"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.
Category: AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS
After the death of seven-year-old Jakelin Amei Rosmery Caal Maquin, the US Department of Homeland Security asked parents to “not put themselves or their children at risk attempting to enter illegally”. Instead they urged: “Please present yourselves at a port of entry and seek to enter legally and safely.”
But what the US authorities failed to acknowledge after the young girl’s death just after she was taken into US custody, was just how difficult it is to ask for asylum at any port of entry into the US along the sprawling border with Mexico.
Those seeking asylum – like Guatemalan migrants Jakelin and her father – face a difficult task in actually making a claim, something that often forces migrants to instead risk their lives in illegal treks across the desert. This is especially true at the more than 40 smaller border crossings, such as the one nearest to where the Maquins crossed.
Advocates say it has become increasingly and deliberately difficult to claim asylum at these remote spots. Migrants are often illegally turned away, despite a constant threat of violence from drug gangs, traffickers, smugglers and even the local police. They say that it is only when local activists try to exert pressure on border officials that asylum claims are logged. When no one is watching, it becomes almost impossible.
Advertisement
Just take Alberto’s example. If Alberto, who does not want his real name used out of a fear of retribution, had known the extent of cartel control in the small Mexican border town before he showed up there one month ago, he says he never would have come.
“I would have stayed in Mexico City and asked for asylum there,” he said. But by the time he was kidnapped, thrown out of a truck with a bag over his head, and told he would be killed if the men with guns ever saw him again, it was too late. Alberto had to seek asylum immediately.
Alberto spent a sleepless week at a northern Mexican shelter, trying to figure out how to present an asylum claim. He heard from a Nicaraguan man that the nearest US port of entry, Lukeville, was not accepting claims and that border agents had thrown out the man by his shirt collar. But Alberto tried anyway. On 28 November, he presented himself to make a claim with accompaniment from the shelter. He too was turned away, after officials told him Lukeville was not a 24-hour port of entry and despite his fears he could be killed for hanging around on the border.
A sign warns against illegal smuggling and immigration near Lukeville, Arizona. Photograph: Jim Watson/AFP/Getty Images
Antelope Wells, the closest port of entry to where Jakelin and her father crossed, receives possibly the least amount of traffic of any port of entry across the US-Mexican border. “There is literally nothing there,” said Nia Rucker of the New Mexico American Civil Liberties Union (ACLU).
Those who monitor the border describe just how hard making a claim there can be. Juan Ortiz, a University of Arizona PhD candidate, took the four-hour drive from Tucson on 17 December to see Antelope Wells for himself. The two border officers on duty that day told him they would discourage people from seeking asylum there at a port with such limited capacity.
Experts and advocates up and down the border share a similar skepticism of small border posts. Though US border officials say asylum seekers are being accepted at all border ports of entry, activists who have tested the system paint a similar picture of US officials unwilling or unable to accept asylum claims – no matter that the administration is asking migrants to present themselves there.
Francisco Lemus of the Aguilas del Desierto was told at Tecate, California, that claims could only be processed in San Ysidro or Calexico. Christina Patiño Houle of the Equal Voices Network said Progreso, Texas, had not been accepting claims, nor had Roma, Texas, last time she checked. Instead they were sending asylum seekers to Hidalgo, Texas, the border town to Reynosa, which has been dubbed “the migrant kidnapping capital” of Mexico.
At other small posts such as Sasabe, Arizona, and Del Rio, Texas, local advocates had not heard of any migrants recently seeking asylum.
Activists with legal not-for-profits simply do not have the resources to consistently monitor these remote outposts.
Mayor Ramón Rodríguez Prieto of Puerto Palomas, Chihuahua, has not yet even tried to pressure officials across the border in Columbus, New Mexico, to accept asylum claims. Three weeks ago three separate families showed up to his small municipal shelter reporting that they had been turned away.
Further south, in Piedras Negras, Catholic priest José Guadalupe Valdés Alvarado, or “Padre Pepe”, feels as if he himself is responsible for keeping the Eagle Pass, Texas, port of entry open. He runs the migrant shelter there and some days only one person is let in, others up to 10.
Border agents have told Valdés Alvarado that whether the port of entry accepts asylum seekers depends on whether he maintains order, that no one storms the wall or tries to cross the river. So the priest works hard, educating migrants on credible fears, pre-screening them before taking their names. The border agents’ word is not a guaranteed assurance, though: as an approaching caravan of migrants began to dominate headlines before the US midterm elections Eagle Pass stopped accepting asylum claims for the better part of a week.
Activists supporting the port of entry between Agua Prieta and Douglas, Arizona, also felt the impact of the caravan. The small, under-the-radar port had shuttled families with young children up to 10 at a time. But the number of asylum seekers received dropped substantially in mid-November. And when they began to bring a group of Central American transgender women to present themselves for asylum, the number of accepted claims lowered to just two per day.
Local attorney Perla Ramos said that all of a sudden, asylum seekers had to wait all night outside to enter the facility. Some women became ill, others got sick in the cold desert air.
Ramos isn’t afraid of Douglas closing its doors entirely. Groups on either side of the border have strong connections between churches, legal clinics and other solidarity organizations. They will try to keep a trickle of claims flowing.
But elsewhere on the border, Alberto has moved on. With outside support, Alberto was safely transported to a larger port of entry with legal teams, clergy, shelter coordinators and others ensuring that asylum claims there were being accepted. He was placed on a list, his number was called, and he is now awaiting an asylum hearing in detention.
He hopes it will work: “I mean, if I don’t get in now, I’m going to have to try again.” He admitted he feels that he has no other options. “If I didn’t die this time, I probably will next time. I don’t want that. It’s just really hard,” he said.
**********************************************
Where’s the accountability when the Government is the one breaking the law? Given the advance intelligence, the amount of attention on the border, and the obscene amounts of money wasted by this Administration on “publicity stunts” like “troops to the border,” pursuing frivolous litigation, abusive and useless prosecutions, child separation, unnecessary detention, and aimlessly placing cases of immigrants who aren’t going anywhere on already overloaded court dockets, (not to mention the bogus “Wall” a/k/a “Trump’s Folly”) the processing “problems” could be solved.
What’s it going to take to make this Administration obey the law?
A federal judge on Wednesday struck down Justice Department rules that made it harder for asylum seekers to make successful claims based on fear of domestic abuse or gang violence, offering yet another judicial blow to the Trump administration’s efforts to unilaterally rewrite immigration law.
In his ruling, Judge Emmet Sullivan of the U.S. District Court in Washington concluded that the policies—which were rolled out by former Attorney General Jeff Sessions in June—were “arbitrary” and “capricious,” violating federal immigration law as crafted by Congress.
In his June order, Sessions sought to reverse a 2014 decision by the Board of Immigration Appeals, which held that victims of domestic violence may qualify for asylum. The BIA found at the time that women who are persecuted by their husbands but unable to leave their marriages or obtain help from law enforcement constitute a “particular social group,” one of the factors that would give them a right to seek asylum in the United States. A quirk in immigration law, however, permits the attorney general to singlehandedly reverse BIA decisions—and that’s precisely what Sessions tried to do, asserting that victims of domestic violence are not a “particular social group” because they are defined by their “vulnerability to private criminal activity” rather than a specific protected trait. He held that these women do not suffer true persecution because persecution is “something a government does.”
Sessions’ logic extended to victims of gang violence, since they, too, face persecution from private individuals, not directly from the government. He claimed that affected applicants may only receive asylum status if they demonstrate that their home government “condoned” violence against them, or demonstrated “complete helplessness” to stop it. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim,” he wrote.
In response to Sessions’ ruling, the American Civil Liberties Union filed suit in August on behalf of a dozen asylum seekers, mostly women from Central America, fleeing sexual and physical violence. Asylum officers found the asylum seekers’ stories credible—but they were still scheduled for “expedited removal” because asylum officers found they did not have a “credible fear of persecution” under Sessions’ new rules.
On Wednesday, Sullivan rejected Sessions’ interpretation of the law. He found that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Like other asylum-seekers, would-be refugees who bring these claims have a right to a credible fear interview; the attorney general cannot carve out an exception with no basis in the text of the statute. Sullivan then repudiated Sessions’ cramped definition of “persecution.” Under federal statute, the judge wrote, a refugee faces persecution if her home government is “unable or unwilling to control” violence against her. She need not prove that the government refused to help her, an overly stringent standard that Sessions had no power to impose.
Finally, Sullivan found that victims of domestic abuse and gang violence may receive asylum as members of a “particular social group.” Not every victim will be permitted to remain in the U.S. But members of social groups—such as married women trapped in abusive relationships—may prove that their government was unable to protect them from violence, thus qualifying them for asylum. And the government must grant all such applicants credible fear interviews to determine who qualifies. Thanks to Sullivan’s order, asylum seekers denied an interview under Sessions’ policy will now be allowed to make their case.
Wednesday is not the first time a federal judge has found that the Trump administration has overstepped its ability to interpret immigration law, crossing over into unlawful policy-making in its campaign to curb immigration. This past summer, a District judge in San Diego ruled that family separation violated immigrants’ due process rights and ordered that the government reunite families that were separated under Trump’s “zero tolerance” policy. And just this month, the 9th U.S. Circuit Court of Appeals rebuked the administration for its attempt to rewrite a federal statute by denying asylum to immigrants who enter the country without authorization. The court affirmed an earlier decision by U.S. District Judge Jon S. Tigar holding that the new policy was unlawful. “Whatever the scope of the president’s authority,” Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Trump administration would do well to heed Tigar’s warning. Over and over again, the president and his allies have tried to deport more asylum applicants by misreading or simply ignoring immigration statutes. These actions are unlawfully capricious, as Sullivan sternly reminded the country on Wednesday. His message is clear: The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.
***********************************************
This Administration has total contempt for Federal Courts and the rule of law. Just look at the ways in which the usually disingenuous Sessions routinely abused that term, along with his many bogus narratives and “legal positions” that were thinly veneered White Nationalist restrictionist “talking points.”
And, the Solicitor General and career lawyers in the DOJ whose job is supposed to be to uphold legal and ethical standards as “officers of the court” have gone “belly up.” They are obviously afraid to “just say no” to some of the invidiously motivated and semi-frivolous legal positions put forth by this Administration, particularly by Sessions, that are tying up the Federal Courts.
As I have predicted, I think that this Administration will put an end to the de facto role of the Solicitor’s General’s Office as the “Tenth Justice” and has also destroyed the “extra credibility” that Federal Courts traditionally assumed from DOJ lawyers by virtue of their oaths of office and the idea that they “speak for justice” rather than presenting the often more parochial interests of an individual client. Perhaps it’s just as well as the much touted “independence” of the DOJ has steadily become more myth than reality over the past three Administrations.
That doesn’t mean that we shouldn’t expect better from DOJ lawyers. But, that’s not likely to happen without some “regime change” and a Senate that takes their “advice and consent” role more seriously.
==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASEGreetings. The Immigration Court backlog continues to rise. As of November 30, 2018, the number of pending cases on the court’s active docket grew to 809,041 cases. This is almost a fifty percent increase compared to the 542,411 cases pending at the end of January 2017 when President Trump took office. This figure does not include the additional 330,211 previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.The state of Maryland continues to lead the pack with the highest rate of increase in pending cases since the beginning of FY 2017 — up by 107 percent. In absolute terms, California has the largest Immigration Court backlog – 146,826 cases waiting decision – up by 54 percent. These results are based upon proceeding-by-proceeding internal Immigration Court records obtained and analyzed by the Transactional Records Access Clearinghouse at Syracuse UniversityJust in the last two months, the Immigration Court active backlog has grown by over 40 thousand cases. Particularly high growth rates of 10 percent or higher were experienced at nine Immigration Courts. The two courts with the highest rate of growth in their backlog were two courts at ICE detention facilities. The Eloy Immigration Court in Arizona saw its backlog increase by 144 percent, while the Conroe Immigration Court (Houston SPC) in Texas had an increase of 62 percent. These increases occurred even though the court assigns the highest priority to hearing detained cases.
In addition, many of TRAC’s free query tools – which track the court’s active backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100 315-443-3563
************************************************
More judges, more backlog, due to “gonzo” enforcement, politicization, cratering morale, and just plain old mismanagement. When will Congress and/or the Article IIIs step in and put this dying system out of its misery before the DOJ politicos can do any more damage?
Sessions launched a three-point attack on already inadequate Due Process in U.S. Immigration Court by:
Removing Immigration Judges’ last vestiges of authority to independently manage their dockets;
Severely limiting judicial discretion, thereby effectively reducing Immigration Judges to the status of DHS adjudicators; and
Attacking the well-established rights of asylum seekers, particularly those from the Northern Triangle.
The result has been chaos in the courts. Even more wildly inconsistent decisions from Immigration Judges, cases that should have been “slam dunk” asylum grants, stipulated grants by ICE, or not in Immigration Court in the first place now occupying docket space and being “fully litigated,” thereby tying up more judicial time. Meanwhile judges are being subjected to sophomoric “production quotas,” which were almost universally opposed by everyone working in the system, and forced over scheduling. “Aimless Docket Reshuffling” has gone into full gear. Not surprisingly, there are more appeals, more remands from the Article III Courts, and grossly unfair and disparate treatment of those who are detained and or unrepresented. It’s basically the “worst of all worlds.” All of this is continuing under Whitaker.
I hope that at least the House Committees will look into how political mismanagement is wasting the taxpayers’ money and mocking due process, with no rational solution in sight! There needs to be some accountability for this grotesque fraud, waste, and abuse engineered by this Administration!
Hernandez-Perez v. Whitaker, 6th Cir., 12-18-18, Published
PANEL: GUY, WHITE, and STRANCH, Circuit Judges
OPINION BY: JUDGE JANE B. STRANCH
KEY QUOTE:
On the other hand, importing Pereira’s holding on the stop-time rule into the jurisdictional context would have unusually broad implications. According to the Government, “almost 100 percent” of NTAs issued during the three years preceding Pereira did not include the time and date of the proceeding. Id. at 2111.
Pereira’s emphatically “narrow” framing, id. at 2110, 2113, counsels in favor of distinguishing between the two contexts. Pereira confronted a specific question: “If the Government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?” Id. at 2110. Hernandez-Perez’s case does not present the same narrow question; no one disputes that he satisfies the ten-year requirement regardless of when the stop- time rule was triggered. We find persuasive the Board’s reasoning that, “[h]ad the Court intended to issue a holding as expansive as the one advanced . . ., presumably it would not have specifically referred to the question before it as being ‘narrow.’” Bermudez-Cota, 27 I. & N. Dec. at 443.
No. 18-3137 Hernandez-Perez v. Whitaker Page 10
Other components of Pereira counsel against applying its NTA rule in the context of jurisdiction. Like the BIA, we find it significant that, in Pereira, “the Court did not purport to invalidate the alien’s underlying removal proceedings or suggest that proceedings should be terminated.” Id.; see also Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (requiring courts to examine their own jurisdiction even if the parties “have disclaimed or have not presented” theissue). If Pereira’s holding applied to jurisdiction, there also would not have been jurisdiction in in Pereira itself. But the Court took up, decided, and remanded Pereira without even hinting at the possibility of a jurisdictional flaw.
We agree with the Board that Pereira is an imperfect fit in the jurisdictional context and it does not mandate a different conclusion than the one already reached by this court and all our sister circuits. See Herrera-Orozco, 603 F. App’x at 473–74 (collecting cases). We therefore conclude that jurisdiction vests with the immigration court where, as here, the mandatory information about the time of the hearing, see 8 U.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA.
********************************************
Points of interest;
The 6th Circuit is the first circuit to rule on Bermudez-Cota;
The court noted that approximately 100% of the cases commenced by ICE over the past three years did not contain the specific notice of date. time and place of hearing set forth in the statute;
Even assuming that Bermudez is upheld, the way in which cases have been processed by DHS and EOIR has made tens of thousands, perhaps hundreds of thousands of individuals eligible for “Cancellation of Removal;”
What does this say about the management competency of both agencies?
Contrary to the drift of the BIA and the 6th Circuit, initial proper notice of time, place, and date of hearing is critically important;
Whereas “Notices to Appear” are sometimes served in person, the subsequent “Notice of Hearing” by EOIR never is — this significantly increases the chances for improper “in absentia” hearings based on faulty notice from EOIR;
Most notices in Immigration Court are served manually by regular U.S. Mail, an incredibly error-fraught process given the state of disorder in the Immigration Courts (which has been mindlessly ramped up under Sessions’s gross mismanagement);
Thus, failing to provide accurate initial notice actually greatly increases the chances of improper in absentia orders and actual removals if an individual is picked up and can’t figure out how to file a “Motion to Reopen and Rescind” the in absentia order;
Would you be able to do that?” Would most Article III judges (particularly if operating in a different language, from ICE Detention, with no lawyer)?
Although “winning” on the “big issue,” the DHS actually lost this case; it was remanded because the BIA screwed up in denying the respondent’s Motion to Reopen;
As one of my former colleagues pointed out to me recently, if the BIA is wrong in Bermudez-Cota, it could potentially invalidate not only almost every removal order and pending removal proceeding, but most affirmative grants of relief by Immigration Judges;
So, maybe this is a case where the practical consequences will shape the legal interpretation;
But, then, there’s always the issue of retroactivity — could an invalidation of Bermudez be applied “prospectively only” to new and pending proceedings or in some other manner that did not disrupt “settled expectations;”
Historical Trivia: I wrote Matter of L-O-G-, 21 I. & N. Dec. 413, 413 (B.I.A. 1996) (en banc) which was extensively discussed by the 6th Circuit.
Former USBP Agent Francisco Cantu writes in the LA Times:
Ever since the U.S. Border Patrol admitted that Jakelin Ameí Rosmery Caal Maquin, a 7-year-old Guatemalan girl seeking asylum with her father, had died in their custody, government officials have been trying to deflect blame for her death.
What is clear so far, according to news reports, is that Jakelin and her father turned themselves in to Border Patrol agents on Dec. 7 along with 163 other migrants in the New Mexico desert. According to a Department of Homeland Security incident report, they were screened at a remote substation and found to be in good condition. DHS cannot confirm whether Jakelin consumed food or water at the facility, but eight hours later, she became “feverish and vomiting” on a transport bus headed for the Lordsburg Border Patrol station. She was met by Border Patrol emergency medical technicians who twice revived her, recorded her temperature at 105.9 degrees and called for a helicopter to El Paso’s Providence Children’s Hospital, where she died about 27 hours later.
The U.S. government claims Jakelin had journeyed for days through the desert without food and water and was beyond help before she was taken into custody. However, her father says he saw to it that she was eating and drinking. The president of the American Academy of Pediatrics says her death was without doubt preventable. But Department of Homeland Security Director Kirstjen Nielsen blames the victim in this “heartwrenching” story: “This family,” she said on Friday, “chose to cross illegally.”
A Customs and Border Protection spokesman insisted to the Washington Post that “Border Patrol agents took every possible step to save the child’s life under the most trying of circumstances.” That may well be technically true. But even if individual Lordsburg agents rushed to save Jakelin’s life, it won’t erase another truth: The institutional culture of the Border Patrol regularly dismisses even the most basic needs of detained migrants.
In early 2009, when I arrived at my first Border Patrol duty station in Arizona, I was assigned to a training unit and placed under the supervision of senior agents selected to coach newcomers like me. When I read about Jakelin’s death, I couldn’t help but recall the night our training unit first apprehended a group of migrants.
My memories from this night are not precise. I remember the group of migrants was small, maybe eight to 10 people, all of them adult males. We picked them up in the open desert not far from the area’s lone highway, and I can no longer recall how long they had been walking or how many days they might have been without food or water.
What I do remember with certainty is what happened at the processing center. The men had noticed that I spoke fluent Spanish and asked me for water. I went to a nearby storeroom, grabbed a case of bottled water, and was about to walk through the door to the processing room when one of my training agents blocked the way.
What are you doing? she asked me. I told her I was bringing water to the group we brought in. They’ll be fine, she said, come join us in the computer room. But they asked for water, I said, gesturing at the door. It wouldn’t have taken more than a second for me to drop off the water.
Her face and tone changed. Leave it, she ordered, “They’ll live.”
As strange as it may sound, I don’t remember if I obeyed her or what I ended up doing with the water, but I never forgot the message I was given that night: Don’t dare be soft.
Senior agents like her lamented the end of the “old patrol” when migrants weren’t so “coddled” and agents could get away with “tuning up” detainees who got out of line. Callousness toward migrants is evident even in the language agents use to refer to them: “aliens,” “illegals,” “bodies” or “toncs” (a term with disputed origins, which some say means “temporarily out of native country,” though others say it alludes to the sound of a Maglite hitting a migrant’s skull).
As agents-in-training, we were taught to carry ourselves as hardened law enforcers and to treat migrants as lawbreakers. We were told to regard migrant requests with suspicion — if they asked for something or complained, they were likely trying to take advantage of us. We were meant to offer our captives the bare minimum and pass them on like a hot potato — field agents passed migrants to transport agents, who passed them to processing agents, who passed them to bus contractors, who passed them to sector headquarters, where they would be immediately deported or thrust into the immigration detention system.
After more than a year of working as a field agent, I signed up for emergency medical technician training. When I was called to help, agents usually described a migrant’s situation with dismissal and annoyance: This one keeps complaining about blisters, this one claims she needs medication, this one won’t shut up about seeing a doctor. Migrants, the thinking went, always bore responsibility for their own misfortune — an attitude echoed in Nielsen’s insistence last week that Jakelin’s family “chose to cross illegally.”
There will be an investigation into Jakelin’s death, but in broad terms its causes are clear enough: heedlessness, a lack of compassion, poor accountability at the border. Since January 2010, San Diego’s Southern Border Communities Coalition has cataloged at least 81 deaths at the hands of U.S. border agents, and since 2000, more than 6,000 have died as a result of “deterrence” policies that force migrants to cross in remote and dangerous areas, like the one Jakelin and her father passed through.
What happened to Jakelin is not an aberration, but rather the predictable outgrowth of the dehumanizing practices that define U.S. border policy. It will not be enough to conduct an audit of the Lordsburg Border Patrol station and shuffle its hierarchy, or to increase the ranks of Border Patrol EMTs and give them pediatric training. We must demand, instead, that the entire culture of cruelty that underlies our border enforcement system be remade.
Francisco Cantú was as an agent for the U.S. Border Patrol from 2008-12. He is the author of “The Line Becomes a River: Dispatches From the Border.”
********************************************
I represented the Border Patrol for a number of years at the “Legacy INS” when I was the Deputy General Counsel and Acting General Counsel. Among other things, I taught Search and Seizure Law at the Border Patrol Academy and visited a number of Border Patrol Stations. I rode along on patrol, flew in helicopters, walked the border at night, even went off the tower on a zip line during one basic training session at Ft. Polk.
Overall, I enjoyed working with the agents. I thought they were dedicated and hard-working, doing a largely thankless job for which they received insufficient salary and credit, and overall doing it well. I learned from hearing their stories and questions based on “law in action.”
One of the things that the late INS General Counsel “Iron Mike” Inman and I achieved was starting a “Sector Counsel” program in some of the busier sectors so that the agents could get some “on site” legal advice and assistance dealing with U.S. Attorneys and Federal Courts.
That’s not to say that there were no “bad moments.” I did notice an overall “lost battalion” mentality, particularly among some of the older supervisors. Their attitude toward me and my colleagues in the Legal Program probably fluctuated with how much trouble they were in and how much they needed our help to bail them out.
I remember one particularly tense moment visiting a station where some of the officers were under investigation for Civil Rights violations. I accepted their offer of a cup of coffee. When the agent left the room to get it, my friend and then Western Regional Counsel the late Bill Odencrantz whispered: “I wouldn’t drink that if I were you, Schmidt.”
I also recognized that patterns of behavior were probably different when “visitors from headquarters” were there. Undoubtedly, we saw and heard what they wanted us to see and hear when we were riding in the patrol cars, flying in helicopters, or looking through surplus Vietnam era “infrared night scopes” at the folks crossing the border. And, I do remember hearing the second of the two definitions offered by Cantu for the term “toncs.” I think it actually came up in connection with one of the internal investigations in which I was involved.
As I judge, I tended to view the Forms I-213, “Reports of Deportable Alien,” from CBP with “healthy skepticism,” knowing the pressures and conditions under which they were prepared. I also observed over time that many of them said the same things in the same words, much like the “canned paragraphs” that my colleague the late Judge Lauri Steven Filppu used to rail against during my time at the BIA.
As with ICE, in the future there needs to be better professional leadership and training at CBP, as well as a more focused mission. “Culture change” is critical to an effective, cost-efficient, humane, and professional immigration enforcement strategy. However, my experience is that such “culture change,” while not impossible, is a “hard nut to crack,” even under the best of circumstances.
It won’t be achieved simply by “messages from on high.” And, it certainly isn’t going to come under a leader who constantly sends racially charged xenophobic messages and encourages false narratives, dehumanization, and White Nationalism.
Brianna Rennix & Nathan Robinson write in The Guardian:
There are still unknown facts about the death of Jakelin Caal, the seven-year-old Guatemalan girl who died in the custody of US border patrol. Jakelin became seriously ill while being bussed to a detention center located about 90 miles from the New Mexican desert where she and her father were picked up. US officials have blamed Jakelin’s father, insisting that Jakelin had not had food or water for days when she arrived and that Jakelin’s father signed a form asserting she was healthy when she arrived.
Jakelin’s father has insisted that this is false – that his daughter had been eating and drinking, that they hadn’t undertaken the kind of long desert crossing portrayed in the press, and that the form the US cites was in English, a language he does not speak.
We do know that Jakelin did not receive treatment for 90 minutes after she began showing symptoms. In the coming days, more information about Jakelin’s death may emerge that will allow us to determine what US officials knew, whether they reacted quickly or not, and whether the medical care she received was adequate.
But these questions are almost secondary, because US responsibility for the suffering of migrant children is already very clear. When asked about Jakelin, a White House spokesman replied: “Does the administration take responsibility for a parent taking a child on a trek through Mexico to get to this country? No.” This attempt to shift blame on to desperate parents ignores critical facts.
First, border patrol, aware that the desert is more difficult to monitor, deliberately seeks to make the desert crossing more deadly for migrants. They have been repeatedly caught destroying stashes of water left in the desert by humanitarian groups, and an investigation by No More Deaths concluded that this was “not the deviant behavior of a few rogue border patrol agents, [but] a systemic feature of enforcement practices in the borderlands”.
An ex-border patrol agent has written about how he once gave water to a four-year-old boy after he found a family lost in the desert. A fellow officer arriving on the scene then kicked the jug out of the child’s hands, saying, “There’s no amnesty here.”
Second, it’s impossible to look at migration without its context. Caal was an indigenous Mayan who came from severe poverty in the village of Raxruhá. It’s worth remembering that the United States has been a direct cause of the conditions of indigenous Guatemalans over the last half century. Many Americans have forgotten the 1954 coup in which the US overthrew the country’s reformist government, leading to decades of US-backed authoritarian rule. They have also forgotten this country’s role in providing financial and military support for a genocidal government that massacred Guatemala’s indigenous population by the tens of thousands during that country’s civil war. Contemporary conditions in Guatemala are in significant part our responsibility.
The United States has actually made it more likely that immigrants will choose to brave the desert, by closing down other options. During the overland journey from Central America to Mexico, many people are beaten, robbed, kidnapped and sexually assaulted on the journey, by everyone from cartel members to Mexican immigration police. It is, indeed, a dangerous journey to bring a child on, but there are often few other options even for those who wish to legally seek asylum.
The US has imposed massive carrier fees on airlines who allow people to board without visas, even if they are doing so for the purpose of entering the asylum process. And the Trump administration, for all that it performatively wrings its hands over the welfare of children, has also systematically cancelled the few existing programs that allowed a small number of endangered minors to come to the United States to seek asylum without needing to make the perilous trip through Mexico.
Men crossing with their children, as Jakelin’s father did, face a particularly difficult set of options. There are not dedicated facilities to detain dads together with their kids, and separations of fathers from children happened under both Obama and Trump. Last year, a father hanged himself in his cell after his child was ripped from his arms.
It’s difficult for migrants to obtain reliable information about their options, because the government, for political reasons, publicly denies that it continues to “catch and release” migrants at the border, or that it is continuing to separate families. (In reality, both practices are happening regularly.) Migrants rely on word-of-mouth intelligence, or the questionable say-so of coyotes, to understand what will happen to them when they cross the border. A dad who wanted to avoid any chance of being separated from his child might be advised to cross at a remote location where border patrol was less likely to catch them.
Finally, while Jakelin Caal fell ill on a bus and not in a DHS holding facility, it’s worth mentioning that conditions in DHS custody are truly terrible. A child died earlier this year shortly after leaving the South Texas Family Residential Center, where hundreds of women and children – including pregnant women and people with serious health conditions – are confined in close quarters, more than an hour’s drive from any hospital that can provide specialist care. At border holding cells, adults and children are regularly forced to sleep on hard concrete floors, drink contaminated water, sit in their own filth, and endure physical and psychological abuse from border guards. The very facility where Jakelin was held had previously been cited for contaminated water.
Jakelin Caal’s case shows the disturbing human reality of Central American migration. But far beyond her tragic death, US policies and practices continue to contribute to the pain and misery of tens of thousands of desperate families.
Brianna Rennix is an immigration lawyer and an editor at Current Affairs. Nathan Robinson is the editor of Current Affairs
Mauricio-Vasquez v. Whitaker, 4th Cir., 12-06-18, published
PANEL: NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
OPINION BY: JUDGE DIAZ
KEY QUOTE:
It was DHS’s burden to affirmatively prove (by clear and convincing evidence) that Mauricio-Vasquez last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determines whether his 2012 felony abduction offense fell within the five-year window for removability. But here, the record contains essentially unrebutted evidence showing that Mauricio-Vasquez was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise).5 In our view, any reasonable adjudicator would be compelled to conclude that DHS failed to prove Mauricio-Vasquez was admitted in 2008.6 He is therefore not removable on the ground alleged by DHS.
For the foregoing reasons, we grant Mauricio-Vasquez’s petition for review.
Although the ordinary practice is to remand to the agency for further proceedings consistent with our disposition, we conclude that such proceedings “would serve no purpose” here. Medina-Lara v. Holder, 771 F.3d 1106, 1118 (9th Cir. 2014) (quotingKarimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013)). The Board remanded this case once before, after the Immigration Judge determined that DHS had failed to satisfy its burden of proof. Yet despite being allowed to fully develop the record on remand, DHS has again failed to carry its burden. Under the circumstances, we decline to give DHS a “third bite at the apple.” Id. (quoting Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2012)).
We therefore vacate the order of removal, and remand to the agency with instructions to grant Mauricio-Vasquez’s motion to terminate removal proceedings.
Reminds me of a BIA colleague who once wrote in a dissent from a much remanded visa petition case that it was “time to put an end to this pathetic attempt at adjudication by the District Director.”
Fixing the glaring quality and due process problems in the Immigration Court system should be “priority 1.” Instead, the emphasis from the politicos is on artificially trying to make a broken system go faster and churn out more potentially erroneous decisions.
Time to get this court system out of the clutches of the DOJ so that it can be fixed and function as a court should.
A reductive, but not incorrect view of the Democratic debacle in the 2016 elections holds that when President Trump took office, centrists lost the present and leftists lost the future. In 2020, Democrats will have a new opportunity to either reach backward for the Obama era, or to lay the foundation for a bolder, progressive future. Deciding which goal to pursue will likely become the chief party fault line as the 2020 primaries approach. My advice to progressives: Don’t back down.
For the party’s center-leaning establishment, a return to the Obama era makes sense. Centrists were happy then — thrilled to witness the passage of health-care reform that did something but not too much (so long, public option!), comfortable with what one might gently label a muscular foreign policy, pleased with the recovery from the 2008 financial crisis, though it came at the expense of homeowners in foreclosure while coddling Wall Street. All in all, things seemed stable and sustainable. Only tweaks and patches lay ahead.
But then, history — presumed dead by those who believed, with socialism extinguished, the future held nothing but increasing gains for liberal democracy — happened again. The 2016 election witnessed a swell of populist disenchantment with the status quo and concluded with the election of Trump. With Trump came a queasy uncertainty that still characterizes politics to this day,leaving old norms dissolved and common sense unequal to its task.
So much of centrist-Democrat fantasizing about 2020 already seems aimed at repeating a golden past. Consider the groundswell of interest in Beto O’Rourke, the Texas congressman who narrowly lost his recent Senate race against Sen. Ted Cruz. For Democrats excited about O’Rourke, his primary draw is his similarity to Barack Obama — both in form and content. O’Rourke has held conversations with the former president about a possible run, to build on a belief that O’Rourke, as my colleague Matt Viser described it, is “capable of the same kind of inspirational campaign that caught fire in the 2008 presidential election.”
O’Rourke’s politics also fall into the same ambiguously centrist zone as Obama’s. “Like Mr. Obama as he entered the 2008 campaign, Mr. O’Rourke can be difficult to place on an ideological spectrum, allowing supporters to project their own politics onto a messaging palette of national unity and common ground,” a recent New York Times report observed. Meanwhile, other candidates straight from Obama’s orbit — such as former vice president Joe Biden and former housing secretary Julián Castro — are also eyeing the nomination, with appeals to unity and centrist perspectives.
When not absorbed in hopes of re-creating the Obama era, Democrats mainly seem intent on beating Trump, with little comment or insight, at least so far, on what they will do with power once they have it. (After I questioned in my last column whether O’Rourke has demonstrated serious commitment to progressive values, some readers responded by arguing they’re glad he hasn’t— that Democrats need to run an Obama-style centrist to win back conservatives who might otherwise favor Trump. “A too-progressive Democratic nominee in 2020,” one reader wrote, “would be a gift to President Trump.”) Likewise, at a recent event in New York, former FBI director James B. Comey implored Democrats to put aside their political projects in favor of an all-consuming focus on simply beating Trump. “I understand the Democrats have important debates now over who their candidate should be,” Comey said, “but they have to win. They have to win.”
Presidential elections provide an opportunity for parties to identify and rally around their principles — and even to radically reshape them. If all the Democrats can manage is to hark back to the past and focus on winning for its own sake, they’re missing an opportunity to lay out a blueprint for the future. I don’t think that putting forth progressive priorities is incompatible with beating Trump; in fact, I think that having a clear and persuasive vision of what a better America can look like is likely to be more attractive to voters than promising them something vaguely like the past. One of the political lessons of recent years is that history is never over. The future is waiting, if we want to build it.
*******************************************
Certainly the Obama Administration was “golden” by comparison with the current corrupt, White Nationalist regime that has made overt racism and hate front and center. However, despite some good things like DACA, stateside processing, and a late stab at wider use of prosecutorial discretion (“PD”), Obama was fairly disappointing from an immigration standpoint.
Under Obama, there was lots of ambiguity and misdirected enforcement, substantial overuse of detention (particularly substandard private detention), and the forerunner of the Trump Administration’s failed “border deterrence” strategy. Obama folks didn’t seek and glory in the cruelty and dehumanization the way that this Administration does. But, in human terms, the results often were similar for the individuals concerned: split families, indefinite detention, kids in jails, a failing U.S. Immigration Court system, and only a smattering of real “immigration pros” in key positions where they too often were not ” driving the train” or being taken seriously.
Can an immigration system based on the reality that immigration is good and necessary for our country, a professionally run independent U.S. Immigration Court dedicated to Due Process with efficiency, a more robust acceptance of refugees, a secure border, cooperation with the international community in solving problems, and treating those who can’t be accepted fairly, humanely, and respectfully be part of winning political strategy?
A 7-year-old girl from Guatemala died of dehydration and shock after she was taken into Border Patrol custody last week for crossing from Mexico into the United States illegally with her father and a large group of migrants along a remote span of New Mexico desert, U.S. Customs and Border Protection said Thursday. . . .
According to CBP records, the girl and her father were taken into custody about 10 p.m. Dec. 6 south of Lordsburg, N.M., as part of a group of 163 people who approached U.S. agents to turn themselves in.
More than eight hours later, the child began having seizures at 6:25 a.m., CBP records show. Emergency responders, who arrived soon after, measured her body temperature at 105.7 degrees, and according to a statement from CBP, she “reportedly had not eaten or consumed water for several days.”
The Department of Homeland Security’s statement in response to reports of the child’s death was a moral and legal disgrace:
Traveling north through Mexico illegally in an attempt to reach the United States, is extremely dangerous. Drug cartels, human smugglers and the elements pose deadly risks to anyone who seeks to cross our border illegally. Border Patrol always takes care of individuals in their custody and does everything in their power to keep people safe. Every year the Border Patrol saves hundreds of people who are overcome by the elements between our ports of entry. Unfortunately, despite our best efforts and the best efforts of the medical team treating the child, we were unable to stop this tragedy from occurring.
“Once again, we are begging parents to not put themselves or their children at risk attempting to enter illegally. Please present yourselves at a port of entry and seek to enter legally and safely.”
For starters, the federal government is responsible for the health and welfare of anyone it detains — whether it is a criminal in a prison, a child in its foster-care system or families detained at the border. Regardless of what the children’s parents did or did not do, the United States has an obligation to the children the moment it detains them. Not to give food and water, or to check the health of those it has in custody, is inexcusable. Blaming the parents as Homeland Security Secretary Kirstjen Nielsen did (“This is just a very sad example of the dangers of this journey. This family chose to cross illegally”) reflects her legal and moral obtuseness. In our care, the child’s welfare became ourresponsibility.
“This tragedy represents the worst possible outcome when people, including children, are held in inhumane conditions,” the ACLU’s Border Rights Center said in a statement. “Lack of accountability, and a culture of cruelty within CBP have exacerbated policies that lead to migrant deaths.” The ACLU continued, “In 2017, migrant deaths increased even as the number of border crossings dramatically decreased. When the Trump administration pushes for the militarization of the border, including more border wall construction, they are driving people fleeing violence into the deadliest desert regions.” The statement pointed out that the incident wasn’t reported for a week. “We call for a rigorous investigation into how this tragedy happened and serious reforms to prevent future deaths,” the statement concluded.
Frank Sharry, executive director of America’s Voice, a progressive pro-immigration group, also responded. Sharry pointed out that a “tragic and preventable death of an innocent seven-year old girl should not be seen as a mistake made in an otherwise humane system, but rather a deliberately cruel and dehumanizing system that has produced yet another death.” His statement asserted that CBP’s holding facilities are characterized by “freezing temperatures, no beds, lights left on, no showers, not enough toilets or toilet paper, filthy conditions, horrible smell, inedible food and not enough clean water to drink, and [are] run by insulting and abusive agents.” The system the administration has set up is seemingly designed to inflict the maximum amount of suffering in a failed attempt to deter migrants:
[The] strategy has many components: tell those who want asylum to request it at ports of entry while making it nearly impossible to request asylum at ports of entry; prosecute those who present themselves to Border Patrol agents between ports of entry for “illegal entry;” separate families in numbers large (now halted by a federal judge) and small (under the flimsy pretext of protecting children from “criminal family members”); detain as long as possible those who seek asylum; lock up minors who arrive unaccompanied minors and scare away their U.S.-residing parents and relatives who want to sponsor them by threatening to arrest and detain those who come forward; and gut asylum standards by unilaterally changing the bases for deciding cases, pressuring trained Asylum Officers to reduce their high rates of deeming Central Americans as having a credible fear of return, and bullying Immigration Judges to deny cases when finally adjudicated.
Now if a pregnant migrant asserts her right to seek an abortion, this administration will go to any lengths to protect the life of the unborn child; for the already-born minors (and adults) in its custody, however, the administration cannot be bothered to ensure humane and safe conditions.
Under the Republican-majority House and Senate, rigorous oversight of the Department of Homeland Security and legislation to try to ameliorate these conditions were all but impossible. With a Democratic-majority House, this will no longer be the case. The House Judiciary Committee will be headed by Jerrold Nadler (D-N.Y.) in the new Congress. He left no doubt as to his intention to get to the bottom of the tragedy and the conditions that allowed this to occur:
On Friday, Nadler and Democrats who will head House Judiciary subcommittees sent a letter to the inspector general for the Department of Homeland Security requesting the IG “initiate an investigation into this incident, as well as CBP policies or practices that may have contributed to the child’s death [and] CBP’s failure to timely notify Congress of this incident.” The letter told the IG, “It is hard to overstate our frustration with the fact that we learned of this incident through media reports one week after the incident occurred. It is clear that CBP failed to follow the reporting requirements laid out in last year’s omnibus appropriations bill until after the news of this death was already public.”
With adequate border security and staffing, a sufficient number of immigration judges deployed to handle the caseload, reversal of the administration’s deliberately cruel policies, and effective diplomacy with and provision of assistance to the countries from which these people are fleeing for their lives, the current, intolerable situation should improve.
It’s a cruel irony that Trump has portrayed refugees as a threat to Americans. In fact, the reverse is true.
************************************************
Rubin is right. Part of this Administration’s cruel scheme here is to deflect attention from the real threat to our national security and Constitution presented by Trump and his corrupt, scofflaw gang. And, in the long disgraceful tradition of cowards, bullies, and authoritarians, he does so by attacking the most vulnerable and least able to defend themselves, playing on racism and nationalist jingoism.
That’s why the New Due Process Army is such an important force for protecting the human and legal rights of migrants, and by so doing, protecting the rights of all Americans against Executive abuse!
This fall, after national outrage over the Trump White House’s “zero-tolerance” immigration policy forced it to begrudgingly wind down the practice of separating families at the border, administration officials began looking for a new method of implementing xenophobia as official government policy. They found it, apparently, by recruiting volunteers to serve as temporary guardians of unaccompanied minors—and then, if volunteers’ background checks indicated that they were undocumented, detaining those people and preparing them for deportation.
According to the San Francisco Chronicle, 170 individuals who offered to open up their homes—again, to children, many of whom were in federal custody because of the aforementioned separation policy, and who were otherwise forced to live in tent camps and converted warehouses until their immigration status could be resolved—have been arrested over the past few months for their displays of kindness. Of that group, 109 had no criminal record whatsoever.
On Thursday, The Washington Postreported the death of a 7-year-old Guatemalan girl who, along with her father and a larger group of immigrants, turned herself in to Border Patrol agents in a remote area of New Mexico last week. More than eight hours later, she began having seizures; first responders found that she had a fever of 105.7 degrees and hadn’t had food or water in days. She went into cardiac arrest and died of shock and dehydration shortly thereafter.
The agency’s response, which is laden with all the meaningless corporate bromides typically deployed to convey the appearance of sincerity, is more or less “tough shit”:
I suppose the events of this year should have dispelled the notion that when it comes to immigration, anyone associated with this regime would be inclined to momentarily suspend their prejudices to do a kind and decent thing. Yet somehow, the disgracefulness of DHS’s sting operation is still astonishing. The purpose of releasing kids to “qualified adults” is to make life better for innocent children, victims of a broken system in which they have no voice; literally the only relevant question is Will this person provide a safe place for them to live? But the administration cannot stop itself, this time preying on the basic human instinct to care for children, all in the service of rounding up a few more brown people.
The Chronicle notes that the number of children in custody has increased over the past few months—a trend observers blame on the spike in these background-check arrests. This means that despite the official end of the family-separation policy, more kids are being held in overcrowded jails, because their captors have cut off the power of otherwise willing caretakers to do anything about it. If you are lucky and don’t die in Border Patrol custody, a different set of government policies ensures that you’re still going to languish there for the foreseeable future.
There are bills on Capitol Hill that would bar DHS from doing this sort of thing. In the Senate, nine Democrats have signed on to the Families Not Facilities Act, first introduced in November, while in the House, 39 Democrats and two Republicans—both of whom just lost their re-election bids—are co-sponsors of an analogue. “Right now, unaccompanied children are being held in detention facilities or living in tent cities due in part to potential sponsors’ fear of retribution from ICE,” said California senator Kamala Harris in November. “This is an unacceptable obstacle to getting these children into a safe home, and we must fix it.”
The power of bigotry lies in the persistence of those who implement it—in their willingness to commit to it at all times, no matter the circumstances, no matter how dangerous or unconscionable, so as to never invite uncomfortable questions about why bigotry is acceptable in the first place. Death becomes just a risk that prisoners choose to assume, and volunteer caregivers open themselves up to the possibility of becoming prisoners as well.
What the Trump administration does is force Americans to fight for things that should be uncontroversial, common-sense humanitarian principles; we now spend so much time reacting to a new set of atrocities that there is no energy left for anything else. It is a policymaking war of attrition, and its goal is less to change people’s minds than it is to wear them out.
*******************************************
Yup. Well said!
There is only one “right side of history” on this one. Sure it’s exhausting and frustrating to spend energy that should be spent on improving the system for everyone instead resisting gross violations of legal, Constitutional, and human rights engineered by a White Nationalist regime. But, that’s what the New Due Process Army, “Our Gang,” and many others on the right side of history are all about!
Americans are more open to increased immigration than most Europeans, though far more people around the world would like to see a decrease in immigration overall, according to a recent poll by the Pew Research Center.
Pew surveyed 27 countries this spring on their views on immigration. Together, Pew reported, these 27 countries house more than half of the world’s international migrants. Of those surveyed, 45% said fewer or no immigrants should be allowed into their country while 36% said they want just about the same number of immigrants – including the U.S.
Among European countries, 82% of Greeks said they would like fewer immigrants to be allowed into the country, which has, since 2015, struggled with a surge of migrants and refugees escaping civil war in Syria. Nearly three-quarters of Hungarians, 71% of Italians, and 58% of Germans also believe fewer immigrants should be allowed to move to their countries, which have also been heavily affected by the refugee crisis.
In the U.S., only 29% of Americans want a decrease in immigration while 44% think about the same amount of immigrants should be allowed in. Nearly a quarter of Americans want immigration to increase. In Mexico, currently facing a surge in Central American migrants, 44% of those surveyed said they wanted immigration to decrease in the country, while 42% said they wanted it to stay the same.
Spain and Japan are among the most open to the idea of increased immigration, with 28% and 23% of their respective populations opting for more open borders. Japan, known for its isolationist policies and historically low immigration numbers, is currently facing a dire economic threat – its population is getting older.
The Pew report also found that outmigration is widely seen as a problem among the nations surveyed. Greeks (89%) and Spaniards (88%) are the most worried about the number of people leaving their countries, which Pew reported have seen an increase in people moving abroad in recent years. Eight out of 10 Mexicans also see outmigration as a problem. Mexico, according to the United Nations, has one of the largest numbers of people living outside their country, second only to India. But only 64% of those surveyed by Pew in India think outmigration is a problem.
Published on December 10, the report came out the same day global representatives gathered in Morocco to sign the Global Compact for Safe, Orderly and Regular Migration. The non-legally binding agreement, backed by Angela Merkel, was created to manage migration for both origin and destination countries but was rejected by several nations, including the U.S., Chile, and Australia.
While there was little appetite (likely almost none outside of Trump’s base) for the restrictionist scheme to slash legal immigration, there also is a cautionary note for immigrants’ advocates who believe in increases in legal immigration levels; a significant plurality of Americans want to maintain legal immigration at current levels.
Consequently, even though more legal immigration channels appear to me to be 1) in our best economic interests; 2) a way of reducing “extralegal immigration;” 3) helpful in focusing the resources we spend on immigration enforcement; and 4) our destiny as a “nation of immigrants” if we wish to maintain a position of leadership among nations, there is some persuasion to be done before that’s likely to become a political reality.
“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:
Good morning, all: The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ). Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers). Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.
Best, Jeff
*****************************************
Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”
Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”
That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!
We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”
No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”
Sophia writes in an article that was published at LexisNexis:
Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese
Sophia Genovese, Dec. 10, 2018 – “Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”
As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.
The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.
As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.
It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.
As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.
Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.
Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.”
*****************************************
Sophia is absolutely correct!
Like Sessions, Whitaker combines a White Nationalist agenda with some poor intellectual and lawyering skills. Not surprising, because lawyers advancing a racially biased restrictionist agenda are obviously driven by something outside, and usually not even very closely related to, the law and conventional human values.
Their arrogant and outrageous disregard of the law and facts provides a good opportunity for asking Article III Courts and Congress to finally adopt and enforce a legally appropriate, generous, humanitarian approach to asylum law as was directed by the Supremes back in INS v. Cardoza-Fonseca. Notwithstanding some meaningful advances over the three decades since that decision, the “promise of Cardoza” for U.S. asylum law has never been fully recognized.
And this Administration is hell-bent on rolling back even the modest advances that had been painstakingly made. Now is the time to make asylum law work as it was supposed to! Human lives and our integrity as a nation of laws and values depend upon it!
Join the New Due Process Army and fight to hold the “Department of Injustice” and its biased and deviant officials accountable to the law and to history for their naked racism, extreme intellectual dishonesty, failure to uphold the rule of law, and cowardly contempt for human life! Yes, it’s annoying. Yes, it’s hard work! But, in the end it will be worth it to know that you did something worthwhile in your life. And there are few things more worthwhile than protecting the rights and saving the lives of the most helpless, exploited, and vulnerable among us.
For those of you new to “Courtside,” both Judge Jeffrey Chase and I have previously written about how the BIA stood the law of causation on its head to deny a very grantable asylum claim in Matter of L-E-A-. https://wp.me/p8eeJm-UI
Indeed, the Fourth Circuit later absolutely trashed the BIA’s L-E-A- rationale on nexus in Salgado-Sosa v. Sessions, without mentioning L-E-A- by name. https://wp.me/p8eeJm-2aS.
The Fourth and other Circuits have also been very strong in recognizing “family” as a PSG. Indeed, one of the seminal “family-based” cases was Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). That was a case where the Fourth Circuit reversed and slammed the BIA while affirming my finding as an Immigration Judge that a family-based PSG was cognizable. In other words, I was right and the BIA was wrong. But, hey, who’s keeping track?
Now, Whitaker seeks to make things even worse. We should all be totally outraged that the Immigration Courts are under the control of the DOJ and political officials who are completely unqualified to sit in a quasi-judicial capacity. It’s “Clown Court;” but, in this case, the “clowns” are threatening innocent people’s lives!🤡
In a November 16 memo to immigration judges, EOIR’s Director, James McHenry, announced that after a nearly two-year reprieve, “Family Unit” cases are again being prioritized, under conditions designed to speed them through the immigration court system, ready or not, with or without representation, due process be damned.
“Family Unit” is a term created by the Department of Homeland Security as an “apprehension classification” which consists of an adult noncitizen parent or legal guardian, accompanied by his or her own juvenile noncitizen child. Of course, many of the highly-publicized cases of children separated from their parents at the border fall within this category.
Under the new procedures, all Family Unit (or in EOIR parlance, “FAMU”) cases must be completed within 365 days of the commencement of removal proceedings. Just as a point of comparison, many immigration judges in New York are presently setting non FAMU cases for hearings in late 2021. So EOIR wants FAMU cases to be completed in a third of the time of other cases.
In order to accomplish this, such cases (at least in the New York court) are to be scheduled for their first Master Calendar hearing before an immigration judge within 30 days of the court’s receipt of the charging document that commences proceedings. The parent and child are then to be given only one continuance of 40 to 45 days in order to try to obtain counsel. After that, the cases are to be set for a final merits hearing another five to six months out. That only adds up to about 8 months, I imagine to allow another four month “safety zone” just in case. Immigration judges are further directed to make sure they complete the cases in 365 days, and to get them done as soon as possible.
To further increase the odds of success, the FAMU cases are being assigned to brand new immigration judges, for the following reasons. First, the new judges are mostly former ICE prosecutors. Secondly, the new judges are on probation for two years, making them more likely to obey rules in a desire to keep their jobs. The new judges have also just been through training at which they were instructed by the Attorney General that sympathy has no place in their work, that those fleeing domestic violence and gang violence are undeserving of asylum, and that it is more important for them to be efficient than fair.
Judges are expected to bump non-FAMU cases if necessary to meet the completion goals. In other words, those who have patiently waited three years or longer for their day in court, and who have their evidence and witnesses lined up in the hopes of finally obtaining legal status in this country, now run the risk of having their hearings bumped for who knows how much longer in order to speed through the case of a parent and child who likely need more time to obtain counsel and prepare their claims.
I have checked with legal service providers in New York City, and have been told that the 40 to 45 days being provided by EOIR is generally not a sufficient amount of time for the respondents in such cases to retain counsel. Outside of large cities like New York, this time frame is even less realistic, due to the fewer number of NGOs receiving funding to do this type of work.
The new policy therefore lessens the likelihood that families will be able to be represented in their removal proceedings. Unfortunately, recent changes in the law achieved through the certification of cases by the Attorney General (which has continued even under interim AG Whitaker) has made the need for legal representation far more important. It is a daunting task for an unrepresented victim of domestic violence to clearly state a detailed particular social group, defined by an immutable characteristic (but not by the feared harm), and establishing the group’s particularity and social distinction in society; to then establish that the persecutor was motivated by her membership in such group; and then demonstrate both that the government was unwilling or unable to protect her and that she could not reasonably relocate within her country
As I noted in an earlier blog post, https://www.jeffreyschase.com/blog/2018/1/26/0sg8ru1tl0gz4becqimcrtt4ns8yjz the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28 that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” So the above requirements for particular social group claims are essentially an obstacle course that someone who is already a refugee must negotiate in order to have our government grant them the legal status to which they are entitled. The recent AG decisions have increased the difficulty of the course, and the new FAMU directive will mean that these most vulnerable refugees will have to negotiate the course at breakneck speed, and likely without the assistance of counsel. It bears noting that whatever particular social group definition the asylum-seeker offers the judge is crucial; if it contains one word too many or too few, pursuant to a recent BIA precedent decision, it cannot be corrected on appeal, even if by that stage the applicant has managed to procure representation.
Through these methods, the present administration is playing a game which will result in fewer grants of asylum. The lower grant rate will then allow the administration to claim that those seeking refuge at our southern border are not really refugees, which in turn will allow them to create even greater obstacles, which will in turn lead to even fewer asylum grants.
As a former immigration judge, I can say with authority that it takes time and effort to reach the correct result in these cases; furthermore, the accuracy of asylum decisions greatly increases with the involvement of those with knowledge of the legal requirements. In its speed over accuracy approach, and its gaming of the system to deny more asylum claims for its own political motives, the present administration is telling refugee families that only the first and last letters of “FAMU” apply to them.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
SEATTLE — Immigrant rights activists can continue to challenge what they describe as unlawful U.S. government delays in asylum cases, a federal judge has ruled.
U.S. District Judge Marsha Pechman in Seattle dismissed some arguments raised by the lawsuit in a ruling Tuesday, but she said the activists can pursue their claim that the delays violate the due process rights of detained asylum seekers across the country. The government sought to dismiss the case.
The Seattle-based Northwest Immigrant Rights Project filed the lawsuit in June against U.S. Immigration and Customs Enforcement, which said through a spokeswoman Wednesday that it does not comment on pending litigation.
According to the complaint, migrants seeking asylum after entering the U.S. illegally have had to wait weeks or months for their initial asylum interviews, at which an immigration officer determines whether they have a credible fear of persecution or torture in their home country. After that, there have been long delays in getting bond hearings, which determine whether an asylum seeker will be released from custody as the case proceeds.
They’re doing what they can to keep people locked up for prolonged periods and block asylum seekers from moving forward with their claims,” Northwest Immigrant Rights Project legal director Matt Adams said Wednesday. “What we’ve seen firsthand is many asylum seekers give up after they’ve been locked up for weeks or months without ever getting a bond hearing,” and opt to be deported rather than exercise their legal right to seek asylum.
The group initially filed the lawsuit in response to the administration’s family separations at the U.S.-Mexico border, saying the delays had kept mothers detained at the Northwest Detention Center in Tacoma, Washington, from being reunited with their children in immigration custody across the country. Those plaintiffs have since been released, but the lawsuit seeks class-action status on behalf of thousands of asylum seekers.
The complaint asks the judge to order the government to make credible fear determinations within 10 days and to conduct bond hearings within seven days of an asylum seeker’s request for one.
The government argued that such deadlines are not required by law and that the court doesn’t have jurisdiction to impose them. In its motion to dismiss, the Justice Department argued that because the detainees have only just arrived in the U.S. without being granted admission, they “lack a constitutional right to demand expedited procedures for such hearings.”
Pechman disagreed, saying that because the detainees had crossed into the U.S. they were entitled to greater constitutional protections than the government claimed.
“Simply put, are they ‘excludable aliens’ with little or no due process rights, or are they aliens who are in the country illegally, but nevertheless in the country such that their presence entitles them to certain constitutional protections?” she wrote. “Plaintiffs have adequately plead that they were within the borders of this country without permission when detained, and thus enjoy inherent constitutional due process protections.”
*****************************************
Despite all of their disingenuous whining about being required to follow the law by mere judges, and Trump’s successful effort to fill the Federal Courts with right-wing jurists, there will be plenty more well deserved defeats for this lawless Administration.
Even the most conservative jurists tend to have a concept of the Constitution, the law, and fairness. Trump and his minions, including particularly his stooges at the DOJ, have little concern for law of any type except when it happens to advance their political agenda. It’s just a political game for them, driven by an anti-American, racist, White Nationalist agenda. That’s not likely to be a successful long-range litigation strategy with judges across the philosophical spectrum.
Many judges are going to require the Administration to comply with Due Process, as is happening here. Significantly, Judge Pechman gave short shrift to the DOJ’s argument that individuals detained at or near the border have no Due Process rights.