"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
Here’s a timely update from Jennifer Casey, Partner at Kolko & Associates in Denver, CO:
Lawsuit Challenges Power of Immigration Judges to Hear Cases Due to Unlawful Designation of their Delegating Authority: Acting Attorney General Matthew Whitaker
On December 4, 2018, Mr. Carlos Rojo-Ramirez, of Colorado, through his attorneys David. L. Kolko and Jennifer Casey (Kolko & Associates, P.C.), challenged President Trump’s unlawful designation of Matthew G. Whitaker as Acting Attorney General of the United States.
In, Rojo-Ramirez v. Trump, et. al., (18-cv-03125), filed in the U.S. District Court for the District of Colorado, Mr. Rojo-Ramirez asserted that U.S. Immigration Judges are temporarily operating without any legal authority because their power over individuals in immigration removal proceedings is based solely on a delegation of authority from a (lawfully appointed) Attorney General of the United States.
On November 7, 2018, President Trump announced via Twitter that he designated Matthew Whitaker to serve as the Acting Attorney General of the United States. The designation was made without Senate confirmation as required by the Appointments Clause of the U.S. Constitution, and was executed in violation of the Attorney General Succession Act and Federal Vacancies Reform Act.
This follows other legal actions brought by the State of Maryland and Senators Blumenthal, Whitehouse and Hirono, as well as an amicus brief in Matter of Negusie, 27 I&N Dec. 481 (A.G.) by the American Immigration Council, each of which challenge the unconstitutional appointment of the Acting Attorney General and the resulting legal implications from the unlawful designation.
The Immigration Judges serving at the Executive Office of Immigration Review (EOIR) are not independent administrative judges, and operate solely by statute and regulation as delegates of the Attorney General. Plaintiff’s counsel asserts that because Whitaker has not been constitutionally appointed, he does not hold any power to delegate the authority of the office of the Attorney General to the Immigration Judges serving at the EOIR. As a result, these Immigration Judges do not presently have legal authority to preside over the cases before them.
Due to the unique legal structure of the EOIR, with Immigration Judges acting as delegates of a (lawfully appointed) Attorney General, this case calls in to question the legal authority of any actions by the EOIR’s Immigration Judges after November 7, 2018. Nationwide, there are over one million cases pending before approximately 400 Immigration Judges serving in 62 Immigration Courts.
The Plaintiff’s legal challenge includes a request for declaratory judgment and injunction until such time as a lawfully appointed Attorney General is serving in this role, and is able to lawfully delegate the authority of that office to the Immigration Judges of the United States.
For more information, please contact David Kolko or Jennifer Casey at Kolko & Associates, P.C.
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As usual, Trump has taken the most idiotic approach to governing. He could have gotten rid of Sessions (hard to argue with that, no matter what his reason) and avoided any problems by 1) appointing the duly confirmed Deputy, Rod Rosenstein, as Acting AG; and 2) having another suitable candidate, such as former AG Bill Barr, ready to submit to Congress. I suspect that Barr would have been easily confirmed during the “lame duck” session. But, making government function in a reasonable and lawful manner isn’t what Trump and his cronies are about.
THE GIBSON REPORT – 12-03-18 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group – Learn About Trump’s Self-Created “Bogus Border Crisis!”
Vox: Before 2016, and in some cases as recently as six months ago, they would have had no problem and no delay. But for the last several months, the Trump administration has made a practice of limiting the number of asylum seekers allowed to enter the US each day — a policy it calls “metering.”
Politico: The new Mexican government of Andrés Manuel López Obrador will press the United States to invest least $20 billion in Central America and, reportedly, faster asylum processing in exchange for allowing migrants to remain in Mexico while they seek refugee status in the U.S.
Politico: A group of migrant women in the caravan announced Thursday that it would begin a hunger strike to protest the slow pace at which the women are being allowed to apply for asylum, as officials from the United States and Mexico are set to meet this weekend to negotiate a plan to process their claims.
Pew: The number of unauthorized immigrants in the U.S. fell to its lowest level in more than a decade, according to new Pew Research Center estimates based on 2016 government data. The decline is due almost entirely to a sharp decrease in the number of Mexicans entering the country without authorization.
Quartz: Mexican immigration authorities are even less prepared than the US to process them. The Mexican agency charged with helping refugees, COMAR by its Spanish acronym, only has four offices, and none near the border. Earlier this year, Mexico’s National Human Rights Commission warned of the “possible collapse” of the country’s refugee protection system as COMAR’s backlog grew to 60% of applications. It also identified “situations of risk of torture and abuse” in immigrant detention centers, which it found had no adequate living conditions or access to medical attention.
NBC: The federal agency’s threat came a day after the New Jersey attorney general announced new restrictions on local law enforcement cooperation with ICE.
Vera: The Vera Institute of Justice is excited to announce that we are expanding our Safety and Fairness for Everyone (SAFE) Network – currently a diverse group of a dozen cities and counties across America dedicated to providing publicly funded universal representation for people facing deportation.
WaPo: A key Senate committee postponed a vote Wednesday on President Trump’s pick to lead the main agency handling immigration enforcement as a coalition of unions raised “serious concern” about Ronald D. Vitiello’s ability to effectively oversee the agency.
CBS: The American Civil Liberties Union, which has filed more than 50 immigrants’ rights lawsuits against the Trump administration, recorded its most successful #GivingTuesday in years. That wasn’t just the case just for the ACLU. This year’s day for charitable giving was the biggest ever, raking in nearly $400 million in donations online in the U.S. alone, according to the 92nd Street Y.
Guardian: Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
In what appears to be a new development, Page 71 of the USCIS FY 2019 budget indicates that USCIS wants to transfer “$207.6 million in Immigration Examinations Fee Account (IEFA) fees to ICE to support immigration investigation and enforcement.”
WaPo: New York’s highest court boldly ruled Tuesday that deportation may be a more severe consequence than even a few months behind bars. The divided decision created a situation in which two individuals charged with the same low-level offense have vastly different trial rights — a noncitizen is entitled to a jury trial, while a U.S. citizen is not. [Note: This is obviously being appealed.]
WaPo: The lawsuit alleges that the Trump administration’s expanded definition of “public charges” has had a chilling effect on the city’s immigrant community, which Baltimore officials see as key to its revival. Legal immigrants have stopped using school programs, food subsidies, housing vouchers and health clinics for which they are eligible, the lawsuit says, hurting the city’s mission to welcome immigrants and creating long-term expenses as Baltimore deals with a sicker and less-educated community.
AP: Juarez’s lawyers said Mariee developed a respiratory illness while she and her mother were detained at the South Texas Family Residential Center in Dilley, Texas. They accused U.S. Immigration and Customs Enforcement of releasing the pair while Mariee was still sick.
Approved National Vetting Center Privacy, Civil Rights, and Civil Liberties Working Group Charter, established pursuant to National Security Presidential Memorandum-9, “Optimizing the Use of Federal Government Information in Support of the National Vetting Enterprise,” dated February 6, 2018. AILA Doc. No. 18112870
CBP Commissioner Kevin McAleenan conducted a call with media and released his opening remarks, “We will continue to monitor the situation closely. And while we seek to maintain lawful trade and travel to the maximum extent, we will be prepared to close San Ysidro again if….”AILA Doc. No. 18112762
DHS Secretary Nielsen issued a statement after CBP closed the San Ysidro port of entry on 11/25/18, stating “As I have continually stated, DHS will not tolerate this type of lawlessness and will not hesitate to shut down ports of entry for security and public safety reasons.” AILA Doc. No. 18112734
USCIS provided Q&As from a 11/15/18 teleconference on the continued expansion of the implementation process of the 6/28/18 NTA memorandum. AILA Doc. No. 18110836
I draw your attention to Elizabeth’s “Item 2” which is a lengthy, outstanding article by Dara Lind of Vox News on the fake, self-created “Trump Border Crisis.”
The only quibble I have with Dara’s article is the suggestion that there might be a need for more detention space. I say BS! Unquestionably, by working together with the UNHCR, the Mexican Government, and NGOs such as the ACLU, KIND, and the ABA, the DHS could find suitable placements for individuals waiting for credible fear interviews once they had passed a basic screening and background check.
Indeed, one of the key findings of a recent TRAC Report on Immigration Court Asylum Decisions is that 98.6% of asylum seekers appear in court for their decisions, win or lose! http://trac.syr.edu/immigration/reports/539/This stands in sharp contrast to the false claims by the Administration and its “bureaucratic mouthpieces” that asylum seekers “bolt” once they get into the country.
When given access to competent legal assistance and a chance to understand both the system and their obligations, almost all appear. Clearly, the Administration should be working with the private sector to get asylum seekers represented rather than undertaking cruel and overall futile and wasteful efforts to detain, deter, and punish them.
And how about some truthful narratives, rather than the bogus ones taken right out of the right-wing restrictionist playbook? Again, it’s past time for some Congressional oversight and accountability for the many falsehoods about immigration purveyed not only by the Trump politicos (like Sessions, Nielsen, Miller, et al.) but also by career officials who should know better. Indeed, in many cases, such as TPS and the Travel Ban, the Administration’s bogus narratives directly and demonstrably contradict the Government’s own information and recommendations by career officials with expertise in the areas. This shameful abuse of our civil service system and its expertise by biased, prejudiced, and unqualified politicos must stop.
And, as always, thanks Elizabeth for all you do for the New Due Process Army!
US judge rules against Trump administration in suit over policing grants to ‘sanctuary cities’
Updated 5:21 PM EST November 30, 2018
Washington
A federal judge ruled against the Justice Department on Friday in a lawsuit over withholding federal money from so-called sanctuary cities, the latest blow to the Trump administration’s hardline immigration tactics.
The lawsuit challenged the Justice Department’s efforts to punish sanctuary cities by withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.
In July 2017, then-Attorney General Jeff Sessions announced that applicants for Edward Byrne Memorial Justice Assistance Grants would have to comply with federal immigration enforcement in ways that were unlike years past, like allowing federal law enforcement agents to have access to detainees in jails for questioning about their immigration status.
According to the ruling, the seven states involved in the lawsuit, as well as New York City, had been receiving the grant money since Congress created the fund for the “modern version of the program in 2006,” and the funds “collectively totaled over $25 million.”
“In 2017, for the first time in the history of the program, the U.S. Department of Justice (‘DOJ’) and Attorney General (collectively, ‘Defendants’) imposed three immigration-related conditions that grantees must comply with in order to receive funding,” wrote Judge Edgardo Ramos, of the US District Court for the Southern District of New York, in his ruling.
New York Attorney General Barbara Underwood led the suit and was joined by New Jersey, Rhode Island, Connecticut, Massachusetts, Washington state and Virginia.
Underwood said in a statement on Friday that the ruling was “a major win for New Yorkers’ public safety.” CNN has reached out to the Justice Department for comment.
This isn’t the first ruling of its kind — in April, a panel of three judges from the 7th US Circuit Court of Appeals upheld a ruling in favor of the city of Chicago that blocked the Justice Department from adding new requirements for the policing grants.
A federal district court judge on Friday denied the Trump administration’s request to block or limit the scope of a ruling that temporarily prohibits the government from enforcing its ban on transgender people serving in the military.
Judge Colleen Kollar-Kotelly, a Clinton appointee on the U.S. District Court for the District of Columbia, said the court is not convinced the government will suffer irreparable harm without a stay of the court’s October 2017 preliminary injunction.
The government had asked for a stay pending any potential, future proceedings in the Supreme Court. Bypassing normal judicial order, the Department of Justice asked the Supreme Court last week to review the case before the D.C. Circuit Court of Appeals has ruled.
Arguments before the appeals court are scheduled for Dec. 10.
At the very least, the government asked the district court to limit the nationwide scope of the injunction while the court weighs in, but Kollar-Kotelly refused. She said the government had not convinced the court that a more limited injunction is appropriate.
“Without supporting evidence, defendants’ bare assertion that the Court’s injunction poses a threat to military readiness is insufficient to overcome the public interest in ensuring that the government does not engage in unconstitutional and discriminatory conduct,” she said.
“After all, ‘it must be remembered that all Plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them,’ ” she said.
Not surprisingly, policies stemming from racism and homophobia being advanced for crass political reasons aren’t doing very well in Federal Courts. There, the judges tend to prefer cogent legal arguments. The latter is something for which Gonzo was never known. Indeed, a number of the biased based positions he advanced in support of the Administration were so outlandish that the judges actually gave the Government additional time to develop a legal rationale. But, that also proved to be time wasted, because there never was any legal rationale for these policies and legal positions. Just hate and bias, and an ignorance of the real meaning of our Constitution.
There’s lots of irony, indeed total absurdity, in Sessions’s audaciously bogus claim that he “stood for the rule of law.” Safe to say that no Attorney General since “John the Con” Mitchell has done so much to undermine our Constitutional system and the real “rule of law.”
Etowah: the Ice detention center with the goal to ‘make your life miserable’
Campaign is under way to close Alabama facility routinely identified by advocates and detainees as one of the worst in US
Khushbu Shah in Gadsden, Alabama for The Guardian:
The Etowah Detention Center, an all-male facility housing about 300 detainees. Photograph: Adelante Alabama
During his detention in Gadsden, Alabama, Alex Matheus started losing his hair.
It wasn’t just that he was getting older, his hair was falling out in clumps from the stress and frustration of long-term detention in the custody of Immigration and Customs Enforcement (Ice).
“That’s very common in Etowah,” the 44-year-old Venezuelan said by telephone from his new, temporary home in Italy, where he is living as he seeks to return to the US.
Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
The all-male facility, housing on average 300 detainees according to Ice data, ranks sixth in the highest number of calls made to the Ice Detention Reporting and Information Line related to sexual and/or physical abuse incidents, according to a study from Freedom for Immigrants. Human Rights Watch documented the “spotty access to healthcare” at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down Etowah.
Alex Matheus the day he left Etowah. Photograph: The Guardian
Sitting next to the sheriff’s office in Gadsden, the detention facility stands out because of the barbed wire wrapped around the wall. There’s not much else around. The average income in town is just under $19,000 and more than a quarter of the community lives in poverty. This decade alone, the population has decreased 4%. So it makes sense the county would like to keep a multimillion dollar endeavor going.
Matheus spent 17 months in Etowah enduring the bare bones facilities. “They don’t have a yard. They don’t have recreational facilities. They don’t have libraries. They don’t have big common areas to hold people.” He wasn’t allowed outside its concrete walls, even for a short walk, for more than 500 days – until his deportation.
A Venezuelan asylum seeker, who had lived in the United States since 2000, Matheus broke commercial laws by shipping gas masks to the government opposition in his home country. He spent time in federal prison and on the day of his release, was taken straight to Ice custody, first at Stewart Detention Center in Lumpkin, Georgia, and then to Etowah.
Kenyan asylum seeker Sylvester Owino arrived at Etowah in 2013, after being in Ice custody for more than seven years in California and Arizona. As a “prolonged detainee”, little should have surprised the Kenyan asylum seeker about his latest detention center.
Protesters at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down the facility. Photograph: Adelante Alabama
But things were done differently in rural Alabama.
In his first weeks, he noticed officers manning the detention facility were selling contraband to detainees. Vodka in plastic water bottles for $50. Weed in letter-sized white envelopes for $400. Cell phones went for $300. Officers sold a pack of cigarettes for $100.
Then there were the bribes.
One day, an officer approached Owino, telling him he didn’t have lunch and asking Owino to make him something to eat. So the detainee used the ramen noodles he had bought through the commissary, and mixed it with tuna for the officer.
“You share the food so they gave you privileges. So instead of being locked down, they let you out. You give him honey buns, you make him coffee,” he said.
With his budget noodle offering, Owino said he was able to watch a soccer game.
The Guardian spoke with a number of detainees – and reviewed a number of lawsuits – who had spent recent months and years in the facility. All complained about the standard of nutrition. In March, Alabama’s al.com reported now-outgoing sheriff Todd Entrekin legally – through a loophole in state law – pocketed nearly $750,000 allocated for food provisions in the jail.
Months later, after national coverage and backlash, Governor Kay Ivey sent a memorandum to the state comptroller rescinding the validity of the law, no longer allowing food services allowances to be made to sheriff’s accounts directly.
A 2016 report from the Department of Homeland Security Office of Detention Oversight Compliance Inspection logged similar instances they called “deficiencies” in food and medical standards.
Ice said Etowah operates in accordance with its standards. “As far as facility conditions, all Ice facilities are subject to regular inspections, both announced and unannounced, and those inspections have repeatedly found the Etowah County Detention Center to operate in compliance with Ice’s rigorous national detention standards. The facility was most-recently inspected in July,” Ice spokesman Bryan Cox told the Guardian in an email.
The almost two years Owino spent in Etowah were the worst years of his detention, Owino said.
Matheus agreed. “When you are anyone in the US, you start to fight your case hard and they send you to Alabama to wear you out,” he said. “I spoke to one [officer] and the guy said, my job is basically to make your life miserable. He told me that straight to my face”
The Etowah County Sheriff’s Office would probably like to change that perception. On a recent Guardian visit to the facility, Captain Mike O’Bryant introduced Jose Alfredo Reyes, 40, who has been in the facility for more than 18 months and had already agreed to an interview.
Reyes had nothing bad to say about the facility, except the lack of sunlight and mediocre food. “I told the captain, don’t worry, I won’t say nothing bad about you!” he said.
According to Christina Mansfield, the co-executive director of Freedom for Immigrants, ‘Etowah is one of the worst immigrant jails in the country.’ Photograph: Adelante Alabama
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According to Christina Mansfield, the co-executive director of Freedom for Immigrants, “Etowah County Detention Center is one of the worst immigrant jails in the country. For years we have been documenting and drawing attention to abuses – such as physical assault and medical neglect – at the hands of the sheriff’s office and Ice. Several detained individuals and our volunteers have even been retaliated against for speaking out against these intolerable conditions. It’s time for Etowah to be shut down.”
Cox, in response to the allegations outlined in this story, said: “The allegations you’ve received are contradicted by the inspection findings of numerous entities that include independent third-party inspectors.”
Etowah sheriff’s office did not respond to the Guardian’s request for comments on the allegations put forth by former detainees and activists.
Matheus never had his wife visit from Florida because he said it didn’t make sense for her to visit for 20 minutes and still only talk through a video link.
He was deported in May 2017, back to Venezuela, where he was immediately detained. “They knew everything about me. They had a full folder against me. The US government provided everything to them. I had to pay [a bribe of] thousands of dollars to be released.”
Owino had the same experience as Kenyan authorities have also received his asylum application and related documents. He is out on bond in California, with a hearing coming up in the coming months for his asylum case.
Matheus left Venezuela in early October to seek citizenship in Italy, the home of his grandparents. Now he lives alone, holding onto receding hope he may be able to return to the United States as his case is fought in court. He lives alone, in a small apartment in Calabria, away from his wife in Florida – whom he hasn’t seen in nearly a year. The impact of his time in Etowah remains with him.
“People forget you were a real person, a family guy, a regular person. Basically, you are going back to society and you are supposed to function as a normal person again. The problem with these places is that they dehumanize you so much. They hinder everything. They screw your life,” he said.
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These are the kinds of abuses that happen when we enable the DHS/ICE “New American Gulag.” It’s time for some oversight and a major reduction in the funds allocated for unnecessary and inhumane immigration detention. It’s also past time for Congress to repeal so-called “mandatory indefinite detention” (before it is held to be unconstitutional).
Although one meritorious argument is enough to satisfy the first Nken factor, Mr. Duran- Ortega’s emergency motion for a stay presents a second, equally compelling argument that the agency’s in abstentia removal order must be rescinded in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The governing statute, 8 U.S.C. § 1229(a)(1)(G)(i), requires that a notice to appear (“NTA”) “specify[] . . . [t]he time and place at which the proceedings will be held.” Once a charging document, such as an NTA, is filed with the immigration court, the court may then exercise jurisdiction over a petitioner’s removal proceedings. See 8 C.F.R. § 1003.14 (“Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” (emphasis added)). The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time and place are not, in fact, notice to appears within the meaning of § 1229. 138 S. Ct. at 2113–14. In particular, Pereira emphasized that § 1229 “does not say a ‘notice to appear’ is ‘complete’ when it specifies the time and place of the removal proceedings.” Id. at 2116. “Rather,” the Supreme Court explained, § 1229 “defines a ‘notice to appear’ as a ‘written notice’ that ‘specifies,’ at a minimum, the time and place of the removal proceedings.” Id. (alteration omitted) (emphases added). In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceedings.
Pereira’s reasoning has led some district courts to conclude that a self-styled “notice to appear” lacking the requisite time and place of the hearing is legally insufficient to vest an immigration court with jurisdiction. See, e.g., United States v. Zapata-Cortinas, 2018 WL 4770868, at *2–3 (W.D. Tex. 2018); United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018). Other district courts have disagreed. See, e.g., United States v. Romero- Colindres, 2018 WL 5084877, at *2 (N.D. Ohio 2018). Most recently, the BIA issued a published decision holding that a defective NTA is sufficient to vest jurisdiction in an immigration court “so long as a notice of hearing specifying this information [on time and date] is later sent to the alien.” Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). This Court, however, need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S. Ct. 2778, 2782–83 (1984); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997). In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.
As a result, it is clear to me that Mr. Duran-Ortega has presented “a substantial case on the merits” sufficient to satisfy the first Nken factor, given the other three factors “weigh[] heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565–66 (5th Cir. Unit A 1981).2
The 11th U.S. Circuit Court of Appeals granted a stay of removal today for Spanish-language journalist Manuel Duran.
Without the stay, Duran – who was unlawfully arrested and detained in retaliation for reporting on controversial issues related to law enforcement in Tennessee – could have been deported at any time.
Earlier this month, the court granted a temporary, two-week stay that expired today. The stay that the court issued today will remain in place until Duran’s appeal has concluded.
“We are grateful and pleased that the court acted to stay Mr. Duran’s deportation so that his appeal may be fully heard,” said Kristi Graunke, senior supervising attorney for the SPLC. “As a journalist who has dedicated his career to reporting on government misconduct, Mr. Duran faces serious danger if he is deported to El Salvador. We will continue to fight for his freedom and to ensure he receives a fair hearing on his asylum claims.”
Duran has been detained for over seven months at LaSalle Detention Facility in Jena, Louisiana, after working as a reporter in Memphis, Tennessee, for more than 10 years. The SPLC took his case after he was placed in Immigration and Customs Enforcement (ICE) custody following his arrest by Memphis police in April.
Duran is a respected reporter who wrote for the Spanish-language publication he founded: Memphis Noticias. He was known for his investigative journalism. His work frequently highlighted issues of importance to Memphis’ Spanish-speaking community, including local law enforcement’s collaboration with ICE.
On April 3, Duran was covering a Memphis event relating to the 50th anniversary of Martin Luther King Jr.’s assassination. The demonstration included a protest of local law enforcement’s practice of detaining suspected immigrants and handing them over to ICE.
During the event, Duran wore his yellow press badge and did not engage in the protest. He was following police orders to step away from the protesters when an officer pointed to him and yelled, “Get him, guys.”
Because his reporting exposed ties between local police and ICE in detaining immigrants, Duran was singled out and arrested amid a pool of other journalists covering the protest. He was falsely accused of disorderly conduct and obstructing traffic.
Duran is like thousands of other immigrants facing deportation, who face lengthy detention even if they have meritorious claims. Held captive in detention centers for months and sometimes years, they are forced to endure terrible conditions and separation from loved ones and their communities.
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As Attorney General, Jeff “Gonzo Apocalypto” Sessions used every tool at his disposal to destroy Due Process in the U.S. Immigration Courts, discriminate against asylum seekers and their (often pro bono) hard-working lawyers, and artificially “jack up” the court backlog to increase pressure on Immigration Judges to cut corners and ultimately to collapse the system entirely (thus, presumably, leading to calls for an unconstitutional “summary removal system” without any court hearings). I estimate that 75% to 80% of the cases in the current 1.1 million “backlog” (largely the result of management interference by DOJ politicos over the past three Administrations leading to “Aimless Docket Reshuffling”) were probably commenced in violation of the Supremes’ “Pereira reading” of required statutory notice.
Ironically, Sessions’s “gonzo-like” fixation on ruining the system and punishing migrants, rather than taking the reasonable steps necessary to improve Due Process and efficiency, could have the effect of drastically cutting the backlog by removing the vast majority of “backlogged” cases from the docket without compromising anyone’s Due Process. And, once off the docket, most of those cases, which represent long-time residents with good character and substantial equities, should properly remain off-docket pending a Congressional legalization program. That would actually rationalize the system and enable the enlarged Immigration Court to “keep current” on a more realistic and appropriate docket of 200,000 to 300,000 new cases per year (provided the Immigration Court is removed from the DOJ and put under independent, professional, apolitical court management stemming from the judges themselves).
Another notable point — by allowing itself to make decisions based on politically preferred outcomes, typically anti-immigrant, rather than sound and fair legal reasoning, the BIA is rapidly depriving its decisions of so-called “Chevron deference” from the Article III (“real”) Courts.
Hamed Aleaziz reports for BuzzFeed News, quoting extensively from “Our Gang” Leader Hon. Jeffrey Chase:
WASHINGTON — Homeland Security and Justice Department officials are feuding over a controversial plan that would force asylum-seekers at the southwestern border to remain in Mexico until their cases are decided, according to sources close the administration.
Department of Justice officials have been pushing for asylum-seekers at the border to be immediately returned to Mexico as they arrive at the border, instead of first undergoing screening for fear of persecution or torture if they are not allowed in.
Department of Homeland Security officials want asylum-seekers screened for persecution, torture, and fear before being immediately returned to Mexico, to ensure that there are no serious concerns for their safety in Mexico.
The dispute highlights the fact that key details regarding the plan are still up in the air.
A Justice Department official said there was no dispute over the screening process but that the matter was under consideration between both agencies. The official said the discussion between the two US departments were “a normal part of the process.” DHS declined to comment.
Jeffrey Chase, a former immigration judge, said the dispute goes to the very heart of asylum law, which grants foreigners who otherwise would not be admissible the right to enter the country if they can show that they have a “credible fear” of persecution if they are returned to the country they came from.
“‘Credible fear’ was created over 20 years ago to be the standard for those arriving and not deemed admissible. It was designed to be a low bar, as those at the border have just arrived, are often scared of government officials, are sometimes traumatized, usually don’t yet have legal counsel, and have very limited ability to gather evidence,” Chase told BuzzFeed News. “Imposing a higher standard for political purposes would be contrary to our treaty obligation to not return genuine refugees.”
BuzzFeed News reported earlier this month that the administration had been considering such a plan and that discussions with Mexico had been ongoing. The Washington Post reported last week that a deal had been agreed upon with Mexico and that asylum-seekers would remain in that country while their cases were being adjudicated. But that story was later denied by Mexican officials, and the status of any talks is uncertain. A new administration takes office in Mexico on Saturday.
The proposal was first focused on individuals who come to a port of entry to request asylum but has since been extended to include those apprehended between border crossings as well, sources said.
The discussions appear to be a renewed effort to implement a directive first raised in an executive order that President Donald Trump signed in the early days of his administration in 2017. The Mexican government publicly rejected that plan, and the Trump administration made no effort to implement the president’s instructions.
In the executive order, Trump had directed the Department of Homeland Security Secretary to pursue the option. In a memo written by then-DHS chief John Kelly, officials were told to return individuals at the border “to the extent appropriate and reasonably practicable.” Kelly cited a statute that states that certain individuals can be sent back to the contiguous country they arrived from.
Advocates have said that implementation of such a measure would put families and migrants in danger and would be quickly challenged in court.
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Well said, Jeffrey! There was a day, obviously in the past, when DOJ lawyers were concerned with assuring compliance with the law and applicable court decisions, rather than thinking of various ways to “push the envelope” by engaging in facially illegal, and certainly immoral, conduct. Hopefully, such evasion of both their oaths of office and ethical standards will be considered by future employers in the private sector.
The irony here is that with a different Administration in place, cooperation among the U.S., Mexico, and the UNHCR in ways that strengthened the Mexican asylum system, improved conditions for refugees and asylees in Mexico, encouraged regular refugee processing by both countries in or near the Northern Triangle, improved reception and processing for those at the U.S. border, and most important, constructively addressed the problems in the Northern Triangle forcing folks to flee would be a win-win-win-win for all involved.
The flow of refugees from the Northern Triangle is primarily a humanitarian, not a law enforcement situation. Among other things, a humanitarian approach would promote advantages of applying in Mexico and reasons why it could be a rational choice for some asylum seekers; it would eschew illegal threats, cynically and intentionally created inhumane, even life-threatening, conditions, and improper sanctions to “deter” individuals from asserting their legal rights to apply for asylum in the U.S. under both our law and international law. Sadly, all of the latter are exactly what the Trump Administration is engaged in at present, with the assistance of their ethically-challenged Government “legal” team.
Washington (CNN)A federal judge in California on Friday left in place a nationwide injunction that blocks the President’s asylum restrictions from going into effect.
Judge Jon S. Tigar of the US District Court for the Northern District of California said the government had not shown that the President’s policy “is a lawful exercise of Executive Branch authority.”
Lawyers for the Department of Justice had asked Tigar to lift his temporary restraining order — issued November 19 — while the appeals process plays out.
But Tigar refused to do so, holding that the government had failed to convince him that asylum seekers with legitimate claims would not suffer “significant harms” due to the new policy.
The move comes after President Donald Trump lashed out last week at Tigar, and said he would ultimately prevail in the case before the Supreme Court.
Earlier this month, Trump signed a proclamation that would have prevented most migrants who crossed the southern border illegally from seeking asylum.
The American Civil Liberties Union immediately sued the administration on behalf of asylum assistance groups in California. Within 10 days of the President’s proclamation, Tigar granted the ACLU’s request for a temporary restraining order. The policy has since been in legal limbo.
“We are pleased the district court continues to recognize the harm that will occur if this illegal policy goes into effect,” ACLU lead attorney Lee Gelernt said in a statement Friday.
Asked for comment, the Justice Department referred CNN to a statement issued by Homeland Security Department spokeswoman Katie Waldman and Justice Department spokesman Steven Stafford after the temporary restraining order was issued, which says in part: “Our asylum system is broken, and it is being abused by tens of thousands of meritless claims every year. As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country.”
When he issued his order on November 19, Tigar said the Trump administration policy barring asylum for immigrants who enter outside legal checkpoints “irreconcilably conflicts” with immigration law and the “expressed intent of Congress.”
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar wrote, adding that asylum seekers would be put at “increased risk of violence and other harms at the border” if the administration’s rule is allowed to go into effect.
On behalf of the administration, Department of Justice attorneys had argued that the court’s injunction “directly undermines the President’s determination that an immediate temporary suspension of entry between ports of entry is necessary to address the ongoing and increasing crisis facing our immigration system.”
The statements issued by the DOJ and DHS claiming that there are “tens of thousands of meritless asylum applications” are misleading, at best. While it is true that more asylum applications are denied than are granted, (a stark reversal of the situation only a few years ago), that by no means makes them “meritless” or means that the individuals didn’t have a right to have their cases fairly adjudicated under our laws.
Indeed, the latest TRAC statistics showing a continuously declining asylum grant rate under Trump, notwithstanding worsening conditions in the Northern Triangle and in most other asylum sending countries, strongly suggests that it is the Government’s bias and blatant politicization of the Immigration Court system that is the real abuse here.
Clearly, Session’s perversion of the law and facts in Matter of A-B- in an effort to deny protection to one of the most clearly persecuted groups in the world — women who are victims of gender based persecution in the forms of domestic violence — is a prime example of the type of improper racist-inspired political meddling that has been allowed to take place. It has destroyed the remaining integrity of the Immigration Court system, as well as endangered the lives of many deserving refugees in need of protection to which they are legally entitled but are being denied for improper reasons. When history eventually sorts out this sordid episode, the racist officials and the “go along to get along” judges and other government officials will be clearly identified for what they are.
The idea that the U.S. Government, which has purposely created a bogus “emergency” at the Southern Border with the political stunt of sending troops rather than Asylum Officers and Judges, is preposterous! While the poor asylum seekers face a genuine danger intentionally and cynically created by Trump and his White Nationalists, they pose no real threat to the U.S. Fortunately, Judge Tigar saw through the Administration’s contemptuous threats and disingenuous arguments to the contrary.
Judge Tigar acknowledged the stipulation and concluded that the case therefore did not present the question of whether section 212(f) authorized Trump to directly limit asylum eligibility by proclamation.
I believe – based on my own experience – the situation is a Catch 22.
The proclamation does not render illegal crossers ineligible for asylum. It bars their entry into the United States.
It’s the not being able to enter that keeps them from getting asylum.
The temporary restraining order prevents Trump from taking any action to continue or to implement the rule, but it leaves his proclamation untouched.
Accordingly, while the injunction is in effect, immigration judges won’t be able to find illegal crossers “ineligible” for asylum for violating the proclamation. But neither will they be able to grant asylum to them. They are barred by the proclamation from entering the United States, and they can’t be asylees if they aren’t allowed into the country.
. . . .
The immigration organizations almost certainly will file another motion for a preliminary injunction that will request a restraining order to prevent the implementation of the proclamation too.
That will be more challenging in view of the Supreme Court’s holding in the Travel Ban case that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”
It would be better if the asylum seekers just would comply with our laws by requesting asylum at one of the 48 ports of entry on the Mexican border instead of crossing illegally.
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Please click the above link to read Nolan’s complete article in The Hill.
It actually appears that most members of the “Migrant Caravan” are doing just what Nolan suggests: waiting at ports of entry to be screened for asylum. The real problem here is that the Trump Administration is purposely not processing individuals in a reasonable or timely manner. To the extent that there is a “crisis,” it is entirely self-created by the Administration.
The number of undocumented individuals has leveled off and even declined. Two thirds of them have been there more than a decade and have basically integrated into our society. Fewer than 20% actually arrived within the past five years, and the majority of the “recent arrivals” appear to be non-immigrant “overstays” rather than irregular border crossers. With a better and wiser Administration, current laws can actually accommodate and fairly process those arriving from the Northern Triangle and claiming asylum.
Indeed, the “numbers” suggest, as I have said many times, that a “rational” approach to immigration would be to remove the many cases of those with no serious crimes from the Immigration Court dockets pending the passage of legalization legislation (favored by a majority of voters). That would free up adequate time for those courts to timely hear cases of recently arriving asylum applicants, those with serious criminal convictions, and other more recent arrivals. And, it would cost the taxpayers less than the bone-headed fake immigration crises and bogus responses being orchestrated by the Administration is support of their racist, White Nationalist agenda.
In any event, the “border crisis” is just another self-created scam, fairly typical of Trump and his corrupt and incompetent Administration.
“New Due Process Army” stalwart, Professor Alberto Benitez of the George Washington Law Immigration Clinic, reports:
Friends,
Please join me in congratulating Immigration Clinic student-attorney Megan Elman, and her clients, R-G, his wife, J, and their two kids, ages 10 and 5 respectively, R and L, from El Salvador. This afternoon, after a two and a half-hour hearing, IJ Cynthia S. Torg granted the clients’ asylum application.
R-G was a maritime police officer, and because of that status, he and his family were threatened with death by mara gang members. During an outing at the beach, the family had a gun pointed at them while being threatened. One of the maras told R-G that his order was only to tell him to move away, but he wished he had been given the order to kill him, because he would have preferred to cut off R-G’s head and hang it from a tree. Afterward, R and J tried to file a complaint with their local police, but were advised by the police not to bother and instead flee the country. That night, unknown, masked, armed men appeared outside their house. Eventually the men left, but the family decided to flee to the USA.
Congratulations also to Sarah DeLong, Jonathan Bialosky, Solangel González, and Sam Xinyuan Li, who previously worked on this case.
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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052 (202) 994-7463 (202) 994-4946 fax abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Contrary to what the Trump Administration and EOIR Management would have you believe, these types of cases are neither unique nor extraordinary in their factual setting. I encountered lots of “slam dunk” Northern Triangle asylum, withholding, and/or CAT cases at the Arlington Immigration Court.
What is unusual is that these individuals; 1) got access to the hearing process, 2) had access to competent pro bono counsel, 3) had sufficient time in a non-detained setting to gather evidence in support of their applications, 4) were given sufficient time to fully present their cases in court, 5) didn’t have to wait many years for their final hearing, and 6) and perhaps most significantly, were fortunate enough to have a fair, impartial, and scholarly Immigration Judge like Judge Cynthia S. Torg, to decide their cases. I’d also infer from this description that the DHS Assistant Chief Counsel played a constructive role in critically, yet fairly and professionally, developing the facts so that the Immigration Judge could make an immediate decision and appeal could be waived.
Imagine how this case might have come out had it occurred in Atlanta, Charlotte, or El Paso where the Immigration Judges are notorious for prejudging asylum cases against the applicants and merely providing the “trappings of due process.” Or, if these individuals had been forced to “represent” themselves in a godforsaken so-called “detention court” unprepared, traumatized, and within a short time after arrival. Or, if the Immigration Judge had insisted on truncating the process to complete her “quota” of four cases per day. Or, if under the Trump regime, they had never been given access to the Immigration Court hearing process in the first place. Or, if the Assistant Chief Counsel had appealed to the BIA where delays are common and panels vary widely as to their commitment to a fair, impartial, and overall generous view of asylum law in accordance with their own (often cited, not always followed) precedent in Matter of Mogharrabi! Or, if after the fact, a political hack like Jeff Sessions had arbitrarily and unethically intervened to deny relief to satisfy his White Nationalist restrictionist “agenda.”
The truth is that many, perhaps the majority, of the Northern Triangle asylum cases could be efficiently and promptly granted by the USCIS Asylum Office. With the “reinstatement” of A-R-C-G- (recognizing domestic violence) and some positive precedents (when’s he last time you saw one of those from the BIA on asylum?) covering recurring situations such as this one, many more Northern Triangle asylum cases could be granted by stipulation of counsel following short hearings before the Immigration Judges.
On the flip side, in a fairer system, it would be easier for everyone to recognize situations that didn’t merit protection under the law after fair hearings. My experience in Arlington was that when I listened carefully and issued a clear and reasoned explanation of why protection could not be granted, the applicants often (not always) would waive appeal and accept my order as final. Actual, as opposed to cosmetic, fairness helps both sides to accept the decisions below.
That’s precisely what the biased Jeff Sessions has “disempowered” in this now inherently unfair court system. A system run by political officials in the Trump Administration (or any other Administration for that matter) can never be perceived as fair.
Issuance and enforcement of more positive precedents by the BIA (without the current political interference by the DOJ) would also lead to greater uniformity, as judges in places like Atlanta, Charlotte, El Paso, Stewart, etc., would be required to follow the asylum laws and apply them in the generous manner required by the Supreme Court in Cardoza-Fonseca, rather than acting on their enforcement biases against asylum seekers and trying to “lead the league” in producing rote unfair removal orders to the delight of the DOJ politicos.
If restructured into an independent court system with Due Process as the one and only goal and a merit selection system for judges going forward, the Immigration Courts have the potential to make justice with efficiency the norm, rather than the exception. But, that’s not going to happen in the current politically compromised and incompetently administered structure of EOIR within DOJ.
America needs an independent Article I U.S. Immigration Court. The Fifth Amendment to our Constitution demands it!
Trump administration scandals surely must be examined by the new Democratic-controlled House, which intends to take its constitutional obligations seriously, in contrast with the GOP House majority. But congressional oversight should be about more than scandals: Equally important is to probe the policy disasters (as numerous as the ethical lapses), both to hold the executive branch accountable and to help formulate appropriate legislation. The border situation is a prime example.
A day after U.S. agents fired tear gas to repel migrants breaking through the border fence in Southern California, Homeland Security officials defended the use of force and their decision to close the country’s busiest port of entry, saying they expect additional confrontations and shutdowns.
Facing dismal conditions in Mexico and long waits for the chance to request asylum in the United States, thousands of Central American migrants are becoming more agitated, and officials see no quick resolution to the tensions that erupted Sunday. …
On Monday, critics of the Trump administration denounced border agents’ use of force on groups that included families with children, but U.S. officials praised what they called “quick and effective action” against crowds of stone-slinging young men who pried open the border fence at multiple locations to squeeze through.
Like the family separation debacle, this is a crisis of the Trump administration’s own making. Sending the military (with threats to use force on civilians), threatening to “close the border” and attempting to issue a blanket denial of asylum (halted by the courts) have all created a sense of panic:
The migrants who participated in Sunday’s border rush were a minority among the 5,000 or so Central Americans who have arrived in caravan groups to Tijuana in recent weeks hoping to enter the United States. Critics of the administration’s hard-line response have insisted that members of the caravan groups would exercise their legal right to seek asylum at U.S. border crossings. But with more than 4,000 people on a wait list to approach the border crossing, and U.S. immigration authorities insisting that they have the capacity to process just 60 to 100 asylum seekers per day, frustration has been welling at the camp where migrants are sleeping in tents and enduring long lines for food.
Instead of sending troops and making unconstitutional threats, the Trump administration should be dispatching an army of judges to consider the asylum applications — and working with Central American governments to address the conditions that force their citizens to flee.
Rather than accept responsibility for their own bad decision-making, the Trump administration falsely accuses the Obama administration of practicing the same inhumane family separation policy. (The Post’s fact checkers find: “It’s not the first time [President] Trump tries to minimize the scope of his family separations at the border by claiming that President Barack Obama had the same policy. This claim and its variations have been roundly debunked. We gave them Four Pinocchios in June. … There is simply no comparison between Trump’s family separation policy and the border enforcement actions taken by the Obama and George W. Bush administrations.”)
‘We come in peace’: Central American migrants’ uncertain future
That Trump would blame Democrats for not fixing the border problem at a time Republicans control the White House and both houses of Congress is laughable. As Sen. Amy Klobuchar (D-Minn.) pointed out this weekend, Trump “gut punched” a bipartisan effort to combine border security with relief for “dreamers.” (“We have tried to negotiate with him but he won’t take yes for an answer,” she said on ABC’s “This Week.” “You look at this, we tried to negotiate on the dreamers, and that was led by reasonable Republicans Mike Rounds, a senator from South Dakota, and Johnny Isakson, the senator from Georgia. I was in that group, a small group of us that were working to find a way out with border money as well as making sure that we protected the dreamers, something a vast majority of Americans supported.”)
A full congressional investigation is essential to answer the most basic questions:
Who issued the zero-tolerance policy, and who approved it?
What discussion/consideration of the ensuing family separations was undertaken?
What basis is there for the administration’s assertions that there are “Middle Eastern” people and criminals in the caravan? (“It has almost nothing but supposition to show the public. Many of the caravan members are women and children fleeing violence in their home countries or seeking economic opportunity in the United States. They hardly fit Trump’s description of ‘very tough people’ rushing the border.”)
Where are the “stone-cold criminals” Trump keeps claiming are part of the caravan, and why wouldn’t they be rejected through the normal asylum evaluation process?
Against whom did U.S. agents lob tear gas?
Aside from debunking a host of false claims by the Trump administration and anti-immigrant zealots, the hearings ideally should produce legislation that at a bare minimum permanently bans family separations, allocates funds for border security and for immigration judges (even Sen. Ted Cruz, a Texas Republican, supports that), gives protection to the dreamers and supports aid to Central American countries from which migrants are fleeing.
In short, Congress needs to do its job, instead of acting as a cheerleader for Trump’s racist, hysterical rhetoric.
I’ve been saying this for a long time! There has been no accountability for anything under the GOP. including unwarranted deficits, high-level corruption (starting with the White House and the Trump family), and total waste of taxpayer money.
And, it’s not too late to hold corrupt White Nationalist scofflaw Jeff Sessions accountable for his gross abuses of his office, of our Constitution, and his crimes against humanity. How about some accountability for the evil racist anti-American subversive Stephen Miller? Also, don’t forget airhead sycophant Nielsen and her DHS underlings who mindlessly mouth Trump lies by blaming the Federal Courts, Democrats, and, most despicably, the victims for the messes that their own cruel incompetence and mockery of the rule of law has created!
Last year, 87,000 women were murdered around the world, and more than half (50,000 or 58 percent) were killed by partners or family members. Over a third (30,000) of those intentionally killed last year were murdered by a current or former intimate partner. This means that, globally, six women are killed every hour by someone they know.
U.N. Secretary-General António Guterres described violence against women as a “global pandemic” in a Sunday statement marking the international day of recognition.
“It is a moral affront to all women and girls, a mark of shame on all our societies and a major obstacle to inclusive, equitable and sustainable development,” he said. “At its core, violence against women and girls is the manifestation of a profound lack of respect ― a failure by men to recognize the inherent equality and dignity of women. It is an issue of fundamental human rights.”
The U.N. report also highlighted that women are much more likely to die from domestic violence than men are. According to the study, 82 percent of intimate partner homicide victims are women and 18 percent are men.
“While the vast majority of homicide victims are men, women continue to pay the highest price as a result of gender inequality, discrimination and negative stereotypes. They are also the most likely to be killed by intimate partners and family,” UNODC Executive Director Yury Fedotov said.
The study suggested that violence against women has increased in the last five years, drawing on data from 2012 in which 48,000 (47 percent) of female homicides were perpetrated by intimate partners or family members.
Geographically, Asia had the most female homicides (20,000) perpetrated by intimate partners or family members in 2017, followed by Africa (19,000), North and South America (8,000), Europe (3,000) and Oceania (300). The U.N. does point out that because the intimate partner and family-related homicide rate is 3.1 per 10,000 female population, Africa is actually the continent where women are at the greatest risk of being murdered by a partner or family member.
HuffPost’s “Her Stories” newsletter brings you even more reporting from around the world on the important issues affecting women. Sign up for it here.
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Sessions is already America’s most notorious unpunished child abuser! Now, he can add “aiding and abetting domestic violence” and “voluntary manslaughter” to the many human rights and civil rights violations and transgressions of the teachings of Jesus Christ for which he will someday have to answer to his Maker (even if he has the undeserved good fortune to escape “earthly accountability” for his actions).
Meanwhile, advocates should be using the factual information in this report and other expert opinions on the “pandemic” to overcome the fabricated factual and legal basis for Matter of A-B- and the bogus arguments manufactured by restrictionists..
The real “particular social group” staring everyone in the face is “women in X country.” It’s largely immutable and certainly “fundamental to identity,” particularized, and socially distinct. It clearly has a strong nexus to the grotesque forms of harm inflicted on women throughout our world. And, there is an ever-growing body of expert information publicly available to establish that, totally contrary to Sessions’s bad-faith distortion of the record in A-B-, many countries of the world are unwilling, unable, or both unwilling and unable to offer a reasonable level of protection to women facing gender-based persecution in the form of DV.
Sessions has unwittingly set the wheels of positive change in motion! It’s time to force judges at all levels, legislators, and government officials to recognize the reality of gender-based persecution in today’s world and that it is one of the major forms of persecution clearly covered by the U.N. Convention.
Forget about the bogus “floodgates” argument. The U.N. Convention came directly out of World War II and was intended to insure that the Holocaust and the “Red Terror” did not happen again. The definition would clearly have covered most of the pre-War European Jewish population and tens of millions (perhaps hundreds of millions) of individuals stuck behind the Iron Curtin. If the numbers are large, then it’s up to the signatory countries to come together, pool resources, and think of constructive ways of addressing the problems that generate refugee flows, not just inventing creative ways of avoiding their legal and moral responsibilities.
Don’t repeat 1939! Due Process Forever! Join the “New Due Process Army” and fight for human rights, human values, and human decency against the selfish forces of darkness and dishonesty who have gained control of too many countries in the Western World (including, sadly, our own)!
“Our Gang”of Retired U.S. Immigration Judges continues to play a key role in defending Due Process and advancing the cause of justice in America! Here’s what one of our leaders, Judge Jeffrey Chase, had to say about the latest case decided in accordance with the arguments made in our Amicus Brief:
Hi all: I hope everyone had a wonderful Thanksgiving. It seems just before the holiday, the Ninth Circuit issued a decision in Rodriguez v. Marin (the remand of the Jennings case from the Supreme Court concerning indefinite detention). 20 of us were amici on a brief filed with the 9th Cir. drafted by a team at Wilmer Hale headed by Adriel Cepeda-Derieux.
The Supreme Court remanded for consideration of the constitutional question, which the district court, on remand, will consider in the first instance. The following language by the Circuit Court from its decision is heartening:
Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government.
Stay tuned! Attached is a link to the full decision, and a PDF copy of our amicus brief. Best, Jeff
Great language from the Ninth Circuit. Sadly, however, unconstitutional conduct and mockery of the rule of law, particularly in connection with immigration matters is a mainstay of this “Scofflaw Administration.” (I will note that the Obama Administration took the same “thumb your nose at our Constitution” position as Trump has in this long-running case.)
Trump and his DOJ lawyers like to advertise that they consider the Supremes “bought and paid for” and that they fully expect the GOP-appointed majority to “take a dive” every time the Administration wants to bend the law or operate in a “Constitution free” zone. As an indication of their total contempt for the judicial process and their belief that the “own” a majority of the Supremes, they have taken the almost unprecedented step in a number of key cases of trying to “short-circuit” the normal judicial process in the lower Federal Courts by going straight to the Supremes with the pleas for intervention.
But, in this case, they are likely to be out of luck. The case has already been to the Supremes and they quite pointedly “punted” it back to the Ninth Circuit and the U.S. District Court. As the Ninth Circuit notes in its remand opinion, the Fifth Amendment constitutional issue is straightforward and was fully briefed by the parties before the Supremes. But, it’s obvious that the Supremes wanted no part of it at that time.
So, it’s highly unlikely that the Supremes will intervene before the case works its way back up through the District Court and the Ninth Circuit, a process that will take months, if not years. Meanwhile, the injunction against indefinite detention without bond hearings remains in effect within the Ninth Circuit, which generates the largest number of immigration cases.
If Chief Justice Roberts really wants to demonstrate judicial independence and fair and impartial justice within the Third Branch this is his chance (along with Justices Gorsuch and Kavanaugh, who both would do well to put some distance between themselves and Trump) to show it in actions, not just rhetoric!
He squandered his opportunity in the “Travel Ban” case. If nothing else, he can now see that rather than respectfully considering his “warning shots,” Trump has specifically ignored them and treated the Chief Justice with the same utter contempt as he treats the spineless lackeys who surround his presidency.
But, the good thing about “judging,” at any level, is that you often get a chance to redeem yourself for past mistakes. Whether Roberts has the judicial integrity and leadership skills to pull it off, remains to be seen.
This also should be a “warning shot” to the DOJ that former AG Sessions’s vile plan (which he left unfinished when Trump unceremoniously axed him) to undo bond for asylum applicants who pass credible fear, on the basis of a clearly bogus and contrived reading of the Supreme’s Jennings v. Rodriguez remand, is likely to be found unconstitutional and therefore “DOA” in the Ninth Circuit.
President Donald Trump falsely claimed that his policy of separating migrant children from their parents at the southern U.S. border was the “exact same” as the one implemented during the Obama administration.
In complaining about a “60 Minutes” segment that aired Sunday, Trump tried to deflect criticism of his “zero tolerance” immigration policy by arguing that former presidents Barack Obama and George W. Bush also separated immigrant families.
“I tried to keep them together but the problem is, when you do that, vast numbers of additional people storm the Border,” Trump tweeted Sunday. “So with Obama seperation [sic] is fine, but with Trump it’s not.”
. . . .
Obama deported a record number of immigrants during his time in office which earned him the nickname of “deporter-in-chief.” Prioritizing the removal of people with criminal histories, Immigration and Customs Enforcement deported more than 2.7 million people between fiscal years 2009 and 2016.
The administration worked to quickly detain and deport migrants for several months in 2014, in response to a surge in migrant arrivals. Yet children who had come into the country with their parents didn’t get separated from them, and if families got deported, they were deported together.
The Ninth Circuit ruled that the Flores agreement ― a 1997 federal court decision requiring children to remain in custody for as little time as possible ― also applied to both accompanied and unaccompanied children. They could only be held in detention for a maximum of 20 days.
As for deportations, the Trump administration opted to prosecute every single migrant who crossed the border illegally, expanding the Obama-era strategy of focusing on criminals.
The notion that Trump is merely carrying out Obama’s legacy is “preposterous,” Denise Gilman, director of the Immigration Clinic at the University of Texas Law School, told NBC News. “There were occasionally instances where you would find a separated family — maybe like one every six months to a year — and that was usually because there had been some actual individualized concern that there was a trafficking situation or that the parent wasn’t actually the parent.”
“The agencies were surfacing every possible idea,” a top Obama domestic policy advisor, Cecilia Muñoz, told The New York Times. “I do remember looking at each other like, ‘We’re not going to do this, are we?’ We spent five minutes thinking it through and concluded that it was a bad idea. The morality of it was clear — that’s not who we are.”
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Read Willa’s full article, including Trump’s revolting tweets, at the link.
Separate ‘em, jail ‘em, abuse ‘em, gas ‘em! What’s not to like about an unhinged authoritarian with a neo-Fascist program, a propaganda machine masquerading as “news,” and a bunch of mindless supporters who cheer as he and his band of cowards pick on kids and the downtrodden?
Every day is a new “Reichstag Fire” – a fake, manufactured “crisis” and a call to blame and eradicate the “usual suspects.” Some day there will be hell to pay for America’s abandoning human values and allowing Trump to represent our Government! We should all be ashamed of what our country is doing in the name of fake “border security.”
We are diminishing ourselves as a nation, but it won’t stop human migration!
Dem Senator: Trump administration’s policies ‘caused anxiety at the border’
Sen. Ben Cardin (D-Md.) on Monday blamed the Trump administration for causing “anxiety” at the southern border a day after border agents fired tear gas in response to migrants attempting to breach the border.
“There’s a better way to handle this. The United States, the Trump policies has caused anxiety at the border,” Cardin said on CNN’s “New Day.”
“There’s an orderly process that should have been used,” he added. “Should we fix our immigration system? Absolutely. But this administration has made no effort to fix our immigration system.”
President Trump has repeatedly blamed Congress and Democrats, in particular, for failing to pass legislation hardening the country’s immigration laws. The White House and lawmakers have been unable to reach an agreement on a host of immigration issues, though Congress has provided some funding for border security.
Cardin said Monday that the Trump administration has enacted policies that have exacerbated the problem at the border with the so-called caravan of Central American migrants, citing the White House’s move to curb immigrants’ ability to claim asylum and the previous policy of separating families who illegally cross the border.
“So they’re making the circumstances worse, and here we look at children being subject to tear-gassing,” Cardin said. “That’s the United States causing that. That’s outrageous.”
Customs and Border Protection (CBP) on Sunday shut down the busy San Ysidro port of entry near San Diego as hundreds of migrants approached. Tensions flared further when dozens of migrants broke away from a larger group to try and breach the border.
CBP said in a statement that officers fired tear gas into the crowd after attempted illegal crossings and after some migrants threw rocks at border agents.
Trump on Monday morning called on Mexico to deport the migrants back to their home countries and threatened to permanently close the southern border. The president has for weeks painted the group of migrants as an imminent security threat, prompting fierce criticism from Democratic lawmakers.
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“There’s an orderly process that should have been used.”Yup! But, Trump refuses to use it and make it work!And, it could have been done for less money and fewer resources than the estimated $200 million military boondoggle at the border.
I also hope Sen. Cardin will urge Rep. Cummings (D-MD) and his colleagues in the House to exercise some “oversight” involving the senior Border Patrol officials who publicly proclaimed that most of those arriving at the border, who have been neither interviewed nor screened because of intentional delays by the US Government, are “economic refugees” not “real refugees.”
I tend to doubt that these loud-mouthed law enforcement officials, who have allowed themselves to become political puppets of the Trump White House, have any idea of what makes someone a “real refugee” under the law. Fact is, that in some Immigration Courts away from the Southern Border, the Immigration Judges continue to be fair and knowledgeable (NOT places like Atlanta, Charlotte, and Stewart). Those Immigration Judges take the necessary hours to fairly and impartially hear asylum cases (apparently largely disregarding artificial “quotas”). And, as a result, some properly documented domestic violence, family based, religious based, and political opposition to gang cases continue to be granted to applicants. Shows what happens when rather than prejudging cases like Trump, Sessions, DHS Senior Officials, and, sadly, some Immigration Judges, have done, asylum applicants from the Northern Triangle aren’t hustled through the “assembly line” and are given a fair chance to be represented and to gather the documentation necessary to overcome Sessions’s badly warped misconstruction of country conditions and intentionally misleading dicta in Matter of A-B-.
So, how can these Border Patrol folks tell by “eyeballing” thousands of individuals from the other side of the border whether their claims are “bona fide” or not? That, even after Trump’s and Sessions’s best efforts to “game” the system, the majority of arrivals from Central America still manage to pass “credible fear” examinations from the USCIS Asylum Office suggests that these Border Patrol officials are blowing (dangerous) “hot air” into an already volatile situation. That’s totally irresponsible Time for some accountability all up and down the line for those carrying out Trump’s misguided immigration policies with no visible resistance to actions that at best strain, and quite possibly violate, our established asylum laws and procedures!
I resigned from the Department of Justice because of Trump’s campaign against immigration judges
Gianfranco De Girolamo November 26, 2018, 3:05 AM
One of the proudest days of my life was Dec. 16, 2015, when I became a naturalized citizen of the United States.
I shed tears of joy as I swore allegiance to the United States at the Los Angeles Convention Center, along with more than 3,000 other new Americans. I was celebrating a country that had welcomed me with open arms, treated me as one of its own and opened doors I hadn’t known existed. Just a few years before, in the remote village in southern Italy where I grew up, this would have been unimaginable.
Another of my proudest moments came just a year later, when I was awarded a coveted position in the U.S. Department of Justice. This happened in late November 2016, a few weeks after President Trump was elected.
Like many, I harbored reservations about Trump. But I did not waver in my enthusiasm for the job. In law school, l had learned about the role of civil servants as nonpolitical government employees who work across administrations — faithfully, loyally and diligently serving the United States under both Republicans and Democrats.
I was designated an attorney-advisor and assigned to the Los Angeles immigration court. There, I assisted immigration judges with legal research, weighed in on the strengths and weaknesses of parties’ arguments and often wrote the first drafts of judges’ opinions.
Soon enough, however, the work changed. In March 2018, James McHenry, the Justice Department official who oversees the immigration courts as head of the Executive Office for Immigration Review, announced a mandate imposing individual quotas on all the judges. Each judge would be required to decide 700 cases per year, he said.
With these new quotas, which went into effect on Oct. 1, immigration judges must now decide between three and four cases a day — while also reviewing dozens of motions daily and keeping up with all their administrative duties — or their jobs will be at risk.
The announcement of the quotas in March was the first in a series of demoralizing attacks on immigration judges this year. In May, Atty. Gen. Jeff Sessions, since fired by Trump, personally issued a decision that placed limits on the ability of immigration judges to use a practice known as administrative closure, which allows judges to put cases on indefinite hold, and which, in immigration cases, can be a tool for delaying deportation orders.
The Justice Department enforced the decision in July by stripping an immigration judge in Philadelphia of his authority in scores of cases for continuing to use administrative closure.
All this was in addition to a barrage of disparaging comments made directly by the president. In June, Trump tweeted that there is no reason to provide judges to immigrants. He also rejected calls to hire more immigration judges, saying that “we have to have a real border, not judges” and asking rhetorically, “Who are these people?”
The demoralizing effect on immigration judges was palpable. Morale was at an all-time low. I was new to civil service, but these judges, some of whom have served continuously since the Reagan administration, made clear that this was an unprecedented attack on the justice system.
I’ve long admired the independence and legitimacy that the judiciary enjoys in the United States, so I found the attacks on judges deeply disturbing and troubling. They reminded me of Trump’s Italian alter-ego, Silvio Berlusconi, who spent most of his tenure as Italy’s prime minister fighting off lawsuits by delegitimizing and attacking the judiciary, calling it “a cancer of democracy” and accusing judges of being communist.
I voiced my concerns to my supervisors and directly to Director McHenry in a letter. Seeing no opportunity to make a positive difference and unwilling to continue to lend credence to this compromised system, I submitted my resignation in July, explaining my reasons in a letter.
This was not how I wanted to end my career in government. I had hoped to serve this country for the long haul. But I couldn’t stand by, or be complicit in, a mean-spirited and unscrupulous campaign to undermine the everyday work of the Justice Department and the judges who serve in our immigration courts — a campaign that hurts many of my fellow immigrants in the process.
Gianfranco De Girolamo was an attorney at the Department of Justice from 2017 to 2018.
Thanks for speaking out Gianfranco! I published an earlier, at that time “anonymous,” letter from Gianfranco at the time of his resignation. I’m sure there are many others at EOIR who feel the same way. But, they are “gagged” by the DOJ — threatened with job loss if they “tell the truth” about the ongoing legal farce and parody of justice within our Immigration Courts.
It’s a “closed system” at war with the public it serves, the dedicated attorneys who represent migrants, the essential NGOs who are propping up what’s left of justice in this system, and the very civil servants who are supposed to be carrying out the courts’ mission. What a horrible way to “(not) run the railroad.”
Someday, historians will dig out the whole truth about the “Sessions Era” at the DOJ and his perversion of justice in the U.S. Immigration Courts. I’m sure it will be even worse than we can imagine. But, for now, thanks to Gianfranco for shedding at least some light on one of the darkest and most dysfunctional corners of our Government!
