"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.
An Immigration and Customs Enforcement assistant field office director arrests an Iranian immigrant in San Clemente, California, in 2017.
230
You wake up early one morning to realize that men wearing bulletproof vestshave come to your home.They immediately demand to take you with them. They transport you thousands of miles away to a prison-like facility and tell you that you must stay there until a judge — who appears on a video screen — decides whether you can go back to live with your family or be directly transported to another country. You go through this process alone, with no ability to speak with an attorney or anyone who can give you knowledge of your legal rights or even help you make sense of what is happening.
This will soon be the reality for the tens of thousands of individuals who are arrested and held in detention facilities by Immigration and Customs Enforcement. Earlier this month, the Department of Justice effectively decided to suspend the Legal Orientation Program, citing concerns about cost-effectiveness.
The Department of Justice established the LOP in 2003 to improve the efficiency of the immigration courts by helping unrepresented detained immigrants work with an attorney to prepare their cases. The program operates through 18 nonprofit organizations across the country and has a budget of just under $8 million. At least once a month, these organizations bring both paid attorneys and volunteers from the community to over 38 detention centers to educate detained immigrants about their rights through group orientations, individual consultations and self-help workshops.
These interactions with attorneys, along with the legal resources that the program makes available, help detained immigrants make informed decisions about their cases and prepare for their court hearings. LOP organizations also refer detained individuals to pro bono attorneys when they are unable to represent themselves or would benefit from direct legal representation.
JOHN MOORE VIA GETTY IMAGES
A father and daughter from Honduras wait for assistance at the Immigrant Respite Center after they were released from U.S. immigration officials on Feb. 23 in McAllen, Texas.
The men, women and children who LOP assists cannot search for help from attorneys on their own — many are confined in detention centers located hours from a major city — and the government does not provide them an attorney. Without LOP staff and volunteers physically visiting detention centers, detained immigrants must resort to calling attorneys through a phone system that either requires purchasing a phone card (something that is difficult when you have no access to money, because you are detained) or hopinglaw offices will answer collect calls. As a result, 84 percent of detained individuals do not have legal representation in deportation proceedings.
For over 50,000 detained immigrants every year, LOP organizations have provided the only guaranteed source of legal information and assistance in making informed decisions about their deportation proceedings. Because LOP organizations can also communicate with pro bono attorneys on the outside, this program also plays a crucial role in connecting detained individuals to legal representation. Represented individuals are more than twice as likely to avoid deportation, meaning LOP providers are directly responsible for helping detained immigrants avoid being deported, being torn away from their families and suffering the collateral consequences of being forced out of the country, which can include death.
In my visits to immigration courts across the country as a volunteer attorney, I have witnessed firsthand how the LOP volunteers serve as a rare lifeline for immigrants in detention. Each visit, I play my part in the same heartbreaking scene: I arrive with other volunteer attorneys to find an empty room with a TV screen. We are connected to a feed at one of the country’s many detention facilities, located in remote towns that would take hours to physically reach.
There are a number of immigrants waiting patiently to speak with us, sometimes a handful, sometimes over a dozen, almost all without a lawyer to represent them. Many of them do not understand why they have been in immigration custody or what was going to happen during the hearing that day. We have just a short time before they appear in court, giving us on average less than 10 minutes to attempt to answer the dozens of questions they have about their immigration cases.
At the end of the conversation with every individual, we always inform them that they should speak more in-depth with a volunteer through the Legal Orientation Program’s monthly visit. During the hearing, the immigration judge parrots the same advice: that they should to speak with LOP volunteers for more help with their questions, to help them find an attorney and to prepare them for the next hearing.
The DOJ would effectively eliminate the only guaranteed way that detained immigrants can access guidance in a high-stakes legal setting.
Opponents of the Legal Orientation Program argue that the program is “duplicative” because immigration judges are supposed to advise immigrants of their rights during their hearings. First, we should give up the pretense that someone without a law degree can understand one of the most complex areas of law after hearing it for the first time in the middle of a courtroom proceeding.
This argument alsoignores the most important function of the Legal Orientation Program for immigrants and for defenders of the larger justice system in the U.S.: This program helps people find an attorney. An immigration judge, as opposed to an LOP volunteer, cannot, by definition, provide advice to the immigrant, cannot represent them in their hearings, and cannot facilitate communication with other attorneys who may provide them representation. The Legal Orientation Program fulfills these needs, which are pivotal to the functioning of a just legal system.
By cutting off individuals’ access to legal information through the Legal Orientation Program, and forcing those who are locked up during their deportation proceedings to get all information about their rights from an ostensibly neutral arbiter, the DOJ would effectively eliminate the only guaranteed way that detained immigrants can access crucial, reputable guidance in a high-stakes legal setting. This will affect the lives of everyone whom the current administration wants to detain, including those fleeing persecution, children, pregnant women, parents who are long-term residents of this country, people with medical conditions and even U.S. citizens.
In effect, without access to an LOP volunteer and attorney, almost anyone who is detained by ICE is virtually guaranteed to be deported, with no effective defense against a government attorney or an immigration judge, who has been mandated by this administration to close deportation cases as quickly as possible, fair day in court be damned.
If the Department of Justice moves to end the Legal Orientation Program for good, it will strip away the last shred of evidence that immigrants have a right to due process and will eliminate any semblance of justice left in the immigration system. The immigration courts will effectively become a sham, in utter betrayal of our country’s rich immigrant heritage.
Em Puhl is a San Joaquin Valley Law Fellow at the Immigrant Legal Resource Center, and a former attorney adviser at the Executive Office for Immigration Review in the Department of Justice.
***************************************
Shortly after Em’s article came out, Sessions yielded to bipartisan pressure from Congress and “temporarily reinstated” the LOP. But, his so-far aborted attempt to destroy the LOP remains the most bone-headed, dishonest, and downright despicable attack yet on what little remains of the pretense of justice in our U.S.Immigration Courts by Sessions.
As a former U.S. Immigration Judge, I can testify, as can almost all of my former colleagues, DHS Assistant Chief Counsel, and anyone else actually familiar with and working in the Immigration Court system that the LOP probably provides the best “value for the dollar spent” of any program in EOIR.
Justice report’s findings clash with Sessions’ actions
By Tal Kopan
Attorney General Jeff Sessions has made overhauling the chronically backlogged immigration courts a top priority — but some of his moves seem to run counter to recommendations in a Justice Department-commissioned report made public on Monday.
While some of the recommendations, such as increasing staffing, have been part of his efforts, other steps — such as requiring judges to process a target amount of cases — run contrary to the study’s suggestions.
The report was written by consulting firm Booz Allen Hamilton last April after a yearlong analysis commissioned by the Justice Department’s immigration courts division. A redacted version was made public Monday as the result of a Freedom of Information Act request by the American Immigration Lawyers Association and American Immigration Council.
The report looks at the chronic inability of the immigration courts to keep up with the number of cases before them. Cases related to immigration status are handled in a court system separate from the typical criminal and civil courts in the US — a system that is run entirely by the Justice Department and in which the attorney general effectively functions as a one-man Supreme Court.
Because cases can take years to finish, undocumented immigrants can end up living and building lives in the US as they await a final decision on whether they are legally allowed to stay in the US — something the Trump administration has cited as a driver of illegal immigration.
The Booz Allen Hamilton analysis identifies a number of issues that contribute to the backlog, including staffing shortages, technological difficulties and external factors like an increasing number of cases.
Sessions has worked to hire more immigration judges and has ordered other upgrades like the use of an electronic filing system, as the report recommends.
But the American Immigration Lawyers Association expressed concern about a number of other recommendations that seemed ignored or on which opposite action was taken.
Responding to the report, a Justice Department official who requested not to be named said that the efforts of the department are “common-sense.”
“After years of mismanagement and neglect, the Justice Department has implemented a number of common-sense reforms in the immigration court system, a number of them address these issues and we believe that focusing our efforts on these reforms has been an effective place to start,” the official said.
The report’s recommendations include a performance review system for judges, who are hired and managed by the Justice Department, that “emphasizes process over outcomes and places high priority on judicial integrity and independence,” including in dialogue with the union that represents immigration judges. The Justice Department recently rolled out a performance metrics system, though, that requires judges to complete a certain number of cases per year and sets time goals for other procedural steps along the way, which immigration judges have strongly opposed as jeopardizing the ability of judges to make fair, independent decisions.
In a call with reporters, AILA representatives and a retired immigration judge argued that while the report doesn’t explicitly reject a quota system, it’s clear that putting one in place is contrary to the recommendation. They say that judges who are fearful of their job security and opportunity for advancement may be pressured to speed up hearing cases at the expense of due process for the immigrants, which could skew the outcome of the case.
A Justice Department official said the agency rejects the notion of a “false dichotomy” that improving efficiency sacrifices due process and said the agency has also put in place court-based metrics that lend itself to the recommendation of the report.
In another example, the report recommends that the Justice Department consider expanding legal orientation programs for immigrants and increasing their access to attorneys, so they can better navigate the system. The Justice Department recently put on hold a legal advice program for immigrants in the courts, saying it needed to be reviewed, though audits in the past had consistently shown it was productive and had saved the government money long-term. Officials say they may reinstitute the program if the audit shows it is effective.
The report also recommends limited use of video hearings, saying judges are stymied by technical difficulties and also are less able to read the subtle cues and nonverbal communications of witnesses and people involved in the hearings. Sessions’ immigration courts plan includes expanding the use of video hearings.
In another example, one of Sessions’ first moves in taking office was to send a number of judges to the border on a temporary assignment to handle cases there. The report says temporary assignments should be avoided, as they create more delays when judges have to catch up on their workloads back home.
The report also recommends administratively closing cases if they are being adjudicated in some other venue, like a visa petition or another court case. The Trump administration has sought to curtail the administrative closing of cases.
*********************************
DOJ’s ridiculous claim that Sessions’s actions are “common sense” is refuted by virtually everyone with expertise or true understanding of the Immigration Court system including those working in it, those stuck in it, and even ICE!
There can be no effective, Due Process oriented, “actual common sense” Immigration Court reforms so long as Jeff Sessions controls those courts.
Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.
The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.
The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.
The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.
But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.
When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.
Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.
But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”
Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.
“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”
*****************************************
Read the narrative and play the interactive “Waiting Game” at the above link!
Getting refuge often depends on getting the right:
Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.
If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.
I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”
Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.
Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overrulingMatter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)
BIA HEADNOTE:
The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.
Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.
We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the
statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.
Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.
KEY QUOTE FROM DISSENT:
The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.
I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”
My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.
The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!
He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.
Trump and Sessions lose another sanctuary cities case
By: Tal Kopan, CNN
A federal appeals court struck another blow Thursday to the Trump administration’s efforts to pressure sanctuary cities, upholding a court order preventing the Justice Department from imposing conditions on grants to cities.
The three-judge panel from the 7th US Circuit Court of Appeals upheld a lower court’s decision blocking the Justice Department from adding new conditions on policing grants that had required some cooperation with federal immigration enforcement.
The ruling makes it the latest federal court, along with courts in California and Philadelphia, to restrict what the administration can try to do to pressure jurisdictions that restrict some cooperation with federal immigration enforcement.
It comes as President Donald Trump has been targeting his fury on Twitter at sanctuary cities, which administration officials accuse of jeopardizing public safety.
The judges sided with the city of Chicago in the case, which had challenged Attorney General Jeff Sessions’ July effort to condition the Edward Byrne Memorial Justice Assistance Grant Program on two new requirements: allowing federal immigration authorities access to local detention facilities and providing the Department of Homeland Security with at least 48 hours’ notice before local officials release an undocumented immigrant wanted by federal authorities.
The administration has been aggressive in asking cities to comply with those requests, but a number of cities and police chiefs around the country argue that cooperating in that way could jeopardize the trust police need to have with local communities, and in some cases could place departments in legal gray areas.
Like the district judge, the appellate judges found that Chicago was likely to succeed in its case that such conditions would be a violation of the Constitution and law, as Congress did not authorize those conditions when it created the grants.
The judge who wrote the opinion called the attorney general’s move a “usurpation of power.”
Ahmed Abdelbasit, a New Jersey teacher who faces a death sentence in Egypt for his pro-democracy activism, was detained last week outside his Jersey City apartment by U.S. Immigration and Customs Enforcement. Three days later, a notice came in the mail saying his asylum case had been transferred to an immigration court.
On that Thursday morning, seven plainclothes ICE officers demanded that Abdelbasit get into an unmarked car. Confused, the physics teacher complied, all while frantically texting his friends and co-workers to let them he would not be in class that day at a private Islamic school in Union City.
HuffPost has learned that Abdelbasit, 33, was taken to a detention center in Elizabeth, New Jersey, where he was forced to turn over his belongings and was given an orange jumpsuit to wear. Abdelbasit has been held there ever since.
ICE confirmed to HuffPost that he is being held at Elizabeth Detention Center on administrative immigration violations. ICE would not elaborate on what those violations were.
It was only after Abdelbasit was detained did his lawyer learn that his asylum case was transferred to immigration court in a notice that arrived three days after Abdelbasit’s arrest, HuffPost has learned, leaving the teacher and his lawyer with more questions than answers.
“It’s not clear why they would feel the need to detain somebody who has no criminal record in the United States, who has been living a very law-abiding life here and has been doing everything correctly,” Anwen Hughes, Abdelbasit’s lawyer and the deputy legal director at Human Rights First, told HuffPost. “It’s very unclear why this happened. What we’re trying to find out at the moment is what the actual basis is for this.”
**********************************************
Read the complete report at the link.
Based on the information in the report, it’s not obvious why ICE would choose to detain this individual. But, of course, we don’t know all of the facts at this point.
The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program’s cost-effectiveness, a federal official said Tuesday.
Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit’s Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.
The federal government will also evaluate Vera’s “help desk,” which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.
The Executive Office for Immigration Review, which runs the Justice Department’s immigration courts, said the government wants to “conduct efficiency reviews which have not taken place in six years.” An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.
But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.
“This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.
In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was “a cost-effective and efficient way to promote due process” that saved the government nearly $18 million over one year.
The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.
Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.
The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.
The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court proceedings would move more quickly.
In Vera’s Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.
“Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,” the agency’s website says.
The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.
Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.
The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.
In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.
In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.
Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.
Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!
My former colleague Judge Bruce J. Einhorn writes in the Washington Post:
Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.
It’s a principle that has been a hallmark of our legal culture: The president shouldn’t be able to tell judges what to do.
No longer. The Trump administration is intent on imposing a quota system on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.
I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICE’s claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.
Read These Comments newsletter
The best conversations on The Washington Post
As a judge, I swore to follow the Fifth Amendment of the U.S. Constitution, which guarantees that “no person” (not “no citizen”) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.
My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.
Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a “satisfactory” performance rating. It follows that only judges who complete more, perhaps many more, than 700 cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.
Essentially, the administration’s plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.
This is a genuine threat to the independence of the immigration bench. While Article III of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under the U.S. Administrative Procedure Actor any regulations.
Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it,and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.
Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.
The Trump administration’s intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness — as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.
In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.
************************************
Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!
Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!
Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now! The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!
I have permission Judge Tabaddor to release the text of the following e-mail, dated April 2, 2018, that I received from her (solely in her capacity as NAIJ President) because I am a retired member of the NAIJ:
Dear NAIJ Members,
Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.
I also would like to reiterate that NAIJ is pursuing all available means to ensure that these measures are fairly implemented. We have been engaged with EOIR for the past six months on these very issues and continue to stand in full support of our judges and the integrity of the Court. Prior to the email, NAIJ was pursuing the terms of an MOU with EOIR in an effort to reach a mutually agreeable solution in an informal and more cooperative fashion. However, with the Director’s announcement, NAIJ is now exercising formal bargaining rights.
We invite you to reach out to myself or any of our officers and representatives with any questions, concerns, or suggestions. We will keep you apprised of the ongoing negotiations and developments on this issue.
Thank you
Ashley Tabaddor
**************************************
As I had suggested earlier, the claim that the NAIJ had “agreed” to the production quotas was simply another lie by the Sessions DOJ. Lies, mis-representations, distortions, bogus statistics — why is this Dude our Attorney General given his proven record of disdain for truth, our law, our Constitution, and human decency as well as his total lack of any judicial qualifications to be administering perhaps the largest Federal Court system?
Another “under the radar” aspect of this toxic attempt to compromise due process in the Immigration Court system was pointed out to me by my good friend and colleague retired U.S. immigration Judge Carol King of San Francisco. As Judge King points out, by requiring U.S. Immigration Judges to render almost all final decisions at the hearing or within a few days of the hearing, the Attorney General is basically forcing them to use the widely discredited “contemporaneous oral decision” format rather than the preferred “full written decision” format.
Having reviewed thousands of Immigration Judge decisions during my career as an Appellate Immigration Judge on the BIA, and rendered thousands more during my time as a U.S. Immigration Judge in Arlington, I can say that with few exceptions, the “oral decision format” is grossly inadequate to meet the needs of today’s complex asylum litigation, particularly for cases to go to the Courts of Appeals. Oral decisions commonly have factual and citation errors as well as grammatical, spelling, and punctuation errors caused by the totally un-judicial format.
Moreover, except in unusual cases, Immigration Judges are not permitted to have a transcript made before rendering a decision! The case is only transcribed by EOIR at the time an appeal to the BIA is actually taken, well after the Immigration Judge has completed his or her decision.
At the beginning of my 45 year legal career, I used “real dictation” in some of my jobs. The basic idea was that the initial draft was a “quick and dirty” that was then reviewed, revised, and corrected numerous times before being issued as a “final.” Indeed, at Jones Day, which had a typing pool back in the 1980s when I was there, I used to leave my dictated drafts when I went home at night for the “overnight typing pool” to have on my desk the next morning. I would never have dreamed of issuing a client letter or brief that hadn’t been reviewed, revised, and retyped (and then probably read by one of my colleagues).
By contrast, a U.S. Immigration Judge must dictate a final oral decision at the conclusion of the hearing, or shortly thereafter, with the parties present (talk about a waste and disrespect for time) and no actual transcriber in the room. If an appeal is taken, the oral decision portion of the digital recording is “separated” and typed in a decision format. While the Immigration Judge does receive an electronic copy of the decision at the time it goes to the Board Panel for adjudication, my experience is that any corrections by the Immigration Judge are seldom in the BIA record file at the time the BIA acts on the case. Moreover, trial judges are specifically limited to making “editorial” changes. Major changes to legal analysis, fact-finding, or even results can’t be made during this review process.
Unlike other Federal and State judges in courts of comparable authority, U.S. Immigration Judges also are forced to work without any individually selected Judicial Law Clerks (“JLCs”). Immigration Judges must share a “pool” of JLCs (occasionally not even in the same court location) selected, assigned, and “supervised” by EOIR Headquarters with minimal, if any, input from the Immigration Judges.
Moreover, the JLCs report to and are “evaluated” by an Assistant Chief Judge who more often than not is in Falls Church, VA, far removed from the actual trial courts! (Immigration Judges are given an option to submit performance comments” to the ACIJ, but never see the final evaluations of the JLCs). Sometimes a JLC may go a year or more without any “in person” interaction with his or her “supervisor.” What other judges, in any system, are forced to work under these types of conditions?
I firmly believe that the clearly inferior work product produced by the “oral decision” format is one of the reasons the U.S. Immigration Judges have an unfortunate “unprofessional” reputation with some of the Courts of Appeals.
Let’s use a “real life” example. My son was a JLC for a U.S. District Court Judge. That Judge actually had sufficient “out of court” time to do some of his own writing. If asked to prepare a draft decision, my son submitted it to his District Judge who carefully reviewed, revised, and commented on the draft. Then my son reworked the decision to his District Judge’s individual specifications and all citations, fact-finding, and other references were carefully checked, as well as spelling, punctuation , style, etc. The end product looked somewhat like a scholarly law review article in judicial decision format. Not surprisingly, that District Judge’s opinions were seldom reversed by the Court of Appeals.
Now imagine a Court of Appeals Judge, just after reading that decision, picks up an immigration file involving a complex life or death asylum case. The decision looks like it was written by a high school student who flunked remedial English. Run on sentences, not many paragraphs, non-standard punctuation, mis-spellings and incomprehensible citations. Moreover, on further examination, the Circuit Court Judge’s personal law clerk has already discovered some glaring factual errors in the Immigration Judge’s “stream of consciousness” recitation of the facts. The BIA “summarily affirmed” the result in a single-Member decision with no reasoning! No wonder the Immigration Courts are often lowly regarded by the reviewing Circuit Courts!
U.S. Immigration Judges are being placed in an impossible position. While Sessions proposes to “grade” them on appellate reversals and remands, he simultaneously will restrict and artificially limit their ability to do research, review actual records and transcripts, and prepare careful, high quality written decisions. Sessions intends to impose new “quotas” without meaningful input from: 1) the ImmigratIon Judges who hear the cases; 2) the Appellate Immigration Judges on the BIA; 3) the parties and attorneys who appear in Immigration Court, or 4) the U.S. Circuit Court Judges who must review the Immigration Court’s work product. What kind of process is that? Why is Sessions being allowed to get away with this? No other court system in America operates in such an intentionally dysfunctional manner.
Instead of working on real reforms that would improve the quality of justice and the ability of already overwhelmed U.S. Immigration Judges to deliver fairness and due process, Jeff Sessions intentionally is further degrading both the Immigration Judges and the process! “Just say no” to the malicious incompetence of Jeff Sessions and his DOJ!
How Trump’s policies could worsen the migration issue he says he wants to solve
By Tal Kopan, CNN
President Donald Trump in recent days has decried “weak” US border laws that he says leave the US vulnerable to unfettered immigration — but some of his policies could have the effect of worsening a Central American migrant crisis.
Even as the Department of Homeland Security says the southern border “is more difficult to illegally cross today than ever before,” Trump has stepped up his hardline immigration rhetoric, calling on the US military to guard the US-Mexico border until his long-promised wall is complete. He’s hammered Mexico and other countries for policies that he says are disadvantageous to the US and that send unsavory individuals into the country.
But experts say the President has been pursuing other policies that could substantially harm Central America — and in doing so, he risks creating conditions that generate the exact kind of mass exodus north that he talks about wanting to solve.
Immigration is driven by what are called push and pull factors. The US has been seeking aggressive immigration powers to cut down on what they say are pull factors — the perception that immigrants can live illegally with impunity in the US. But those very policies could affect push factors — the conditions of poverty and violence that drive immigrants elsewhere out of desperation.
“The US sort of talks out of both sides of its mouth,” said Eric Olson, a Latin America expert at the nonpartisan Wilson Center.
“If you’re investing in the region to address the drivers of migration and at the same time pursuing a policy of large-scale deportation, or at least potentially large-scale deportation, and you’re creating more obstacles for people leaving the region for reasons like violence and so on, you’re really creating more instability, not less instability.”
As Tal says, there’s much, much more to her report on the total stupidity and counter-productivity (not to mention inhumanity) of the Trump Administration’s “Gonzo” enforcement policy. Go on over to CNN at the link to get the full picture.
I’ve been saying for some time now that Trump is pursuing facially “hard-line” policies that are proven failures. Indeed, that forced migration from Central America is a phenomenon that spans four decades and six different Administrations with varying degrees of “same old, same old” would suggest to rational leadership that a different approach is required.
Contrary to Trump’s oft-made bogus claim, his is not the first Administration to try a “close the border, detain and deter” policy. Beginning with Reagan, every Administration has tried largely the same thing (although perhaps without some of the inflammatory and outright racist rhetoric favored by the Trumpsters) and all have failed. I know because I’ve been involved in some aspect of trying to implement those failed policies in at least four of those Administrations, two GOP and two Democrat.
That’s why the trend of migration from the Northern Triangle continues and will continue and fester until we get some enlightened leadership that 1) correctly applies our refugee and protection laws in the generous humanitarian spirit they were intended; and 2) recognizes and starts to deal effectively with the “push” issues in the sending countries.
Contrary to the false narrative spread by current Administration, most Central American refugees that I encountered personally during my career would have preferred to remain in their home countries, if political and country conditions had permitted it. Indeed, many were forced by targeted violence to give up promising careers, studies, or businesses to flee for their lives to the U.S. Here, they often had to perform “entry-level” work to support themselves unless and until they achieved some type of legal status (often TPS , asylum, withholding of removal, CAT relief, Special Immigrant Juvenile (“SIJ”) status, or a green card under NACARA).
Of course, many were denied protection despite having very credible, well-documented fears of harm because they didn’t fit the intentionally restrictive asylum criteria engineered by the BIA over several Administrations largely as a result of political pressure on the system to be “unwelcoming” to Central American migrants. Some of those who returned were killed or disappeared; others were tortured or attacked again and forced to flee second or third times, now bearing the scars or injuries to prove their cases — only as “prior deportees” they were no longer eligible for asylum but had to accept withholding of removal or CAT deferral.
Nobody in this Administration, and sadly relatively few in Congress and among the public, are willing to deal honestly with the phenomenon of Central American migration and the “push factors” that will never, ever be controlled by more restrictive laws, more violations of statutory, Constitutional, and international rights, inhumane and life-threatening detention , and racist rhetoric. Nor will it be stopped by any bogus “Wall.”
As I’ve said before, “We can diminish ourselves as a nation, but that won’t stop human migration!” If only someone would listen!
The Trump administration will no longer seek to automatically release pregnant immigrants from detention — a move in line with the overall efforts by the administration to hold far more immigrants in custody than its predecessors.
The change in policy was sent by Immigrations and Customs Enforcement to Congress on Thursday morning and obtained by CNN.
According to the new directive, immigration officers will no longer default to trying to release pregnant women who fall into immigration custody, either because they are undocumented or otherwise subject to deportation. The Obama administration policy urged officers to presume a pregnant woman could be released except for extreme circumstances.
But a FAQ sent with the directive makes clear that ICE is not going to detain all pregnant immigrants. The policy will require a case-by-case evaluation, the FAQ explains, and will keep in custody “only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community.”
ICE will also lean towards releasing pregnant women if they are in their third trimester, and will also make an effort for detention facilities to provide services to pregnant women and parents.
The move follows controversial efforts by the Department of Health and Human Services to keep unaccompanied minor immigrants in custody rather than releasing them to obtain abortions, a policy that has been the subject of intense litigation.
White House reviewing plan to restrict immigrants’ use of government programs
By: Tal Kopan, CNN
The White House is reviewing a proposal that could penalize immigrants who use certain government programs, the Department of Homeland Security confirmed Thursday.
The proposed rule change would substantially expand the type of benefits that could be considered as grounds to reject any immigrants’ application to extend their stay in the US or become a permanent resident and eventually a citizen.
The move continues efforts by the Trump administration to overhaul the US immigration system and the changes could have the effect of substantially tipping the scales in favor of high-income immigrants — all without requiring an act of Congress. The changes could amount to an effective income test of immigrants to the US, critics say.
The expansion would going forward include programs like children’s health insurance, tax credits and some forms of Medicaid as black marks against immigrants seeking to change their status to stay.
By including benefits used by family members of the immigrants, the proposal could also apply to benefits being used by US citizens, who may be the spouse or child of the immigrant applying for status
DHS spokesman Tyler Houlton said the proposed rule had been sent to the White House Office of Management and Budget — the final step of the approval process before it’s released.
Houlton would not comment on the specifics of the proposal, but did said that DHS is “committed to enforcing existing immigration law … and part of that is respecting taxpayer dollars.”
CNN first reported on the changes as they were in development last month. The Washington Post obtained a more recent version of the proposal on Wednesday.
Why the change matters
US law authorizes authorities to reject immigrants if they are likely to become a “public charge” — or dependent on government.
Since the 1990s, that has meant that immigrants shouldn’t use so-called “cash benefits,” but a large number of programs were exempt from consideration.
But the new rule would include programs such as some forms of Medicaid, the Children’s Health Insurance Program, food stamps, subsidized health care under Obamacare and the Earned Income Tax Credit, according to the latest draft obtained by the Post.
In one change from the earlier draft obtained by CNN, educational programs that benefit children, including Head Start, will not be included under the administration’s plan. Programs like veteran’s benefits that individuals earn would also be excluded.
The rule would not explicitly prohibit immigrants or their families from accepting the benefits. Rather, it authorizes the officers who evaluate their applications for things like green cards and residency visas to count the use of these programs against the immigrant, and gives them authority to deny the immigrants visas on these grounds — even if the program was used by a family member.
The decision sets up a difficult scenario for immigrants who hope to stay in the US. If they accept any public benefits — or their family members do — they could potentially be denied future abilities to stay. That includes decisions about whether to use health insurance subsidies for them or their children, or tax credits they qualify for otherwise.
Immigrants are no more likely to qualify for these programs than the native US population, according to tables included in the documents, the Post reported. There is no substantial difference in the rate between the two groups — in some cases foreign-born residents are slightly more likely to use a program, but in some cases the native-born population is, according to the tabulations.
US to require immigrants to turn over social media handles
By Tal Kopan, CNN
The Trump administration plans to require immigrants applying to come to the United States to submit five years of social media history, it announced Thursday, setting up a potential scouring of their Twitter and Facebook histories.
The move follows the administration’s emphasis on “extreme vetting” of would-be immigrants to the US, and is an extension of efforts by the previous administration to more closely scrutinize social media after the San Bernardino terrorist attack.
According to notices submitted by the State Department on Thursday, set for formal publication on Friday, the government plans to require nearly all visa applicants to the US to submit five years of social media handles for specific platforms identified by the government — and with an option to list handles for other platforms not explicitly required.
The administration expects the move to affect nearly 15 million would-be immigrants to the United States, according to the documents. That would include applicants for legal permanent residency. There are exemptions for diplomatic and official visas, the State Department said.
The decision will not take effect immediately — the publication of the planned change to visa applications on Friday will start a 60-day clock for the public to comment on the move.
The potential scouring of social media postings by potential immigrants is sure to rankle privacy and civil liberties advocates, who have been vocal in opposing such moves going back to efforts by the Obama administration to collect such information on a more selective and voluntary basis.
Critics complain the moves, amid broader efforts by the administration, are not only invasive on privacy grounds, but also effectively limit legal immigration to the US by slowing the process down, making it more burdensome and making it more difficult to be accepted for a visa.
Federal authorities argue the moves are necessary for national security.
In addition to requiring the five years of social media history, the application will also ask for previous telephone numbers, email addresses, prior immigration violations and any family history of involvement in terrorist activities, according to the notice.
Since its early days, the administration has been telegraphing a desire to more closely dig through the backgrounds and social media histories of foreign travelers, but Thursday’s move is the first time that it will formally require virtually all applicants to come to the US to disclose that information.
After the San Bernardino terrorist attack in 2015, greater attention was placed on immigrants’ social media use, when it was revealed that one of the attackers had advocated jihad in posts on a private social media account under a pseudonym that authorities did not find before allowing her to come to the US.
The move by the Trump administration stops short of requiring passwords or access to those social media accounts, although then-Homeland Security Secretary John Kelly suggested last year that it was being considered.
The administration has been pursuing “extreme vetting” of foreigners as a centerpiece of its immigration and national security policy, including through the contentious travel ban that remains the subject of heavy litigation.
Of the untold number of stupid things that have come out of Donald Trump’s mouth, making a strong case for the stupidest was his claim, as he announced his candidacy for president, that he would build a wall on the southern border of the country and make the “criminals” and “rapists” in Mexico pay for it. So dumb was this declaration that even Trump eventually realized he would have to tweak it, probably around the time that Mexico’s president, Enrique Peña Nieto, said there was no way in hell he would fund the project. From there, Mr. Art of the Deal changed his story to taxpayers will put up the money initially, but Mexico will pay us back;which later became Mexico will pay for the wall through import tariffs; which quickly changed to Mexico will pay for the wall indirectly through NAFTA,” which morphed, earlier this month, into the wall will pay for itself. And now, the president has landed on a new idea: make the military pay for it.
Trump has privately been making the case that the Pentagon should use some of the $700 billion it received as part of last week’s spending bill to fund his vanity project, The Washington Postreported Tuesday. After mentioning it to several advisers last week, Trump reportedly floated the idea by House Speaker Paul Ryan in a meeting on Wednesday at the White House, to which Ryan “offered little reaction.” During another meeting, this one with senior aides, Trump apparently whined about how much money the Department of Defense was getting, noting that surely the Pentagon could afford to part with a few (or, say, 67) billion dollars. According to reporters Josh Dawsey and Mike DeBonis, President Temper Tantrum has had a hard time watching TV lately—heretofore his only solace in this cruel world—due to criticism of the spending deal he signed last week, and the fear that his base could sour on him without any wall progress. (The fact that he allegedly had an affair with a porn star, whom he subsequently paid off to stay quiet, is obviously a plus for them.) Currently, just $641 million is earmarked for new fencing, and it can only be used on “operationally effective designs that were already deployed last May,” meaning that unless something changes, the prototypes Trump recently visited in California will be just for show.
Of course, as everyone but the president seems to understand, it’s highly unlikely that the Pentagon would divert funds from the military to finance the wall, which experts say won’t actually stop the flow of illegal immigration at all, and which would require Congressional votes that Trump obviously doesn’t have. Not only will Democrats take a hard pass military spending paying for his fence, but Pentagon officials, per White House advisers, “may also blanch at the possibility.” In a statement to the Post,Minority Leader Chuck Schumer made his feelings pretty clear. “First Mexico was supposed to pay for it, then U.S. taxpayers, and now our men and women in uniform? This would be a blatant misuse of military funds and tied up in court for years. Secretary [James] Mattis ought not bother and instead use the money to help our troops, rather than advance the president’s political fantasies,” he said.
That virtually no one is going for the idea hasn’t stopped Trump from floating it in his preferred venue of choice. Over the weekend he suggested on Twitter that the military should scrounge up the money for national security reasons:
The national security argument might hold a bit more water if the Trump administration hadn’t targeted traditional border security measures for for cuts or delays in funding that experts say “[pose] a serious threat to border security.” (Those experts also say that the The Wall will largely useless “unless it’s 35,000 feet high.”) Meanwhile, at the White House, good soldier Sarah Sanders on Tuesday told reporters that the administration “still has plans to look for potential ways” for Mexico to pay for the wall.
Anyway, stay tuned for next week when Trump privately presses for the Department of Veterans Affairs to quit being so stingy and pony up the dough. How much money do they really need to treat PTSD?
Team Trump has a special treat in store for the bank industry
It’s the appointment of Jelena McWilliams at the F.D.I.C., which will result in a trifecta of deregulation-happy officials atop the nation’s banking regulators, per The Wall Street Journal:
When that happens, the F.D.I.C., the Federal Reserve and Office of the Comptroller of the Currency will be able to move ahead on a number of the Trump administration’s policy priorities, such as adjusting capital and liquidity requirements, easing restrictions on short-term consumer loans and relaxing the 2010 Dodd-Frank financial law’s proprietary trading ban, the Volcker rule.
Ms. McWilliam’s arrival likely will coincide with the completion of a bill in Congress aimed at easing crisis-era banking regulations, another catalyst for changes to the financial rule book.
Isaac Boltansky, the policy research director at Compass Point Research & Trading LLC, told W.S.J.that, “With Congress likely to pass the only financial deregulatory bill for the near future, it will be the alphabet soup of new regulators who decide the tone and tenor of the new deregulatory agenda.” #MAGA!
Wilbur Ross does the G.O.P. a solid
Overriding the advice of career officials who warned that adding a question to the 2020 census about citizenship will lead to fewer responses from people worried about deportation, Ross decided on Monday to just go for it, writing in a memo he had “determined that reinstatement of a citizenship question on the 2020 decennial census questionnaire is necessary to provide complete and accurate census block level data” (the last time the citizenship question was on the census was in 1950). That’s an interesting argument, given that the very reason census officials didn’t want to reinstate the question is a fear that it will lead to lower response rates. Which may be all part of the plan:
Critics of the change and experts in the Census Bureau itself have said that, amid a fiery immigration debate, the inclusion of a citizenship question could prompt immigrants who are in the country illegally not to respond. That would result in a severe undercount of the population—and, in turn, faulty data for government agencies and outside groups that rely on the census. The effects would also bleed into the redistricting of the House and state legislatures in the next decade.
Others argued that an undercount in regions with high immigrant populations would lead not only to unreliable data but also to unfair redistricting, to the benefit of Republicans.
More threatening essentially to break or evade the law from our “Con-Man-In-Chief.” “Normalizing” this erratic, “Third World Dictator” conduct doesn’t make it “normal” or “acceptable.” It reflects on the folks willing to enable and apologize for Trump (although apology is something he never does, no matter how egregious his lies or misconduct.)
Ironically, Trump likely could have had “His Wall” funded if he had been willing to support a bipartisan “Dreamer Compromise” just a few weeks ago.
Where Fear and Hope Collide: Images From Mexican Border, and Beyond
Photo
A man killed in a suspected drug-related execution in 2012 in Acapulco, Mexico. Violence has surged in Acapulco, once Mexico’s top tourist destination, spurring the flight of many Mexicans.CreditJohn Moore/Getty Images
For nearly a decade, the photographer John Moore has traversed the Mexico-United States border, covering the story of immigration from all sides — American, Mexican, immigrant and border agent.
His depiction of the border is both literal and figurative.
Families at a memorial service for two boys who were kidnapped and killed in February 2017 in San Juan Sacatepéquez, Guatemala.CreditJohn Moore/Getty Images
. . . .
A boy from Honduras watched a movie in 2014 at a detention facility for unaccompanied minors in McAllen, Tex.
. . . .
But wherever the numbers go, Mr. Moore’s images reflect an American truth: The fury and debate over immigration to the United States appears to be going nowhere.”
*****************************************
Go to the above link to the NYT for the full article and all of Moore’s pictures.
What do you suppose the “boy from Honduras” is thinking about America? Are these the images by which we want to be remembered as a country? If not, join the New Due Process Army and work for constructive change!
LAST FRIDAY night, a 7-year-old Congolese girl was reunited with her mother in Chicago, four months after immigration agents of the Department of Homeland Security separated them for no defensible reason. When the little girl, known in court filings as S.S., was delivered by a case worker to her mom, the two collapsed to the floor, clutching each other and sobbing. According to the mother’s lawyer, who was in the room, S.S., overwhelmed, cried for the longest time.
That sounds like a happy ending to a horrific story. In fact, according to immigrant advocates, such separations are happening with increasingly frequency — with no credible justification.
In the case of S.S. and her mother, known in court filings as Ms. L., the trauma visited on a little girl — wrenched from her mother, who was detained in San Diego, and flown nearly 2,000 miles to Chicago — was gratuitous. A U.S. official who interviewed Ms. L. after she crossed the border into California determined she had a reasonable asylum claim based on fear for her life in her native Congo. Despite that, mother and daughter were torn apart on the say-so of an immigration agent, and without explanation.
Read These Comments newsletter
The best conversations on The Washington Post
A DHS spokesman, Tyler Houlton , says separating children from their parents is justified when paternity or maternity is in doubt, or when it is in a child’s best interest. However, in court filings, officials present no cause for doubt about Ms. L.’s maternity, nor evidence that it was in S.S.’s “best interest” to be taken from her mother last November, when she was 6 years old.
Rather, in court filings, an official from Immigration and Customs Enforcement, a DHS agency, lists some documentary discrepancies on Ms. L.’s part, in which officials in Angola, Panama and Colombia recorded different versions of her name. Never mind the translation problems she may have encountered in Latin America as a speaker of Lingala, a language spoken only in central Africa.
Even if Ms. L. fudged her identity, how would that justify taking away her child? And if there were doubts about Ms. L.’s maternity, why didn’t ICE request a DNA test at the outset, before sundering mother and child? When a DNA test was finally done — four months later — it immediately established Ms. L.’s maternity.
Immigrant advocates say DHS has separated children from immigrant parents scores of times in recent months, perhaps to deter other asylum seekers by trying to convince them the United States is even more cruel than their native countries. Officials at DHS have floated that idea publicly in the past year. They insist it is not their policy. However, they also have declined to provide statistics showing the frequency of separations.
Responding to a class-action lawsuit filed by the American Civil Liberties Union on behalf of parents separated from their children, ICE insists it has done nothing so outrageous that it “shocks the conscience” — a Supreme Court standard for measuring the denial of due-process rights.
Here’s a question for Homeland Security Secretary Kirstjen Nielsen: If it does not “shock the conscience” to traumatize a little girl by removing her from her mother for four months in a land where she knows no one and speaks no English, what does “shock the conscience”?
****************************************
Stop the Trump Administration’s program of turning America into a reviled human rights abuser! What about “Gonzo Apocalyto’s” policies of turning our Immigration Courts into “enforcement deterrents” rather than protectors of fairness and Due Process?
Join the New Due Process Army now! Resist in the “real’ courts. Vote Trump, his abusers, and his enablers out of office!
Harm to the most vulnerable among us is harm to all of us. Due Process Forever!
International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).
As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.
In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.
The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.
Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution. The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.
One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.
**********************************************
Go on over to LexisNexis at the above link for Sophia’s much longer full article.
More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.
Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!
