LA TIMES TAKES STAND AGAINST INHUMANE, UNNECESSARY, AND EXPENSIVE CIVIL IMMIGRATION DETENTION — “A National Embarrassment”

http://www.latimes.com/opinion/editorials/la-ed-detention-immigrants-ice-20181027-story.html

The United States has the dubious honor of maintaining the world’s largest immigration detention system. Other countries may house more refugees and temporarily displaced persons, but we lock up the most people whose right to stay in the country is in dispute. Tens of thousands of people a day are held until they’re deported or granted permission to stay by an immigration judge (or at least released on bond or into a sponsor’s custody pending a further hearing).

It is a shameful aspect of U.S. immigration enforcement that the government denies liberty to so many people who have neither been accused nor convicted of a crime. To be sure, every nation has a right to control its borders and determine who gets to come in, for what reasons, and through what legal mechanism. We don’t believe that the U.S. should maintain open borders, but the government’s historic reliance on detention as a tool for dealing with people accused of arriving or staying here illegally is needlessly expensive, grossly inhumane and unjust to people exercising their legal right to seek asylum

While the current administration has embraced and expanded the practice, this is not a creation of President Trump. Such detentions date to the Immigration Act of 1882, and current detention policies are rooted in the 1952 Immigration and Naturalization Act. More recently, Cuban and Haitian migrants arriving by boat in the 1970s and ’80s were placed in detention centers, in part to deter their countrymen from similarly setting off to sea on rickety boats. Congress eventually mandated detention for migrants convicted of certain crimes that made them ineligible for admission.

ICE spends nearly $3 billion a year on immigration detention.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 greatly expanded the immigration detention system through contracts with local jails and state and privately run prisons. In fact, most of the 39,000 people incarcerated on any given day in the U.S. for immigration reasons — more than 350,000 pass through the system each year — are held in prison-like conditions in more than 200 locations around the country.

Some local governments have expanded their jails so they can house, for a daily fee, migrants that Immigration and Customs Enforcement wants detained. Meanwhile, the U.S. Department of Agriculture has granted $360 million in low-interest loans since 1996 to help rural communities build jails often larger than they need, so local officials can use detainees and the federal fee payments they bring to cover operating expenses, according to a recent report by the nonprofit Vera Institute of Justice.

ICE spends nearly $3 billion a year on immigration detention, according to the Government Accountability Office. About two-thirds of that goes to private prison corporations to operate detention centers and to local jails to reimburse them for housing detainees. Through those efforts the government has expanded an incarceration industry costing an exorbitant amount of tax dollars to deny freedom of movement of people who, in the vast majority of cases, pose no threat to us.

And notably, at least 77% of migrants facing deportation proceedings show up for their hearings, according to reports. Rates are highest among those who find legal help or receive support from community groups, which suggests there are better methods for handling thisthan detention.

There may, of course, be valid reasons for detaining some migrants, such as newly arrived asylum-seekers whose identities have yet to be verified, people facing imminent court-ordered deportation who the government has reason to fear might disappear, or violent felons who pose a realistic threat to public safety.

One of the largest contributors to no-shows is the government’s failure to keep current contact information for migrants during proceedings that can stretch out for years. One approach would be to match migrants to community service groups or sponsors to better keep track of the individuals and ensure they appear for court hearings; sadly, Trump killedan experimental Obama program that did just that.

This administration has chosen instead to double down on detention, and now it reportedly is considering reviving a version of the vile family separations. If family separation and detention worked as a deterrent, the president wouldn’t be tweeting so furiously these days about the current caravan of Central American migrants moving northward through Mexico. Detention-as-deterrence is not only an inhumane approach, it’s a failed one.

The government can neither detain nor deport its way out of this problem. It must find a better way. The fact that it has failed to do so for so long, regardless of which party controlled Congress or the White House, is an embarrassment.

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Doubling down on the worst, most ineffective, wasteful, and expensive policies. That’s the mantra of the Trump Administration on immigration. What if our Government spent the same amount of time, money, personnel, and effort on solving problems, rather than intentionally and cynically aggravating them?

PWS

10-27-18

TAL @ SF CHRONICLE: Administration “Discovers” More Separated Children — Have Others “Slipped Through The Cracks?”

New questions raised on Trump’s family separations as 14 children discovered

By Tal Kopan

WASHINGTON — The Trump administration failed to recognize that 14 children in its care for months had been separated from their families at the Mexican border, officials conceded in a court filing late Thursday.

The disclosure raises fresh questions about whether the administration neglected to account for additional children after separating them from their parents under its “zero tolerance” immigration policy this spring. Two recent government reports faulted the administration’s tracking efforts, and one said officials feel no obligation to find children who were released to other homes before a judge ordered an accounting of the youths, suggesting the total separated under the policy may never be known.

Seven of the 14 children’s parents have criminal histories that disqualify them from reunification, officials with the Health and Human Services Department told a federal judge in San Diego. The judge demanded in June that the administration account for every child separated under the enforcement strategy ordered by Attorney General Jeff Sessions.

All of the newly discovered children are 5 years old or older.

More:

https://www.sfchronicle.com/politics/article/New-questions-raised-on-Trump-s-family-13338722.php

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While still picking up the pieces of their last border enforcement fiasco, the Administration is off and running on new policies that potentially will be found to be in violation of law.

PWS

10-26-18

READ NOLAN ON FAMILY DETENTION — Congress Should Solve It!

http://discuss.ilw.com/blogs/immigrationlawblogs/389151-does-a-mandatory-detention-provision-prohibit-the-release-of-alien-families-in-expedited-removal-proceedings-by-nolan-rappaport

Nolan writes:

President Donald Trump is being criticized for detaining alien families, but President Barack Obama did the same thing in 2014, when there was a rapid increase in the number of families crossing the border illegally.

Obama’s DHS Secretary, Jeh Johnson, explained the decision this way: “Frankly, we want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released.”

Opponents of Obama’s family detention policy claimed that it violated the 1997 Flores Settlement Agreement, which established a nationwide policy for the detention, release, and treatment of unaccompanied alien minors.

In 1962, a U.S. Court of Appeals acknowledged that the Flores litigation focused initially on the problems facing unaccompanied minors, but it heldthat the underlying policies applied equally to alien minors who are with a parent.

This created a no-win situation in expedited removal proceedings.

Alien families that are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. If they want asylum, they are given an opportunity to establish that they have a credible fear of persecution. If they succeed, they are placed in regular removal proceedings for an asylum hearing before an immigration judge. Otherwise, they are deported without further proceedings.

Detention is mandatory in expedited removal proceedings, “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”

The Board of Immigration Appeals held that the mandatory detention period ends when a credible fear has been established, but Attorney General Jeff Sessions recently directed that decision to himself for a determination of whether it should be overruled.

DHS, however, has the discretion to parole an alien in expedited removal proceedings for “urgent humanitarian reasons” or “significant public benefit.”

. . . .

Congress is aware of these problems.

A Senate Committee recently held a hearing on the implications of extending the Settlement Agreement to children who are with a parent. According to Committee Chairman Ron Johnson, (R-WI), “it is well past time for Congress to act.”

The most promising solution may be to amend the mandatory detention provision and provide funding for the development of effective alternatives to detention.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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Go on over to ILW.Com at the above link to read Nolan’s full article.

Nolan reminds us that this, and a number of other policies that Dems now harshly criticize, actually originated during the Obama Administration. I find it interesting to hear Jeh Johnson and others now “back pedal” from the full implications of their questionable policy decisions.

I also agree with Nolan that it would be better if Congress would solve this problem in a bipartisan manner rather than leaving it to the Federal Courts.

PWS

10-05-18

GONZO’S WORLD: DHS IG REPORT SLAMS GONZO’S “KIDDIE GULAG” WHILE CRITICISM OF INTENTIONAL CHILD ABUSE BY HIM AND OTHERS IN THE ADMINISTRATION CONTINUES TO MOUNT — Will The Article IIIs Eventually Draw The Line Between Incompetence & Intentional, Malicious Violations Of Constitutional Rights & Hold Gonzo & His Collaborators in DHS & ORR Personally Liable Under “Bivens?”

https://www.washingtonpost.com/world/national-security/trumps-family-separation-policy-was-flawed-from-the-start-watchdog-review-says/2018/10/01/c7134d86-c5ba-11e8-9b1c-a90f1daae309_story.html

By Nick Miroff , Maria Sacchetti and Seung Min Kim

October 1 at 7:44 PM

The Trump administration’s “zero tolerance” crackdown at the border this spring was troubled from the outset by planning shortfalls, widespread communication failures and administrative indifference to the separation of small children from their parents, according to an unpublished report by the Department of Homeland Security’s internal watchdog.

The report, a copy of which was obtained by The Washington Post, is the government’s first attempt to autopsy the chaos produced between May 5 and June 20, when President Trump abruptly halted the separations under mounting pressure from his party and members of his family.

The DHS Office of Inspector General’s review found at least 860 migrant children were left in Border Patrol holding cells longer than the 72-hour limit mandated by U.S. courts, with one minor confined for 12 days and another for 25.

Many of those children were put in chain-link holding pens in the Rio Grande Valley of southern Texas. The facilities were designed as short-term way stations, lacking beds and showers, while the children awaited transfer to shelters run by the Department of Health and Human Services.

U.S. border officials in the Rio Grande Valley sector, the busiest for illegal crossings along the nearly 2,000-mile U.S.-Mexico border, held at least 564 children longer than they were supposed to, according to the report. Officials in the El Paso sector held 297 children over the legal limit.

The investigators describe a poorly coordinated interagency process that left distraught parents with little or no knowledge of their children’s whereabouts. In other instances, U.S. officials were forced to share minors’ files on Microsoft Word documents sent as email attachments because the government’s internal systems couldn’t communicate.

“Each step of this manual process is vulnerable to human error, increasing the risk that a child could become lost in the system,” the report found.

Based on observations conducted by DHS inspectors at multiple facilities along the border in late June, agents separated children too young to talk from their parents in a way that courted disaster, the report says.

“Border Patrol does not provide pre-verbal children with wrist bracelets or other means of identification, nor does Border Patrol fingerprint or photograph most children during processing to ensure that they can be easily linked with the proper file,” the report said.

“It is a priority of our agency to process and transfer all individuals in our custody to the appropriate longer-term detention agency as soon as possible,” U.S. Customs and Border Protection, which includes Border Patrol, said in a statement. “The safety and well-being of unaccompanied alien children . . . is our highest responsibility, and we work closely with the Department of Health and Human Services (HHS) Office of Refugee Resettlement to ensure the timely and secure transfer of all unaccompanied minors in our custody as soon as placement is available from HHS.”

In its Sept. 14 response to the inspector general’s report, DHS acknowledged the “lack of information technology integration” across the key immigration systems and “sometimes” holding children beyond the 72-hour limit.

Jim Crumpacker, the DHS official who responded to the report, said the agency held children longer mainly because HHS shelter space was unavailable. But he said transferring children to less-restrictive settings is a priority.

[‘Deleted families: What went wrong with Trump’s family separation effort]

On June 23, three days after the executive order halting the separations, DHS announced it had developed a “central database” with HHS containing location information for separated parents and minors that both departments could access to reunite families. The inspector general found no evidence of such a database, the report said.

“The OIG team asked several [Immigration and Customs Enforcement] employees, including those involved with DHS’ reunification efforts at ICE Headquarters, if they knew of such a database, and they did not,” it states. “DHS has since acknowledged to the OIG that there is no ‘direct electronic interface’ between DHS and HHS tracking systems.”

Inspectors said they continue to have doubts about the accuracy and reliability of information provided by DHS about the scope of the family separations.

In late June, a federal judge ordered the government to reunite more than 2,500 children taken from their parents, but three months later, more than 100 of those minors remain in federal custody.

The inspector general’s report also found that U.S. Customs and Border Protection (CBP) restricted the flow of asylum seekers at legal ports of entry and may have inadvertently prompted them to cross illegally. One woman said an officer had turned her away three times, so she crossed illegally.

At one border crossing, the inspection team saw CBP attempt to increase its detention space by “converting former offices into makeshift hold rooms.”

The observations were made by teams of lawyers, inspectors and criminal investigators sent to the border amid concerns raised by members of Congress and the public. They made unannounced visits to CBP and ICE facilities in the border cities of El Paso and McAllen, Tex.

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Meanwhile, over at Vanity Fair, Isobel Thompson give us the “skinny” on how the self-created “Kiddie Gulag” that Sessions, Stevie Miller, and Nielsen love so much has turned into total chaos, with the most vulnerable kids among us as its victims. We’ll be feeling the effects of these cruel, inhuman, and unconstitutional policies for generations!

https://www.vanityfair.com/news/2018/10/donald-trump-child-detention-crisis-is-getting-worse

Three months after Donald Trump gave in to global opprobrium and discontinued his administration’s policy of separating children from their parents at the Mexican border, the stark impact of his zero-tolerance directive continues to unfold, with reports emerging that, in the space of a year, the number of migrant children detained by the U.S. government has spiked from 2,400 to over 13,000—despite the number of monthly border crossings remaining relatively unchanged. The increase, along with the fact that the average detainment period has jumped from 34 to 59 days, has resulted in an accommodation crisis. As a result, hundreds of children—some wearing belts inscribed with their emergency-contact information—have been packed onto buses, transported for hours, and deposited at a tented city in a stretch of desert in Tornillo, West Texas. According to The New York Times, these journeys typically occur in the middle of the night and on short notice, to prevent children from fleeing.

The optics of the child-separation crisis have been some of the worst in history for the Trump administration, and the tent city in Tornillo is no exception. The facility is reportedly run according to “guidelines” provided by the Department of Health and Human Services, but access to legal aid is limited, and children—who sleep in bunks divided by gender into blocks of 20—are given academic workbooks, but no formal teaching. In theory, the hundreds of children being sent to Tornillo every week should be held for just a short period of time; the center first opened in June as a temporary space for about 400. Since then, however, it has been expanded to accommodate 3,800 occupants for an indefinite period.

Again, the lag time is largely thanks to the White House. Typically, children labeled “unaccompanied minors” are held in federal custody until they can be paired with sponsors, who house them as their immigration case filters through the courts. But thanks to the harsh rhetoric embraced by the White House, such sponsors are now in short supply. They’re often undocumented immigrants themselves, which means that in this environment, claiming a child would put them at risk for deportation. In June, that risk became even more acute when authorities announced that potential sponsors would have to submit their fingerprints, as well as those of any adults living in their household: data that would then be passed to immigration authorities. Matthew Albence, who works for Immigration and Customs Enforcement, unwittingly illustrated the problem when he testified before Congress last week that I.C.E. had arrested multiple people who had applied to sponsor unaccompanied minors. Almost three-quarters had no criminal record.

Over time, the number of detained children is only expected to increase. According to The Washington Post, the flood of Central American immigrants moving north, driven by “hunger, joblessness, and the gravitational pull of the American economy,” shows no sign of abating. The number of men who cross the border with children has reportedly risen from 7,896 in 2016 to 16,667 this year, while instances of migrants falsely claiming children as their own have reportedly increased “threefold.” “Economic opportunity and governance play much larger roles in affecting the decision for migrants to take the trip north to the United States,” Kevin McAleenan, a border-security official, told the Post, adding that “a sustained campaign that addresses both push and pull factors” is “the only solution to this crisis.”

Given the attitude of the current administration, such a campaign seems unlikely to materialize. With Congress poorly positioned to pass comprehensive immigration reform, and a suddenly swamped detention system draining money and resources and damaging the mental health of thousands of children, the escalating crisis seems poised to become an ever more serious self-inflicted thorn in the president’s side. Although the White House is confident that, as hard-liner Stephen Miller boasts, it can’t lose on immigration, it will at some point be forced to acknowledge that its draconian strategy has morphed into chaos.

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Wonder if any of these evil dudes who along with Sessions helped plan and implement the “Kiddie Gulag” knowing that it was likely in violation of the Constitution (in Federal court, DOJ lawyers didn’t even contest that a policy of intentional child separation would be unconstitutional) took out the “Bivens Insurance” offered to USG employees at relatively low-cost (I sure did!).

The only good news is that they are likely to be tied up in law suits seeking damages against them in their personal capacities for the rest of their lives!

So, perhaps there will eventually be some justice! But, that’s still won’t help traumatized kids whose lives have been screwed up forever as an illegal, immoral, and bogus, “deterrent” by a racist White Nationalist regime.

PWS

10-02-18

JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & FIGHT AGAINST JEFF SESSIONS & HIS WHITE NATIONALIST ATTACK ON DUE PROCESS IN OUR IMMIGRATION COURTS! — Attend This Free Panel @ GW Law Tomorrow, Tuesday, Oct. 2 @ 3 PM

Immigration, Family Separation, Detention and Beyond: Where is the US Heading?
Alberto M. Benitez
Professor of Clinical Law Director of Immigration Clinic, GW Law
Michelle Brane
Director, Migrant Rights and Justice Program, Women’s Refugee Commission
Royce B. Murray
Policy Director American Immigration Council
This panel will discuss current issues related to the enforcement of immigration laws in the United States. The panelists will shed light on recent matters that have attracted significant media coverage, such as family separation policies, the practice of detaining families seeking asylum, and the plan advanced by the Trump Administration affecting immigrants seeking welfare benefits. The panel will discuss the domestic law implications of these issues, as well as their international law repercussions.
Closing Remarks: Paulina Vera, Supervisory Attorney, Immigration Law Clinic, GW Law Moderator: Rosa Celorio, Associate Dean, International & Comparative Legal Studies, GW Law
Tuesday, October 2, 2018 3:00-4:30 p.m.
Jacob Burns Moot Court Room [Lerner 101] Light Refreshments

MAWA IS DOOMED: Demographics & Mutual Dependency Make Trump’s White Nationalist Racist Assault On Minorities Both Economically Stupid & Ultimately Futile – “Through his rhetoric and actions, Mr. Trump stands for keeping America white, appealing to his base by implicitly promising to preserve the racial status quo. But Mr. Trump’s supporters, and the country in general, must not ignore the generational dependency between older whites and younger minorities.”

https://www.nytimes.com/2018/09/30/opinion/trump-cant-win-the-war-on-demography.html

William H. Frey writes in the NY Times:

Opinion

Trump Can’t Win the War on Demography

A proposed citizenship question on the 2020 census reveals the dependency between older white voters and America’s growing young minority population.

By William H. Frey

Mr. Frey, a demographer, is the author of “Diversity Explosion.”

Sept. 30, 2018

Image
A press conference held last April, when New York State filed suit against the Trump administration over the proposed changes to the 2020 census form.CreditCreditDrew Angerer/Getty Images

Since the early days of his campaign, from his proposal to build a wall along the Mexican border to his discredited committee on voter fraud, President Trump has declared war on America’s changing demography. His administration has followed through on that strategy with a proposal to add a question to the 2020 census asking about citizenship. If the question remains on the form, millions of households, particularly Hispanic and Asian-American, could skip the census, leading to an overrepresentation of white Americans during this once-a-decade count.

Six lawsuits seeking to remove the proposed question are moving through the federal courts, with the first trial likely to take place this fall.

If it is added to the census form, the citizenship question will distort our understanding of who resides in the country. What this selective underenumeration will not do is make America’s growing racial minority populations disappear. The losers from this undercount include members of Mr. Trump’s older white base, who will suffer from lost investments in a younger generation, whose successes and contributions to the economy will be necessary to keep America great.

The demographic trends make this plain. America’s white population is growing tepidly because of substantial declines among younger whites. Since 2000, the white population under the age of 18 has shrunk by seven million, and declines are projected among white 20-somethings and 30-somethings over the next two decades and beyond. This is a result of both low fertility rates among young whites and modest white immigration — a trend that is not likely to change despite Mr. Trump’s wish for more immigrants from Norway.

The likely source of future gains among the nation’s population of children, teenagers and young working adults is minorities — Hispanics, Asians, blacks and others — most of whom are born in the United States.

Indeed, the only part of the white population that is growing appreciably is older people, the same group to whom Mr. Trump is appealing. Thanks to aging baby boomers, the older retirement-age white population will grow by one-third over the next 15 years and, with it, the need for the government to support Social Security, Medicare, hospitals and the like. Revenue for these programs will have to come from the younger minority population. If the census does not accurately count this population, then all the services that support children and future workers, such as public education, Head Start, the Children’s Health Insurance Program and Medicaid, will be shortchanged.

Although the slowly growing, rapidly aging white population will be accurately counted, the fast-growing minority school-age and young adult populations that represent the nation’s future will not get their due — demographically, politically or economically.

An in-house Census Bureau analysis based on 2010 survey data found that the inclusion of a citizenship question reduced the response rate among households that have at least one noncitizen individual. While 7 percent of United States residents are themselves noncitizens, 14 percent live in households that include one or more noncitizens. The latter figure rises to 46 percent among all Hispanics and to 45 percent among Asian-Americans, compared with just 8 percent among blacks and 3 percent among whites.

Let’s assume that one in three people in Hispanic and Asian noncitizen households refuses to answer the census. If that’s the case, the Hispanic share of the United States population would drop by 2.1 percentage points (from 17.3 to 15.2 percent) and the total white population share would rise by 2.2 percentage points (from 62 to 64.2 percent).

This imbalance would influence congressional reapportionment, hurting large, immigrant-heavy states. It will also shape how congressional and state legislative districts are drawn, favoring rural and small areas at the expense of large metropolitan areas, since noncitizen households are far more prevalent in the latter.

The underenumeration of racial minorities would also misallocate billions of dollars in state and federal funds for housing assistance, job training, community development and a variety of social services that should be distributed on the basis of census counts. It would provide a faulty framework for surveys that will inform thousands of policy and business decisions, such as where to locate schools, hospitals, employment sites or retail establishments catering to different population groups, over the next decade.

Through his rhetoric and actions, Mr. Trump stands for keeping America white, appealing to his base by implicitly promising to preserve the racial status quo. But Mr. Trump’s supporters, and the country in general, must not ignore the generational dependency between older whites and younger minorities. Forcing an inaccurate accounting of who resides in the nation will have long-term negative consequences for everyone.

William H. Frey, a fellow at the Brookings Institution and a population studies professor at the University of Michigan, is the author of “Diversity Explosion: How New Racial Demographics Are Remaking America.”

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Yup! Racist bias and bigotry are always the enemies of truth, justice, and intelligent actions.

As Willie Nelson says “Vote ‘Em Out!”

PWS

10-01-18

NPR: “THIS AMERICAN LIFE” – HEAR ABOUT HOW THE WHITE NATIONALIST RESTRICTIONISTS IN THE TRUMP ADMINISTRATION ARE GOING ABOUT SYSTEMATICALLY AND DISINGENUOUSLY PERVERTING US IMMIGRATION LAWS – Useless, Counterproductive, & Expensive Prosecutions Of Asylum Seekers – When The Facts Don’t Support Your Decisions, Just Delete Or Misrepresent Them!

https://www.thisamericanlife.org/656/let-me-count-the-ways

Yes, youʼve heard about the family separations. Youʼve heard about the travel ban. But there are dozens of ways the Trump administration is cracking down on immigration across many agencies, sometimes in ways so small and technical it doesnʼt make headlines. This week, the quiet bureaucratic war that’s even targeting legal immigrants.

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Long, but highly documented, compelling, and well worth the listen if you really want to know about the ugly, depraved policies of Trump, Sessions, Miller, Nielsen, Cissna, Gene Hamilton, and the rest of the White Nationalist Racist Brigade.

Regime Change, Regime Change, Regime Change; Vote, Vote, Vote!

PWS

09-29-18

GONZO’S WORLD: A WALL UNTO HIMSELF – SESSIONS’S RACIST-INSPIRED WHITE NATIONALIST RE-WRITING OF ASYLUM LAW IS AN ABOMINATION THAT ENDANGERS THE VERY INDIVIDUALS THE LAW WAS DESIGNED TO PROTECT – The GOP Congress Has Shown No Interest In Restoring Order — Will The Article IIIs Step In To Stop Him Before It’s Too Late For Our Country! — “The Trump administration has systematically dismantled the right to seek asylum and turned the process at our southern border into a dystopian gauntlet that few can survive.”

https://thehill.com/opinion/immigration/406734-trump-doesnt-need-a-wall-he-has-jeff-sessions

Professor Lauren Gilbert writes in The Hill:

The Trump administration has systematically dismantled the right to seek asylum and turned the process at our southern border into a dystopian gauntlet that few can survive.

This became crystal-clear on Monday when Attorney General Jeff Sessions addressed a new class of 44 immigration judges. He stated that their job was to “keep our federal laws functioning effectively, fairly and efficiently” and that they were critical to the Department of Justice “carr[ying] out its responsibilities under the INA.” Sessions described the actions of immigration lawyers as “water seeping through an earthen dam to get around the plain words of the INA.”

This is ironic, because Sessions’s “zero tolerance” policy and his rewriting of asylum law are at odds with protections afforded asylum seekers under the Immigration and Nationality Act (INA).

I have witnessed personally this administration’s disregard for the rights and human dignity of asylum seekers. Earlier this summer, I took a team of law students and trauma specialists to the Karnes family detention center in Texas, where we worked alongside RAICES, the immigration nonprofit on the front lines in representing asylum seekers in family detention. We arrived on July 28, two days after the court deadline for reunification of separated families, and got a call from RAICES stating that they urgently needed us the next day to meet with dozens of fathers and sons who had just been reunited. Just before we arrived, the women and children previously detained at Karnes were bussed to the Dilley Detention Center in Texas to make room for fathers and sons.

ICE planned to “comply” with the court order, reunify families, and then swiftly deport them. The judge had issued a stay of removal, but RAICES feared that he was about to lift it. So we spent that first Sunday meeting with over 200 fathers and sons, ages 5-17, to sort out where they were in the process and to advise them of their rights.

Over the next days, we took their statements, and a picture of what they had suffered emerged. Many described their separation — usually within hours, often without a chance to say goodbye. Parents who had crossed without authorization were prosecuted for illegal entry. Most pled guilty on advice of their public defenders. After completing brief sentences, parents were transferred to detention centers where ICE gave them a “choice”: accept deportation and we’ll let you see your kid, or fight your case and you will remain separated.

Many of the fathers we saw had agreed to deportation. Others asked for asylum and had credible fear interviews. Parents described, in heart-wrenching detail, these interviews, many by phone without either asylum officer or interpreter physically present. They spoke of being unable to think straight, not understanding the officer’s questions, their hearts and heads pounding, losing their train of thought when the interpreter interrupted to make them slow down, not being able to tell their stories because their hearts were breaking. Under such circumstances, most were denied.

Jeff Sessions has moved quickly to impose his anti-immigrant agenda, well-aware that his time may be limited. The INA grants the attorney general broad powers. Although used sparingly in the past, regulations permit him to overturn a decision of the Board of Immigration Appeals (“BIA”) by certifying it to himself.

This year alone Sessions has overturned four such decisions. In June, in Matter of A-B-, he vacated a 2014 precedent decision recognizing that domestic violence may be a basis for asylum and signaled that most gang-based asylum claims would similarly fail. This Monday, he claimed that his decision “restores the way the law initially was enforced for decades” and that it was the immigration judges’ duty to carry it out. In fact, he is turning the clock back over 20 years, disregarding important advances in asylum protection.

Yet despite Jeff Sessions’s claims that he is restoring “the original intent and purpose of the INA,” many of these policies are at odds with its plain language. INA § 208(a)(1) states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . . ), … may apply for asylum.” This means that asylum seekers have a right to request asylum at the border or in the United States, regardless of how or where they enter.

Sessions claims that the American people believe “that persons who want to come here should file their claims and wait their turn.” Asylum seekers, however, can only apply for asylum at the border or within the United States. There is no asylum visa. They cannot “wait their turn” and apply in their home countries. The U.N. Refugee Convention prohibits contracting states from imposing “penalties, on account of their illegal entry or presence, on refugees” who present themselves without delay to the authorities. It is the Justice Department’s “zero tolerance” policy that violates the plain language of the INA.

The 1980 Refugee Act codified our international obligations and created procedures for seeking asylum. In 1996, amendments to the INA created expedited removal for migrants without proper documents, but provided an escape valve for asylum-seekers, who got a credible fear interview before an asylum officer and, if they failed their CFIs, a brief review before an immigration judge. Congress intended this to be a low threshold to screen out baseless claims. Those who pass are placed into regular proceedings.

The Trump administration, however, is rewriting U.S. asylum law and revamping the credible fear process to prevent most Central Americans from escaping expedited removal. Sessions claims that credible fear reviews have “skyrocketed’ and that many asylum seekers are taking advantage of the process by “saying a few simple words – claiming a fear of return.” These screenings, however, are part of U.S. law. Faithfully executing the laws means following all U.S. law, not just those provisions that further the administration’s restrictionist agenda.

Lauren Gilbert, Esq., is professor of law at St. Thomas University School of Law, where she teaches immigration law, family law and constitutional law.

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Depressingly accurate account of how Jeff Sessions is being allowed to destroy the American Justice system. Yes, “Faithfully executing the laws means following all U.S. law, not just those provisions that further the administration’s restrictionist agenda.” So is insuring that U.S. Immigration Courts are fair and impartial and perform their sole function of “guaranteeing fairness and Due Process for all.” That means regardless of whether the results please the President, his “base,” or anyone else in the Administration. That’s what Due Process is all about.

But, the system can’t be saved until Sessions and the DOJ are removed from control and Congress creates an independent U.S. Immigration Court. Until then, the “dystopian gauntlet” created by Sessions will continue to threaten to bring down our entire U.S. Justice system and betray our national values.

We need regime change!

PWS

09-17-18

GONZO’S WORLD: A.G.’S “MY WAY OR THE HIGHWAY” SPEECH TO NEW U.S. IMMIGRATION JUDGES CONTINUES TO DRAW FIRE! Hon. Jeffrey Chase & Others Criticize Sessions’s Inappropriate, Biased, & Unethical Demand That Judges Show No Mercy & Prejudge Asylum Cases Against Refugees! — Constitutional Crisis Brewing!!

https://www.jeffreyschase.com/blog/2018/9/15/like-water-seeping-through-an-earthen-dam

In addressing 44 newly-hired immigration judges earlier this week, their new boss, Jeff Sessions, demonstrated not only his usual level of bias (to a group charged with acting as impartial adjudicators), but a very strange grasp of how our legal system works.

Sessions told the new class of judges that lawyers “work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interest. Theirs is not the duty to uphold the integrity of the Act.”

Later in his remarks, Sessions opined that “when we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation.”

To me, the above remarks evince a complete misunderstanding of how our legal system works.

In 1964, the U.S. Supreme Court decided Katzenbach v. McClung, a landmark civil rights case. In order to find that the federal Civil Rights Act applied to a local, family-owned barbecue restaurant in Alabama, DOJ attorneys persuaded the Supreme Court that there was federal jurisdiction under the Constitution’s Commerce Clause because of segregation’s impact on interstate commerce. I’m no Constitutional law expert, but I’m not sure that when its authors afforded Congress the power “to regulate Commerce with foreign Nations, and among the several States,” that this is what they had in mind. Was creatively interpreting the Commerce Clause in order to end segregation “like water seeping through an earthen dam” to get around the clear words of the Constitution? Did ending segregation constitute, in Sessions’s opinion, doing violence to the rule of law out of a sense of sympathy for the black victims of Alabama’s racist policies?

Every positive legal development is the result of an attorney advancing a creative legal argument, often motivated by a sense of sympathy for unfair treatment of a class of individuals in need of protection. Many landmark decisions have resulted from such attorneys offering the court an unorthodox but legally sound solution to a sympathetic injustice. This is actually how the legal system is supposed to operate. Our laws are made by Congress, and not the Executive branch. When Congress drafts these laws, they and their staffers are well aware of the existence of lawyers and judges and their ability to interpret the statutory language.

Had Congress not wanted our asylum laws to be flexible, allowing them to be interpreted in myriad ways to respond to changing types of persecution carried out by different types of actors, it could have said so. When the courts found that victims of China’s coercive family planning policies did not qualify for asylum, Congress responded by amending the statutory definition of “refugee” to cover such harm. In the four years following the BIA’s conclusion that victims of domestic violence qualified for asylum, Congress notably did not enact legislation barring such grants. To the contrary, after Jeff Sessions issued his decision with the intent of preventing such grants, a Republican-led Congressional committee unanimously passed a measure barring funding for government efforts to carry out Sessions’ decision, a clear rebuke by the legislative branch of Sessions’s view that such claims are illegitimate. https://www.washingtonpost.com/politics/gop-led-house-committee-rebuffs-trump-administration-on-immigrant-asylum-claim-policy/2018/07/26/3c52ed52-911a-11e8-9b0d-749fb254bc3d_story.html?utm_term=.809760180e2a.

Interestingly, Sessions finds it perfectly acceptable to use unorthodox interpretations of the law when it serves his own interests. For example, he argues that he is upholding “religious liberty” in defending the right of bigots to discriminate against LGBTQ individuals. https://www.advocate.com/politics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force. The conclusion drawn from this inconsistency is that Sessions does not oppose creative interpretations of the law; he rather believes that the only proper interpretation of the law is his.

One of the problems with this approach is that Sessions doesn’t actually know anything about the law of asylum. And yet he somehow feels entitled to belittle the analysis of the leading asylum experts in academia, the private bar, USCIS, ICE, and EOIR, all of whom have repeatedly found victims of domestic violence to satisfy all of the legal criteria for asylum. In its 1985 decision in Matter of Acosta, (a case that Sessions cited favorably in his controversial decision), the BIA noted that the ground of “particular social group” was added to the 1951 Convention on the Status of Refugees (which is the basis for our asylum laws) “as an afterthought.” The BIA further noted that “it has been suggested that the notion of ‘social group’ was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of refugee.” (The full decision in Acosta can be read here: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2986.pdf).

As a young attorney, I learned (from the late, great asylum scholar Arthur Helton) that at the last moment, the Swedish plenipotentiary to the 1951 Convention pointed out that there were victims of Hitler and Stalin in need of protection who did not fall under the other four Convention grounds of race, religion, nationality, or political opinion. A fifth, catch-all ground was therefore proposed to serve as a “safety net” in such cases. In other words, the reason the particular social group category was created and is a part of our laws was because the Convention’s drafters, perhaps “like water seeping through an earthen dam,” created an intentionally nebulous legal standard out of a sense of sympathy for victims of injustice. The ground was therefore created to be used for the exact purpose decried by Sessions.

Because of the strength of such legal authority, Sessions’s decision in Matter of A-B-, in spite of dicta to the contrary, actually still allows for the granting of domestic violence and gang violence-based asylum claims. The decision criticized the BIA’s precedent decision in Matter of A-R-C-G- for reaching its conclusion without explaining its reasoning in adequate detail. However, where the record is properly developed, a legally solid analysis can be shown to support granting such claims even under the standards cited by Sessions.

This is what makes Sessions comments to the new class of immigration judges so disturbing. Having appointed judges whom his Justice Department has found qualified, he should now leave it to them to exercise their expertise and independent judgment to interpret the law and determine who qualifies for asylum. But in declaring such cases to lack validity, belittling private attorneys innovative arguments, and equating the granting of such claims to doing violence to the rule of law, Sessions aims to undermine right from the start the judicial independence of the only judges he controls. EOIR’s management has demonstrated that it has no intention of pushing back; instead, it asks how high Sessions wants the judges to jump.

Knowing this, how likely is one of the 44 new judges to grant asylum to a victim of domestic violence who has clearly met all of the legal criteria? New immigration judges are subject to a two-year probationary period. It’s clear that a grant of such cases under any circumstances will be viewed unfavorably by Sessions. In a highly publicized case, EOIR’s management criticized a judge in Philadelphia whose efforts at preserving due process they bizarrely interpreted as an act of disobedience towards Sessions, and removed the case in question and more than 80 cases like it from the judge’s docket.

So if a new judge, who may have a family to support, and a mortgage and college tuition to pay, is forced to choose between applying the law in a reasoned fashion and possibly suffering criticism and loss of livelihood, or holding his or her nose and adhering to Sessions’s views, what will the likely choice be?

Sessions concluded his remarks by claiming that the American people “have spoken in our laws and they have spoken in our elections.” As to the latter, Americans voted against Trump’s immigration policies by a margin of 2.8 million votes. As to the former, Congress has passed laws which have been universally interpreted by DHS, EOIR, and all leading asylum scholars as allowing victims of domestic violence to be granted asylum based on their membership in a particular social group. It is time for this administration to honor the rule of law and to restore judicial independence to such determinations.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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https://www.msn.com/en-us/news/politics/immigration-judges-hit-back-at-sessions-for-suggesting-they-show-too-much-sympathy/ar-BBNbbLK

Tal Axelrod reports in The Hill:

A union representing the country’s 350 immigration judges slammed Attorney General Jeff Sessions for comments he made that suggested they were sidestepping the law and showing too much sympathy when handling certain cases.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said Monday in a speech to newly hired judges. “Your job is to apply the law – even in tough cases.”

Immigration judges, who work for the Department of Justice and are expected to follow guidelines laid out by the attorney general, said they believe Sessions was politicizing migrant cases.

“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokeswoman for the National Association of Immigration Judges and an immigration judge in San Francisco, told BuzzFeed News. “It did appear to be a one-sided argument made by a prosecutor.”

Ashley Tabaddor, president of the National Association of Immigration Judges, added that “we cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role.”

Sessions, an ideological ally of President Trump on immigration, has established additional restrictions on the types of cases that qualify for asylum and when certain cases can be suspended. He was involved in the White House’s controversial “zero tolerance” policy that led to family separations at the U.S.-Mexico border.

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http://immigrationimpact.com/2018/09/11/speech-to-new-immigration-sessions-attacks-immigration-lawyers/

AARON REICHLIN-MELNICK of the American Immigration Council reports on Immigration Impact:

Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.

While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms. He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.

Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”

Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.

Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.

Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”

Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.

Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”

In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”

Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.

In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.

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https://www.newsweek.com/jeff-sessions-immigration-judges-sympathy-1115512

U.S.

JEFF SESSIONS DEMANDS IMMIGRATION JUDGES SHOW NO SYMPATHY, SAYS IT DOES ‘VIOLENCE TO THE RULE OF LAW

BY RAMSEY TOUCHBERRY 09/11/18 AT 10:51 AM in NEWSWEEK

As the Trump administration continued to struggle to reunite hundreds of migrant children separated from their parents resulting from the president’s “zero-tolerance” policy, Attorney General Jeff Sessions told dozens of incoming immigration judges Monday to show no sympathy for those who appear before them in court.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said. “Your job is to apply the law—even in tough cases.”

Sessions, the most powerful attorney in the country as head of the Justice Department, was speaking to 44 new immigration judges in Falls Church, Virginia.

He also took aim at lawyers who represent immigrants who were caught illegally crossing the U.S.-Mexico border, suggesting they try to misconstrue immigration law “like water seeping through an earthen dam.” He told the judges it was their responsibility to “restore the rule of law” to the system.

. . . .

Read the rest of Ramsey’s article at the above link.

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There is a simple term for justice not tempered by mercy, compassion, and sympathy: INJUSTICE. Indeed, the Fifth Amendment to the U.S. Constitution, which includes the essential Due Process Clause, was specifically intended to protect the populace against Executive overreach of the kind that England imposed on the Colonies prior to the Revolution. That’s exactly what we’re seeing under Jeff Sessions!

As most Immigration Judges recognize, Session’s overt White Nationalism, racial bias, and absurd claims that he is “restoring the rule of law” (when in fact he is doing the exact opposite) are totally out of control.

It’s time for a “Due Process intervention” by the Article III Courts. Sessions and the DOJ must be stripped of their untenable and unconstitutional control over the Immigration Courts. Appoint a “Special Master” — someone like retired U.S. Supreme Court Justice Anthony Kennedy — to run the Immigration Court System and restore Due Process and fairness until Congress does its job and creates an independent U.S. Immigration court outside the Executive Branch.

The problems aren’t going away under the Trump Administration. And, if the Article III Judiciary doesn’t act it will find itself crushed under thousands of defective removal orders that Sessions is urging the Immigration Judges to turn out without Due Process or the “fair and impartial” adjudication that it guarantees. The Article IIIs can run, but they can’t hide from this Constitutional crisis!

Sessions’s remarks are also an insult to all of the many current and former U.S Immigration Judges who, unlike Jeff Sessions, have been deciding “tough cases” for years, within the law, but with sympathy, understanding, humanity, and compassion which are also essential qualities for fair judging under our Constitutional system that Sessions neither understands nor respects. No wonder his own party judged him unqualified for an Article III judgeship years ago. He hasn’t changed a bit.

PWS

09-17-18

THE HILL: NOLAN COMMENTS ON THE ADMINISTRATION’S FAMILY DETENTION PROPOSAL

http://thehill.com/opinion/immigration/406656-trump-moves-to-detain-immigrant-children-with-their-parents

Nolan writes:

. . . .

Proposed regulation

On Sept. 7, the Trump administration filed a proposed rule to establish final regulations that would replace the Settlement Agreement.

According to DHS, the proposed regulations would implement the relevant, substantive terms of the Settlement Agreement with minor revisions to accommodate changed circumstances, and to implement closely-related provisions in the Homeland Security Act of 2002, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

The main benefit would be the creation of a federal licensing scheme for additional Family Residential Centers that would provide care for alien minors and their parents.

According to the American Immigration Council, “shifting the licensing and oversight of facilities that hold children to DHS is profoundly problematic, given the lack of expertise the department has in child welfare and its poor track record on oversight of adult facilities.”

Maybe, but if a challenge to the regulation goes to court, the main issue is likely to be whether administration officials can bypass an explicit statutory provision requiring mandatory detention in expedited removal proceedings with a settlement agreement.

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Go on over to The Hill at the link to read the rest of Nolan’s article which contains summaries of the Flores settlement and the expedited removal process.

PWS

09-17-18

IMMIGRATION COURTS: MISSION FAILURE! – PROPOSED SETTLEMENT AGREEMENT GIVES A GLIMPSE OF HOW SOME U.S. IMMIGRATION JUDGES ABANDONED THEIR OATH TO UPHOLD CONSTITUTIONAL DUE PROCESS & “RUBBER STAMPED” DENIALS FOLLOWING SHOCKINGLY UNFAIR “REVIEW” PROCESS – “Exhibit A” In Why The Current Bogus Credible Fear Process As Manipulated By Sessions Needs Meaningful Review By Article III Judges! – A “Dependent Judiciary” Just Can’t Be Trusted To Do The Job In The “Age of Trump & Sessions!”

https://www.nytimes.com/2018/09/13/us/family-separation-asylum-settlement.html?action=click&module=Top%20Stories&pgtype=Homepage

Caitlin Dickerson reports for the NY Times:

. . . .

Mr. Sandoval-Moshenberg, who represented the plaintiffs, said that many parents were evaluated for “credible fear” after having their children removed, but before they were told where the children had been taken. He said his team submitted evidence showing that, during the interviews, the parents were “out of their minds with trauma, focused solely on the well-being and the whereabouts of their kids.”

In one piece of evidence included in the case, a recording of an immigration judge questioning a mother about her asylum claim, the mother can be heard crying too hard to answer the judge’s questions and says that she feels sick, Mr. Sandoval-Moshenberg said. After a few minutes, he said, the judge affirms an asylum officer’s finding that the woman’s fear of returning to her home country is not credible and asks that she be taken to see a doctor.

. . . .

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Read Caitlin’s full article concerning the recent proposed settlement at the above link.

Obvious question: Why would somebody like Jeff Sessions be given authority over a “court system” that is supposed to insure Due Process for asylum applicants? That’s even worse than having the fox guard the henhouse! The results are as horrible and unlawful as they are predictable.

PWS

09-14-18

BREAKING: WHAT DID I TELL YOU? – HASTE MAKES WASTE! – TRUMP SCOFFLAWS FORCED TO AGREE TO REHEAR ASYLUM CASES OF THOSE DENIED DUE PROCCESS THROUGH FAMILY SEPARATION!!!!

https://www.vox.com/2018/9/13/17853770/children-separated-news-update-parents-trump

Dara Lind reports for Vox News:

As many as 1,000 parents separated from their children are getting a second chance to stay in the US

In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.

By Dara Lind dara@vox.com Sep 13, 2018, 12:41am EDT

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A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.
Mario Tama/Getty Images

The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.

The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.

If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.

And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.

The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.

If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.

Separating families made it much harder for parents to seek asylum

Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.

If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.

Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.

“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”

By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.

So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)

None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.

The government is agreeing to give reunited families the same chance they’d had if they’d never been separated

Here is what the agreement proposed by the government would actually do, if approved:

Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.

Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.

Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.

Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.

Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)

If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.

It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.

The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.

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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?

Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.

Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:

Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
- to establish a viable overseas refugee screening program in the Northern Triangle;
- working with other countries to share resettlement responsibilities;
- and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.

Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).

Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.

Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.

Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!

Haste Makes Waste! Told ya so!

PWS

09-13-18

NOTE TO NEW US IMMIGRATION JUDGES: YOU WOULD DO WELL TO IGNORE SESSIONS’S FALSE NARRATIVE & ADDRESS THE REAL PROBLEMS PLAGUING OUR US IMMIGRATION COURTS – Lack of Due Process, Abusive Detention, Some Biased Colleagues, Too Few Lawyers, Inconsistent Decisions, Far Too Many Denials Of Legitimate Refugees – “But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.”

From LexisNexis Immigraton Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/a-pro-bono-asylum-lawyer-responds-to-the-latest-attack-from-a-g-sessions

A Pro Bono Asylum Lawyer Responds to the Latest Attack from A.G. Sessions

Expecting Asylum-Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center

Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.

Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.

It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.

Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.

Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.

Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.

During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.

But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.

We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.

SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”

(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)

Photos from my trip to Folkston, GA:

The Folkston ICE Processing Center.

Downtown Folkston, GA.

Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).

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Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.

As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.

Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.

But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?

Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”

Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?

How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?

Your choice. Choose wisely. Good luck. Do great things!

PWS

09-11-18

GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!

https://www.buzzfeednews.com/article/hamedaleaziz/sessions-new-immigration-judges-sympathy

Hamed Aleaziz reports for BuzzFeed News:

Attorney General Jeff Sessions on Monday warned incoming immigration judges that lawyers representing immigrants are trying to get around the law like “water seeping through an earthen dam” and that their responsibility is to not let them and instead deliver a “secure” border and a “lawful system” that “actually works.”

He also cautioned the judges against allowing sympathy for the people appearing before them, which might cause them to make decisions contrary to what the law requires.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” he said.

The comments immediately drew criticism from the union that represents the judges and from former judges.

“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” said Dana Marks, a spokesperson for the National Association of Immigration Judges and an immigration judge in San Francisco. “It did appear to be a one-sided argument made by a prosecutor.”

Jeffrey Chase, a former immigration judge and now an immigration attorney, said the comments overlooked the fact that asylum laws were designed to be flexible.

“We possess brains and hearts, not just one or the other,” he said. It is sympathy, Chase said, that often spurs legal theories that advance the law in asylum law, civil rights, and criminal law.

“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”

Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.

Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.

Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, which represents the nation’s 350 immigration judges, said Sessions’ speech was notable for its lack of any mention of fairness or due process. “We cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role,” said Tabaddor.

The union has long called for its separation from the Department of Justice in order to be truly independent of political decision-making.

“Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” Sessions said in a speech to 44 newly hired judges who were being trained in Falls Church, Virginia.

He ended his speech by telling the incoming judges that the American people had spoken in laws and “in our elections.”

“They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them,” Sessions said.

From the beginning of October through the end of June, immigration judges had granted around 22% of asylum cases and denied around 41% of cases. The rest of the cases were closed. The rate is similar to previous fiscal years. Sessions’ decision to limit the types of cases in which asylum should be granted was made in mid-June.

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https://www.dailymail.co.uk/news/article-6152755/The-U-S-increase-number-immigration-judges-50-percent-BALLOONING-backlog.html

Valerie Bauman reports for The Daily Mail:

Attorney General Jeff Sessions said Monday that he plans to increase the number of immigration judges in the U.S. by 50 percent by the end of Fiscal Year 2018 – part of the administration’s effort to take on a case backlog that has ballooned under the Trump administration’s zero-tolerance policy.

The number of immigration cases on hold in the U.S. has risen 38 percent since Trump took office, with 746,049 pending immigration cases as of July 31, up from 542,411 at the end of January 2017, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.

Sessions asserted his authority on Monday during remarks welcoming 44 newly hired immigration judges – the largest class in U.S. history – noting that they must operate under his supervision and perform the duties that he prescribes.

As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,’ he said. ‘I do not apologize for expecting you to perform, at a high level, efficiently and effectively.’

The attorney general said the system for seeking asylum in the U.S. has been ‘abused for years’ and while the judges must respect immigrants’ rights, they should also ‘reject unjustified and sometimes blatantly fake claims.’

Sessions also had harsh words for the attorneys who represent immigrants, describing them as ‘water seeping through an earthen dam,’ who attempt to ‘get around’ immigration laws.

The message follows a series of policy changes that have put increasing pressure on immigration judges to close cases quickly while taking away their authority to prioritize cases based on their own judgment.

‘We’re clearly moving toward a point where there isn’t going to be judicial independence in the immigration courts anymore,’ former immigration Judge Jeffrey S. Chase told DailyMail.com.

U.S. Attorney General Jeff Sessions delivers remarks to the incoming class of immigration judges in Falls Church, Virginia

For example, the Justice Department earlier this year announced a quota system requiring judges to clear at least 700 cases annually in order to be rated as ‘satisfactory’ on their performance evaluations.

Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.

Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases, a process that allowed a judge to indefinitely close low-priority cases to make room on the docket for more serious offenses – such as those involving violent criminals and gang members.

From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions. Now experts say those cases will be added back to the dockets, further compounding the backlog.

In addition, Sessions issued a legal opinion earlier this year designed to make it impossible for victims of domestic violence and gangs to seek asylum in the U.S. – which some critics say will limit judicial independence.

Legal experts said Monday that Session’s speech was designed to assert his authority over the judges and impress upon them the importance of issuing rulings consistent with his own philosophy.

‘That was an enforcement speech,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘The whole implication that somehow (people seeking asylum) are bending the law and that there are attorneys trying to go through loopholes is the opposite of the truth … The losers in these asylum cases aren’t simply migrants trying to game the system. They are people facing real dangers when they go home.’

Sessions did not shy away from calling on the new judges to rise to the challenges before them.

‘Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts,’ Sessions said in his prepared remarks. ‘No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.’

Sessions has said that he has introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.

Immigration judges are appointed by the U.S. attorney general. The new additions bring the total number of immigration judges in the U.S. to 397.

OK. Now let’s get beyond Sessions’s White Nationalist screed and get some truth about:

The ethical standards for Immigration Judges;
The real intent of the Refugee Act of 19809; and
What being a fair and impartial immigration judge is really about.

Sessions’s Statement Favoring A Party To Immigration Court Proceedings And Showing Disrespect For The Opposing Party & Their Representatives Violates The EOIR Ethical Code By Showing An “Appearance of Bias.”

Let’s remember that under the strange rules governing EOIR and the Immigration Courts within the USDOJ, Attorney General Jeff Sessions can and has taken on the role as a judicial adjudicator in an individual cases, changing results and setting precedent for the BIA and the Immigration Judges.

So, what does the EOIR Code of Judicial Ethics say about judicial conduct?

V. Impartiality (5 C.F.R. § 2635.101(b)(8))

An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of aparticular case. An Immigration Judge should encourage and facilitate pro bono representation. An Immigration Judge may grant procedural priorities to lawyers providing pro bono legal services in accordance with Operating Procedures and Policies Memorandum (OPPM) 08-01.

VI. Appearance of Impropriety (5 C.F.R. § 2635.101(b)(14))

An Immigration Judge shall endeavor to avoid any actions that, in thejudgment of a reasonable person with knowledge of the relevant facts, wouldcreate the appearance that he or she is violating the law or applicable ethical standards.

. . . .

IX. Acting with judicial Temperament and Professionalism

An Immigration Judge should be patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers and others with whom the Immigration Judge deals in his or her official capacity, and should not, in the performance of official duties, by words or conduct, manifest improper bias or prejudice.

Note: An Immigration Judge should be alert to avoid behavior, including inappropriate demeanor, which may be perceived as biased. The test forappearance of impropriety is whether the conduct would create in the mind of a reasonable person with knowledge of the relevant facts the belief that the Immigration Judge’s ability to carry out his or her responsibilities with integrity, impartiality, and competence is impaired.

Note: An Immigration Judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the immigration process into disrepute. Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics. Moreover, an Immigration Judge must avoid conduct that may reasonably be perceived as prejudiced or biased. Immigration Judges are not precluded from making legitimate reference to any of the above listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Note: An Immigration Judge has the authority to regulate the course ofthe hearing. See 8 C.F.R. §§ 1240.1(c), 1240.9. Nothing herein prohibits theJudge from doing so. It is recognized that at times an Immigration Judgemust be firm and decisive to maintain courtroom control.

Wow. Sure sounds to me like Sessions is in clear violation of each of these!

Let’s get down to “brass tacks” here. Imagine that you are a represented asylum applicant from the Northern Triangle with an upcoming hearing. The morning of your hearing, you read the statement that Jeff Sessions made to the new Immigration Judges.

That afternoon, when you appear at the hearing you find that none other than Jeff Sessions is yo\ur U.S. Immigration Judge. So, do you think that you and your attorney are going to get a “fair and impartial” hearing, including a possible favorable exercise of discretion” on your asylum application, as our Constitution and laws require? Of course not!

But remember, all asylum applicants are appearing before “judges” who are actually employees of Jeff Sessions. Each judge knows that he or she owes career longevity to pleasing Sessions and his minions. Each judge also knows that at any time Sessions can arbitrarily reach down into the system, without explanation or notice, and “certify” any case or decision to himself.

Clearly, after having publicly taken a pro-DHS, pro-enforcement, anti-asylum applicant, anti-private attorney position, Sessions should not ethically have any role whatsoever in the outcome of cases in the Immigration Court System. But, clearly, he does have such a role. A big one!

If any sitting Immigration Judge conducted himself or herself the way Sessions just did, they would be suspended immediately. How does Sessions get away with disregarding judicial ethics in his own system?

The Refugee Act of 1980 Implements Our International Treaty Obligations Under the UN Convention & Protocol Relating To The Status Of Refugees and Is Actually About “Protecting” Those In Danger, Not Finding Ways Of “Rejecting” Their Claims.

Let’s hear from a former legislator who played a key role in developing and enacting the Refugee Act or 1980, former Representative Elizabeth Holtzman (D-NY) who at that time was the Chair of the House Immigration Subcommittee. This is from the letter that Holtzman recently wrote to Secretary Nielsen resigning from the DHS Detention Advisory Committee because of its perversion of the law, particularly the illegal family separation policy engineered by Sessions.

What is so astonishing to me is how much this country has changed since 1980, when I was privileged as chair of the House Immigration Subcommittee to co-author with Senator Ted Kennedy the Refugee Act of 1980. The Act — which was adopted without serious controversy — created a framework for the regular admission of refugees to the U.S. The immediate stimulus for the bill was the huge exodus of boat people leaving Vietnam. Though the memory of the Holocaust played a role, too, particularly the knowledge that the U.S. could have rescued so many people from the hands of the Nazis but did not. The Refugee Act marked our commitment as a nation to welcoming persons fleeing persecution anywhere.

In those days, the U.S. accepted large numbers of refugees — about 750,000 arrived from Vietnam; 600,000 entered from Cuba; and hundreds of thousands of Jews and their relatives came from the Soviet Union. The thought that the U.S. is frightened today by the presence of an additional 2,000 or so children and parents from Central America is laughable and appalling.

In those days, the U.S. also showed world leadership on refugee resettlement. For example, America understood that it bore a special responsibility for the refugees fleeing Vietnam because of its long involvement in the Vietnam War. Obviously, we could not absorb all the refugees, but our government worked hard to get resettlement solutions for all. First, it persuaded the countries neighboring Vietnam to which people fled in small boats not to push those refugees back out to sea, where they would confront pirates, drowning and other terrible dangers. (I know because I participated in speaking to those countries.) Then, the U.S. organized a world conference in Geneva, where countries agreed to accept specific numbers of refugees. The U.S. was able to induce other countries to act because it took the largest share. Our country’s leadership turned the boat people crisis into one of the most successful refugee resettlement programs ever.

Now, in response to the influx of (mostly) women and their children fleeing horrific violence in Central America, the U.S. government can think only of building a wall and unlawfully separating children from their parents — something I call child kidnapping, plain and simple — as a deterrent to keep others from coming to the US. How far we have we fallen.

And how easy it would be to do the right thing. The U.S. needs to start with recognizing that it once again has a special responsibility for a dire situation, this time in the Northern Triangle. We overthrew the democratically elected government in Guatemala, which was replaced by one right-wing government after another, including one that committed genocide against the indigenous population. In Honduras and El Salvador, we similarly propped up right-wing governments that did nothing for their people, leaving them without effective governance in place. The fact that gangs have been able to terrorize the population with impunity is a result.

More must be done as well. We should reinstate the Central American Minors Refugee/Parole Program, established under President Obama and cancelled by the Trump Administration, whereby people could apply in their home countries for admission as refugees to the U.S. without facing the perils of the overland trip. Second, we should try to get Canada and other countries in South America to accept refugees from the Northern Triangle countries, reducing the burden on us. To do this, we would have to agree to take a substantial number of refugees from the Northern Triangle countries as well. And then we should work to improve the governance in these countries, perhaps by involving the United Nations and nearby countries, such as Costa Rica.

Unfortunately, the chance of any such enlightened response toward refugees from the Northern Triangle seems remote. These countries probably fall into Trump’s stated “shithole” category. Plainly, the hostile attitude toward the refugees persists. For example, 463 parents may have been deported without their children. Apparently DHS Secretary Kirstjen Nielsen feels no responsibility for reuniting those with their parents, instead making the flimsy excuse that the parents wanted to leave them behind. While possibly true in a small number of instances, given the fact that many of the parents do not speak English, or even Spanish, but their indigenous language, it is more likely that a significant number of the parents had no idea of what was happening or how to get their children back. They may even have been coerced into leaving. In any case, Nielsen has a very poor record of truth-telling. On June 17, she insisted that “We do not have a policy of separating families at the border. Period.”

And the racist, contemptuous attitude of the Administration keeps showing. Just recently, before a conservative audience, Attorney General Jeff Sessions made a joke — a joke! — about separating children from their parents. (He also briefly joined in a chant of “Lock her up!”)

Most Americans, fortunately, have found the separation policy abhorrent. Those of us who do, need to press the Administration to find a more humane and more comprehensive solution, like our country has done in the past. But if the Administration continues the enforced separation policy, I hope that the courts will enforce their decisions, which have required reunification, by holding the Secretary and others in contempt if necessary. Congress should be called on to act by holding hearings and adopting censure resolutions. None of us can sit idly by when our government stoops to such racist, malign behavior.

Yes, with responsible leadership, it would be relatively easy to do the right thing here. But, it’s not going to happen with the “wrong people” like Donald Trump, Stephen Miller, Jeff Sessions, and Kristjen Nielsen in charge.

The real intent of the Refugee Act of 1980 was to give America the tools to take a leadership role in protecting individuals, particularly those flowing from situations we helped cause like the mess in the Northern Triangle. I’m sure that most of those involved in the bipartisan effort would be shocked by the overtly racist, restrictionist views being pawned off by Sessions as “following the law.” “I call BS” on Session’s perversion of protection laws.

Undoubtedly, cases like Matter of A-R-C-G-, incorrectly overruled by Sessions, actually substantially understated the case for protecting domestic violence victims. There is little doubt in my mind that under a proper interpretation “women in El Salvador” (or Guatemala or Honduras, or many other countries) satisfy the stated criteria for a “particular social group.”

Being a “woman in El Salvador” clearly is :

Immutable or fundamental to identity;
Particularized; and
Socially distinct.

Moreover, there is no legitimate doubt that the status of being a “woman in El Salvador” is often “at least one central reason” for the persecution. Nor is there any doubt that the Governments in the Northern Triangle are unwilling and unable to offer a reasonable level of protection to women abused because of class membership, Sessions’s largely fictional account of country conditions notwithstanding.

At some point, whether or not in my lifetime, some integrity will be re-injected into the legal definition by recognizing the obvious. It might come from Congress, a more qualified Executive, or the Courts. But, it will eventually come. The lack of recognition for women refugees, who perhaps make up a majority of the world’s refugees, is a symptom of the “old white guys” like Sessions who have controlled the system. But, that’s also likely to change in the future.

My esteemed colleague, retired U.S. Immigraton Judge Jeffrey S. Chase said it best:

“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”

The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.

Let’s see what some real judges who have had a role in the actually fairly adjudicating asylum claims have to say about the qualities of judging.

Here’s one of my favorite quotes from the late Seventh Circuit Judge Terence T. Evans in Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring) that sums up the essence of being a good Immigration Judge:

Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.

Or, check out this heartfelt statement from my former colleague Judge Thomas Snow, one of “Arlington’s Finest,” (who also, not incidentally, had served as the Acting Chief Immigration Judge and Acting Director of EOIR, as well as being a long-time Senior Executive in the USDOJ) in USA Today:

Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.

Here’s a “pithier” one from my friend and colleague Judge Dana Leigh Marks, former President of the National Association of Immigration Judges (who also was the “winning attorney” representing the plaintiff in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)) — I was on the “losing” INS side that day):

[I]mmigration judges often feel asylum hearings are “like holding death penalty cases in traffic court.”

Finally, here’s my take on being an Immigration Judge after 45 years in the field, including stints at the BIA, the “Legacy INS,” private practice, and academics:

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is alwayson public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.

Compare Sessions’s one-sided, biased outlook with the statements of those of us who have “walked the walk and talked the talk” — who have had to listen to the horrible stories, judge credibility, look at whether protection can legally be extended, and, on some occasions, look folks in the eye and tell them we have no choice but to send them back into situations where they clearly face death or danger.

Sympathetic understanding of refugees and the protection purposes of refugee, asylum, and CAT laws are absolutely essential to fair adjudication of asylum and other claims for relief under the Immigration Laws. And, clearly, under the UNHCR guidance, if one is going to err, it must be on the side of protection rather than rejection.

That’s why Jeff Sessions, a cruel, biased, and ignorant individual, lacking human understanding, sympathy, a sense of fundamental fairness, a commitment to Due Process, and genuine knowledge of the history and purposes of asylum laws has no business whatsoever being involved in immigration adjudication, let alone “heading” what is supposed to be a fair and impartial court system dedicated to “guaranteeing fairness and Due Process for all.”

Senator Elizabeth Warren tried to tell her colleagues and the rest of America the truth about Jeff Sessions and the horrible mistake they were making in putting such a famously unqualified man in charge of our Department of Justice. But, they wouldn’t listen. Now, refugees, families, and children, among his many victims, are paying the price.

Sessions closes with a final lie: that the American people spoke in the election in favor his White Nationalist policies. Whether Sessions acknowledges it or not, Donald Trump is a minority President. Millions more voted for Hillary Clinton and other candidates than they did for Trump.

Almost every legitimate poll shows that most Americans favor a more moderate immigration policy, one that admits refugees, promotes an orderly but generous legal immigration system, takes care of Dreamers, and controls the borders in a humane fashion as opposed to the extreme xenophobic restrictionist measures pimped by Sessions, Trump, Steven Miller, and the GOP far right. In particular, the separation of children, Sessions’s unlawful “brainchild,” has been immensely (and rightfully) unpopular.

Jeff Sessions has never spoken for the majority of Americans on immigration or almost anything else. Don’t let him get away with his noxious plans to destroy our justice system! Whether you are an Immigration Judge, a Government employee, or a private citizen, we all have an obligation to stand up to his disingenuous bullying and intentionally false, xenophobic, racially-motivated, unethical, scofflaw narrative.

PWS

09-11-18

GONZO’S WORLD: THIS IS WHY HE STAYS: UNDERNEATH ALL THE “TRUMP NOISE” SESSIONS IS METHODICALLY ERADICATING DUE PROCESS, PERVERTING THE LAW, & TURNING ONE OF THE LARGEST FEDERAL COURT SYSTEMS INTO A “KILLING FLOOR” TARGETING OUR MOST VULNERABLE & DESERVING REFUGEES! — “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

https://www.motherjones.com/politics/2018/09/jeff-sessions-is-executing-trumps-immigration-plans-with-a-quiet-efficient-brutality/

Sophie Murguia and Kanyakrit Vongkiatkajorn report for Mother Jones:

Jeff Sessions Is Executing Trump’s Immigration Plans With a Quiet, Efficient Brutality

The attorney general’s systematic gutting of immigration courts is the latest example.

Sophie Murguia and Kanyakrit VongkiatkajornSep. 7, 2018 6:00 AM

Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.

Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.

The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.

This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.

Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.

“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.

Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”

Here are the biggest ways Sessions is attacking the immigration courts:

It’s now much more difficult to apply for asylum

In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.

Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.

In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, told Mother Jones when the decision was first announced.

A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.

Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”

Judges have less control over their case loads …

This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.

Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.

The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.

… and will have to move through them more quickly

In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.

The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.

“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

It’s harder for them to reschedule cases

On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.

Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.

And as more judges retire, Sessions gets to staff up

Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”

Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.

What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”

Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.

Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.

Under Sessions, he says, the immigration court “has become a deportation railway.”

Sent from my iPad

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

Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.

For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.

Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.

Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.

He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.

That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.

Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.

Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!

PWS

09-08-18

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Jeff Sessions Is Executing Trump’s Immigration Plans With a Quiet, Efficient Brutality

The attorney general’s systematic gutting of immigration courts is the latest example.

Sophie Murguia and Kanyakrit VongkiatkajornSep. 7, 2018 6:00 AM

It’s now much more difficult to apply for asylum

Judges have less control over their case loads …

… and will have to move through them more quickly

It’s harder for them to reschedule cases

And as more judges retire, Sessions gets to staff up

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