"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.
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
The border between Tijuana and California. Studies indicate an increase in the number of drowned migrants at this point on the border. David Ludwig’s photo is licensed as Attribution-ShareAlike. Certainly, Biden & the Dems can promote a better version of “border security” than this deadly and ultimately failed “hangover of Trumpism!”
Some States Step Up With Innovation & Humanity, While GOP-Led States Fall Down On Migrant Reception, Assistance, Resettlement — From Emerson Collective
STATE LEVEL DIVERGENCE IN RESPONSE TO THE MIGRATION SURGE
While legislative reform continues to be blocked at the federal level, states across the country have adopted diametrically opposed responses to the surge of migrants that have reached the U.S.-Mexico border in search of safety and economic opportunity.
On one side of the split screen, we see real innovation happening with 20 states now having dedicated, high-level staff focused on immigrant integration and building a more welcoming, inclusive America. That includes programs designed to better incorporate immigrants and refugees into state workforce systems, expand the capacity of legal and direct service providers, and ensure access to other support systems that welcome new arrivals with dignity and care.
We are undoubtedly facing a unique set of pressures at our southern border and in states and cities throughout the country as a result of historic levels of migration throughout the hemisphere. Our current inability to effectively respond to these pressures is the result of decades of Congressional failure to forge compromise on the contours of a flexible system that can effectively manage migration. As states take steps to fill the breach, we are seeing very different visions of what the future may hold.
2) U.S. Judge In Texas Tosses GOP States’ Frivolous Challenge To Successful Parole Program — From The Border News
🌍 Humanitarian Asylum Program Survives States’ Challenge, Federal Judge Upholds Entry for Migrants from Four Countries
The Associated Press’s Eric Gay.- A federal judge in Texas dismissed a lawsuit from Republican-led states challenging a Biden administration program that allows a certain number of migrants from Cuba, Haiti, Nicaragua, and Venezuela to enter the U.S. on humanitarian grounds. U.S. District Judge Drew B. Tipton ruled that the states failed to demonstrate financial harm caused by the humanitarian parole program, which admits up to 30,000 asylum seekers each month from the specified countries. The program aims to offer lawful pathways while reducing unauthorized border crossings. The White House hailed the ruling, emphasizing the program’s role in addressing labor shortages and enhancing border management. Despite the legal challenge, over 357,000 individuals have benefited from the program, with Haitians being the largest group. The decision underscores the administration’s use of parole authority for urgent humanitarian reasons or significant public benefit, marking an important victory for immigration advocates and the migrants they serve.
But, without new expert, dynamic “kick ass” leadership, empowered to supersede those currently bobbling this program at the national level, it will remain a sore point, a horrendous missed opportunity for the Administration, and a “de-energizer” for his core progressive supporters.
Come on, Joe, lead and build on the good work already done by your friends, rather than undermining it by spreading the fears and parroting “lite” versions of the xenophobic approaches of your opponents! Instead of challenging Trump to join you in “closing the border to asylum seekers,” invite everyone to join you in developing and implementing humane, achievable, solutions for fairer and more efficient asylum processing at the border and elsewhere!
Biden must “lose the Miller Lite BS on the border” and tout his successes, like the parole program. Joe, Joe, Joe! Think it through! Trump is going to “win” the “race to the bottom on the border” because he’s a natural “bottom dweller.” So, you need to pivot and emphasize and expand upon the positive things you have done to solve migration problems, like these parole programs!
Logically, re-opening ports of entry for asylum claims (despite the huge widespread problems with “CBP One”) and incentivizing those who can’t wait at the ports to turn themselves in to CBP in an orderly manner for asylum screening after crossing elsewhere (despite both physical impediments and artificial legal obstacles to doing so) works to reduce the number of those seeking to avoid screening! This is directly contrary to the nativist blather surrounding Title 42!
As Bier says, “This should force the many members of Congress and the administration who opposed ending Title 42 to rethink their position.” While there is zero chance that the GOP will do this, because their position is based on spreading fear and xenophobia for perceived political gain, you and your advisors should reverse your disastrous public stance on how to best promote real, durable, achievable border security.
As Heidi and others have cogently suggested, future success will come from investing in better asylum screening, processing, adjudication, and resettlement, NOT from bombastic threats to “close the border” and effectively eliminate the fundamental right to seek asylum!
Rev. Craig Mousin PHOTO: DePaul WebsiteHeidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Craig on Linkedin:
Instead of listening to our two primary presidential contenders vie over which one is tougher on immigration, let’s consider reframing the debate for a meaningful immigration reform that benefits our nation instead of depriving it of resources wasted on ineffective enforcement policies:
Let’s Reshape Immigration Policy
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Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Listen to the podcast and get a copy of NIJC’s “ 10 points” at the above links.
Thanks, Craig, for highlighting the work of my friend and former Georgetown Law colleague Heidi Altman, Director of Policy at NIJC. Heidi is the embodiment of what real leadership, innovation, humane, creative thought on immigration and the border looks like. She stands in dramatic contrast to the pathetic fear mongering (Trump) and fear of standing up for values (Biden) “leadership” coming from our candidates and reflected in the failure of politicos of both parties to embrace humane, cooperative, beneficial solutions for those seeking asylum at the border.
Heidi is a particularly great representative and leadership role model for Women’s History Month.
I had additional thoughts on this podcast:
Better judges, not just more judges. To be effective and efficient, EOIR judges at both levels must be recognized experts in asylum, human rights, and due process who are not afraid to set positive precedents, grant protection to those who qualify under a properly generous interpretation of the law, simplify evidentiary requirements and state them in clear, practical terms, establish and enforce best practices, and steadfastly oppose the political abuse of the Immigration Courts as “deterrents” or as extensions of DHS enforcement. The failure of Garland to clean house at EOIR, particularly the BIA, and of Mayorkas to do likewise at the Asylum Office has been a national disaster driving much of the “disorder at the border.”
Invest in VIISTA Villanova and other innovative programs to expand pro bono and low bono representation.Seehttps://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html. Reach beyond lawyers and NGOs to train students, retirees, social justice advocates, and “ordinary citizens” who want to help by becoming “Accredited Representatives” for “Recognized Organizations” and represent asylum seekers before the AO and EOIR. The programs is top-notch, online, and “scalable.” The Biden Administration’s failure to tap into it and “leverage” it is another dramatic failure of leadership.
Better leadership needed in the Biden Administration. As we have seen over the last three years, all the great ideas (and there is a plethora of them) in the world are meaningless without the dynamic, courageous, effective leadership to make it happen! Garland, Mayorkas, the White House Domestic Policy Office, and the Biden Campaign are dramatic negative examples of folks who lack the hands-on expertise, courage, creativity, and skills to lead on effective administrative immigration reform. I endorse Heidi’s proposal to create a White House Task Force. But, without expert, dynamic, empowered leadership, that Task Force will be ineffective. (Take it from me, over 35-years in the USG, I was on lots of “task forces” and other “action/study groups” whose voluminous reports and well-meaning proposals went directly into a dusty file cabinet or paper shredder.) Think Julian Castro, Dean Kevin Johnson, Judge Dana Marks, Professor Karen Musalo, Beatriz Lopez, Professor Michele Pistone, Anna Gallagher, Camille Mackler, Professor Stephen Yale-Loehr, Heidi Altman, Alex Aleinikoff, Mary Meg McCarthy, Paula Fitzgerald, et al — any of these folks, or a combination, or other “battle tested experts” like them would be head and shoulders over the inept gang advising on and “implementing” (and I use this term loosely) immigration policy for the Administration and the campaign. Leadership counts! And, time’s a wasting to start fixing this asylum system before the election!
Acquiescence gets Dems the same place as activist racism. I “get” that the nativist border agenda now being shoved down our throats by both campaigns is driven by GOP fear-mongering and Dem acquiescence. That’s classic Jim Crow! I doubt that every White person south of the Mason-Dixon Line during my youth was overtly racist. Yet, a whole bunch of them were happy to acquiesce in segregation (and worse) because it served their political, social, or business purposes. For example, ”I’ve personally got nothing against Blacks, but if I hired one at my store all my business would go elsewhere.” In calling for “bipartisan” joining with the Trump-generated racist proposal to “close theborder,” Biden and many of his supporters are basically endorsing a lawless, cruel, anti-humanitarian program that couldn’t succeed if enacted. Does that he might be doing it as an act of “political strategy,” “shifting the blame,” or “one-upmanship,” rather than “genuine” racism, xenophobia, and hate, like Trump and MAGA nation, somehow make it more palatable? Not to me!
Stop the candidate’s negative campaigning. If Joe can’t think of anything better to say about human rights and the border than to point fingers at the GOP and try and match Trump’s cruelty, lawlessness, and stupidity on the issue, better he say nothing at all.
Don’t get suckered by “whataboutism.” Undoubtedly, there are those in our community genuinely concerned that helping asylum seekers resettle and succeed will deflect resources and attention from existing problems like homelessness and poverty. Nevertheless, few, if any, of my friends and acquaintances who have actually spent their lives, or substantial portions thereof, helping the less fortunate in our communities express this fear. They believe that that if we treat all of our fellow humans as humans, we can expand opportunities and economic activities across the board so that there will be enough for everyone. It’s aderivation of something we say every Sunday at the community church we attend: “All are welcome at Christ’s table.” Also, asylum seekers and other migrants disproportionately give back to communities, particularly low income communities, rural communities, or others in need. By contrast, many of those raising these fears are the same GOP folks who steadfastly want to cut meals for kids, slash after-school programs, defund proven-to-work programs that reduce poverty, and restrict or limit other existing aid programs. It’s not like these folks would “repurpose” any of the very limited funds spent on assisting migrants to helping the homeless or the less fortunate. No, they would almost certainly spend it on more deadly, yet ineffective walls, “civil” prisons, unnecessary tax cuts for the wealthy, and/or more counterproductive, wasteful, costly border militarization. Don’t get suckered by their “crocodile tears” for the poor and needy!
Contrary to the BS 💩 that is peddled every day by the presidential candidates, spineless politicos of both parties, and the mainstream media, the border is solvable with common sense, humane, innovative legal reforms. More cruel, wasteful, and essentially mindless enforcement and restriction is NOT the answer, nor will it ever be!
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.orgRev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
FEBRUARY 23, 2023 CRAIG B. MOUSIN SEASON 1 EPISODE 34
Lawful Assembly Podcast
Episode 34: Support Humanitarian Asylum Welcome
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LAWFUL ASSEMBLY PODCAST
Episode 34: Support Humanitarian Asylum Welcome
FEB 23, 2023 SEASON 1 EPISODE 34
Craig B. Mousin
In this interview, Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy interviews Heidi Altman, the Policy Director of the National Immigrant Justice Center (www.immigrantjustice.org). Ms. Altman discusses a proposed rule that will effectively preclude most asylum-seekers from safely and effectively applying for asylum in the United States. She advocates for humanitarian asylum welcome. She previously served as the legal director for the Capital Area Immigrants’ Rights Coalition and was a Teaching Fellow in the immigration clinic at Georgetown University Law School.
ACTION STEPS
1. Invite friends and family to learn how the proposed rule will undermine refugee protection and encourage them to respond to their elected representatives and the Biden administration urging withdrawal of the proposed rule.
2. The Sanctuary Working Group of the Chicago Religious Leadership Network currently serves and advocates alongside newly arrived asylum seekers in the Chicagoland area. There are many impactful ways you can help asylum seekers, from providing sponsorship and temporary housing to covering legal fees and advocating for policy change. Interested individuals, faith communities, or organizations may contact CRLN staff/consultant David Fraccaro at davidfraccaro99@gmail.com to talk about ways to partner together in supporting and protecting our newest neighbors.
Craig Mousin volunteers with the National Immigrant Justice Center. We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks, Craig and Heidi for a very interesting and informative session!
T. Swift. Loss of chance to attend her latest concert due to Ticketmaster SNAFU caused immediate bipartisan Congressional outrage and hearings! Loss of chance to plead for life because of DHS CBP One App SNAFU, not so much! Dehumanization of our fellow humans degrades our society. LOS ANGELES – Swift at 2019 iHeartRadio Music Awards on March 14, 2019 in Los Angeles, California. (Photo by Glenn Francis/Pacific Pro Digital Photography) Creative Commons License.
Here are “my takeaways:”
Asylum seekers have a legal right, established by the Refugee Act of 1980 and international conventions, to seek asylum at our border or in the U.S., regardless of status and/or nationality;
The Trump and Biden Administrations have abrogated this right without legislation;
The Trump Administration’s anti-asylum actions and intentional dehumanization of asylum seekers was rooted in White Nationalist nativism;
Despite recognition during the 2020 campaign of the invidious motivation for Trump’s anti-asylum policies, the Biden Administration has retained, or even enhanced, the dehumanization and denial of rights to asylum seekers at the border;
Over the past two Administrations, acceptance of the basic rights and obligations of the U.S. toward asylum seekers, incorporated in the Refugee Act of 1980, has been eliminated or reduced to a superficial “shell” (“asylum in name only,” as some advocates have termed Biden’s latest proposed anti-asylum border policies);
By abandoning the framework set forth in the Refugee Act of 1980, the Trump and Biden Administrations have re-injected the ad hoc approach,disorder, nationality bias, and ideological preferences at the border that the Refugee Act of 1980 was specifically enacted to eliminate;
There is much under-appreciated support for welcoming, fairly treating, and helping refugees and asylum seekers among Americans in communities throughout our nation;
NGOs and experts have dozens of great ideas for restoring and improving the legal right to seek asylum in fair, humane, non-discriminatory ways which they have shared or are happy to share with the Biden Administration;
The Biden Administration to date has shown little if any interest in adopting and implementing better humanitarian solutions for asylum seekers at the border;
Both parties lack leaders with the integrity and courage to stand up for the legal and human rights of asylum seekers;
We must continue to discuss ways to break the cycle of dehumanization, cruelty, and scofflaw treatment of asylum seekers and replace it with enhanced humanitarian procedures and a welcoming culture, in accordance with the Refugee Act of 1980, the U.N. Convention and Protocol, and the very best traditions of our nation of immigrants.
“We innovate a lot in this department,” DHS Secretary Alejandro Mayorkas told reporters at a news conference this month. “This is a very novel approach to building lawful and safe pathways premised on a foundational point — which has historically been proven true — that people will wait if we deliver for them a lawful and safe pathway to come here.”
“Tell it like it is” quote of the day:
Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services to immigrants, said the Biden administration is “prioritizing speed over justice and fairness.”
“If the administration moves in this direction, they’re doing so with very clear knowledge that they will be returning people to dangerous situations,” she said. “Migrants who are returned to Mexico are extremely and particularly vulnerable to rape, assault, kidnappings and other violence. This has been so well-documented. The administration knows that this is a reality.”
“The Biden Administration lies about the cruel, disasterous, illegal, and deadly effects of ‘farming out’ asylum policies to Mexico. Unlike Mayorkas, Heidi Altman of NIJC has the courage and expertise to ‘speak truth to power’ — obviously something no longer valued in the Democrats’ failing, cowardly approach to human rights and racial justice.” Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
“Lowlights” of Biden’s proposal:
Mass deportation of non-Mexican asylum seekers to Mexico in circumvention of “safe third country” provisions of law;
Illegal return of asylum seekers to documented dangerous, degrading, and life-threatening conditions in Mexico;
“Many asylum seekers placed into MPP experienced extreme danger in Mexico. Individuals sent to the Laredo or Brownsville courts had to reside or pass through the Mexican state of Tamaulipas, which the State Department classifies as the same level of danger as Syria, Afghanistan, and Iraq. Many asylum seekers and families were kidnapped and assaulted after having been sent back to Mexico, sometimes within hours of crossing back over the border.”
“According to Human Rights First, through February 2021 there were at least 1,544 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP. Multiple people, including at least one child, died after being sent back to Mexico under MPP and attempting to cross the border again.”
“The U.S. government did not provide support to individuals sent back to Mexico, leaving people to fend for themselves. Many were homeless during their time in Mexico. In some locations on the border, the Mexican government created shelters that could house some—but not all—of the people sent back. Private shelters also provided housing for some individuals sent back under MPP. In Matamoros, a tent camp sprang up in 2019 where thousands of asylum seekers eventually resided along the Rio Grande in squalid conditions with no running water or electricity.”https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols
Feeding women and other vulnerable individuals to cartels, gangs, criminals, and corrupt officials carrying out widespread, endemic, gender-based violence in Mexico;
“In general, women who are trying to either find work or [who are]…commuting to and from their jobs, [are] exposed…to the risk of being followed. It is already known that in border cities, or at least in Ciudad Juarez, people know how to identify migrants and go after them for extortion, often to kidnap them in order to get what little money they have. They are…very clear targets for certain criminal groups in Mexico, many of which are dedicated exclusively to extorting migrants. And well, women are a more vulnerable target…And if we add to that the issue of sexual violence? I think this is a very big challenge for women: how to survive during the time it takes for the resolution of their [asylum] processes.” https://www.tahirih.org/news/u-s-asylum-deterrence-policies-increase-risk-of-gender-based-violence/
Creating a “presumption of denial,” applied largely to asylum seekers of color, in a mal-functioning asylum system already suffering from anti-asylum bias and racial bias;
Increased use of criminal prosecutions (known to be a waste of resources and an ineffective deterrent) against those merely seeking to exercise their legal rights to seek protection under domestic and international law (will “family separation” be next for Biden/Harris?);
Mass use of discriminatory, arbitrary “parole,” untethered to the legal “refugee” definition, driven by extralegal considerations such as availability of U.S. sponsor and refusal of native country to accept U.S. deportees, as a substitute for orderly overseas refugee programs and circumventing legally required advance “consultation” with Congress;
Feeding “parolees” intro hopelessly backlogged, biased, dysfunctional asylum adjudication systems at USCIS and EOIR without taking steps to address the glaring problems plaguing asylum adjudication in these agencies;
Leaving other “parolees” to “wander America in limbo” without any clear path to residency and at the complete mercy of the political whims of the Administration in charge;
Providing no opportunities for “in country” or “beyond the border” parole for those fleeing the Northern Triangle, one of the largest sources of recent flows of refugees and forced migrants;
Basically, replacing the current legal, statutory framework for refugee and asylum adjudication, derived from international conventions and years of experience handling refugee and humanitarian crises, with an “ad hoc,” non-statutory, array of politicized restrictionist gimmicks adapted from Trump/Miller and arbitrary, non-statutory benefits handed out to certain groups — but not others — in an attempt to fend off criticism for jettisoning the Refugee Act of 1980 and related laws.
Progressives and advocates, this is a Democratic Administration basically, even gleefully and proudly, stomping on human rights and the rule of law. They call it “innovation.” I call it degradation of humanity and annihilation of the Refugee Act of 1980.
I’m not sure I have any great alternatives, given the racist/xenophobic/nativist policies of the GOP toward refugees and other immigrants. But, I think that progressives and others who believe in human rights, fair treatment of refugees, immigrants’ rights, and racial justice, long mainstays of the Dems, are going to have to reevaluate their support of a Democratic Party that will no longer stand up for these fundamental values and that takes advocates and progressives for granted.
Way above my pay grade, for sure! But, I do know that democracy, humanity, moral courage, and intellectual honesty are failing here, and that the Democratic Party under Biden and Harris is a big part of that betrayal and failure!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.
CONTENTS (click to jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.
DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.
USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.
Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.
SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”
SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.
Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.
Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.
Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.
Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.
NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.
Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.
AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.
AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents. We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers. USCIS has provided these updates to respond to customer needs.
Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!
My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.
Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.
How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,”the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).
Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:
Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.
But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.
The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Haiti has been in turmoil for many years and the recent assassination of the Haitian president, political and economic insecurity, devastating storms, and an earthquake have further destabilized the nation.
Yet, Haitians seeking protection in the United States face treacherous journeys, racial abuse, violence from border patrol agents, detention, and deportation and expulsion back to the life-threatening situation they fled in Haiti.
All people—including Haitian migrants and asylum seekers—need freedom, shelter, dignity, and compassionate welcomes.
In the past couple of weeks, the Biden administration has expelled more than 4,600 people to Haiti. And they continue to deport and expel even more people.
The Biden administration has the authority to grant humanitarian parole and stop the deportations to Haiti. We at the National Immigrant Justice Center (NIJC) are teaming up with other organizations to urge them to do just that.
The Trump Administration’s Manipulation of Data to Perpetuate Anti-Immigrant Policies
The Trump administration regularly manipulates data to support its anti-immigrant agenda. Two weeks after President Trump shut down the federal government because Congress refused to approve funding to build a wall on the southern border, Homeland Security Secretary Kirstjen Nielsen presented a slideshow to the president’s Cabinet that was widely publicized for relying on inaccurate and heavily inflated numbers to create a sense of crisis in the border region.1 But it has long been a tried and true strategy for this administration’s agencies and government officials to misrepresent facts and figures and implement policy changes intentionally developed to gin up data points that prove a pre-established nativist narrative.
This policy brief describes how the administration has corrupted immigration data to fuel its anti- immigrant policy agenda. Particularly alarming examples include its manipulation of information and data to (I) undermine access to asylum; (II) exacerbate the due process crisis in the immigration courts; and (III) escalate the criminalization of migrants.
I. Crippling Asylum Access, then Touting Low Approval Rates
as Evidence of Fraud
The Trump administration made it nearly impossible for many people to get asylum, and now cites low grant rates to claim there are no legitimate asylum seekers.
The administration’s campaign to close the
border to asylum seekers began almost on
day one. President Trump’s February 2017
Executive Order on border security called for
higher standards for screening asylum
seekers’ fear of return.2 At the border,
Customs and Border Protection (CBP) has
intentionally reduced the processing of
asylum seekers at ports of entry3 and
doubled down on a so-called “metering”
system that numerically limits the number of
asylum seekers processed.4 Within the
immigration court system, Department of
Justice (DOJ) leadership has upended
longstanding case law to make it even more
difficult for survivors of gang-related and domestic violence to establish eligibility for asylum.5Unsurprisingly, these policies have shut off asylum protections for many applicants in need:
January 2019 immigrantjustice.org
under the Trump administration, denial rates for asylum applicants rose from 54.6 percent in fiscal year (FY) 2016 to 60.2 percent in FY 2017 and to 65 percent in FY 2018.6
The president and his Cabinet officials, after imposing such arbitrary obstacles to asylum, now claim that the resulting low asylum grant rates mean that most asylum seekers are here to “game the system,” as Acting Attorney General Matthew Whitaker recently stated after asserting that “only 20 percent of aliens have been granted asylum after a hearing before an immigration judge.”7 In his presidential proclamation attempting to ban certain migrants from asylum eligibility, President Trump stated that “only a fraction” of claimants at the southern border “ultimately qualify for asylum.”8
The fault in the president’s logic is so simple it’s easy to miss: the Trump administration made it nearly impossible for even the most bona fide refugee to obtain asylum, and now claims that applicants’ failures to win protection proves they filed applications for nefarious reasons. The administration is cynically using its own cruel policies to create facts designed to further more cruelty.
II. Distorting Immigration Court Representation and Appearance Data
The administration downplays the access to counsel crisis in our nation’s immigration courts, especially for children, and lies about the prevalence of non-appearance rates in immigration court.
Trump’s appointed officials frequently mislead Congress through incomplete and conflated data that obfuscates the due process crisis playing out every day in U.S. immigration courts. Most frequently, these misrepresentations downplay the critical importance of legal representation in immigration court proceedings and falsely suggest that the majority of immigrants do not appear for their scheduled immigration court hearings.
The DOJ Executive Office for Immigration Review’s (EOIR) own data shows that at least 60 percent of immigrant families in deportation proceedings appear for hearings, a statistic that rockets up to 98 percent when families are represented by counsel who can help them understand the court process.9 Among unaccompanied children, 67.6 percent overall and over 95 percent of minors with legal representation appear for their hearings.10
But in one recent hearing before the Senate Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee, EOIR Director James McHenry put forward several problematic representations of immigration statistics that
2
subverted this reality.11 At one point, McHenry cited statistics from a program whose scope is limited to providing children’s parents or sponsors a basic legal orientation to argue that providing full legal representation is ineffective in ensuring children’s appearance in court.12During the same hearing, McHenry also blatantly misrepresented court appearance data, testifying without evidence that children in immigration court proceedings appear in court only 53 percent of the time.13
The president’s mischaracterization of this data has been even further removed from reality, including unsubstantiated claims that immigrants “never show up [to court], it’s like a level of 3 percent. They never show up for the trial.”14
Obfuscation about representation and appearance rates in immigration court is particularly harmful given how powerfully the deck is already stacked against immigrants in deportation proceedings. Although U.S. Immigration and Customs Enforcement (ICE) is represented in each proceeding by its own federal counsel, there is no right to counsel for indigent immigrants who cannot afford private representation. Nationally, only 37 percent of all immigrants and only 14 percent of detained immigrants are represented in their immigration court proceedings.15Representation is a particularly critical due process safeguard in immigration court, where people face life-altering consequences and need an expert in the law by their side to ensure they understand how to comply with complex court processes.16 Immigrants with attorneys are five times more likely to win their cases than those without attorneys.17 For detained immigrants, it can be nearly impossible to even present a case without counsel; those with attorneys are 11 times more likely to be able to seek a defense to deportation.18
III. Increasing Prosecutions to Inflate the Number of So-Called
“Criminal” Immigrants
The administration employs both the criminal justice and deportation systems to target immigrants, using its discretion to increase already sky-high prosecutions of immigrants and subsequently touting increased convictions to demonize immigrants.
The Trump administration is quite literally creating its own crime statistics by making it impossible for asylum seekers to present lawfully at ports and then choosing to prosecute as many people as possible for crossing the border elsewhere to request protection. In April 2017, the DOJ announced it would prioritize the prosecution of migration-related offenses,19a jarring announcement in light of the fact that migration-related prosecutions already constituted more than half of all federal prosecutions when the Trump administration took office.20 A year later, DOJ established a
3
“zero-tolerance” policy, whereby U.S. Attorneys Offices at the southwest border were instructed to prosecute all migrants entering between ports of entry under 8 U.S.C. § 1325, improper entry.21
Zero tolerance led to a spike of prosecutions along the southwest border, with a 30 percent increase from the month prior to the announcement of the policy.22 As Acting Attorney General Matthew Whitaker recently noted, in FY 2018, DOJ charged 85 percent more immigrants with unlawful entry than in FY 2017, and increased felony reentry prosecutions by over 38 percent.23Fueling the zero-tolerance policy was the administration’s concerted blockading of the southern border through illegal turnbacks and so-called “metering” of asylum seekers at ports of entry, both still ongoing, forcing many asylum seekers desperate to reach the safety of the United States to attempt to enter between ports.24
The administration utilizes the statistics resulting from these policies to conflate notions of criminality and immigration status in its policy and rhetoric. ICE routinely touts the high percentage of immigration-related criminal arrests and deportations that involve immigrants who enter outside a port of entry, yet increasingly these statistics reveal the extent to which the administration is cooking the books by driving up the rates of migration-related offenses. Most recently, in ICE’s FY 2018 data release, the agency specifically highlighted arrests of immigrants by “Criminality,” arguing that “the largest percentage of aliens arrested by ICE are convicted criminals (66 percent).” Of the categories of underlying criminal conduct, however, immigration-related offenses ranked as third with 51,249 immigrants.25 Similarly, CBP highlights immigrants convicted of both entry and reentry offenses, with statistics as of August 2018 demonstrating they were the leading type of convictions for so-called “criminal aliens,” representing 41 percent in FY 2017 and 47 percent of all convictions in the first eight months of FY 2018.26 While the administration frames these statistics to argue that migrants have become a greater threat, the story they really tell is of a federal agency that has become obsessed with punishing people for crossing the border.
Conclusion
The use of official government resources to paint groups of people as undesirable or criminal mirrors strategies employed by authoritarian regimes throughout world history who have sought to consolidate power, effectuate anti-democratic agendas, and provide a pretext for persecution. During World War II, the Nazi regime published a list of supposed crimes committed by the Jewish population.27 Russia’s current authoritarian regime regularly employs the criminal justice system to prosecute and convict LGBTQ individuals.28 Scapegoating minorities is one of the time-tested tools for dictators.29
Through data manipulation, the Trump administration is deftly employing the various levers of government to implement inherently flawed policy that criminalizes immigrants, subsequently touting that criminalization to vilify them. Collaterally, the administration manipulates or misrepresents data to impugn immigrants and their families as criminals who are undeserving of protection. The endgame is apparent—to build a foundation to enact policies that erode due process, increase incarceration of communities of color, and strip legal protections from immigrants. Congress and other stakeholders must hold this administration accountable and
4
ensure that its anti-immigrant policies are not justified through the use of data or policy inherently designed to undermine basic human and civil rights.
Acknowledgments
This policy brief was authored by Jose Magaña-Salgado for the National Immigrant Justice Center. NIJC’s Heidi Altman and Tara Tidwell Cullen contributed to the report.
For questions, contact NIJC Director of Policy Heidi Altman at (312) 718-5021 orhaltman@heartlandalliance.org.
Endnotes
1 Philip Bump, “The administration is using heavily inflated numbers to argue for a border wall,” Washington Post, Jan. 4, 2019, https://www.washingtonpost.com/politics/2019/01/04/administration-is-using-heavily-inflated-numbers- argue-border-wall/?utm_term=.c72735337b9c.
2 Border Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793, Jan. 25, 2017, https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration- enforcement-improvements.
3 Hamed Aleaziz, “The Trump Administration is Slowing the Asylum Process to Discourage Applicants, an Official Told Congress,” BuzzFeed, Dec. 17, 2018, https://www.buzzfeednews.com/article/hamedaleaziz/the-trump- administration-is-slowing-the-asylum-process-to.
4 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download. This opinion is currently subject to litigation, with a preliminary, nationwide injunction in place as of December of 2018. Lauren Pearle, “Judge blocks Trump administration efforts to restrict asylum for migrants fleeing domestic and gang violence,” ABC News, Dec. 20, 2018, https://abcnews.go.com/Politics/judge-blocks-trump-administration-efforts- restrict-asylum-migrants/story?id=59913629; Grace, et al., v. Whitaker, No. 18-CV-01853 EGS (D.D.C. Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-opinion. See also Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), https://www.justice.gov/eoir/page/file/1040936/download (undermining the right to an evidentiary hearing for asylum applicants).
6 TRAC Immigration, Asylum Decisions and Denials Jump in 2018, Nov. 29, 2018,http://trac.syr.edu/immigration/reports/539/.
7 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration. Asylum denials often have life and death consequences for individuals, with deported asylum seekers facing persecution and even death in their home countries. See Jaya Ramji-Nogales , Andrew I. Schoenholtz and Philip G. Schrag, Refugee Roulette, Disparities in Asylum Adjudication and Proposals for Reform, 2009; Sarah Stillman, “When Deportation is a Death Sentence,” The New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a- death-sentence (documenting the harms awaiting immigrants deported back to their home countries, including violent deaths).
8 Proclamation No. 9822, 83 Fed. Reg. 57,661, Nov. 15, 2018,https://www.federalregister.gov/documents/2018/11/15/2018-25117/addressing-mass-migration-through-the- southern-border-of-the-united-states.
9 Human Rights First, Myth v. Fact: Immigrant Families’ Appearance Rates in Immigration Court, July 31, 2016,https://www.humanrightsfirst.org/resource/myth-vs-fact-immigrant-families-appearance-rates-immigration-court.
10 American Immigration Council, Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court, May 16, 2016, https://www.americanimmigrationcouncil.org/research/children-immigration-court-over-95- percent-represented-attorney-appear-court.
11 Permanent Subcommittee on Investigations, Homeland Security & Governmental Affairs Committee, U.S. Senate,Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse, Aug. 16, 2018,https://www.hsgac.senate.gov/subcommittees/investigations/hearings/oversight-of-efforts-to-protect-unaccompanied- alien-children-from-human-trafficking-and-abuse.
12 Id. (exchange begins at 1:36:40). In this same hearing, Director McHenry also cited an EOIR-produced statistic that the “representation rate for UACs [unaccompanied immigrant children] in proceedings . . . whose proceedings have been pending for over a year is already 75 percent.” By focusing on representation for unaccompanied minors with cases pending for a year or more, Director McHenry excluded representation rates for cases completed in less than a year, namely cases where a judge ordered a minor deported in absentia (e.g. without the minor’s presence in the court) precisely because the minor did not have representation. See Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum 15, Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project, 2018, https://cliniclegal.org/sites/default/files/Denied-a-Day-in-Court.pdf. Looking at impartial data regarding representation rates provides a more sobering picture; as of November 2018, only 48 percent of unaccompanied minors had representation, regardless of how long their case had been pending. See Juveniles — Immigration Court Deportation Proceedings, TRAC Immigration, Nov. 2018,http://trac.syr.edu/phptools/immigration/juvenile.
13 McHenry Testimony, supra note 11, at 1:47:10.
14 Linda Qiu, “Trump’s Falsehood-Laden Speech on Immigration,” The New York Times, Nov. 1, 2018,https://www.nytimes.com/2018/11/01/us/politics/fact-check-trump-immigration-.html.
15 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
16 Id.
17 Id.
18 Id.
19 Office of the U.S. Attorney General, Memorandum for all Federal Prosecutors, “Renewed Commitment to Criminal Immigration Enforcement,” Apr. 11, 2017, https://www.justice.gov/opa/press-release/file/956841/download.
20 TRAC Immigration, Immigration Prosecutions for December 2016, June 4, 2018,http://trac.syr.edu/tracreports/bulletins/immigration/monthlydec16/fil/; Cristobal Ramon, Federal Prosecutions of Illegal Immigrants, Bipartisan Policy Center, Mar. 27, 2018, https://bipartisanpolicy.org/blog/the-prosecution-pipeline/.
21 Office of the U.S. Attorney General, Memorandum for Federal Prosecutors along Southwest Border, “Zero- Tolerance for Offenses Under 8 U.S.C. § 1325(a),” Apr. 6, 2018, https://www.justice.gov/opa/press- release/file/1049751/download.
22 TRAC Immigration, Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April, June 4, 2018,http://trac.syr.edu/immigration/reports/515/.
23 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration.
24 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
25 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Fiscal Year 2018 ICE Enforcement and Removal Operations Report , Dec. 14, 2018,https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf.
26 U.S. Customs and Border Protection, U.S. Department of Homeland Security, Criminal Alien Statistics – FY 2018(Oct. 23, 2018), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics.
27 Amanda Erickson, “Adolf Hitler also published a list of crimes committed by groups he didn’t like,” The Washington Post, Mar. 2, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/03/02/adolf-hitler-also-published-a- list-of-crimes-committed-by-groups-he-didnt-like/ (“There’s a reason Trump’s opponents are so worried. This strategy — one designed to single out a particular group of people, suggesting that there’s something particularly sinister about how they behave — was employed to great effect by Adolf Hitler and his allies. In the 1930s, the Nazis used a similar tactic to stir up anger and hatred toward Jews.”).
28 The Council for Global Equality, The Facts on LGBT Rights in Russia, accessed Jan. 2, 2019,www.globalequality.org/component/content/article/1-in-the-news/186-the-facts-on-lgbt-rights-in-russia.
29 Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, 2012.
Images from The Noun Project. Credits: Robbe de Clerck, Adrien Coquet, Luis Prado, and SBTS
It’s time for some House Oversight of the ridiculous mess at EOIR and the lies, fabrications, and intentional distortions that support the restrictionist enforcement agenda of what once purported to be a “court system” but now is a “CINO” (“Court in Name Only”) — an unapologetic adjunct of DHS Enforcement (their “partner” according to the now departed Sessions). Amazingly, it’s actually much worse than the dysfunction that led to the removal of the Immigration Courts from the “Legacy INS’ and establishment of a supposedly “independent” EOIR within DOJ in the first place, in 1983.
Then, I don’t think INS was intentionally falsifying anything or carrying out a political agenda in the Immigration Courts. Honestly, the “Legacy INS’ was simply ethically and administratively incompetent to run a due process court system.
But, to the credit of all involved during the Reagan Administration, including then Commissioner Al Nelson and General Counsel “Iron Mike” Inman, we recognized the problem and acted to solve it. We also saw that a “level playing field” and a more independent Immigration Court would gain credibility with the Article III courts, which would benefit INS enforcement. We even got then Associate Attorney General Rudy Giuliani to endorse the “divestiture program.”
Although the first Director of EOIR, David Milhollan, who was also the BIA Chair, and the first Chief Immigration, Judge William R. Robie, were both stalwart Republicans, neither brooked interference from “Main Justice” with their operations. They were particularly proud and assertive of their independence from INS. Indeed “we’re not INS” became the “mantra” of the “early EOIR.”
Milhollan, having moved EOIR Headquarters across the river to Falls Church, VA more or less hoped that at some point DOJ would forget that EOIR every existed. He occasionally sent a little “excess money downtown” to ensure that the “Main DOJ” and the Attorney General would have only “kind thoughts” about EOIR and would otherwise leave him alone. Up to a certain point, it worked.
Sadly, for all of its original promise and development during its first two decades, the “EOIR Experiment” has turned out to be a disastrous failure. It’s quite painful for those of us who devoted large chunks of our professional lives and emotionally invested in the effort to make EOIR a “real” court.
The idea that a court system can operate independently and provide fairness, impartiality, and due process within the now thoroughly politicized DOJ is simply a non-starter. It’s basically a “return to the Nixon Administration” which is where I came in, with the hope of “learning the ropes” and eventually being able to help in some small way to create “good government” and a better America.
Unfortunately, a divided Congress and an Administration bent on destroying our Constitution and democratic institutions are unwilling and/or unable to put “Eyore” out of its misery. That means that innocent lives will continue to be wrongfully destroyed and Constitutional Due Process mocked until the next generation can put the “malicious incompetence” of Trumpism behind us and advance our nation and the world to a better, fairer, more realistic and inclusive future. That’s what the “New Due Process Army” is all about!
At President Trump’s big rally in El Paso on Monday night, you could see signs everywhere that proclaimed: “Finish the wall.”
That’s some amusingly dishonest sleight of hand — it’s meant to create the impression that the wall is already being built, which is a lie Trump tells regularly. Thus, it substitutes an imaginary Trump win for a real one, since apparently support for Trump among his voters on such an important symbolic matter is too delicate to withstand the unbearable prospect of him losing without withering or shattering.
It includes only $1.375 billion for new bollard fencing in targeted areas. That’s nothing like Trump’s wall — it’slimitedto the kind of fencing that has already been built for years— and it’s substantially short of the $5.7 billion Trump wants. It’s nothing remotely close to the wall that haunts the imagination of the president and his rally crowds. The $1.375 billion is slightly lessthan what Democrats had previously offered him. It can’t even be credibly sold as a down paymenton the wall.
Trump’s political and media allies are already in a rageover this point. And Trump may not accept the deal, or perhaps he’ll agree to it and try to find the wall money through executive action.
The compromise, to be clear, is a mixed bag for progressives. But on balance, based on what we are learning now, it’s plainly more of a victory than not.
The deal will include ‘substantial’ humanitarian spending
A House Democratic aide tells me that negotiators also agreed that the deal would include “substantial” expenditures to address the humanitarian plight of migrants arriving at the border.
Such money would go toward “medical care, more efficient transportation, food and other consumables,” to “upgrade conditions and services for migrants,” as the original Democratic proposalat the start of conference committee talks put it.Democrats had called for $500 millionfor this purpose. It’s not yet clear how much the final deal will include, as negotiations are ongoing, but it is likely to be in the hundreds of millions.
The details on this spending will matter greatly. But if structured well, it could be significant. The goal would be to upgrade current facilities where migrants are held before entering the system, which were not designed to cope with a new type of immigration: the arrival of asylum-seeking families and children, which has spikedeven as adults looking to sneak across illegally — the type Trump mostly rages about — is at historic lows.
Such an upgrade could address some terrible things we’ve seen: migrant families herded into tight conditions, and migrant children stacked up on concrete floorsand at medical riskdue to a lack of transportation out of remote areas, or proper screening and treatment.
Here’s the bad news
Unfortunately, Democrats backed down on a core demand: a cap on Immigration and Customs Enforcement detention beds. Democrats hoped this would force ICE to focusresources on dangerous undocumented immigrants, thus picking up fewer longtime noncriminal residents.
But Democrats instead agreed to fund 45,000 detention beds. To understand this, note that ICE is currently overspending against last year’s budget, by funding around 49,000 beds. So relative to that, Democrats are cutting the number of beds. But as Heidi Altman notes, what Democrats agreed to is higher than the actual number of beds legitimatelyfunded last year. So that’s a hike. And if there is no hard statutory cap on beds, ICE can find money elsewhere to fund extra beds, detaining more people than funding levels suggest. As one advocate told me, the deal “contains no new controls on ICE overspending.”
That’s a very serious problem. But overall, if the humanitarian money turns out to be real, the emerging agreement could prove to be a far-from-perfect but nonetheless decent one.
Some of Trump’s worst designs are getting frustrated
The overriding goal behind such changes is to reduce the numbers of immigrants in the United States — not just through deportations, but also through deterring people from trying to migrate and/or apply for asylum. That was the goal of Trump’s family separations, and after those were halted last year, he renewed the push for those other changes.
Trump’s first surrender three weeks ago temporarily conceded that he would not be able to make those things happen. Now the new compromise suggests Republicans want him to agree to reopen the government for far longer, without getting those legal changes orthe wall.
“We have yet to see the details in writing, but based on news reports, I’d say this deal is a huge loss for Donald Trump and Stephen Miller,” Frank Sharry, the executive director of the pro-immigrant America’s Voice, told me.
“This deal has no money for his concrete wall and less money for barriers than was on offer last December,” Sharry added. “Trump tried to use a shutdown to force through radical policy changes, and at this point, Republicans are saying, ‘Let’s keep the government open and move on.’”
Sharry conceded that the failure to get detention bed caps is a “real setback.” But he also noted that in six months, Democrats can renew the battle for caps, now that “a lot of lawmakers understand that ICE is detaining many more people than Congress funds. We live to fight another day.”
Trump and Republicans suffered an electoral wipeout in an election that Trump turned into a referendum on his xenophobic nativist nationalism. He then used a shutdown to try to force the new Democratic House to accept both his wall and radical legal changes that would have made our immigration system far more inhumane. He isn’t getting his wall or those changes, and it looks as though a lot of humanitarian money will be channeled to the border to address the actual crisis there.
In other words, the fake crisis that Trump invented — and with it, his broader immigration vision — is getting repudiated. The only question is whether Trump will agree to the surrender Republicans are trying to negotiate for him.
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Update:I’ve rewritten the section on detention beds to make it more accurate.
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Bad news for Trump on immigration is great news for America!
And, don’t forget how Trump’s devotion to himself, first, foremost, and always, as opposed to our country or even his White Nationalist restrictionist supporters played out at the DOJ. Trump’s concern for his own skin caused him to unceremoniously dump loyal White Nationalist acolyte former AG Jeff “Gonzo Apocalypto” Sessions, the “role model” for Stephen Miller.
In fewer than two years on the job, Sessions managed to push for the White Nationalist restrictionist immigration agenda in every possible way. In a sea of ethically questionable behavior during his tenure at the DOJ, the “original sin,” in Trump’s eyes, was Sessions’s following DOJ ethical advice to recuse himself from the Mueller investigation. Ethics is a dirty word in the Trump world.
A “shout out” to my friend Heidi Altman over at the Heartland Alliance who apparently helped thwart a DHS sleight of hand on detention statistics.
Expert panelists address immigration court reform at a discussion hosted by the ABA Commission on Immigration
America’s immigration justice system is broken. The case backlog is huge – nearly 700,000 immigrants and asylum-seekers are waiting for hearings or decisions – technology is old and there aren’t enough judges.
All five panelists agreed on that much at a May 4 discussion of how to reform immigration courts. They disagreed on who broke the system and how to fix it.
Several panelists accused Congress of underfunding the courts and the Justice Department of politicizing them. The head of the federal office that oversees immigration courts said he is working to cut down the backlog and hire more judges.
James McHenry, director of the Executive Office for Immigration Review (EOIR), said the agency will hire 150 additional judges and the hiring process will be much shorter than it has been. It previously took two years to hire new immigration judges. It now takes less than a year, McHenry said.
The discussion was sponsored by the ABA Commission on Immigration and held at the Washington, D.C., office of Fried, Frank, Harris, Shriver & Jacobson.
Three panelists – a sitting judge, a retired judge and an immigrant advocate – criticized EOIR’s handling of the courts. All three said the courts should be removed from the Justice Department and become independent.
Judge Denise Slavin of Baltimore, representing the National Association of Immigration Judges, said the immigration system today deserves a grade of D or D-minus. “The system is failing, there is no doubt about it,” she said.
The two biggest problems, she said, are the backlogs and public perception that the courts are unfair. The backlog, she said, was caused by “years of fiscal neglect” by both political parties. “Enforcement has been funded at levels that the courts have not,” she said.
She also accused Attorney General Jeff Sessions of politicizing the immigration courts. “It does not help matters much when our attorney general states to the press that we are being sent to the border to deport people. Not to hear cases, to deport people,” Slavin said.
She also criticized Sessions’ recent order that all immigration judges must clear at least 700 cases a year to get a “satisfactory” rating on their performance evaluations. No other American courts have such a quota, she said. “The only other court that we found that has that is in the People’s Republic of China,” Slavin said.
Retired immigration judge Paul Schmidt, an adjunct law professor at Georgetown University, accused the Justice Department of “aimless docket reshuffling” and have a “morbid fascination with increased immigration detention as a means of deterrence.” These actions “have turned our immigration court system back into a tool of DHS (Department of Homeland Security) enforcement,” he said.
He said the Trump administration has shown “unprecedented levels of open disdain and disrespect” for pro bono lawyers and immigration judges – “the two groups that are struggling to keep due process afloat in the immigration courts.”
He urged the audience to “join the new due process army and stand up for truth, justice and the American way in our failing, misused and politically abused United States immigration courts.” That earned the only applause of the morning.
Heidi Altman, policy director at the National Immigrant Justice Center, also accused the Justice Department of political interference in the immigration courts. “We are faced today with an administration that, at the very highest levels of leadership, is using rhetoric designed to reframe the goals and mission of our immigration court system,” she said. “The politicization of the immigration court system is particularly harmful because the courts are meant to be neutral bodies.”
McHenry said his agency is fixing the court system. Document e-filing will roll out nationally next year, he said. He denied Slavin’s accusation that judicial hiring is politicized. Merit hiring “will be the standard as long as I’m the director,” McHenry said.
In addition to hiring more judges, EOIR will shorten the backlog by using more teleconferencing, bringing back retired judges and re-examining all its policies, McHenry said. He said he sees no conflict between making the system more efficient and providing due process. “We believe judges can do both.”
The panel was moderated by Karen Grisez, special adviser to the ABA Commission on Immigration and public service counsel at Fried Frank.
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Couldn’t be clearer: Jeff Sessions is a huge part of the problem and is incapable of being part of the solution. Yes, other Administrations have also helped destroy justice in the Immigration Courts. But, Sessions graphically demonstrates why Due Process can never be safe from attack as long as the DOJ is in charge.
(Ret.) Immigration Judge Paul Schmidt, Adjunct Professor of Law, Georgetown University Law
Center Heidi Altman, Policy Director, National Immigration Justice Center James R. McHenry, Director, Executive Office for Immigration Review Judge Denise Slavin, President Emeritus, National Association of Immigration Judges
James R. McHenry, Director, Executive Office for Immigration Review
Judge Denise Slavin, President Emeritus, National Association of Immigration Judges
Karen Grisez, Special Advisor to the ABA Commission on Immigration; Public Service Counsel, Fried Frank LLP
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This event is FREE & OPEN TO ALL. I believe there will be a “public comment” opportunity. So, this is your chance to weigh in on the US Immigration Court “Train Wreck” and the Attorney General’s recent actions!🚂🚂🚂🚂🚂🚂🚂🚂🚂
Seating might be limited, and I would expect interest to be high. So, I strongly recommend arriving early!
Maria’s always “on top” of the almost daily examples of cruel, intentionally inhumane, unconstitutional, wasteful “Gonzo” Enforcement by the Trump regime. Here is some of what she reports on the deadly conditions in “NAG:”
“The inspector general for the Department of Homeland Security has criticized several immigration detention facilities for having spoiled and moldy food and inadequate medical care, and for inappropriate treatment of detainees, such as locking down a detainee for sharing coffee and interfering with Muslims’ prayer times.
Acting Inspector General John V. Kelly, who took over Dec. 1, said the watchdog agency identified problems at four detention centers during recent, unannounced visits to five facilities. The Dec. 11 report , released Thursday, said the flaws “undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.”
“Staff did not always treat detainees respectfully and professionally, and some facilities may have misused segregation,” the report found, adding that observers found “potentially unsafe and unhealthy detention conditions.”
Immigration and Customs Enforcement jails tens of thousands of immigrants for civil immigration violations, holding them until they are deported or released in the United States. The jails are not supposed to be punitive, according to the report.
ICE concurred with the inspector general’s findings and said it is taking action to fix the problems, some of which have already been addressed.
“Based on multi-layered, rigorous inspections and oversight programs, ICE is confident in conditions and high standards of care at its detention facilities,” the agency said in a statement. “To ensure the safety and well-being of those in our custody, we work regularly with contracted consultants and a variety of external stakeholders to review and improve detention conditions at ICE facilities.”
The Office of Inspector General said it launched the surprise inspections after receiving complaints from immigrant advocacy groups and on its hotline about treatment of detainees. The inspectors also interviewed staff members and detainees and examined records.
Advocates for immigrants said the report reaffirmed their long-standing calls for the detention facilities to be closed. Advocates have complained about reports of physical and sexual assaults, deaths in detention and other concerns for years under past presidents — and say their worries are increasing under President Trump.
Trump has pledged to dramatically increase deportations and is seeking congressional approval for more than 51,000 detention beds this fiscal year, up from about 30,000 under President Barack Obama.
Trump’s pick for the permanent director of ICE, Thomas D. Homan, previously ran the ICE detention system.
“The realities documented by the OIG inspectors, and many more, are endemic to the entire detention system,” Mary Small, policy director at Detention Watch Network, a nonprofit group that monitors immigration detention, said in a statement. “ICE has proven time and time again to be incapable of meeting basic standards for humane treatment.”
In a statement, Azadeh Shahshahani, legal and advocacy director of Project South, in Atlanta, cited the death in May of Jean Jimenez-Joseph. The 27-year-old Panamanian national was held in solitary confinement for 19 days at the Stewart Detention Center in rural Georgia, according to Project South.
Shahshahani said his death “should have served as a final wake-up call and resulted in the immediate closure of the facility.”
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The Administration tries to hide, obscure, cover up, and bureaucratize what’s happening in the NAG. But, thanks to courageous reporters like Maria, the truth isn’t going to be suppressed. Read the rest of Maria’s report at the link.
Is this YOUR America? Is this the America you want YOUR children and grandchildren to read about and inherit?
Gee whiz, what were my parents and grandparents doing while neo-Nazis were invading the government and recreating the “Fourth Reich?”
And, when are the Article III Courts going to get some backbone to go with their lifetime sinicure and stand up for the Constitution and human decency before it’s too late? When good people stand by and do nothing, tyrants like Trump, Sessions, Homan, Bannon, and their corrupt supporters will have their way!
Tell your legislators:
NO to Tom Homan as ICE Director;
NO to funding for the NAG;
NO to funding DOJ’s corrupt defense of the NAG and Gonzo Immigration Enforcement;
NO to additional unneeded DHS Enforcement agents;
YES to legislative and criminal investigations of the unconstitutional activities of Gonzo, Nielsen, Homan, and their cronies and the human rights abuses they are knowingly creating by misusing the immigration laws;
YES to “Dreamer Relief” with “no strings attached;”
YES to immigration reform that legalizes law-abiding residents already here and provides additional legal visas for the future to end the “false criminalization” of needed workers and refugees!
Stand up for America as a Nation of Immigrants — Stand up for human decency — Stand against Trump, Nielsen, Sessions, Homan, Bannon, Miller and the other neo-Nazis promoting the NAG!
Immigrants detained at four large centers used by Immigration and Customs Enforcement are subject to inhumane treatment, given insufficient hygiene supplies and medical care, and provided potentially unsafe food, according to a federal report.
The “concerns” about the treatment of detained immigrants in facilities in California, Georgia, New Jersey and New Mexico is summarized in a report issued by the Inspector General’s Office of the Department of Homeland Security.
As NPR’s Joel Rose reports,
“The findings are similar to those of outside groups that have alleged ‘extensive’ human rights abuses at ICE detention centers.
“The inspector general’s report comes as the Trump administration is asking Congress for funding to expand the immigration detention system.
“ICE says some of its existing facilities are short-staffed. And the acting director has agreed to the report’s recommendations.”
The report was based on inspections of five detention facilities, four of which failed to meet certain federal standards, although “not every problem was present in all of them.”
The report summarized the results of the inspections:
“Upon entering some facilities, detainees were housed incorrectly based on their criminal history. Further, in violation of standards, all detainees entering one facility were strip searched. Available language services were not always used to facilitate communication with detainees. Some facility staff reportedly deterred detainees from filing grievances and did not thoroughly document resolution of grievances. Staff did not always treat detainees respectfully and professionally, and some facilities may have misused segregation. Finally, we observed potentially unsafe and unhealthy detention conditions.
Detainees … reported long waits for provision of medical care, poor conditions in bathrooms and insufficient hygiene supplies. OIG inspectors also observed expired, moldy, and spoiled foods in the kitchen in four facilities.”
The report also recommends that ICE improve its oversight of detention facility management and operations. In an official response, ICE concurred with the findings and promised to strengthen oversight and improve overall conditions.
Critics of President Trump’s immigration policies say the findings are not new as they predate the current administration.
A 2015 report by the National Immigrant Justice Center questioned ICE’s ability to oversee the detention centers it uses.
In a statement on the 2017 report, the Center’s Executive Director Mary Meg McCarthy said:
“ICE’s inability to provide for the safety and health of the tens of thousands of immigrants in its custody has been documented for years. Today, we are calling on Congress to demand accountability and drastically reduce ICE’s detention budget.
“While the Inspector General’s report provides documentation of extensive abuses, its remedy is incredibly insufficient: it directs ICE field office directors to review the areas of concern. We know from earlier directives that ICE’s internal review processes fail to generate meaningful change.”
The Women’s Refugee Commission said the report is consistent with what the organization and its partners have “documented for years” from visits to ICE detention facilities as well as with research it has conducted over 20 years. Katharina Obser, senior program officer at WRC said in a statement:
“This week’s OIG report spells out what WRC and our partners have documented for years, making clear the critical need for greater oversight and reform. Instead, the Trump administration is intent on lowering or eliminating standards for immigration detention – putting detainees’ lives at risk – all while promising to ramp up detentionon a grand scale. As Congress continues to debate DHS FY 18 appropriations, the OIG’s findings show that now is not the time to expand a detention system that ICE is not capable of effectively and safely running. Detention must be reduced and, where needed, humane alternatives to detention, implemented in its place.”
Three years ago, the Department of Homeland Security Inspector General’s office reported on a series of unannounced visits to detention centers for unaccompanied children. The inquiry found evidence of inadequate food, temperature control problems and inconsistent employee-to-detainee ratios.”
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These are hardly “new” developments! So, why are Sessions and his DHS “stooges” “doubling down” on detention of non-crimninal aliens in private facilities, rather than fixing these life-threatening, unconstitutional conditions first. Sounds like clear Civil Rights violations to me. Why isn’t the DOJ’s Civil Rights Division “all over this like a cheap suit?” The answer to that is pretty obvious: They would have to prosecute their boss for knowingly creating and furthering these conditions. All part of his “Gonzo deterrence strategy.” What if it were a member of YOUR family being held in inhumane conditions like these?
The solution?” Simple: Let the non-dangerous immigrants (about 98% of them) out; put Sessions, Nielsen, Homan, and Miller in prison until the problems are fixed. Now THAT would finally be a use of detention that would have some real and appropriate deterrent value!
The true “rule of law” won’t be “restored” to America until “Gonzo” Sessions is removed from office.
A new in-depth study by the National Immigrant Justice Center (“NIJC”) shows how the Administration is intentionally using detention to deny Constitutional Due Process of Law to some of the most vulnerable:
“Introduction
When Donald Trump was elected president, the immigration detention system was already mired in such dysfunction that it routinely threatened the lives of those trapped inside. More than a year later, the administration intentionally uses its broken network of hundreds of immigration jails to advance an agenda that prioritizes mass deportation above respect for basic rights. This report focuses on the Cibola County Correctional Center, a prison complex in rural New Mexico owned and operated by the private prison giant CoreCivic (formerly Corrections Corporation of America)1 with the capacity to jail 1,100 immigrants facing deportation. Located far from any major urban center in a state with no immigration court, the prison has become a black hole of due process rights.
The National Immigrant Justice Center (NIJC) is particularly alarmed by the lack of meaningful access to counsel at the Cibola prison. Federal immigration law allows immigrants the right to counsel in deportation proceedings, but immigrants must locate and pay for it themselves. Immigrants detained in Cibola and many other immigration jails nationally are unable to avail themselves of this right because the capacity of nearby legal service organizations to provide representation is dwarfed by the need. An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time — six percent of the jail’s population in April 2017. The due process violations occurring at Cibola and other Department of Homeland Security (DHS) prisons are the latest consequences of the Trump administration’s scheme to jail so many immigrants, and in such remote locations, that their right to representation is rendered meaningless.
An NIJC survey of legal service providers reveals that New Mexico and Texas immigration attorneys, at their maximum capacity, are only able to represent approximately 42 detained individuals at the Cibola prison at any given time – six percent of the jail’s population in April 2017.
In light of DHS’s systematic and willful rights violations, NIJC calls on the agency to close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel, and demands that Congress immediately cut funding for DHS’s enforcement and detention operations. (See Recommendations.)
U.S. Immigration Detention National Average Daily Population From 1994 To 20172
. . . .
The Future Of Immigration Detention: Why Cibola Matters
DHS paid little heed to the dearth of affordable legal services near Cibola when it entered its agreement with Cibola County and CoreCivic. Such a lapse is by no means new or unique. DHS has grown and maintained the immigration detention system in a manner incompatible with civil rights and due process protections.
In many ways, the Trump administration inherited an immigration detention system already riddled with abuse and neglect. Detained individuals, advocacy organizations including NIJC, and DHS’s Office of Inspector General have reported for decades on the profoundly inhumane conditions pervasive throughout the detention system, including: the excessive and arbitrary use of solitary confinement;22 inadequate, unsafe and spoiled food service;23 abuse of force by officers;24 and deaths attributable to medical negligence.25 Rather than assess possible reforms to address these problems—as the non-partisan Homeland Security Advisory Council advised in late 201626—the Trump administration quickly implemented changes that exacerbated existing harms. Today, DHS jails approximately 40,000 immigrants daily —more than any administration in recent history27— and holds them longer.28 The administration has publicly embraced the use of prolonged detention for asylum seekers29 and moved to weaken the standards governing conditions of detention.30
The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.
Immigrants in detention centers throughout the country face the same frustrations as those jailed at Cibola when they try to find a lawyer. Nationally, fewer than one in every five immigrants in detention is able to find a lawyer.31 The Los Angeles Times recently reported that about 30 percent of detained immigrants are jailed more than 100 miles from the nearest government-listed legal service provider,32 with a median distance between the facility and the service provider of 56 miles.33
Access to counsel is important. Unrepresented, a detained immigrant, who often does not speak English, must develop her own legal arguments for relief eligibility, gather evidence that is often only available from within her country of origin (where she may fear for her own or her family’s safety), complete an application in English, and present a coherent presentation of her case to an immigration judge, all while a government-funded DHS prosecutor argues for her deportation.34 Faced with such a daunting task, immigrants enduring the isolation of detention are far less likely than those living in the community to defend against deportation and less likely to win their cases when they do so. The psychological harms caused by detention, especially for those with previous histories of torture or trauma,35 are so debilitating that even those with the strongest claims to legal protection in the United States often abandon the process and choose deportation instead.36 Detained immigrants with lawyers are 11 times more likely to pursue relief and are at least twice as likely to obtain relief as detained immigrants without counsel.37 A study analyzing the impact of appointed counsel for detained immigrants in New York City found a 1,100 percent increase in successful outcomes when universal representation became available..38
There is no doubt that DHS knows what it is doing. NIJC’s 2010 report Isolated in Detention documented the due process crisis already unfolding in the immigration detention system. At that time, NIJC found that 80 percent of detained immigrants were held in facilities that were severely underserved by legal aid organizations, with more than 100 immigrants for every full-time nonprofit attorney providing legal services.”40 The report presented eight recommendations to DHS and the Department of Justice to improve access to legal counsel for detained immigrants.41 Not one of the recommendations has been adopted or implemented by either agency.
Recently, DHS announced its interest in building new prisons in or near southern Texas; Chicago, Illinois; Detroit, Michigan; St. Paul, Minnesota; and Salt Lake City, Utah. The agency stated its goal was to increase the system’s capacity by up to 4,000 more beds.42Legal aid organizations in these regions sent a letter to DHS explaining that they would have little or no capacity to provide meaningful access to counsel if the government carries out this expansion.43 As of publication of this report, DHS has not responded to this letter nor contacted any of the organizations to assess access to legal counsel.
The administration seems poised to duplicate Cibola throughout the country. Its goal is clear: by undermining detained immigrants’ access to counsel, the administration ratchets up its removal rates.
When the administration flaunts its record rates of deportations, it is telling a story of what happens to immigrants like Christopher and hundreds of others at Cibola who face insurmountable barriers to justice, not describing a legitimate outcome of enforcement of United States law. Jailing immigrants during their deportation proceedings makes it significantly more likely they will be deported, regardless of the merits or strength of their defense to deportation. At Cibola and prisons like it throughout the United States, incarceration has become another weapon in the administration’s arsenal, intended to facilitate mass removals no matter the cost to due process or civil rights.
Recommendations
DHS must close detention facilities like Cibola, where due process is non-existent given individuals’ lack of access to counsel.
Congress must cut appropriated funds for immigration detention, in light of the civil rights and due process crisis within the system.
Specifically, Congress must:
Cease funding to detain individuals where there is no evidence of flight or security risk.
Engage in robust oversight to ensure that when DHS does utilize detention, funding is only available for facilities where there is sufficient access to legal counsel (an established immigration bar) and adequate health care for individuals in detention.
A Note On Methodology
For the survey cited in this report, the National Immigrant Justice Center (NIJC) undertook a census of all the attorneys we could identify who regularly practice immigration law in New Mexico and Texas. The intent was to determine 1) the number of attorneys available to take immigration cases out of the Cibola County Correctional Center and 2) the maximum number of cases each attorney could take at a given time. NIJC staff identified all attorneys in New Mexico who, as of July 2017, were members of the American Immigration Lawyers Association (AILA), the primary membership association for immigration attorneys in the United States (identified using the membership directory at http://www.aila.org/member-directory). Through informal conversations with AILA members and legal aid organizations, NIJC staff added other New Mexico- and Texas-based attorneys to the list who were identified as providing even minimal legal representation at Cibola. NIJC staff and interns reached out to each of these attorneys via email and telephone. NIJC communicated directly via phone or email with an attorney or authorized staff person at all but nine of the 60 offices on the final list. Each attorney was asked whether they were able and willing to provide legal representation to individuals detained at Cibola, for a fee or on a low-cost or pro bono basis, and if so approximately how many cases they could take at maximum capacity. The detailed results of this census are on record with NIJC.
In addition to these census questions, NIJC staff held more extensive interviews with staff members at the following nonprofit legal service providers: Catholic Charities of Southern New Mexico (Las Cruces, NM); Diocesan Migrant and Refugee Services (El Paso, TX); Instituto Legal (Albuquerque, NM); Las Americas Immigrant Advocacy Center (El Paso, TX); the New Mexico Immigrant Law Center (Albuquerque, NM); and Santa Fe Dreamers Project (Santa Fe, NM). Additionally, in June 2017 NIJC staff members visited the Cibola prison, where they spoke with 12 individuals detained at the facility whose insights inspired and contributed to this report. Notes from these conversations are on record with NIJC. Notes from all of these conversations are on record with NIJC.
Acknowledgements
The principal authors of this report are NIJC Director of Policy Heidi Altman and NIJC Director of Communications Tara Tidwell Cullen, with research and editing contributions from NIJC colleagues Keren Zwick, Diane Eikenberry, Mary Meg McCarthy, Claudia Valenzuela, Julia Toepfer, and Isabel Dieppa. NIJC interns Linda Song and Anya Martin also contributed to this report. Sincere thanks for insights and support from Jessica Martin and Rebekah Wolf of the New Mexico Immigrant Law Center, Allegra Love of the Santa Fe Dreamers Project, Yazmin Ruiz of United We Dream, and the detained immigrants whose experiences are described in this report.
All photos credit the National Immigrant Justice Center.”
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Read the complete report at the link.
NIJC confirms what most of us involved in the immigration justice system already know — that the Trump Administration has “doubled down” on the Obama Administration’s misguided detention policies to create an “American Gulag.” A key feature of the Gulag is using captive so-called “U.S. Immigration Courts” in prisons. Such “captive prison courts” actually are parodies of real independent courts empowered to require Due Process for migrants and adherence to the rule of law. Immigration detention is a national disgrace for which all of us should be ashamed.
But, don’t expect any improvement from the Trump Administration unless the Article III Courts require it or we get a different Congress at some point. (I note that a few Democrats have honed in on this issue and introduced the “Dignity for Detained Immigrants Act” which unfortunately is DOA in this Congress.) Given the performance of the Article IIIs to date in this area, and the Trump Administration’s “quietly successful” program to stock the Article IIIs with right-wing ideologues, I wouldn’t count on that either. On the other hand, I’ve seen even very committed conservative jurists reach their “breaking point” on Government immigration abuses once they become life-tenured Federal Judges and are no longer directly accountable to their right-wing “political rabbis.” Denial of statutory, Constitutional, and Human Rights sometimes crosses over ideological fault lines.
Kudos to my good friends and dedicated defenders of Due Process and Human Rights Heidi Altman and Diane Eikenberry of the DC Office of the of the NIJC/Heartland Alliance for their leadership role in exposing these continuing abuses and making a record for future generations to understand and hopefully act on our current failure to make “equal justice for all” a reality in America and the related failure of our U.S. Immigration Courts to live up to their commitment to use “best practices” to “guarantee fairness and due process for all.”
“The Trump administration is taking steps to impose “numeric performance standards” on federal immigration judges, drawing a sharp rebuke from judges who say production quotas or similar measures will threaten judicial independence, as well as their ability to decide life-or-death deportation cases.
The White House says it aims to reduce an “enormous” backlog of 600,000 cases, triple the number in 2009, that cripples its ability to deport immigrants as President Trump mandated in January.
The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.
“That is a huge, huge, huge encroachment on judicial independence,” said Dana Leigh Marks, spokeswoman and former president of the association and a judge for more than 30 years. “It’s trying to turn immigration judges into assembly-line workers.”
The White House tucked its proposal — a six-word statement saying it wants to “establish performance metrics for immigration judges” — into a broader package of immigration reforms it rolled out Sunday night.
But other documents obtained by The Washington Post show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.”
The Justice Department, which runs the courts through the Executive Office for Immigration Review, declined to comment or otherwise provide details about the numeric standards.
The Justice Department has expressed concern about the backlog and discouraged judges from letting cases drag on too long, though it has insisted that they decide the cases fairly and follow due process. On Thursday, Attorney General Jeff Sessions expressed concern that false asylum cases are clogging up the courts.
The judges’ union says its current contract language prevents the government from rating them based on the number of cases they complete or the time it takes to decide them.
But now, they say, the department is trying to rescind that language, and advocates say it could violate a federal regulation that requires judges to “exercise their independent judgment and discretion” when deciding cases.
Advocates and immigration lawyers say imposing numerical expectations on judges unfairly faults them for the massive backlog. Successive administrations have expanded immigration enforcement without giving the courts enough money or judges to decide cases in a timely way, they say. An average case for a non-detained immigrant can drag on for more than two years, though some last much longer.
“Immigration judges should have one goal and that goal should be the fair adjudication of cases,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services and advocacy to immigrants nationwide. “That’s the only metric that should count.”
Immigration lawyers say the proposed standards risk adding to disadvantages immigrants already face in immigration courts. Most defendants do not speak English as their first language if at all, are not entitled to lawyers at the government’s expense, and thousands end up trying to defend themselves.
Often immigrants are jailed and given hearings in remote locations, such as rural Georgia or Upstate New York, which makes it difficult to gather records and witnesses needed to bring a case.
“People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” said Gregory Chen, director of government relations for the American Immigration Lawyers Association, which has 15,000 members.
Traditional federal judges are not subject to quotas.
The rare public dispute between the immigration judges and the Justice Department comes as the Trump administration is demanding a commitment to increased enforcement and other immigration restrictions in exchange for legal status for 690,000 young undocumented immigrants who, until recently, were protected from deportation under an Obama-era program. Sessions announced the end of the program last month, and the young immigrants will start to lose their work permits and other protections in March.
In January, Trump issued a slate of executive orders that sought to crack down on immigration. He revoked President Barack Obama’s limits on enforcement and effectively exposed all 11 million undocumented immigrants in the United States to arrest.
On Sunday, Trump also called for more immigration-enforcement lawyers and more detention beds, which would further increase the caseloads of the courts.
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He is also planning to seek congressional funding for an additional 370 immigration judges, which would more than double the current number.
Immigration arrests are up more than 40 percent since Trump took office, and deportation orders are also rising. From Feb. 1 to August 31, judges have issued 88,383 rulings, and in the majority of cases — 69,160 — immigrants were deported or ordered to voluntarily leave the country, a 36 percent increase over the corresponding period in 2016.
The immigration courts have clamored for greater independence from the Justice Department for years and also have sought greater control over their budget. They have long complained about a lack of funding, burnout rates that rival that of prison wardens, and caseloads exceeding 2,000 each. Some judges are scheduling cases into 2022.
On Sunday, Sessions — who appoints the immigration judges and is the court’s highest authority — called the White House’s broad immigration proposals “reasonable.”
“If followed, it will produce an immigration system with integrity and one in which we can take pride,” he said.”
Will the stunningly xenophobic “Gonzo Apocalypto” get away with his lawless plan to strip migrants of the last vestiges of their already restricted Constitutional rights to due process? Or, will the Article III Courts step in, assert themselves, insist on due process and fair and impartial adjudication in Immigration Court, and throw the already staggering Immigration Court System into complete collapse, thereby stopping the “Removal Railway?”
The showdown is coming. I think the eventual outcome is “too close to call.” So far, Sessions is well on his way to co-opting the Immigration Court as just another “whistle stop on the Removal Railway!”
The current backlog has multiple causes: 1) failure of Congress and the DOJ to properly fund and staff the U.S. Immigration Courts; 2) poor enforcement strategies by DHS resulting in too many “low priority” cases on the dockets; 3) often politicized, always changing, sometimes conflicting “case priorities and goals” established by DOJ and EOIR; 4) lack of authority for Immigration Judges to control their own dockets; 5) outdated technology resulting in a “paper heavy” system where documents are often misfiled or missing from the record when needed by the Judges; and 6) “Aimless Docket Reshuffling” caused by moving cases around to fit DHS Enforcement priorities and ill-conceived and poorly planned details of Immigration Judges away from their normal dockets. “Productivity,” which consistently far exceeds the “optimal” 500 completions per Judge annually (currently approximately 770 per Judge) is not one of the primary factors causing the backlog.
Overall, the current backlog is the product of mismanagement of the Immigration Courts by the DOJ spanning multiple Administrations. No wonder the politos at the Sessions DOJ are trying to shift blame to the Immigration Judges, hapless migrants struggling to achieve justice in an “intentionally user unfriendly system,” and stressed out private attorneys, many serving pro bono or for minimal compensation. How would YOU like to be a migrant fighting for your life in a so-called “court system” beholden to Jeff Sessions?
We’re starting to look pretty “Third World.” Sessions and the rest of the “Trump Gang” operate much like corrupt Government officials in “Third World” countries where the rulers control the courts, manipulation of the justice system for political ends is SOP, and claims to aspire to “fairness” ring hollow.
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Expert panelists address immigration court reform at a discussion hosted by the ABA Commission on Immigration
