"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Associate professor at Morgan State University and politics editor for the Root
August 15
Omarosa Manigault Newman — who once declared that “every critic, every detractor will have to bow down to President Trump” — evolved from mentee to frenemy to antagonist before her nonstop media blitz promoting her new post-White House tell-all, during which she’s touted the existence of a recording of Trump using the n-word. It’s all sent the White House scrambling, with the president tweetingMonday that “I don’t have that word in my vocabulary, and never have.” Press secretary Sarah Huckabee Sanders told reporters Tuesday she “can’t guarantee” Americans will never hear audio of Trump using the slur.
It doesn’t matter.
Trump is a racist. That doesn’t hinge on whether he uttered one particular epithet, no matter how ugly it is. It’s about the totality of his presidency, and after 18 months you can see his racial animus throughout his policy initiatives whether you hear it on tape or not.
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Over the course of his career, well before he took office, Trump’s antipathy toward people of color has been plainly evident. In the ’70s, his real estate company was the subject of a federal investigation that found his employees had secretly marked the paperwork of minority apartment rental applicants with codes such as “C” for “colored.” After black and Latino teenagers were charged with sexually assaulting a white woman in Central Park, he took out full-page ads in New York City newspapers calling for the return of the death penalty. He never backtracked or apologized when the teenagers’ convictions were overturned. He championed birtherism, and wouldn’t disavow the conspiracy theory that President Barack Obama was born in Kenya until the end of his 2016 presidential campaign. As president, he’s targeted African American athletes for criticism, whether it’s ranting, “Get that son of a bitch off the field,” in reference to professional football players silently protesting police brutality or tweeting that:
Calling African American Rep. Maxine Waters (D-Calif.) a “low IQ person” is now a routine bit at his political rallies. He was quoted referring to Haiti, El Salvador and various African nations as “shithole” countries. He announced his campaign in 2015 by referring to Mexican immigrants as “rapists.” Later that year, he called for the United States to implement a “total and complete” Muslim ban.
After taking office, he hired xenophobes such as Stephen Miller — an architect of the ban, whose hostility toward immigrants is so stark, and hypocritical, that his uncle excoriated him this week in an essay for Politico Magazine, writing of Miller and Trump that “they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human.”
I could go on. The point is that Trump’s view of nonwhites is out in the open. As Slate’s Christina Cauterucci notes, there’s every reason “to believe that an n-word tape wouldn’t torpedo Trump’s presidency”; there’s no indication his supporters “will turn against him because he used a racial slur.” Trump’s words and deeds over time have demonstrated his racism — it doesn’t hinge on being outed, Paula Deen-style, by a tape of him using the word. Racism hardly ever does.
I’m not saying it would be okay for Trump to use any variation of the n-word — in jest, in anger, singing along to the lyrics of a song, with or without the hard “R.” But the feverish speculation about whether he ever deployed the term wrongly implies that a verdict on his racist character turns on its use. What matters more about Trump are the positions he’s taken and the policy choices he’s made that harm communities of color. In his first year as president, Trump evolved from mere interpersonal racist to racist enabler when he proclaimed there were “very fine people, on both sides” when white supremacists and anti-racist protesters converged in Charlottesville last year. Jeff Sessions, a senator from Alabama who, three decades ago, was denieda federal judgeship by the Republican-controlled Senate Judiciary Committee over concerns that he was a racist, was installed by Trump as attorney general.
Since assuming that role, Sessions has worked to undermine consent decrees meant to restrain racially abusive police departments and explicitly articulated the administration’s intent to use family separation to deter immigration. The Department of Education, under Secretary Betsy DeVos, is dismissing hundreds of civil rights complaints, supposedly in the name of efficiency. Trump hired Manigault Newman as a liaison to black constituent groups based on their reality TV relationship and, according to him, her willingness to say “GREAT things” about him, despite almost universal criticism of her appointment and subsequent work by African American Republicans and Democrats.
Being a racist — which entails belief in a fixed racial hierarchy and the power to act upon that belief in commerce, government or social spaces — is not now, and never has been, about one word or one slip of the tongue. It is about the ability of those in power to use public and private resources to enforce a racial hierarchy, whether that means having black people arrested for sitting in Starbucks, refusing to hire or promote qualified black job applicants or staffing a presidential administration with people who tolerate or encourage white nationalists. Trump’s statements and his approach to governance suggest he believes in a set racial hierarchy, and the possible existence of a hyped tape doesn’t change that. So far, and as far as I know, no one’s produced audio of white nationalist participants in last Sunday’s Unite the Right 2 rally in Washington using the n-word. Presumably, by the logic of some Trump defenders, that would mean there’s no proof they’re racist, either.
If American public discourse on race continues to revolve around a game of “gotcha,” with sentiments and smoking guns, divorced from an acknowledgment of how racists use their power, we won’t make any progress, during this administration or any other.
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Johnson states a simple truth that some don’t want to acknowledge. But, racist anti-immigrant, anti-Muslim, anti-refugee, anti-Mexican American, xenophobic “dog whistles” were at the heart of Trump’s campaign and remain at the heart of his policies, particularly on immigration, refugees, and law enforcement.
Does that mean that the majority of Americans who don’t endorse racism don’t need to deal with the fact that Trump is President and that Sessions and Miller are exercising outsized control over our justice system? Or that today’s Trumpist GOP isn’t your grandparents’ GOP (in my case, my parents’ GOP) and, although they might occasionally mutter a few insincere “tisk, tisk’s,” are firmly committed to enabling Trump and his racist policies including, of course, voter disenfranchisement. Of course not. Just think of how African-Americans, Hispanics, and liberals had to deal in practical terms with Southern political power in the age of Jim Crow (which is basically the “Age of Jeff Sessions”).
But, it is essential for us to know and acknowledge who and what we are dealing with and not to let political expediency totally obscure the harsh truth. Trump is a racist. And, that sad but true fact will continue to influence all of his policies for as long as he remains in office. Indeed, “Exhibit 1,” is the failure of the GOP to achieve “no-brainer” Dreamer protection over the last two years and the stubborn insistence of Sessions and others in the GOP to keep tying up our courts with bogus attempts to terminate already limited protections for those who aren’t going anywhere in the first place.
It’s been six weeks since a federal judge ordered the Trump administration to fix the crisis it created when it separated more than 2,500 children from their parents under a heartless policy designed to deter desperate families from entering the United States illegally. But the job of reunification still isn’t done, in part because the government failed to devise a system to track the separated families.
Some 400 parents reportedly have already been deported without their children, and the government apparently has no idea how to reach them. It’s a colossal snafu that is as appalling as it is inexplicable. Among the many inhumane immigration enforcement policies adopted in the first two years of the Trump reign, history may well regard this bit of idiocy as the worst.
Or perhaps not; the competition hasn’t closed yet. In fact, the Pentagon is working on plans, at Trump’s direction, to house 20,000 detained immigrants — including children this time — in secured areas of military bases while they await deportation proceedings. Yes, the Obama administration did something similar when it tried to deal with the inflow of unaccompanied minors from Central America. It was a bad idea then, and it’s a bad idea now; kids don’t belong in prisons on military bases. Under a court order, the government cannot hold minors for more than 20 days before releasing them to the custody of their parents, other relatives or vetted guardians.
When it comes to immigration, there has been such a flood of bad policies and ham-handed enforcement acts since Trump took office that it can be hard to keep it all straight.
First there was the ban on travel of people from mostly Muslim countries and then the effort to eliminate protections for so-called Dreamers who have been living in the country illegally since arriving as children. Hard-line Atty. Gen. Jeff Sessions has inserted himself in the immigration court system and overridden previous decisions over who qualifies for asylum; not surprisingly, the number of people granted protection has dropped as a result. President Trump also has throttled the flow of refugees resettled here; last year, for the first time since the passage of the 1980 U.S. Refugee Act, the United States resettled fewer refugees than the rest of the world, a significant step away from what had been an area of global leadership. (Over the last 40 years, the U.S. has been responsible for 75% of the world’s permanently resettled refugees.)
Then there’s this: The White House is reportedly drafting a plan that would allow immigration officials to deny citizenship, green cards and residency visas to immigrants if they or family members have used certain government programs, such as food stamps, the earned income tax credit or Obamacare.
And this: The now largely abandoned“zero tolerance” policy of filing misdemeanor criminal charges against people crossing the border illegally led to a surge of cases in federal court districts along the Southwest border as non-immigration criminal prosecutions plummeted, according to an analysis by the Transactional Records Access Clearinghouse. In fact, non-immigration prosecutions fell from 1,093 (1 in 7 prosecutions) in March to 703 (1 in 17 prosecutions) in June, suggesting that serious crimes are taking a back seat to misdemeanor border crossing.
Meanwhile, a Government Accountability Office report this week questions how U.S. Customs and Border Patrol set priorities in planning where to build Trump’s border wall, and said the agency failed to account for wide variations in terrain in estimating the cost — which means that extending the existing border walls and fences another 722 miles could cost more than the administration’s $18-billion estimate. And while the president crows that the wall will secure the border, it won’t, experts say. People will still find a way around, over or under it. And most drug smuggling already comes hidden in motor vehicles passing through monitored ports of entry. At best, Trump’s wall — if Congress is insane enough to approve funding — would be little more than a symbol of his arrogance, and of this country’s determination to seal itself off from the world.
Trump’s immigration policy has been characterized by unnecessary detention and inadequate monitoring that has allowed for abuses at detention centers — including sexual assaults and forced medication of children. The immigration court system is now overwhelmed by a backlog of 733,000 cases.
In short, it’s been a disaster. And through all of these fiascoes, there have been zero serious efforts in Congress or by the president for comprehensive reform of a system everyone acknowledges is broken.
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Regime change is the only answer, beginning this November and continuing until Trump and his toxically incompetent White Nationalist Cabal are removed from office!
America is a great country that could reach its full potential and regain both economic and moral leadership among the world’s nations. But, it’s never going to happen while the majority of us are being governed by short-sighted, incompetent White Nationalists bent on letting their racist agenda destroy our country. Oh, and they are corrupt grifters too, never a good sign in leadership!
WHEN ACCOUNTS of abuse emerged in June from a detention center for migrant minors in Virginia — children as young as 14 stripped naked, shackled, strapped to chairs, their heads encased in bags, left for days or longer in solitary confinement, and in some cases beaten and bruised — it sounded like a scene from the Soviet gulag. This institution, the Shenandoah Valley Juvenile Center, near Staunton, couldn’t possibly be in America. And if it was, it had to be an extreme outlier — a place that, while overseen by the Office of Refugee Resettlement at the Department of Health and Human Services, simply could not typify the federal government’s handling of children, undocumented or not, who make their way into this country.
But abuses alleged at that jail in Virginia turn out to be no worse than those inflicted, on even younger children, at another facility under ORR’s purview in Texas. Last Monday, a federal judge, incensed that underage migrants at the Shiloh Residential Treatment Center, south of Houston, had been routinely administered psychotropic drugs without parental consent, denied water as a means of punishment and forbidden from making private phone calls, ordered undocumented minors there transferred elsewhere.
Not the Soviet gulag. These things are taking place in America.
Not just coincidentally, it is President Trump’s America. True, documented abuses at both facilities pre-date Mr. Trump’s administration; at Shiloh, in particular, there have been harrowing reports of mistreatment for years. Yet the president, who has referred to illegal immigrants as “animals” and “rapists” who “infest” the United States, is a serial, casual dehumanizer of immigrants, particularly Hispanic ones. The signals he sends, amplified by Twitter, are heard everywhere. If unauthorized immigrants are vermin, as the president implies, then it’s legitimate to treat them as such — to tie them up, lock them away solo, dehydrate and drug them.
The most recent findings, concerning Shiloh, run by a private contractor and overseen by ORR, are shocking. Staff members there admitted they had administered psychotropic medication to children without bothering to seek consent from parents, relatives or guardians. Officials said “extreme psychiatric symptoms” justified medicating the children on an emergency basis — a fine explanation, except that the drugs were administered routinely in the morning and at night. (And sometimes the children were told the drugs were “vitamins.”) The children’s testimony led U.S. District Judge Dolly Gee to reject the government’s arguments, wondering how “emergencies” could occur with such clocklike precision.
Some of the minors confined at Shiloh, which houses 44 children, three-quarters of them immigrants, described abjectly cruel treatment, prompting the judge to order officials at the facility to provide water as needed to those confined there and permit them private phone calls. That a necessity so basic as the provision of water is the subject of a judicial order is a measure of the official depravity that has gripped Shiloh.
2:58
Opinion | Trump’s anti-immigrant tactics are eerily familiar to some Japanese Americans
The tools that normalized Japanese American imprisonment during World War II are being deployed against asylum-seeking immigrants today.(Kate Woodsome, Gillian Brockell, Konrad Aderer/The Washington Post)
HHS officials make a point of sounding compassionate when they describe their concern for the thousands of migrant children under their supervision. Those fine words are belied by actual conditions in real-world facilities for which the department is responsible.
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There are plenty of villains here. But the primary culprits are Sessions, Trump, and Miller who have continued to push a racially motivated program of dehumanization of Hispanic migrants, and illegal, immoral, and damaging detention of children and families in the face of clear evidence of its impropriety and its ineffectiveness as a deterrent.
I’m not saying that other DHS and ORR officials don’t belong in jail. Obviously, the evil clown who went before Congress and compared “Kiddie Gulags” to summer camps belongs behind bars. Trump might well be unreachable except for impeachment. But, Sessions, Nielsen, Lloyd and others responsible for these grotesque abuses enjoy no such protections.
Yes, this is ORR. But the Department of Justice is responsible for taking affirmative action to end these abuses by the Government. Instead, Sessions has been second only to Trump in promoting racism, false narratives, child abuse, xenophobia, and disregard of the legal rights and human rights of migrants, particularly the most vulnerable — children, women, LGBTQ, the mentally ill, etc. In the case before Judge Gee, he unethically ordered his DOJ lawyers to “defend the indefensible.”
What kind of nation refuses to hold blatant, unrepentant, public child abusers accountable for their crimes?
Judge slams Trump admin for suggesting ACLU, others should find deported parents
By Tal Kopan, CNN
A federal judge called the Trump administration’s slowness to track down migrant parents it had separated from their children and then deported “unacceptable,” saying the responsibility is “100%” on the government.
The stern admonishment from District Judge Dana Sabraw came a day after the administration argued that immigrant advocacy groups — not the government — should be responsible for tracking down the more than 500 parents it had separated from their children at the border and deported without them.
Sabraw said during a Friday phone hearing that if the government doesn’t track down the parents, it will have “permanently orphaned” their children.
“The reality is there are still close to 500 parents that have not been located, many of these parents were removed from the country without their child, all of this is the result of the government’s separation and then inability and failure to track and reunite,” Sabraw said.
“And the reality is that for every parent who is not located, there will be a permanent orphaned child, and that is 100% the responsibility of the administration,” he added.
Sabraw instructed the administration to name one or two officials to be a single point of command in the reunification effort, and to submit a detailed plan for how they will reunify children with parents either deported or, in a smaller number of cases, released into the US.
“In reviewing the status report it appears that only 12 or 13 of close to 500 parents have been located, which is just unacceptable at this point,” Sabraw said.
A federal judge on Friday again said the Deferred Action for Childhood Arrivals program should be fully restored.
Judge John Bates said the Trump administration still has failed to justify its proposal to end DACA, the Obama-era program that has protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation.
Bates agreed to delay his ruling for 20 days to give the administration time to respond and appeal, if it chooses.
Basically the Administration is “flicking the middle finger” at Judge Sabraw and his family reunification order. And, they are also doing the same thing to Judge Bates by nonchalantly screwing 800,000 young people, American’s future, without providing any legal rationale.
As a former judge, I actually understand why these judges are letting this “roll off their backs” and focusing on making the Administration solve the problems they created. Judges have to be the “adults in the room” even in an Administration of infantile minds.
But, at some point, a lawyer like Sessions who thumbs his nose at judicial orders and fails to provide any legal support for a litigating position that affects 800,000 American residents should face disciplinary proceedings. Not only has the Administration’s response been unacceptable, but so has the professional and ethical performance of Sessions and his DOJ lawyers. What about “Bivens liability” for Sessions and other Administration officials who knowingly and intentionally violated Constitutional rights in the child separation program, had their attorneys lie to the court about the very existence of the policy, and refused to take responsibility for fixing it.
Perhaps when this is over. But, then again, maybe not.
From the great folks over at AYUDA (pictured above):
New Trump Policy Puts Victims of Abuse at Risk
The Trump administration is again, putting families—especially women and children—in harm’s way as he continues his unrelenting assault on immigrant families.
We all saw the photos and heard the cries of children in cages at the border. But you probably haven’t heard about how the administration is making victims of human trafficking, domestic violence, sexual assault and other crimes even more vulnerable. Due to a new Trump administration policy, many more abused immigrants will likely face deportation and thousands more will be encouraged to stay in the shadows and remain with their abusers.
President Trump is turning an agency tasked with granting visas, work authorization, and other permits to immigrants into another cog in the deportation machine. On July 5th, the US Citizenship and Immigration Services (USCIS) released a memothat dramatically broadens when the agency may issue a Notice To Appear (NTA), the document that begins an immigrant’s journey towards deportation. In the past, USCIS could issue NTAs but it typically did so only in limited cases. The new agency guidance dramatically expands USCIS’s immigration enforcement function and allows USCIS to issue NTAs for any case it denies when the applicant is found to be unlawfully present.
For our country’s most vulnerable immigrants, the impact of this memo is dramatic. Currently, a capped number of immigrants may apply for visas as victims of domestic violence, sexual assault, human trafficking and other serious crimes. Congress created these visas to help law enforcement identify and prosecute perpetrators of abuse. To access these limited visas, immigrant victims must help law enforcement authorities in the investigation or prosecution of criminal activities. Victims’ engagement with law enforcement makes it more likely that police and prosecutors can bring successful cases against offenders, enabling them to reduce crime in our communities. For domestic violence victims, these visas serve an additional purpose. If you are undocumented and your abusive spouse has legal status, your dependency and vulnerability is compounded. Giving the abused spouse legal status is critical to help break down a power imbalance in these relationships.
The July 5th guidance threatens victims’ ability to safely apply for immigration relief. When immigrant victims consider seeking legal immigration status, they will question: is it worth possibly being deported? In some cities, already we know that fewer immigrants are reporting their experiences of domestic violence because of fear of deportation. Here in the DC metro area and across the nation, we will likely to see a drop in the number of abused immigrants seeking legal status.
At Ayuda, we are on the frontlines of serving some of the most vulnerable immigrants living in our community. Our organization provides immigration and family law representation, social services, and language access support for low-income immigrants who choose to make the Washington area home. Take for example Maria*, a typical Ayuda client whose strength and resilience are anything but typical. Maria was living with the father of her two children in the United States. He drank heavily and was emotionally and physically abusive towards her. He would regularly force her to have sex with him and beat her when she would not comply. He punched her, pushed her to the ground and pulled her hair. He would even beat and berate her when the children were present. Maria finally decided that she could not raise her children witnessing constant abuse by their father and she fled to a friend’s home who brought her to Ayuda. Ayuda attorneys and social services staff were there to support Maria and help make plans to ensure her safety, show her a pathway to achieving her independence from her abuser through filing a U visa (for victims of crimes) and help her start a new road on her way to a new American dream.
Now, immigrants like Maria will face even more impossible choices. If they want to help police and seek legal status, they will put themselves in the crosshairs of the deportation apparatus.
Even in this divided, hyper-partisan era, bipartisan public outcry resulted in a reversal of the inhumane family separation policy at the border. Prominent leaders in both parties who spoke out for families at the border must now raise their voices once again for vulnerable immigrant victims living here in our communities.
Just when you think that the Trump/Sessions White Nationalist regime might have hit rock bottom, they dig down even further. Joining and supporting great organizations like AYUDA, which protect the rights and futures of all Americans (regardless of status), is a terrific way to join the “New Due Process Army.”
FULL DISCLOSURE: I am a proud Member of AYUDA’s Advisory Council
The U.S. is the only member of the United Nations (UN) that did not participate in the entire 18-month process for the development of a , which is supposed to be formally adopted in December.
The process began when the UN hosted a summit in New York on September 19, 2016, to discuss a more humane way to handle large movements of migrants. Barack Obama was the president then. At the end of the summit, all 193 member states signed the New York Declaration for Refugees and Migrants, a 24-page document that provided a blueprint for the establishment of the compact for migrants (and a separate compact for refugees).
The declaration included numerous provisions that were inconsistent with U.S. immigration policy and the Trump administration’s immigration principles. Consequently, the Trump administration ended U.S. participation.
Ambassador Nikki Haley, the U.S. representative to the UN, explained in a press release that, “The global approach in the New York Declaration is simply not compatible with U.S. sovereignty.” America decides how best to control its borders and who will be allowed to enter.
The Trump administration was right. The compact is a collective commitment to achieve 23 objectives for safe, orderly, and regular migration. Although it addresses problems that need to be resolved, some its proposed solutions would weaken U.S. border security and others would usurp congressional control over the nation’s immigration laws.
Meanwhile, Alina Inayeh, Director of the Bucharest Office, German Marshall Fund of the United States. writes in a Facebook post:
. . . .
This ideology of authoritarian patriarchy rejects any constraint on the ruler at home or the state abroad. Mr Trump and Mr Putin support a return to an era of unfettered state sovereignty. They would dismantle international and supranational organisations of all kinds and return to multipolar “Great Power” politics, in which alliances shift and are transactional. As Mr Trump has said, America’s allies can be “foes” on some issues and “friends” on others, without any overarching loyalties based on niceties like a shared commitment to liberal democracy.
Above all, nations would not be subject to globalist dictates about how they should treat the people within their borders. They would control and protect their definition of national purity.
From this vantage point, Nato and the EU are intolerable exemplars of the “liberal international order” — an order built in support of a set of anti-nationalist values that were encapsulated in the Universal Declaration of Human Rights. The preamble to the North Atlantic Treaty reaffirms the parties’ “faith in the purposes and principles of the Charter of the United Nations,” including the universal principles of “democracy, individual liberty and the rule of law”.
Similarly, the EU proclaims as “fundamental values”, and indeed requirements for membership in the union, “respect for human dignity and human rights, freedom, democracy, equality and the rule of law”. Not national dignity and rights, but human.
The Russian president may indeed have some kind of hold over Mr Trump, as former CIA director John Brennan has suggested. But opposition to the current international order does not require a scene out of a spy novel. The extreme right of the Republican party has been exaggerating the danger of the UN for decades. Mr Trump is only taking their views mainstream.
A 2017 poll shows more than half of Republicans say the US and Russia should work more closely together. That is still less than 20 per cent of the population, but they are “America first-ers”, the would-be architects of a new world. And they are reaching out to Britain-firsters, Hungary-firsters, France-firsters, Israel-firsters — wherever nationalists are to be found. They seek a return to the rules of the 19th century.
And why not? The post-second-world-war order is just 70 years old — a blip in the history of multi-polar diplomacy. The Soviet Union lasted 70 years. It collapsed but Russia endures. The EU could collapse and European countries would endure. Nato could collapse and transatlantic relations would endure, on a bilateral and plurilateral basis.
It is incumbent upon those of us who see an arc of progress bending towards peace and universal human rights to appreciate the full scope of the threat posed to our 20th-century global architecture. Our response has to be more than defending the status quo. We must begin sketching an affirmative counter-vision of state and non-state institutions that empower their members more than they constrain them and solve problems effectively together.
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Read the complete articles at the respective links above.
Retired U.S. District Judge Nancy Gertner writes in HuffPost:
Justice Anthony Kennedy’s final writing as a member of the U.S. Supreme Court, his concurrence in the travel ban case, was a cri de coeur. It simply, even pathetically, lamented the court’s limited role in controlling a lawless executive.
Throwing up his hands, he wrote that the acts of government officials often are not subject to judicial scrutiny, while adding that this “does not mean those officials are free to disregard the Constitution and the rights it protects. The oath is not restricted to the actions that the Judiciary can correct.”
Wrong message, Mr. Justice.
Even though the travel ban the court upheld is not related to the asylum crisis — the travel prohibition is about immigrants coming here for all sorts of reasons, not asylum seekers fleeing violence in their country — to President Donald Trump, it does not matter. The high court’s decision is perceived as a vindication of all of his immigration policies, no matter how lawless, cruel and dysfunctional. And with Kennedy’s concurrence, it risks signaling that the judiciary will abdicate its own obligations to uphold our country’s laws and ideals.
Take “zero tolerance.” When asylum-seekers so much as step across the border, they are violating the law, according to this administration, even if they immediately present claims to an immigration official. The rule of law, the president insists, requires the prosecution of all crimes, no matter how trivial. This from the same man who pardoned former Arizona Sheriff Joe Arpaio after he was found guilty of flouting a court order to stop racial profiling.
Then there is the even more absurd claim that family separation deters asylum-seekers from coming to the U.S. Asylum-seekers will not be deterred by Trump’s cruelty; they have already decided to risk a dangerous trek from Central America to the U.S. because they believe their families will be killed if they stay. In fact, the number of asylum requests has increased notwithstanding Trump’s policies; its driving force is violence in asylum-seekers’ home countries, not U.S. immigration policy.
Nor are these asylum-seekers miscreants intent on defrauding the U.S. or committing crimes. This year, fewer than 1 percent of those apprehended have presented claims found to be false. Studies show that in general, undocumented immigrants — of whom asylum-seekers are a part — commit fewer crimes than those born in this country.
Worse, Trump now wants to deport asylum-seekers without any review. We don’t need more judges, he says, just more border cops. Where is the rule of law here?
HANDOUT . / REUTERS
A view of inside a U.S. Customs and Border Protection detention facility in Rio Grande City, Texas, last month.
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The Constitution’s due process requirement applies to anyone physically in the U.S., whether they have arrived legally or not. Likewise, international law requires us to review whether asylum-seekers’ claims of violence are credible, and if they qualify, let them in. And obviously, this government should not threaten to take children from their parents unless the families agree to voluntary deportation. That’s not just the absence of due process; it’s the presence of extortion.
If Kennedy signaled his belief that the court has very limited power to control an errant president, his putative replacement, federal Circuit Coury Judge Brett Kavanaugh, may well be worse. He does not just lament court’s limited power to control a president, he embraces it.
Kavanaugh has a particularly robust view of presidential power in certain areas — significantly, national security or immigration. In Klayman v. Obama, the D.C. Circuit ruled against a challenge to the National Security Agency’s metadata collection program on technical grounds, in a per curiam decision ― meaning an opinion of the entire court and not any individual judge. Kavanaugh, however, felt the need to file a concurring opinion.
Rather than simply signing on the decision, he went out of his way to make the breadth of the president’s national security power clear: Even if the collection program were the functional equivalent of a search, the government did not need to seek a warrant from a judge because the president said the program was necessary to combat terrorism and that need outweighed any impact on privacy.
Echoing Kennedy’s lament in the travel ban case, Kavanaugh added that while the chief executive and Congress may want to limit the program, until they do the judiciary was literally without the power to control it. Not only was the door to a constitutional challenge was firmly shut; he wanted to make certain that everyone knew it.
But there are judges who are not simply wringing their hands about the limits of judicial review over immigration issues, like Kennedy did, or who are bent on deferring to the president whenever he intones a national security rationale, as Kavanaugh might well do. They are working each day to prevent this president from running roughshod over the Constitution ― not just in the executive orders that he promulgates but in the way his orders and policies are implemented on the ground, in the day-to-day encounters on our borders.
A federal judge in California, a George W. Bush appointee, issued a nationwide injunction temporarily stopping the Trump administration from separating children from their parents at the border. Another in D.C. blocked the systematic detention of migrants who show credible evidence that they were fleeing persecution in their home countries, halting a practice that is an obvious and unlawful attempt to deter them and others from seeking refuge here.
There will surely be others, because these judges ― like the president ― also swore an oath to uphold the Constitution. But for them, unlike the president, it is not an empty promise.
Nancy Gertner served as a Massachusetts United States District Court judge from 1994 to 2011, when she retired to teach at Harvard Law School. Her first memoir, In Defense of Women, was published in 2011, and a judicial memoir, Incomplete Sentences, will be published in 2019.
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Almost everything that Trump and Sessions have said about asylum seekers and border policy is absurd — clearly refuted by the facts and by past failures.
Lies, racism, xenophobia, absurd positions, claims that are demonstrably false, just plain stupidity, fraud, waste, abuse, it’s all in a day’s work for Trump, Sessions, Miller, Nielsen, and the other White Nationalists firmly committed to the downfall of American democracy.
And, as Judge Gertner points out, they are aided and abetted by a spineless “go along to get along” Supreme Court majority unwilling to uphold their oaths of office and defend the Constitution and our country against the outrageously unconstitutional, cruel, unjustified, and immoral actions of the Trump Administration.
Can the lower Article IIIs stem the tide long enough for us to get “regime change” at the ballot box and save America? The answer is a resounding “maybe.”
Better get out the vote in November to throw the White Nationalists/Putinists and their fellow travelers out of office. Otherwise, it might be too late for the world’s most successful democracy.
Rosales Justo v. Sessions, 1st Cir., 07-16-18, published
PANEL: Torruella, Lipez, and Kayatt Circuit Judges
OPINION BY: Judge Lipez
KEY QUOTE:
In sum, the BIA’s justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government’s inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales’s son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales’s testimony about the particular circumstances of his case, were sufficient to support the IJ’s finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the IJ’s finding that Rosales did not report threats by organized crime to the police refuted the IJ’s ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ’s inability finding was clearly erroneous because the Mexican government’s failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable.
Because of these errors, we grant Rosales’s petition and remand to the BIA for further proceedings consistent with this opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam) (holding that remand to the BIA is generally the appropriate remedy when the BIA commits a legal error).
So ordered.
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Nice to see a Circuit Court, particularly a fairly conservative one like the First Circuit, take strong stand against the nonsense and mockery of Due Process and justice going on at EOIR under Sessions;
Expect more of these in the future as the “Just Find A Way To Deny & Deport” initiative by the xenophobic, scofflaw AG goes into high gear at EOIR;
Quite contrary to everything Sessions has been saying, which completely ignores the lessons of the Supreme Court’s decision in INS v. Cardoza Fonseca, asylum law is supposed to be interpreted and applied generously in favor of those seeking life saving protection;
This case illustrates the importance of dissent at the BIA, as the First Circuit basically adopted the correct interpretation of the law and facts set forth by a dissenting (female) BIA Appellate Immigration Judge;
This also shows the importance of full three-judge review by the BIA on asylum cases, rather than single judge panels or summary denials;
The number of fundamental errors committed by the BIA panel majority in reversing this asylum grant and the persistence of the DOJ in advancing untenable legal positions before the Court of Appeals is simply appalling, even if consistent with Session’s own lack of scholarship and total disrespect for fundamental fairness to respondents in Immigration Court;
This case also highlights a chronic problem in EOIR asylum adjudication: conflating “willingness to protect” with “ability to protect.” Too many Immigration Judges and BIA Appellate Judges seize on ineffective efforts by local police, cosmetic improvements by governments, and failure to seek (largely useless and perhaps actually harmful) police assistance to find that there has been “no failure of state protection;”
That’s exactly what Sessions himself did in his fundamentally flawed opinion in Matter of A-B-. He encouraged judges to conflate ineffective efforts to protect with actual ability to protect. And, his comparison of how domestic violence is policed and prosecuted in the United States with El Salvador’s pathetic efforts in behalf of domestic violence victims was simply preposterous;
This decision also addresses another chronic problem at EOIR: judges “cherry picking” the record and particularly Department of State Country Reports for the information supporting a denial, even though the record taken as a whole lends support to the respondent’s claim;
Once again, how would any unrepresented applicant make the kind of potentially winning asylum case presented by this respondent with the assistance of counsel? When are Courts of Appeals finally going to state the obvious: proceeding to adjudicate an asylum claim by an unrepresented respondent is a per se denial of Due Process!
This case should be taken as a message that Immigration Judges and BIA panels following the misguided Sessions’ dicta on “unwilling or unable to protect,” rather than applying the correct standards set forth by most Circuits are going to be getting lots of “do overs” from the Circuit Courts;
How could anybody justify “speeding up” a system with this many fundamental (and life-threatening) flaws to begin with? Under Sessions, EOIR is on track to becomes veritable “reversible error factory” — as well as a “Death Railroad!”
Here’s Emily Kassie’s short documentary containing actual descriptions from victims and their abusers. Also starring refugee advocates Michele Brane of the Women Refugee Commisson, Barbara Hines, Esq., and others who “blow the whistle” on Sessions’s depraved policies and the unnecessary pain and suffering they are causing!
I Just Simply Did What He Wanted’: Sexual Abuse Inside Immigrant Detention Facilities – Video – NYTimes.com
So, get this! Gonzo, for no particular reason, reverses a well-established, working precedent — agreed upon by all parties, sponsored by DHS, and the product of 15 years of painstaking work by attorneys on both sides — that protected abused women under our refugee laws. This precedent, Matter of A-R-C-G-, actually saved lives and helped some of the most deserving and long-suffering refugees I dealt with in my decades long career enter and contribute to U.S. society. It was a perfect example of how asylum law could and should work to protect the most vulnerable! A “win – win” for the refugees and for our country!
Then, Sessions intentionally creates a system where these already abused refugees are detained and further abused and persecuted in the United States. Then, he returns them (without fair consideration of their claims for protection) to the countries in which they were persecuted to face further abuse, torture, or death.
The problems faced by women in detention were well-known in the Obama Administration. In fact, the Trump Administration immediately abolished the office within DHS that had been established to deal with allegations of sexual abuse. So, this isn’t “mere negligence.” It’s knowing and intentional misconduct! Usually, that results in criminal prosecution or civil liability!
How perverse is Sessions? I’ll go back to Eugene Robinson’s question from a recent blog posted on “courtside:” Why aren’t kidnappers, child abusers, and promoters of sexual abuse like Sessions and his White Nationalist cronies in jail rather than holding high office?https://wp.me/p8eeJm-2O8
WE ARE DIMINISHING OURSELVES AS A NATION, BUT, THAT WON’T STOP HUMAN MIGRATION!
Do not misbehave. Do not sit on the floor. Do not share your food. Do not use nicknames. Also, it is best not to cry. Doing so might hurt your case.
Lights out by 9 p.m. and lights on at dawn, after which make your bed according to the step-by-step instructions posted on the wall. Wash and mop the bathroom, scrubbing the sinks and toilets. Then it is time to form a line for the walk to breakfast.
“You had to get in line for everything,” recalled Leticia, a girl from Guatemala.
Small, slight and with long black hair, Leticia was separated from her mother after they illegally crossed the border in late May. She was sent to a shelter in South Texas — one of more than 100 government-contracted detention facilities for migrant children around the country that are a rough blend of boarding school, day care center and medium security lockup. They are reserved for the likes of Leticia, 12, and her brother, Walter, 10.
The facility’s list of no-no’s also included this: Do not touch another child, even if that child is your hermanito or hermanita — your little brother or sister.
Leticia had hoped to give her little brother a reassuring hug. But “they told me I couldn’t touch him,” she recalled.
In response to an international outcry, President Trump recently issued an executive order to end his administration’s practice, first widely put into effect in May, of forcibly removing children from migrant parents who had entered the country illegally. Under that “zero-tolerance” policy for border enforcement, thousands of children were sent to holding facilities, sometimes hundreds or thousands of miles from where their parents were being held for criminal prosecution.
But more than 2,800 children — some of them separated from their parents, some of them classified at the border as “unaccompanied minors” — remain in these facilities, where the environments range from impersonally austere to nearly bucolic, save for the fact that the children are formidably discouraged from leaving and their parents or guardians are nowhere in sight.
Depending on several variables, including happenstance, a child might be sent to a 33-acre youth shelter in Yonkers that features picnic tables, sports fields and even an outdoor pool. “Like summer camp,” said Representative Eliot L. Engel, a Democrat of New York who recently visited the campus.
Or that child could wind up at a converted motel along a tired Tucson strip of discount stores, gas stations and budget motels. Recreation takes place in a grassless compound, and the old motel’s damaged swimming pool is covered up.
Image
Migrant children in a recreation area at a shelter in Brownsville, Tex.CreditLoren Elliott/Reuters
Still, some elements of these detention centers seem universally shared, whether they are in northern Illinois or South Texas. The multiple rules. The wake-up calls and the lights-out calls. The several hours of schooling every day, which might include a civics class in American history and laws, though not necessarily the ones that led to their incarceration.
Most of all, these facilities are united by a collective sense of aching uncertainty — scores of children gathered under a roof who have no idea when they will see their parents again.
Leticia wrote letters from the shelter in South Texas to her mother, who was being held in Arizona, to tell her how much she missed her. She would quickly write these notes after she had finished her math worksheets, she said, so as not to violate yet another rule: No writing in your dorm room. No mail.
She kept the letters safe in a folder for the day when she and her mother would be reunited, though that still hasn’t happened. “I have a stack of them,” she said.
Another child asked her lawyer to post a letter to her detained mother, since she had not heard from her in the three weeks since they had been separated.
“Mommy, I love you and adore you and miss you so much,” the girl wrote in curvy block letters. And then she implored: “Please, Mom, communicate. Please, Mom. I hope that you’re OK and remember, you are the best thing in my life.”
The complicated matters of immigration reform and border enforcement have vexed American presidents for at least two generations. The Trump administration entered the White House in 2017 with a pledge to end the problems, and for several months, it chose one of the harshest deterrents ever employed by a modern president: the separation of migrant children from their parents.
This is what a few of those children will remember.
No Touching, No Running
Diego Magalhães, a Brazilian boy with a mop of curly brown hair, spent 43 days in a Chicago facility after being separated from his mother, Sirley Paixao, when they crossed the border in late May. He did not cry, just as he had promised her when they parted. He was proud of this. He is 10.
He spent the first night on the floor of a processing center with other children, then boarded an airplane the next day. “I thought they were taking me to see my mother,” he said. He was wrong.
Once in Chicago, he was handed new clothes that he likened to a uniform: shirts, two pairs of shorts, a sweatsuit, boxers and some items for hygiene. He was then assigned to a room with three other boys, including Diogo, 9, and Leonardo, 10, both from Brazil.
The three became fast friends, going to class together, playing lots of soccer and earning “big brother” status for being good role models for younger children. They were rewarded the privilege of playing video games.
There were rules. You couldn’t touch others. You couldn’t run. You had to wake up at 6:30 on weekdays, with the staff making banging noises until you got out of bed.
“You had to clean the bathroom,” Diego said. “I scrubbed the bathroom. We had to remove the trash bag full of dirty toilet paper. Everyone had to do it.”
Diego and the 15 other boys in their unit ate together. They had rice and beans, salami, some vegetables, the occasional pizza, and sometimes cake and ice cream. The burritos, he said, were bad.
Apart from worrying about when he would see his mother again, Diego said that he was not afraid, because he always behaved. He knew to watch for a staff member “who was not a good guy.” He had seen what happened to Adonias, a small boy from Guatemala who had fits and threw things around.
“They applied injections because he was very agitated,” Diego said. “He would destroy things.”
A person he described as “the doctor” injected Adonias in the middle of a class, Diego said. “He would fall asleep.”
Diego managed to stay calm, in part because he had promised his mother he would. Last week, a federal judge in Chicago ordered that Diego be reunited with his family. Before he left, he made time to say goodbye to Leonardo.
“We said ‘Ciao, good luck,” Diego recalled. “Have a good life.”
But because of the rules, the two boys did not hug.
. . . .
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Read the full story at the link.
This is America in the age of Trump & Sessions. A few of these kids might get to stay in the U.S. Most will be returned (with little or no Due Process) to countries will they will be targeted, harassed, brutalized, extorted, impressed, and/or perhaps killed by gangs that operate more or less with impunity from weak and corrupt police and governments. Indeed, contrary to the false blathering of Sessions & co., gangs and cartels are the “de facto government” in some areas of the Norther Triangle. Those kids that survive to adulthood will have these memories of the United States and how we treated them at their time of most need.
The privatization of ICE detention centers has exacerbated the problems the bureau faces and has given considerable fodder to media exposes of abuses. The DHS Office of Inspector General recently released a scathing report on failures of the private contractors to comply with detention standards. It’s time to restructure the responsibilities to administer detention and removal policies more humanely.
To its credit, ICE also performs critical assignments that include investigating foreign nationals who violate the laws. The main categories of crimes its agents investigate are suspected terrorism, criminal acts, suspected fraudulent activities (i.e., possessing or manufacturing fraudulent immigration documents) and suspected smuggling and trafficking of foreign nationals. ICE investigators are housed in the Homeland Security Investigations (HSI) component and are among those who would dismantle ICE.
If ICE is not at the border performing critical background checks and national security screenings, who does? First, the State Department consular officers screen all foreign nationals requesting a visa, employing biometric technologies along with biographic background checks. In some high-risk consulates abroad, ICE assists in national security screenings. Then, DHS Customs and Border Protection (CBP) inspectors examine all foreign nationals who seek admission to the United States at ports of entry. CBP inspectors and consular officials partner with the National Counterterrorism Center (NCTC) to utilize the Terrorist Identities Datamart Environment on known and suspected terrorists and terrorist groups.
They also check the background of all foreign nationals in biometric and biographic databases such the FBI’s Integrated Automated Fingerprint Identification System. Improvements in intelligence-gathering, along with advances in technologies and inter-agency sharing, have greatly enhanced the rigor of our national security screenings.
The most effective policy for interior immigration enforcement would be one prioritizing “quality of life” enforcement. As I have written elsewhere, it would be aimed at protecting U.S. residents from the deleterious and criminal aspects of immigration. Foremost, it would involve the investigation and removal of foreign nationals who have been convicted of crimes and who are deportable, thus maintaining the important activities of the current ICE investigators.
“Quality of life” enforcement, furthermore, would prioritize investigations of specific work sites for wage, hour and safety violations, sweatshop conditions and trafficking in persons — all illegal activities to which unauthorized workers are vulnerable. “Quality of life” enforcement also would encompass stringent labor market tests (e.g., labor certifications and attestations) to ensure that U.S. workers are not adversely affected by the recruitment of foreign workers, as well as reliable employment verification systems. Many of these functions once were performed by the Department of Labor (DOL), before funding cuts gutted its enforcement duties.
Prioritizing these functions likely would go a long way toward curbing unauthorized migration. Whether DOL or a revamped immigration enforcement be the lead on “quality of life” measures remains a key management question. There is a strong case for re-establishing DOL’s traditional role in protecting U.S. workers and certifying the hiring of foreign workers. Given the critical role that ICE investigators play, it is imperative that they be housed in an agency that provides them with adequate support. These are finer points that can be resolved as the functions are reorganized.
Including a multi-pronged agency or agencies charged with ensuring “quality of life” immigration enforcement measures as part of a package of immigration reforms would only increase the strong public support (roughly two-thirds favor) for comprehensive immigration reform. Good policy. Good politics.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. She is writing a book about the legislative drive to end race- and nationality-based immigration.
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Hit the above link to read Ruth’s entire article over at The Hill.
I believe that both Nolan Rappaport and I have previously noted the importance of better wage and hour enforcement in preventing employer abuse of both the legal and extra-legal immigration systems. Sure make lots more sense than “busting” hard-working, productive members of our community who have the bad fortune to be here without documents in an era of irrational enforcement!
There are lots of “smart immigration enforcement” options out there. Although the Obama Administration for the most part screwed up immigration policy, toward the end they actually were coming around to some of the “smart enforcement” initiatives, particularly with DACA at USCIS and more consistent and widespread use of prosecutorial discretion (“PD”) at ICE.
Naturally, the Trump Administration abandoned all of the “smart” initiatives started by the Obama Administration and instead doubled down on every cruel, ineffective, and just plain stupid policy from the past. But, that’s because it’s never been about law enforcement or developing a rational immigration policy. It’s really all about racism and White Nationalism. This Administration, representing a minority of Americans, has absolutely no interest in democracy or governing for the common good.
That’s why it’s critical for the rest of us, who want no part of White Nationalist Nation, to begin the process for “regime change” at the ballot box this Fall! And, in the meantime, join the New Due Process Army and fight the horrible excesses and intentionally ugly policies of the Trumpsters!
Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?
The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.
DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.
Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.
And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.
So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.
A precedent for a solution
Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.
We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.
How our two-track asylum system works
To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.
A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.
Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.
That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.
Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”
For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).
Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)
In the 1990s the system was also overwhelmed. We brought it back under control.
Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.
That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.
Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.
Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.
Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.
But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).
To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).
Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.
These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.
Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.
The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.
With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.
A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.
Concrete steps to fix the problems
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.Joe Raedle/Getty Images
There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:
1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.
But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.
This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.
This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.
2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.
Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.
In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)
Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.
The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.
Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.
Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.
To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.
3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.
A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.
The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.
But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.
Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.
But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.Orlando Estrada/AFP/Getty Images
4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.
It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.
In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.
That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.
These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.
The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.
Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.
Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.
MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL
By Paul Wickham Schmidt
As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.
David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.
David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).
Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.
The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!
With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.
Don’t Blame The Victims.
With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.
Let Judges Run The Courts.
The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.
Protection Not Rejection.
Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.
Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.
No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.
Detention Isn’t The Answer.
Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.
Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.
I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.
But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.
No, I Don’t Have All the Answers.
But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.
But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.
It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.
Racism is a feature of the Trump administration, not a bug. Like demagogues before him, President Trump and his aides consistently single out one group for scapegoating and persecution: nonwhite Hispanic immigrants.
Trump doesn’t much seem to like nonwhite newcomers from anywhere, in truth — remember how he once expressed a fond wish for more immigrants from Norway? — but he displays an especially vicious antipathy toward men, women and even children from Latin America. We have not seen such overt racism from a president since Woodrow Wilson imposed Jim Crow segregation in Washington and approvingly showed “The Birth of a Nation,” director D.W. Griffith’s epic celebration of the Ku Klux Klan, at the White House.
Trump encourages supporters to see the nation as beset by high levels of violent crime — and to blame the “animals” of the street gang MS-13. He is lying; crime rates nationwide are far lower than two or three decades ago, and some big cities are safer than they have been in a half-century. But Trump has to paint a dystopian panorama to justify the need to Make America Great Again.
MS-13 is, indeed, unspeakably violent. But it is small; law enforcement officials estimate the gang’s total U.S. membership at roughly 10,000, concentrated in a few metropolitan areas that have large populations of Central American immigrants — Los Angeles, New York and Washington. Trump never acknowledges that the gang was founded in the United States by immigrants from El Salvador and exported to Central America, where it took hold. He also neglects to mention that its members here, mostly teenagers, generally direct their violence at one another, not at outsiders.
Trump deliberately exaggerates the threat from MS-13 in order to justify his brutality toward Central American asylum seekers at the border. People should never be treated that way, but “animals” are a different story.
It is unbelievable that the U.S. government would separate more than 2,300 children from their parents for no good reason other than to demonstrate cruelty. It is shocking that our government would expect toddlers and infants to represent themselves at formal immigration hearings. It is incredible that our government, forced to grudgingly end the policy, would charge desperate parents hundreds or thousands of dollars to be reunited with their children. It is appalling that our government would refuse even to give a full and updated accounting of how many children still have not been returned. Yet all of this has been done — in our name.
Trump uses words such as “invading” and “infest” and “breeding” to describe Central American migrants who arrive at the border lawfully seeking asylum. I’ll believe this is neutral immigration policy when Immigration and Customs Enforcement agents begin hunting down and locking up Norwegians who have overstayed their visas.
Said Norwegians, if anyone bothered to look for them, might well be taking jobs away from American workers or taking advantage of social-welfare programs or boosting crime rates. There is no evidence that asylumseekers are doing any of these things.
Trump’s policies flow from a worldview that he has never tried to hide. To describe Trump and aides such as Attorney General Jeff Sessions and senior policy adviser Stephen Miller as “anti-immigration” tells only part of the story. They adopt the stance of racial and cultural warriors, “defending” the United States against brown-skinned, Spanish-speaking hordes “invading” from the south.
Trump has proposed not just building a wall along the border with Mexico to halt the flow of undocumented migrants but also changing the system of legal immigration so that it no longer promotes family unification. He calls his aim a “merit-based” system, but Miller has specified that the administration wants to produce “more assimilation.”
Yet there is no evidence that immigrants from Latin America fail to assimilate in any way except one: They do not come to look like Trump’s mental image of “American,” which is basically the same as his mental image of “Norwegian.”
This is a story as old as the nation. German, Irish, Polish, Italian and other immigrant groups were once seen as irredeemably foreign and incapable of assimilating. The ethnic and racial mix of the country has changed before and is changing now.
Hispanics are by far the biggest minority group in the country, making up nearly 18 percent of the population; by 2060, the Census Bureau estimates, that share will rise to nearly 29 percent . Trump is punishing Central American mothers and babies because, try as he might, he can’t Make America White Again.
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Robinson gives us one of the best, concise summaries of the horrible dishonesty, racism, and all around meanness of spirit and ugliness that Trump, Sessions, Miller, and their enablers have brought to 21st Century America. But, in the end, it can’t change demographics any more than it can stop human migration. However, it does diminish us as a nation every day every day that these totally unqualified individuals remain in charge of our government, without any realistic restraints on their toxic, corrupt, and immoral actions.
ERO shouldn’t terrorize anyone, but it has to be able to arrest deportable aliens where they can be found.
The main reason for wanting to abolish ICE is likely to prevent undocumented aliens who are here for a better life from being deported.
But if ICE were to be abolished, its responsibilities would be assigned to another agency and Trump would require the new agency to implement the same policies.
Trump’s enforcement policies
President Barack Obama focused his immigration enforcement programprimarily on aliens who had been convicted of crimes in the United States, had been caught near the border after an illegal entry, or had returned unlawfully after being deported.
Once an undocumented alien had succeeded in crossing the border without being apprehended, he did not have to worry about being deported unless he was convicted of a serious crime. He was home free.
This created a “home free magnet” which encouraged more undocumented aliens to come and do whatever they had to do to cross the border.
“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”
He directed DHS “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”
Nevertheless, he prioritized removing aliens who are inadmissibleon criminal and related grounds, on security and related grounds, and for misrepresentations, or who are deportable for criminal offenses or on security and related grounds, and removable aliens who:
Have been convicted of any criminal offense;
Have been charged with any criminal offense, where such charge has not been resolved;
Have committed acts that constitute a criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter or government application;
Have abused any program related to receipt of public benefits;
Are subject to a final order of removal but have not left the United States; or
In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sanctuary policies prevent local police departments from turning inmates over to ERO when they are released from custody, so ERO is spending more of its time looking for deportable aliens in communities. This resulted in arresting 40,000 noncriminal aliens in FY 2017.
But ERO should not be engaging in improper behavior to make these or any other arrests.
If you see an ICE officer doing something improper, report him. This is far more likely to improve the situation than calling for the abolishment of ICE.
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Go on over to The Hill at the link for Nolan’s complete article.
I agree with Nolan that ICE isn’t going anywhere under Trump.
I also agree that the essential functions of ICE will still need to be performed, regardless of the ultimate fate of the organization.
I think it’s great that the “Abolish ICE Movement” has focused more attention on the cruel, unnecessary, and highly counterproductive enforcement and prosecutorial policies of ICE under Trump.
Indeed, the counterproductive nature of the Trump/Sessions immigration enforcement is a major reason why a group of Senior ICE Agents who actually perform real law enforcement functions — anti-smuggling, anti-human trafficking, immigration fraud, anti-terrorism — want to ditch the ICE label, because they know it’s inhibiting cooperation with other agencies and communities and thereby diminishing real law enforcement.
Most true law enforcement professionals that I have known don’t want to be associated with a group that glorifies cruelty and de-humanizes ordinary people. Having ICE on your resume today wouldn’t be a plus for most folks interested in a legitimate law enforcement career.
While the “essential functions” of ICE will continue, lots of today’s ICE enforcement has little to do with “essential enforcement.” The latter would be targeted at criminals, fraudsters, spouse abusers, traffickers, and recent arrivals who don’t have applications pending.
The lack of any semblance of common sense and responsibility in ICE’s abusive refusal to exercise prosecutorial discretion and actually putting properly closed cases back on the docket is a major contributor to the absolute mess in today’s Immigration Courts.
It’s also a reason why the Immigration Court mess is unlikely to be solved until Congress, the courts, and/or some future Executive force some fundamental changes in ICE enforcement and prosecutorial policies to reflect the same type of prudent, respectful, and realistic use of judicial time and prosecutorial discretion that is employed, to some extent, by every other major law enforcement agency in the U.S.
It never hurts to complain. I’m a big fan of making a “running record” of misconduct.
But, in the Trump Administration a record is about all you’ll get. Nothing is going to be done to correct misconduct because misconduct comes from the top.
My experience with ICE Chief Counsel’s Office in Arlington was highly positive. The attorneys were overwhelmingly fair, smart, responsive, respectful, and part of the “team” with the private, bar, the courts, and the interpreters that made the justice system work in Arlington in the past.
Indeed, working with the Arlington Chief Counsel’s Office made me proud to have led the major reorganization that established the forerunner to the “Modern Chief Counsel System” at the “Legacy INS” during the Carter and Reagan Administrations. The Arlington Chief Counsel’s Office was exactly what former General Counsels Dave Crosland, Mike Inman, Regional Counsel Bill Odencrantz, and I had envisioned when we planned and carried out the reorganization (over considerable internal opposition, I might add).
My overall experiences with the officers of ICE and it’s forerunner INS Investigations were positive. I found and worked with plenty of capable, dedicated, professional, and humane officers during my decades of dealing with immigration enforcement in some form or another.
All of that suggests that the major problems in ICE have arisen almost entirely under the Trump Administration. That’s because of truly horrible leadership from the top down.
ICE won’t improve until we get “regime change.” When that happens, ICE will have to be reorganized, reinvented, and “rebranded.” Professional management — one that pays particular attention to its relationship to local communities — must be reestablished. Sane enforcement and prosecutorial discretion policies will have to be reinstated.
My experiences with ICE suggest that the right people to lead an “ICE-type” agency in the future are likely already somewhere in ICE. They just aren’t in the right leadership and management positions. Maybe they will all quit before the end of the Trump Administration If not, they could serve as a “professional core” for rebuilding and reforming ICE.
I’m skeptical that so-called “Catch and Release” has a significant effect on what’s happening on the Southern Border.
In the first place, the current situation is “a self-created crisis” initiated by Trump & Sessions. Otherwise it’s pretty much normal migration.
Seeking asylum at the border isn’t “illegal migration” at all. It’s asserting an internationally recognized right. Detention and family separation are not appropriate responses to individuals seeking in good faith to exercise their rights.
In any event, the primary drivers of migration outside the visa system are: 1) unmet needs of the U.S. labor market, and 2) political, social, and economic conditions in foreign countries. So-called “Catch and Release” has no established effect on either of these “drivers.” See, e.g.,https://www.migrationpolicy.org/news/crisis-border-not-numbers.
‘National Socialist,’ circa 1935; photograph by August Sander from his People of the Twentieth Century. A new collection of his portraits, August Sander: Persecuted/Persecutors, will be published by Steidl this fall.
Liberal democracy has enjoyed much better days. Vladimir Putin has entrenched authoritarian rule and is firmly in charge of a resurgent Russia. In global influence, China may have surpassed the United States, and Chinese president Xi Jinping is now empowered to remain in office indefinitely. In light of recent turns toward authoritarianism in Turkey, Poland, Hungary, and the Philippines, there is widespread talk of a “democratic recession.” In the United States, President Donald Trump may not be sufficiently committed to constitutional principles of democratic government.
In such a time, we might be tempted to try to learn something from earlier turns toward authoritarianism, particularly the triumphant rise of the Nazis in Germany in the 1930s. The problem is that Nazism was so horrifying and so barbaric that for many people in nations where authoritarianism is now achieving a foothold, it is hard to see parallels between Hitler’s regime and their own governments. Many accounts of the Nazi period depict a barely imaginable series of events, a nation gone mad. That makes it easy to take comfort in the thought that it can’t happen again.
But some depictions of Hitler’s rise are more intimate and personal. They focus less on well-known leaders, significant events, state propaganda, murders, and war, and more on the details of individual lives. They help explain how people can not only participate in dreadful things but also stand by quietly and live fairly ordinary days in the midst of them. They offer lessons for people who now live with genuine horrors, and also for those to whom horrors may never come but who live in nations where democratic practices and norms are under severe pressure.
Milton Mayer’s 1955 classic They Thought They Were Free, recently republished with an afterword by the Cambridge historian Richard J. Evans, was one of the first accounts of ordinary life under Nazism. Dotted with humor and written with an improbably light touch, it provides a jarring contrast with Sebastian Haffner’s devastating, unfinished 1939 memoir, Defying Hitler, which gives a moment-by-moment, you-are-there feeling to Hitler’s rise. (The manuscript was discovered by Haffner’s son after the author’s death and published in 2000 in Germany, where it became an immediate sensation.)* A much broader perspective comes from Konrad Jarausch’s Broken Lives, an effort to reconstruct the experience of Germans across the entire twentieth century. What distinguishes the three books is their sense of intimacy. They do not focus on historic figures making transformative decisions. They explore how ordinary people attempted to navigate their lives under terrible conditions.
Haffner’s real name was Raimund Pretzel. (He used a pseudonym so as not to endanger his family while in exile in England.) He was a journalist, not a historian or political theorist, but he interrupts his riveting narrative to tackle a broad question: “What is history, and where does it take place?” He objects that most works of history give “the impression that no more than a few dozen people are involved, who happen to be ‘at the helm of the ship of state’ and whose deeds and decisions form what is called history.” In his view, that’s wrong. What matters are “we anonymous others” who are not just “pawns in the chess game,” because the “most powerful dictators, ministers, and generals are powerless against the simultaneous mass decisions taken individually and almost unconsciously by the population at large.” Haffner insists on the importance of investigating “some very peculiar, very revealing, mental processes and experiences,” involving “the private lives, emotions and thoughts of individual Germans.”
Mayer had the same aim. An American journalist of German descent, he tried to meet with Hitler in 1935. He failed, but he did travel widely in Nazi Germany. Stunned to discover a mass movement rather than a tyranny of a diabolical few, he concluded that his real interest was not in Hitler but in people like himself, to whom “something had happened that had not (or at least not yet) happened to me and my fellow-countrymen.” In 1951, he returned to Germany to find out what had made Nazism possible.
In They Thought They Were Free, Mayer decided to focus on ten people, different in many respects but with one characteristic in common: they had all been members of the Nazi Party. Eventually they agreed to talk, accepting his explanation that he hoped to enable the people of his nation to have a better understanding of Germany. Mayer was truthful about that and about nearly everything else. But he did not tell them that he was a Jew.
In the late 1930s—the period that most interested Mayer—his subjects were working as a janitor, a soldier, a cabinetmaker, an office manager, a baker, a bill collector, an inspector, a high school teacher, and a police officer. One had been a high school student. All were male. None of them occupied positions of leadership or influence. All of them referred to themselves as “wir kleine Leute, we little people.” They lived in Marburg, a university town on the river Lahn, not far from Frankfurt.
Mayer talked with them over the course of a year, under informal conditions—coffee, meals, and long, relaxed evenings. He became friends with each (and throughout he refers to them as such). As he put it, with evident surprise, “I liked them. I couldn’t help it.” They could be ironic, funny, and self-deprecating. Most of them enjoyed a joke that originated in Nazi Germany: “What is an Aryan? An Aryan is a man who is tall like Hitler, blond like Goebbels, and lithe like Göring.” They also could be wise. Speaking of the views of ordinary people under Hitler, one of them asked:
Opposition? How would anybody know? How would anybody know what somebody else opposes or doesn’t oppose? That a man says he opposes or doesn’t oppose depends upon the circumstances, where, and when, and to whom, and just how he says it. And then you must still guess why he says what he says.
When Mayer returned home, he was afraid for his own country. He felt “that it was not German Man that I had met, but Man,” and that under the right conditions, he could well have turned out as his German friends did. He learned that Nazism took over Germany not “by subversion from within, but with a whoop and a holler.” Many Germans “wanted it; they got it; and they liked it.”
Mayer’s most stunning conclusion is that with one partial exception (the teacher), none of his subjects “saw Nazism as we—you and I—saw it in any respect.” Where most of us understand Nazism as a form of tyranny, Mayer’s subjects “did not know before 1933 that Nazism was evil. They did not know between 1933 and 1945 that it was evil. And they do not know it now.” Seven years after the war, they looked back on the period from 1933 to 1939 as the best time of their lives.
Mayer suggests that even when tyrannical governments do horrific things, outsiders tend to exaggerate their effects on the actual experiences of most citizens, who focus on their own lives and “the sights which meet them in their daily rounds.” Nazism made things better for the people Mayer interviewed, not (as many think) because it restored some lost national pride but because it improved daily life. Germans had jobs and better housing. They were able to vacation in Norway or Spain through the “Strength Through Joy” program. Fewer people were hungry or cold, and the sick were more likely to receive treatment. The blessings of the New Order, as it was called, seemed to be enjoyed by “everybody.”
. . . .
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Read the complete article at the link.
As a historical footnote, I crossed paths with Cass Sunstein at the DOJ during the Carter Administration in 1980-81, when he was an attorney in the Office of Legal Counsel and I was the Acting General Counsel/Deputy General Counsel of the “Legacy INS.” About all I remember is that: 1) he was brilliant, 2) he wrote really well; 3) everyone had him pegged as among “the most likely to succeed;” and 4) we both had lots, lots more hair then.
I agree with pretty much everything Sunstein says. Except for one major point. I don’t think “it can happen here.” It is happening here!
Cass says “Thus far, President Trump has been more bark than bite.” Really! With all due respect, that seems like a view directly from the “Ivory Tower.”
Ask U.S. citizens children whose parents have been deported for no rational reason without any consideration of what will happen to those left behind; ask those children intentionally abused and probably damaged for life by the likes of Jeff Sessions; ask communities that have been terrorized by the Homan-led “ICE Gestapo” that strikes terror, performs few if any “real” law enforcement functions these days, while insuring that whole segments of the population are “easy marks” for crime and abuse; ask women and children refugees from Central American who are essentially being railroaded back to the “death camps” from which they fled by the noxious White Nationalist racists Trump, Miller, & Sessions, with the assistance of morally vapid sycophants like Nielsen and Kelly, without even the semblance of due process; ask Dreamers who are slurred by the always disingenuous Sessions while being held as hostages by Trump, and hung out to dry by the GOP Congress; ask the kids and families being held in the “New American Gulag” established by Sessions — combined with his intentional distortion of asylum law, they are basically being held in concentration camps waiting to be shipped off to death camps in the Northern Triangle! And we haven’t even gotten to Sessions’s absolutely outrageous, lawless, unconstitutional, and totally immoral plan to rewrite asylum law so that nobody who needs protection actually gets it! Or how about not taking any Syrian refugees, even though they are dying in refugee camps awaiting resettlement every day. Just because the actual deaths, rapes, torture, US-caused human trafficking, and other unspeakable abuses take place outside our national boundaries doesn’t mean that we aren’t just as responsible for them as the fat & happy Burghers of the Third Reich!
I wrote about Sunstein’s timely, yet totally disturbing, article in my response to a comment from my good friend, colleague, and fellow member of the “Gang of Retired Immigration Judges,” Judge Gus Villageliu in response to one of his “right on” comments today. Here’s what I said:
There is a great article by Professor Cass Sunstein about the parallels between Nazism and Trumpism. The key: Germans who supported Hitler were fat, happy, and satisfied with their lives under Nazism and were willfully indifferent to the torture and suffering of their fellow human beings. They happily accepted the Nazi propaganda that Jews were either traitors or had voluntarily left the country after being fairly compensated for their property. Even after the war, some ordinary Germans looked back on the 1933-39 era of Nazi rule as the best time of their lives.
Another key observation by Sunstein: resistance is never futile and every individual act of resistance, no matter how small or insignificant it might seem at the time, is important. The little acts and persistence add up over time.
In my view, they also establish an important record for historians and future generations. I want my grandchildren, great-grandchildren, and great-great-grandchildren to know where I stood in the era of Trump, Sessions, Miller & the rest of the White Nationalist neo-Nazis and their utterly disgusting perversion of Western Judeo-Christian values!
Due Process, tolerance, courage, standing up for the less fortunate, and recognizing the human rights and dignity of every person are eternal values that are always worth fighting for!
Join the New Due Process Army. Resist the White Nationalist Regime every step of the way. Force “go along to get along” courts (like the Supremes) to face up to the horrible immorality of their appeasement of the cruel, inhuman, and illegal actions of the Trump Administration. Write the historical record that even the Trumpsters and their followers won’t be able to escape so that we might never, ever again have a Neo-Nazi revival like the Trump Administration!
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