cess their due process rights and to help the immigration court system run more smoothly.128
Lawyers, specialized in immigration or not, must arm themselves with the knowledge and tools to join this fight. Just as non-immigration lawyers quickly rose to a call to action in January at the airports,129 lawyers must again rise, and continue rising, to provide representation for families and individuals held in immigration detention. This is our time to act and proudly join the brigade of “dirty immigration lawyers” to ensure protection and due process for the most vulnerable.
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Lindsay is “one of the best.” We were colleagues at Georgetown Law when I was an Adjunct Professor and she held the prestigious “CALS Fellowship” working with Professors Andy Schoenholtz and Phil Schrag (of “Refugee Roulette fame”). Lindsay was a guest lecturer in my Refugee Law & Policy class, and I have since returned the favor at both George Mason Law and UDC Law where she now teaches with another of my good friends and superstars, Professor Kristina Campbell. Indeed, my friend Judge Dorothy Harbeck and I are “regulars” at their class and are in the process of planning another session this fall.
Lindsay and Kristina “talk the talk and walk the walk.” They appeared before me frequently at the Arlington Immigration Court with their clinical students. The have also gone “on site” at some of the worst immigration detention facilities in the country to help refugees in need.
In a truly unbiased, merit-based, independent, Immigration Court system (of the future) they would be ideal judges at either the trial or appellate level. They possess exactly the types of amazing scholarship, expertise and “hands on” experience representing actual individual clients before our Immigration Courts that is sorely lacking in, and in my view has largely been systematically banished from, the 21st Century immigration judiciary, to the detriment of our Immigration Courts, Due Process, and the entire American justice system. That’s one reason why our Immigration Courts are functioning so poorly in basic areas like efficiency, deliberation, quality control, and fundamental fairness!
Some important “take aways” from this article:
Contrary to Administration propaganda and false narratives, most of the recent arrivals who have lawyers are found to have credible claims for protection under our laws.
Similarly, if given fair access to competent counsel and time to prepare and present their claims in a non-coercive setting to a truly unbiased decision-maker, I believe that majority would be granted asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).
This is the truth that Trump, Sessions, & Company don’t want revealed: most of the folks we are so cavalierly mistreating are, in fact, legitimate refugees, even under current legal rulings that have been intentionally and unfairly skewed against asylum applicants from Central America for years!
Even those who don’t currently fit the arcane legal categories for protection probably have a legitimate fear of harm or death upon return. They certainly are entitled to fully present and litigate their claims before being returned to life-threatening situations.
Finally, a better country, with better, wiser, more humane leaders, would devise ways of offering these individuals fleeing the Northern Triangle at least temporary protection, either here or in another stable country in this hemisphere, while doing something constructive to address the severe, festering, chronic human rights problems in the Northern Triangle that are sending us these refugees.
The “enforcement only” approach has failed over and over in the past and will continue to do so until we get better political leadership in the future.
In the meantime, join Lindsay, Kristina, and the other “Charter Members of the New Due Process Army” in resisting the evil, immoral, and illegal policies of the Trump Administration.
Due Process Forever! Harm to the most vulnerable among us is harm to all!
Hong Fei Gao v. Sessions, 2d Cir., May 25, 2018, published
PANEL: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*
Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.
OPINION BY: JUDGE CHIN
SUMMARY OF HOLDING (From Decision):
These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility.
On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.
KEY QUOTE:
For cases filed after May 11, 2005, the effective date of the REAL ID Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as theʹtotality of the circumstancesʹ establishes that an asylum applicant is not credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The agency may base a credibility finding on an asylum applicantʹs ʺdemeanor, candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the consistency among his written statements, oral statements, and other record evidence; and ʺany inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even where the agency ʺrelies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations based on omissions following the REAL ID Act.
First, although the REAL ID Act authorizes an IJ to rely on ʺanyinconsistency or omission in making an adverse credibility determination,ʺ even one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not give an IJ free rein. The REAL ID Act does not erase our obligation to assess whether the agency has provided ʺspecific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.ʺ). Thus, although IJs may rely on non‐material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight. A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting thatʺtrivial inconsistencies that under the total circumstances have no bearing on a petitionerʹs veracity should not form the basis of an adverse credibility determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ forʺfail[ing] to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other handʺ).3
Second, although ʺ[a] lacuna in an applicantʹs testimony or omission in a document submitted to corroborate the applicantʹs testimony . . . can serve as a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at 166 n.3, we also recognize that ʺasylum applicants are not required to list every incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹsʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to find that one seeking asylum must state in his or her application every incident of persecution lest the applicant have his or her credibility questioned if the incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S., 663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in generalʺomissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility determination where petitionerʹs ʺasylum application did not simply omit incidents of persecution. . . . [but rather] described the same incidents of persecution differentlyʺ).
An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy.
Although the federal evidentiary rules do not apply in immigration proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is nonetheless instructive to analogize the use of omissions in adverse credibility determinations to the use of a witnessʹs prior silence for impeachment. In the latter context, we have indicated that ʺ[w]here the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition, the probative value of a witnessʹs prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.ʺ(emphasis added)). In the immigration context, in assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.
Finally, the REAL ID Act requires IJs to evaluate each inconsistency or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐established rule that review of an agencyʹs adverse credibility determination ʺis conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin, 534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the manner in which it hangs together with other evidenceʺ (citation omitted)); accord Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even outright lies ‐‐ must be weighed in light of their significance to the total context of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127 (2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v. U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.ʺ).
II. Application
In light of the foregoing principles, we conclude that in both cases, the IJs and the BIA erred by substantially relying on certain inconsistencies and omissions that had no tendency to show that petitioners fabricated their claims when considered in light of the totality of the circumstances and in the context of the record as a whole. Because we cannot confidently predict that the IJs would have adhered to their adverse credibility determinations absent these erroneous bases, we remand for further evaluation.
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So, while Jeff Sessions is busy with a “nuclear attack” on asylum law and Constitutional Due Process, some U.S. Immigration Judges and BIA Appellate Immigration Judges are equally busy just mis-applying well-established legal standards to screw asylum seekers.
Rather than looking at the record as a whole, as required by law, and giving asylum seekers the “benefit of the doubt,” too many Immigration Judges and BIA Judges are playing “gotcha” with the law — using minor or irrelevant variances in testimony or minor gaps in proof to justify bogus adverse credibility findings and asylum denials. Obviously, as backlogs stretch out, the problems inherent in “fly-specking” an applicant’s testimony about events many years in the past increases. That’s one of the reasons why Sessions’s insane bid to shove more properly administratively closed removal cases back onto “active dockets,” and to discourage the further removal of “low priority” cases from active dockets, is totally and intentionally destructive to an already failing court system.
The REAL ID ACT was effective in 2005, well over a decade ago. So, its proper application is not “rocket science.” It’s “Immigration Judging 101.”
Yet unfair applications of the law to wrongfully discredit and deny asylum seekers persists in the Immigration Courts and seems to breeze through at least some BIA “Panels” without critical review or analysis. I put “Panels” in quotes because all too often these days the appellate review is conducted by a “Panel of One” judge.
And since the BIA Appellate Immigration Judges now come almost exclusively from Government backgrounds, they are very likely to share some of the same “blind spots” as to the reality of presenting an affirmative asylum application in Immigration Court. If any of them have done it (and most haven’t), it was decades ago when conditions and the law were very different. They all too often draw inferences and reach conclusions that any competent immigration practitioner would know are way out of line with reality.
How are these endemic problems affecting fairness and Constitutional Due Process in the Immigration Courts, and potentially destroying and endangering lives of asylum applicants, solved by cranking up judicial productivity, trying to reverse long-standing precedents that aid asylum seekers pursuing legal protections, and making biased public anti-asylum statements? How is justice and Due Process served by gratuitously attacking immigration lawyers and disingenuously seeking to eliminate laws that provide the already meager and inadequate protections that asylum seekers now have? Yet this is precisely what Sessions’s program is!
The Immigration Court system needs reform to guarantee unbiased, high quality, fair treatment of asylum seekers and other individuals fighting for their very lives. Jeff Sessions is dedicated to the eradication of Due Process and turning the Immigration Courts into a “Death Railroad” for asylum seekers and other migrants. He must be stopped before he destroys our entire U.S. justice system — apparently his ultimate aim.
Join the New Due Process Army and stand up to Jeff Sessions and the other bullying, scofflaw, White Nationalists in the Trump Regime.
SPLC STATEMENT ON SESSIONS’ DECISION TO CURTAIL ‘ADMINISTRATIVE CLOSINGS’ OF IMMIGRATION COURT CASES
By Dan Werner, Senior Supervising Attorney
Attorney General Jeff Sessions’ ideologically driven decision today to bypass the immigration courts and decide himself to remove another avenue of relief for immigrants undermines due process and the rule of law.
It will add thousands more cases back into the huge backlog of the immigration courts, and will result in the imprisonment and deportation of immigrants who now have a clear path toward legal immigration status.
This decision is just further evidence of Sessions’ anti-immigrant agenda, which separates families, creates fear in communities, and punishes vulnerable people who may be fleeing violence and persecution in their home countries. Though President Trump may call them “animals” to justify his administration’s inhumane policies, these immigrants are friends, neighbors, and members of our families and communities.
With every new hate-driven policy emerging from this administration, we must rededicate ourselves to speaking out and taking action to preserve our nation’s fundamental values.
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How Trump’s nativist tweets overlap with anti-Muslim and anti-Latino hate crimes
Words matter. Heated political rhetoric, especially derogatory language toward groups of people, can create all kinds of unintended consequences, including sometimes physical violence.
When individuals of influence, including political candidates and heads of state use such words, the consequence can be especially pronounced.
In the run-up to, and since his election as President of the United States, Donald Trump’s words have attracted a lot of attention. Many commentators and activists have charged that Trump’s rhetoric has fueled hate crimes in the United States against minorities. Until recently, many individuals voicing such concerns pointed to high-profile individual cases, rather than systematic data. Now that’s changing as new research is emerging.
Hatewatch spoke with Karsten Muller and Carlo Schwarz, two researchers at the University of Warwick in the United Kingdom who have been studying the impact of hate speech on social media and how that translates to hate crimes in the real world. Muller and Schwarz discuss their latest study, “Making America Hate Again? Twitter and Hate Crime Under Trump”
Their study used Twitter and FBI hate crimes data to come to a stark conclusion: hate crimes against Muslims and Latinos occurred shortly after Trump made disparaging tweets about Muslims and Latinos. Moreover these anti-Muslim and anti-Latino hate crimes were physically concentrated in parts of the country where there is high Twitter usage.
Karsten and Carlo, can you give us an overview of your research interests and your recent study on President Trump’s tweets and Muslim hate crimes?
Carlo: We are economists working in slightly different areas, but we both have an interest in what people usually call political economy. What we try to do is to apply modern quantitative methods to study political outcomes and the role of social media. In our most recent study, we find that the number of anti-Muslim hate crimes in the U.S. has increased quite markedly under Trump. We show that this increase started with the beginning of Trump’s presidential campaign and is predominately driven by U.S. counties where a large fraction of the population uses Twitter. The data also show that this increase cannot be easily explained by differences in demographics, votes for Republicans, crime rates, media consumption or other factors.
Karsten: The second thing we do in the paper is to look at the correlation between Trump’s tweets about Islam-related topics and hate crimes that target Muslims. And what we find is that this correlation is very strong after Trump had started his campaign, but basically zero before. We also find that when Trump tweets about Muslims, hate crimes increases disproportionately in those areas where many people use Twitter. It is also important to note that hate crimes against Muslims were not systematically higher in those areas during previous presidencies, so it seems unlikely we are simply capturing the fact that people in some areas dislike Muslims more than in others.
Are you claiming Trump’s tweets have caused hate crimes?
Karsten: We are very careful not to make that claim in the paper because I think it is extremely hard to tell based on our data. After all, we are not looking at a controlled laboratory experiment so there is always room for other drivers. But if you look at the results, some point in that direction, for example that Trump’s tweets are particularly correlated with future hate crimes in counties where many people use Twitter.
Carlo: A simple thing to do here is to think about what alternative stories could explain our findings. For example, one could imagine that people who Trump himself follows (such as Fox & Friends or Alex Jones) are the real driving factor. Or that people have recently become more radicalized in rural areas, or where the majority votes Republican. But a careful look at the data reveals that Twitter usage is in fact lower in counties where people tend to vote Republican and in rural areas, and we use some survey data to show that Twitter users generally prefer CNN or MSNBC over Fox News. These factors also cannot easily explain why the increase in anti-Muslim hate crimes should occur precisely with Trump’s campaign start and not before or after.
Karsten: So overall, we take our findings as suggestive of a potential connection between social media and hate crimes. But at the end of the day, readers have to make up their own minds.
What were some of the other key findings that stood out with regard to Muslims?
Karsten: What really stands out to me is just how strong the correlation of Trump’s tweets is with future anti-Muslim hate crimes. So, for example, one might be worried that Trump simply tweets about Muslims when people are generally very interested in everything related to Islam. But what we find is that Trump’s tweets are correlated with hate crimes even if we first even if we control for the effect of general attention to Islam-related topics (as measured by Google Searches). Although there are other explanations, I also found it striking that you see a spike in hate crimes against Muslims in the week of the Presidential election, but only in areas where many people use Twitter.
Carlo: Another thing I found quite interesting is that Trump’s tweets about Muslims are not correlated with other types of hate crimes. The reason this is important is because one could easily imagine that people just happen to be particularly angry at minorities in some weeks compared to others, and that Trump is just part of that. But if this was true, we would also expect there to be more hate crimes against Latinos, or LGBTQ people or African Americans, which does not seem to be the case at all. We also do not find any evidence that other types of hate crimes increased in areas with many Twitter users around Trump’s campaign start — except a small shift for anti-Latino crimes.
Your study also noticed a statistically significant association between anti-Latino tweets and hate crimes. Why do you think there has been a similar, but less robust set of results?
Karsten: When we started our study, we only had data on hate crimes until the end of 2015 — after Trump’s campaign started in June 2015, but before his election. And what you see in the data is a very strong correlation between Trump’s tweets about Latinos and subsequent anti-ethnic hate crimes starting with the beginning of his campaign until December 2015, while there is virtually no correlation before. After the 2016 data were released, we found that the effect becomes substantially weaker from around mid-2016 onwards.
Carlo: When we looked at that more closely — and we think that is consistent with the media coverage during that time as well — Trump toned down his anti-Latino rhetoric quite a lot in the run-up to the campaign. There was, for example, his tweet with a taco bowl on Cinco de Mayo 2016. If you go through Trump’s Twitter feed in the pre-election period, you will see only a handful tweets about Latinos at all during that time. And while hate crimes against Latinos remained slightly elevated in areas with many Twitter users during that time, that means the correlation with the timing of Trump’s tweets became weaker. A potential interpretation is that it is not that the results are so much weaker than those for anti-Muslim hate crime, it’s just that Trump essentially stopped tweeting negative things about Latinos.
How does this study compare and contrast with your earlier investigationinto the online activities of the far-right and nativist political party Alternative for Germany (AfD)?
Carlo: In our study on Germany, we found a very similar correlation between posts about refugees on the AfD’s Facebook page and crimes targeting refugees. We look at these two studies as complementary, even though they use somewhat different methodologies. In the German setting, we have very granular data on internet and Facebook outages that we can use as “quasi-experiments” to get at the causal effect of social media. And what we found there is that, even if you compare neighboring cities, refugees are more likely to be victims of violent attacks where many people use social media, particularly when tensions are high. Importantly, these are relative effects.
What is different for the U.S. is that we find this link between Trump’s campaign start and the increase in the absolute number of hate crimes against precisely those minorities in his verbal crosshairs (e.g. Muslims and Latinos), making the link by using Trump’s tweets. and FBI hate crimes dataset. By using the FBI hate crimes statistics, it also allow us to compare the recent change in hate crimes to those under presidents since 1990s.
For civically conscious users of the internet, what are the most important takeaways and implications from your research?
Carlo: On one hand, our goal is to suggest that politicians should not ignore social media, because the correlation with real-life hate crimes seems to be pretty strong. We think that this discussion should be taken seriously. On the other hand, we want to caution against any attempts at censorship. Some countries have an outright ban on certain social media platforms, and these states are usually not known for their open political discourse and freedom of speech. The challenge is to come up with solutions that can help protect citizens from violent extremists without imposing drastic limits on freedom of expression. In the end, the people who actually commit hate crimes are the ones we have to hold accountable.
Karsten: I want to give a somewhat different perspective here. Many people talk about a potential “dark side” of social media, but the number of studies that have actually looked at this issue with data is surprisingly small. One of the most important takeaways for me is that as a society we should be spending more time and resources to support researchers working on this area. It is clearly something that many people care about, and it matters tremendously for policymakers as well.
What do you plan to do next in your research?
Karsten: We think a big open question is to come up with more concrete ways of measuring whether “echo chambers” on social media really exist, and how they differ from echo chambers in other domains. If social media is indeed different, the question is what can be done to get people to consider information from outside of their bubble. Our data for Germany in particular will hopefully also allow us to show how exactly online hate on Facebook is transmitted in practice.
Illustration credit: zixia/Alamy Photo
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Trump is certainly the wrong man for the job at this point in our history.
Here’s a “reprise” of a previous March 2018 post from Nolan in The Hill explaining how the Special Immigrant Juvenile (“SIJ”) provisions of the I&N Act could be used to facilitate a compromise solution for “Dreamers.” It certainly would be “worth a look” by both sides!
Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes
By Lauren Fox and Tal Kopan, CNN
Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.
At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.
On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.
According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.
Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.
Trump calls for sweeping changes to US immigration legal process
By: Allie Malloy and Tal Kopan, CNN
President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.
“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.
“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.
Trump also questioned the process of immigrants going through the court system at all.
“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.
The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.
Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.
“I guess he has no belief in due process and the Constitution,” Lofgren said.
Comments run counter to Justice policies
At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.
To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!
The issue is compounded, Rosenstein said, by the fact that these migrant children must eventually be released from detention, and many never show up for their immigration proceedings before a judge. Rosenstein, quoting statistics from the Department of Homeland Security, said less than 4 percent of unaccompanied minors are ultimately removed from the United States.
“We’re letting people in who are creating problems. We’re letting people in who are gang members. We’re also letting people in who are vulnerable,” Rosenstein said. Because many of the migrant children lack families or a similar support system, they become “vulnerable to [gang] recruitment,” the deputy attorney general said,
Thomas Homan, the departing deputy director of Immigration and Customs Enforcement, said about 300 arrests related to the MS-13 gang were made on Long Island last year. Of those arrested, more than 40 percent entered the United States as unaccompanied minors, he said.
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“So it is a problem,” Homan said. “There is a connection.”
Other federal statistics paint a somewhat different tale. From October 2011 until June of last year, U.S. Customs and Border Protection officials arrested about 5,000 individuals with confirmed or suspected gang ties, according to congressional testimony from the agency’s acting chief, Carla Provost, in June.
Of the 5,000 figure, 159 were unaccompanied minors, Provost testified, and 56 were suspected or confirmed to have ties with MS-13. In that overall time frame, CBP apprehended about 250,000 unaccompanied minors, according to Provost.
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Read the full article at the link.
The Trump claims are, as usual, totally bogus. The percentage of gang members who come in as “unaccompanied minors” is infinitesimally small. The vast majority of these kids are gang victims entitled to asylum or relief under the Convention Against Torture if the law were fairly applied (which it isn’t).
Contrary to the suggestion by Rosenstein, when given access to legal representation, approximately 95% of the unaccompanied children show up for their hearings. And the “vulnerability” mentioned by Rosenstein is largely the result of the Trump Administration’s “reign of terror” against migrant communities which has made nearly all migrant children, along with other community members, “easy pickings” for gangs, with no realistic recourse to law enforcement. There are actually strategies for combatting gangs. But the Trumpsters have no interest in them.
Indeed, gangs have recognized that folks like Trump, Sessions, Homan, Neilsen, and now Rosenstein are their best recruiters and enablers. How dumb can we be as a country to put these biased, spineless, and clueless dudes in charge of “law enforcement.”
Interesting that in an obvious attempt to kiss up to Trump, Sessions, & Co and save his job, Rosenstein pathetically has decided that being a sycophant and sucking up to the bosses is his best defense. Particularly when it’s at the expense of kids and other vulnerable migrants seeking protection. Pretty disgusting! And, I doubt that it will eventually save him from Trump. Just tank his reputation and his future like others who have been “slimed for life” by their association with Trump.
Join the New Due Process Army and stand up for kids against the “child abuse” being practiced by the Trump Administration and its corrupt and incompetent officials.
On April 18 the Senate Committee on the Judiciary held a hearing on strengthening the Immigration Court system. Several organizations, including the American Bar Association and the American Immigration Lawyers Association, recommended that Congress make the immigration courts independent courts under Article I of the Constitution. Congress should do so without delay, especially in light of the attorney general’s May 17 decision in Matter of Castro-Tum eliminating administrative closure.
Because the immigration courts, along with the Board of Immigration Appeals, are currently part of the Department of Justice, the attorney general, and others in the executive, not least of all the president, are in charge of agency regulations, case procedures, the hiring and firing of judges, and decision-making.
In recent months the administration has made unprecedented attacks on the judicial independence of immigration judges, including policy changes that are in direct contradiction to the recommendations of an April 2017 Booz Allen Hamilton report commissioned by the Department of Justice.
On March 30 the administration instituted a case completion quota of 700 a year for a “satisfactory” performance rating. This amounts to each Immigration Judge needing to complete on average three cases every working day. For judges who have dockets with a high number of asylum cases, for example, this arbitrary requirement will push them to expedite cases in ways that are extremely dangerous to due process.
As the president of the National Association of Immigration Judges, Judge Tabaddor, testified at the congressional hearing, there has been ‘‘no quota ever, in any court; somehow implicit in [designating a quota] is that judges are not doing enough… [However, w]e should focus on [is] how we can support our judges.’’
Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.
The real problem is not with how hard-working the immigration judges are. As I explained in a 2016 article, part of the problem lies with understaffing. Instead of hiring a reasonable number of judges and law clerks, and otherwise investing in supporting the work of our Immigration Judges, the Administration is eliminating administrative closure and calling for administratively closed cases to be put back on the docket, actions that only serve to raise the number of pending cases.
If, for example, the Department of Justice puts all the administratively closed cases back on the docket, it would increase the court backlog to over 1,000,000. These are cases of crime victims and DACA recipients and others where an immigration judge has already determined that it would not be a good use of judicial resources, or in the public interest, to litigate, usually because the person is eligible for some non-judicial form of immigration relief and has a case pending with USCIS. Re-calendaring these cases would not only unnecessarily increase the work of taxpayer-funded DHS Trial Attorneys but it would add more pressure to the already overworked immigration judges.
The attorney general has also stepped into managing the immigration courts by restricting the use of continuances, which in the fast-paced detention context where my organization works are often necessary in order to have time to obtain crucial pieces of evidence and otherwise prepare for trial.
While the attorney general is the boss and is responsible for the judges’ performance, he should have a little more faith in the good judgement of his immigration judges, who, unlike the attorney general, are looking at the situation-specific issues in the individual case before them.
While the helpfulness of the attorney general’s methods for carrying out his job are questionable at best, the underlying problem remains that, regardless of our political opinion on the administration’s policies, those policies are affecting the judicial independence of our immigration courts and putting due process in jeopardy.
What the attorney general says matters to the immigration judges working under him. In one recent case, the immigration judge cited him as saying there is a lot of fraud in the asylum process as evidence that the asylum seeker was lying. Not only was the attorney general’s statement not based on facts — at least not on facts made publicly available, or that anyone even claimed exist, and which statement runs in stark contrast to my six years of on-the-ground experience — but that statement had nothing to do with the truthfulness of the individual asylum seeker present before the court.
Additionally, as stated by the former president of the National Association of Immigration Judges Dana Marks, there is a ‘‘conflict of interest between the judicial and prosecutorial functions [of the Department of Justice that] creates a significant (and perhaps even fatal) flaw to the immigration court structure.’’
It appears that the administration is looking for specific outcomes in cases with little regard to the merits of the claim. The attorney general has certified an unprecedented number cases to himself for review with the idea that he might change the decision of the Board of Immigration Appeals. This extraordinary power of one political-appointee to overturn the decision of trained immigration judges is fundamentally at odds with judicial independence.
Unfortunately, it appears that not only the review and firing of judges has become political, but their hiring too. Information has surfaced that the Department of Justice is asking candidates questions about their political party affiliation, their position on same-sex relationships, and their opinion on abortion; preparing internal memos on those whose immigration views that do not align with the administration’s policies; slowing down review of applications where there are ideological differences; and withdrawing employment offers or delaying start dates by up to a one and a half years.
Making judicial decisions subject to the political whims of the times, and not dependent on the accurate execution of the law, is a serious risk to the checks-and-balances system underlying our democracy. The need for independent immigration courts has never been clearer.
Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.
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As this article shows, inappropriate anti-asylum statements and knowingly false narratives from Jeff Sessions do affect the fairness of results. Yes, there are many courageous judges in the system who continue to treat respondents fairly and grant relief in appropriate cases.
But, numerous reports have established that there are Immigration Judges with anti-asylum and anti-migrant biases similar to Sessions’s. They now feel “empowered” to ignore the law, fairness, and Due Process to deny most applications and remove more migrants.
Moreover, some of the more experienced judges are retirement eligible and therefore largely immune from Sessions’s power because they are immediately eligible to retire. But, as they grow frustrated with the Aimless Docket Reshuffling and growing backlogs created by this Administration’s irresponsible actions and retire, they will be replaced by inexperienced judges. These new judges, in addition to being hand-picked by Sessions, without public input, are subject to removal at will during a two-year “probationary period.” Therefore, new judges are more likely to be influenced by Sessions’s xenophobic, anti-Due-Process views.
Additionally, Sessions is hard at work misusing his “certification” authority to overturn or limit established interpretations and procedures that implement protection and further Due Process and fairness for migrants.
Another important part of Sara’s article — giving lie to the concept that Immigration Judges can complete more than tow “full merits” asylum hearings per day consistent with Due Process.
Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.
Given the tendency of the current Administration not to settle or otherwise reasonably negotiate Immigration Court cases, the number of “full merits” hearings and appeals is likely to increase dramatically, thus adding to the already overwhelming backlog!
On January 4, 2018, I directed the Board of Immigration Appeals (“Board”) to refer for my review its decision in this matter, see 8 C.F.R. § 1003.1(h)(1)(i), and I invited the parties and any interested amici to submit briefs addressing questions relevant to that certification. Matter of Castro- Tum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons set forth in the accompanying opinion, I affirm the Board’s order and remand for further proceedings. I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. I overrule Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W- Y-U-, 27 I&N Dec. 17 (BIA 2017), and any other Board precedent, to the extent those decisions are inconsistent with this opinion.
Matter of Castro-Tum
In recent years, immigration judges and the Board have increasingly ordered administrative closure to remove a large number of cases from their dockets. The Board has described the practice as “a docket management tool that is used to temporarily pause removal proceedings,” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017), and “remove a case from an Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012).
Although described as a temporary suspension, administrative closure is effectively permanent in most instances. Unless a party “move[s] to recalendar [an administratively closed case] before the Immigration Court . . . or to reinstate the appeal before the Board,” id., the case remains indefinitely
suspended without a final resolution. Statistics supplied by the Executive Office for Immigration Review (“EOIR”) demonstrate that effect.
Since 1980, immigration judges have recalendared less than a third of administratively closed cases. Because the case comes off the active docket, the immigration judge no longer tracks it, and EOIR does not count the case as active in assessing backlogs in immigration proceedings. See, e.g.,Memorandum for All Immigration Judges, from Brian M. O’Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure at 2–3 (Mar. 7, 2013) (“OPPM 13-01”). Administratively closed cases are also difficult to recalendar. The Department of Homeland Security (“DHS”) may not know when the reason for the suspension (such as the pendency of a collateral proceeding) has been resolved. Even where DHS moves to recalendar, the Board has imposed the burden of persuasion on the movant.W-Y-U-, 27 I&N Dec. at 18 & n.4. And the alien respondent in most cases has few incentives to seek to recalendar because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).
The practice of administrative closure has grown dramatically as the Board has made administrative closure easier to obtain. Statistics maintained by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Board ordered administrative closure in 215,285 additional cases, nearly doubling the total number of cases subjected to administrative closure.
This sharp increase tracks changes in Board precedent. For decades, the immigration judge would grant administrative closure only if both parties agreed. In its 2012 Avetisyan decision, however, the Board discarded that principle and authorized administrative closure even over a party’s objection. 25 I&N Dec. at 694, 696. After the Avetisyan test proved unwieldy, the Board recently “clarif[ied]” that the deciding factor should be “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” W-Y-U-, 27 I&N Dec. at 20 (emphasis added).
This certified case illustrates but one example of how administrative closure encumbers the fair and efficient administration of immigration cases. The respondent entered this country illegally in 2014 and was immediately detained. As an unaccompanied minor, he was served with a Notice to Appear and released to a relative after providing the address where they would reside. Despite several efforts to notify the respondent of his hearing dates, he repeatedly failed to appear. The Immigration Judge nonetheless
continued this case four times and finally ordered the case administratively closed on the ground that DHS had not shown it had a sufficiently reliable address to provide adequate notice.
On appeal, the Board vacated the Immigration Judge’s administrative closure order and remanded. DHS represents that this certified case is one of nearly 200 decisions between April 2017 and December 2017 in which an immigration judge either ordered administrative closure or refused to recalendar an administratively closed case over DHS’s objection. Brief for DHS at 10–11, Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons stated below, I affirm the Board’s November 27, 2017 order and hold that there is no general authority for administrative closure. Immigration judges exercise only the authority provided by statute or delegated by the Attorney General. Congress has never authorized administrative closures in a statute, and Department of Justice regulations only permit administrative closure in specific categories of cases. The Attorney General has never delegated the general authority, and I decline to do so now. Cases that have been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement shall be recalendared upon motion of either party. I overrule all Board precedents inconsistent with this opinion and remand for further proceedings.
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Contrary to Sessions’s usual bogus narrative and distorted statistics, almost all Administrative Closings were either 1) on the DHS’s motion; or 2) on joint motion of the parties. Only minutenumbers of cases were closed by IJs over the objection of the DHS under Matter of Avestan.
Indeed, even after this Administration established a basic “no Administrative closing” policy, DHS could only come up with 200 cases closed by IJs over their objection in a period of seven months! That works out to fewer than 400 per year! In other words, citing Avetisyan as a significant factor in the closing of 215,000 cases over the past six years is as absurd as it is intentionally intellectually dishonest.
And, the idea that the DHS is “unfairly burdened” by having to track the Administratively Closed cases is equally absurd. Most cases were closed either because 1) there was relief pending with USCIS, or 2) they were, quite properly, low enforcement priorities for ICE. The idea that it’s unfair to expect DHS to keep track of the cases closed for reasons relating almost exclusively to their own adjudication system and ever-changing enforcement priorities is nonsensical.
The statistic that fewer than one-third of the Administratively Closed cases were ever re-calendared basically supports the idea that they probably shouldn’t have been on the docket in the first place. Obviously, if the USCIS applications were denied, the individuals were picked up for violations, or the cases became ICE enforcement priorities, ICE would have moved to re-calendar. I almost never denied motions to re-calendar by either party, nor am I aware that any of my colleagues did so on a widespread basis. And, denial of such a motion was appealable to the BIA. There has been no showing that many appeals about failures to re-calendar have been filed by any party.
Sessions’s decision also “sweeps under the table” the real major cause of delays and backlogs: “Aimless Docket Reshuffling” instituted by the DHS or EOIR for enforcement or administrative purposes without the input and in many cases over the wishes of private parties.Almost all private immigration practitioners have seen their “ready for trial” cases “shuffled off to the end of the docket” — sometimes 3-5 years away — without their consent to accommodate the latest “IJ details” or the ICE/EOIR “priority of the day.” This often means that the entire case must be prepared again — country conditions change, witnesses die or otherwise become unavailable, memories fade, and most paying clients balk at paying additional fees for circumstances over which they had no control.
Contrary to the “myth” promoted by Sessions and the restrictionists, most individuals in immigration proceedings seek not indefinite delay — which keeps their lives on hold — but a fair, informed, reasoned decision one way or the other within a reasonable period of time.
Sessions and most of the other arrogant bureaucrats driving this absurd parody of a court system have never been in the private practice of immigration law. I have been. While most of my work was not in Immigration Court, I dealt with enough clients to know that neither the lawyer (who has to “babysit” case and prepare it numerous times for the same fee or for free) nor the clients (who also want some certainty in their lives and those of their families) had much interest in lengthy delays.
This case is just further proof of the pressing need for an Article I U.S. Immigration Court and a truly independent immigration judiciary.
Meanwhile, the immigration bar has predictably reacted with outrage to the latest Sessions abuse of power and “dissing” of Due Process.
Below (courtesy of Laura Lynch at AILA) are links to a few statements that were issued earlier this evening by a few NGOs:
