"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: “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”
AN OPEN LETTER TO THE GEORGETOWN LAW COMMUNITY ON THE UPCOMING (OCT. 7) CAMPUS APPEARANCE OF ACTING DHS SEC. KEVIN McALEENAN: Yes, McAleenan Is Intellectually Dishonest & Morally Corrupt, But He Should Be Allowed To Speak On Campus – Education, Preparation, Confrontation, & Challenge Is The Best Way To Deal With A Public Official Who Has Violated (& Continues To Violate) His Oath Of Office!
Dear Georgetown Law Colleagues & Community Members:
I agree 100% with the assessment by my colleague that Kevin McAleenan is a corrupt, immoral, and indecent human being. He is an affront to American democracy, human rights, and simple human decency, as well as a congenital liar. Imagine a person who would proudly negotiate incredibly dishonest “Safe Third Country” agreements with three of the most corrupt and dangerous countries in the world, none of which has a functional asylum system.
Mac also is spreader of the demonstrably false claim that asylum seekers don’t show up for their hearings (they show up nearly 100% of time, when represented), that their claims lack merit (he has never, to my knowledge, adjudicated a single asylum claim and is a leading proponent of the Trump Administration’s intentional, racially and gender biased misapplication of asylum laws to Central Americans), and that the Flores settlement protecting children from abusive detention is a “loophole.”
He promoted regulations recently found by U.S. District Judge Dolly Gee to be patently illegal that would have authorized indefinite detention in substandard conditions of families and children whose “crime” was to seek legal protection under our laws. Rather than working cooperatively with pro bono lawyers, he has made it virtually impossible for dedicated, hard-working lawyers to represent individuals returned to Mexico. He has replaced Asylum Officers with totally unqualified Border Patrol Officers to improperly increase the number of “credible fear” denials, over the objection of the professional Asylum Officers. He runs detention centers with life threatening conditions and lies about it.
He has also abandoned the responsible use of prosecutorial discretion and overloaded the Immigration Court dockets with absolute “dreck” that should never been brought in the first place. Contrary to his bogus claims, the vast number of removals of non-criminals being pursued by ICE in the Immigration Courts are not only intentionally destroying the justice system but demonstrably harm the United States with each mindless, biased, and unnecessary removal of long-time law-abiding individuals who are contributing to their communities and often leave U.S. citizen family members behind. The recent proposal of DHS to misapply the “public charge” grounds to prevent individuals from gaining lawful permanent residence or U.S. citizenship is beyond disgraceful. His subordinates have gloried in spreading racially-motivated terror in ethnic communities throughout the United States.
I could go on for pages about Mac’s cowardly immorality and illegal behavior.
But, all of that being said, he’s an Acting Cabinet Secretary and should be heard. I think the best course is to publicize his misdeeds in advance, so those attending can be fully informed about what he actually stands for and his total disdain for human rights and the rule of law. I also believe that he should be confronted with his many lies and illegal and immoral actions and challenged to justify his unjustifiable positions. He needs to know that most of us do not agree with the Trump Administration’s perverted world view and disavowal of basic statutory, Constitutional, and human rights which he has dishonestly advanced and advocated.
Again, I appreciate my esteemed colleague’s courageously speaking out about McAleenan’s disgraceful record of misusing public service to abuse and threaten the lives of the most vulnerable among us. I also appreciate how it has affected him and his family personally. As a former public servant for three-and-one-half decades, I find Mac to be a vile disgrace to honest, ethical, and decent public service.
But, I think “hearing and confronting” is a better course than “tuning him out.” Maybe this occasion will help inform and energize the Georgetown Law Community about the abuses of American values, human rights, Constitutional Due Process, and the Rule of Law being carried out by our Government in our name every day against our fellow human beings who have the misfortune to be migrants in today’s world.
I also note that MPI and CLINIC, the sponsors of these presentations, are among the nation’s leading defenders of immigrants’ rights and social justice. That is another reason why I would defer to their decision to invite McAleenan to this event as an “opportunity to confront and understand the face of evil.”
Thanks for listening.
Due Process Forever, McAleenan’s Lies Never!
Best,
Paul Wickham Schmidt
Adjunct Professor of Law
Georgetown Law
U.S. Immigration Judge (Retired)
Former Chairman, Board of Immigration Appeals
Former Deputy General Counsel & Acting General Counsel
(Legacy) U.S. Immigration & Naturalization Service
On August 16, 2019, the Executive Office for Immigration Review issued a memo limiting the types of cases that an immigration judge may place on a status docket while a noncitizen is waiting for some event to occur that will impact the removal proceedings. The policy may make it more difficult for some respondents to seek immigration relief while in removal proceedings, especially relief before U.S. Citizenship and Immigration Services. This practice advisory provides background on status dockets, describes the new policy, and provides tips for practitioners with clients whose cases are currently on a status docket or who would otherwise have pursued status docket placement but may now be found ineligible for status docket placement.
action to avoid increasing the Board’s backlog—it is critically important to make certain that all appeals are processed in a timely manner.
The Board Chairman is required to establish a case management system to manage the Board’s caseload. 8 C.F.R. 1003.1(e). The Chairman, under the supervision of the Director, is responsible for the success of the case management system. Id. The Director is further authorized, inter alia, “to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board.” 8 C.F.R. § 1003.0(b)(1)(ii).
Although the Board has implemented a case management system pursuant to regulation, that system does not fully provide for clear internal deadlines for all phases of the pre-adjudicatory process.1 Similarly, although the regulations evince a clear directive for prompt processing and disposition by the Board, they do not provide specific deadlines for case processing prior to completion of the appellate record. Moreover, as the Department of Justice Office of the Inspector General has previously noted, the regulatory deadlines for the adjudication of appeals exclude a significant amount of pre-adjudicatory processing time, skewing the Board’s reported achievements of its goals for appeals and impeding the effective management of the appeals process. U.S. Dep’t of Justice, Office of the Inspector General, Management of Immigration Cases and Appeals by the Executive Office for Immigration Review (Oct. 2012), https://oig.justice.gov/reports/2012/e1301.pdf.
To ensure the success of the Board’s case management system and to
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network
better manage the appeals process so that cases are adjudicated promptly, it is appropriate to clearly state EOIR’s expectations regarding the timely processing of appeals. 2 To that end, it is important to have clear deadlines for the movement of cases throughout the entire appellate process, and not just for the adjudication at the end of the process. Accordingly, EOIR now issues the following guidance regarding the case management system for appellate adjudications by the Board.3
Case Processing
All case appeals are referred to the screening panel for review, and appeals subject to summary dismissal “should be promptly dismissed.” 8 C.F.R. § 1003.1(e)(1). To ensure prompt initial
1 The pre-adjudicatory process includes, inter alia, screening of notices of appeal, requesting Records of Proceedings (ROPs), ordering transcripts, serving a briefing schedule, and assigning a case for merits review once the record is complete.
2 Although the importance of timely adjudication applies to all types of appeals at the Board, the specific provisions of this PM do not apply to the processing of appeals of decisions involving administrative fines and penalties, decisions on visa petitions, decisions on the exercise of discretion by the Department of Homeland Security pursuant to INA § 212(d)(3), and decisions in practitioner discipline proceedings.
3 For timeframes that are not currently being met, EOIR understands that Board leadership recently changed and that it may take time to adjust Board practices. Nevertheless, the agency is also cognizant that the Board recently hired six new permanent Board members and is also hiring additional support staff. Consequently, EOIR expects that the Board will address inefficiencies in its appellate processing as soon as possible.
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screening, all cases should be referred to the screening panel within 14 days of the filing of the notice of appeal to determine whether the appeal is subject to summary dismissal. Appeals subject to summary dismissal, particularly appeals subject to summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(G) for being untimely filed, should be dismissed within 30 days of referral to the screening panel.
In any case that has not been summarily dismissed, the Board “shall arrange for the prompt completion of the record of proceedings and transcript, and the issuance of a briefing schedule.” 8 C.F.R. § 1003.1(e)(3). Thus, to ensure prompt completion of the record for case appeals that have not been summarily dismissed, the Board should order the ROP4 if it was not previously ordered and, if appropriate, request a transcript within 14 days of referral to the screening panel.5 If a case does not require the preparation of a transcript and is not subject to summary dismissal, the Board should set and serve a briefing schedule within 14 days of referral to the screening panel. If a case requires neither the preparation of a transcript nor the service of a briefing schedule—e.g. a motion to reopen filed directly with the Board—the Board should forward the case for merits review within three days of the receipt of the ROP.
Every appeal that requires a transcript should be sent to a vendor for transcription within 14 days of referral to the screening panel. The only exceptions are situations in which there is no vendor with available capacity or if there is no available funding for further transcription.6
Upon receipt of the transcript, the Board should set and serve a briefing schedule within three days if the immigration judge’s decision was rendered in writing. If the immigration judge’s decision was rendered orally, the Board should provide the transcript of the oral decision to the immigration judge within three days of receipt of the transcript. The immigration judge “shall review the transcript and approve the decision within 14 days of receipt, or within seven days after the immigration judge returns to his or her duty station if the immigration judge was on leave or detailed to another location.” 8 C.F.R. § 1003.5(a). The Board should then set and serve a briefing schedule within three days of the immigration judge’s review and approval.
4 It is crucial that immigration courts promptly comply with requests for the ROP by the Board, and the Board may remand a case for recovery of the record if an immigration court does not forward the ROP promptly. The Board should decide whether such a remand is appropriate within 21 days of an immigration court’s failure to forward the ROP following the Board’s request. Such a remand will not be counted against an immigration judge for purposes of evaluating that judge’s performance. The Chairman shall promptly notify the Chief Immigration Judge and the Director of any immigration court that has not complied with a request for the ROP within 21 days of that request.
5 Unless the ROP contains cassette tapes requiring transcription, ordering the ROP and requesting transcription should occur concurrently within 14 days of referral to the screening panel. Transcripts are not normally prepared for the following types of appeals: bond determinations; denials of motions to reopen (including motions to reopen in absentia proceedings); denials of motions to reconsider; and interlocutory appeals. Board of Immigration Appeals Practice Manual, § 4.2(f)(ii).
6 The Chairman is directed to immediately notify the Director and the Assistant Director for the Office of Administration in any situation in which it appears that funding for transcription of all cases relative to vendor capacity is insufficient to meet the goals of this PM. Similarly, the Chairman is directed to notify the Director and the Assistant Director for the Office of Administration of any additional resource needs in order to meet the goals of this PM.
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“In the interest of fairness and the efficient use of administrative resources, extension requests [of briefing schedules] are not favored.” Board of Immigration Appeals Practice Manual, § 4.7(c)(i). Because extension requests are not favored, they should not be granted as a matter of course, and there is no automatic entitlement to an extension of the briefing schedule by either party. Extension requests filed the same day as a brief is due are particularly disfavored and should be granted only in the most compelling of circumstances.
The case should be forwarded for merits review within three days after the expiration of the briefing schedule or the filing of briefs by both parties, whichever occurs earlier. A single Board member may summarily dismiss an appeal after completion of the record. 8 C.F.R. § 1003.1(e)(3). An appeal subject to summary dismissal because a party indicated that it would file a brief and failed to do so, 8 C.F.R. § 1003.1(d)(2)(i)(E), should be dismissed within 21 days of expiration of the briefing schedule.
The single Board member should determine the appeal on the merits as provided in paragraph 8 C.F.R. § 1003.1(e)(4) or (e)(5), unless the Board member determines that the case is appropriate for review and decision by a three-member panel under the standards of 8 C.F.R. § 1003.1(e)(6). The single Board member should determine whether the case should be referred to a three-member panel within 14 days of referral of the case for merits review, and the Board should assign the case to a three-member panel within three days of the single Board member’s determination.7 If a case is assigned to a three-member panel, a decision must be made within 180 days of assignment. 8 C.F.R. § 1003.1(e)(8)(i). If a case is not assigned to a three-member panel, the single Board member shall adjudicate the appeal within 90 days of completion of the record on appeal. Id.
The Chairman may grant an extension of the 90 and 180-day deadlines of up to 60 days in exigent circumstances. 8 C.F.R. § 1003.1(e)(8)(ii).8 “In rare circumstances,” the Chairman may hold a case or cases and suspend the 90 and 180-day deadlines to await an impending decision by the Supreme Court, a U.S. Court of Appeals, or an en banc Board decision or to await impending Department regulatory amendments. 8 C.F.R. § 1003.1(e)(8)(iii).9 The Chairman shall provide a monthly report of all cases in which an extension was granted due to exigent circumstances and all cases being held pursuant to 8 C.F.R. § 1003.1(e)(8)(iii).
Any appeal not adjudicated within the regulatory time frames shall be handled in accordance with 8 C.F.R. § 1003.1(e)(8)(ii). The Chairman shall provide a monthly report of all cases which have exceeded these time frames.
Overall, absent an exception or unique circumstance provided for by regulation or this PM, no appeal assigned to a single Board member should remain pending for longer than 230 days after
7 A single Board member retains the ability to later decide that a case should be assigned to a three-member panel if circumstances arise that were unknown at the time of the initial determination that such assignment was not warranted.
8 Additionally, the 90 and 180-day deadlines do not apply to cases in which the Board holds an adjudication of the appeal while awaiting the results of identity, law enforcement, or security investigations or examinations. 8 C.F.R. §§ 1003.1(d)(6) and (e)(8)(i).
9 As a matter of policy, the Chairman may also defer adjudication of appeals under 8 C.F.R. § 1003.1(a)(2)(i)(C) to await an impending decision by the Attorney General.
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filing of the notice to appeal, and no appeal assigned to a three-member panel should remain pending for longer than 335 days after filing the notice of appeal. The Chairman shall track the progress of appellate adjudications and shall provide a monthly report of all cases which exceed those parameters.
Finally, EOIR does not have a policy restricting or prohibiting the use of summary dismissals of appeals, nor does it have a policy restricting or prohibiting the use of affirmances without opinion. Any appeals amenable to those procedures should be adjudicated consistent with the regulatory requirements for them, 8 C.F.R. §§ 1003.1(d)(2) and (e)(4), and this PM.
III. Interlocutory Appeals
The regulations do not expressly address interlocutory appeals. “The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges.” Board of Immigration Appeals Practice Manual, § 4.14(c).
The Board does not normally issue briefing schedules for interlocutory appeals, nor do most interlocutory appeals require transcription. Board of Immigration Appeals Practice Manual, §§ 4.2(f)(ii), 4.14(e). Consequently, interlocutory appeals are not subject to the same processes as typical case appeals on the merits. Nevertheless, it is the policy of EOIR to adjudicate interlocutory appeals promptly and efficiently.
To that end, interlocutory appeals should be reviewed by the screening panel within 14 days of filing. The screening panel should then either decide the interlocutory appeal within 30 days of filing or forward it for merits review.
Assignment and Performance
Regulations authorize the Chairman to designate a screening panel and other merits panels as appropriate. It is the policy of EOIR that panel assignments shall occur no less frequently than the beginning of each fiscal year.
Finally, “[t]he Chairman shall notify the Director of EOIR and the Attorney General if a Board member consistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise fails to adhere to the standards of the case management system. The Chairman shall also prepare a report assessing the timeliness of the disposition of cases by each Board member on an annual basis.” 8 C.F.R. § 1003.1(e)(8)(v). Notification pursuant to this regulation should occur no later than 30 days after the Chairman determines that a Board member has failed to meet these standards. The Chairman shall prepare the annual report required by this regulation at the conclusion of each fiscal year.
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V . Conclusion
In December 2017, Attorney General Sessions provided a list of principles to which EOIR is expected to adhere, including the principle that “[t]he timely and efficient conclusion of cases serves the national interest.” Memorandum to the Executive Office for Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest (Dec. 6, 2017), https://www.justice.gov/eoir/file/1041196/download. That principle applies to cases at the Board no less than it applies to cases in immigration courts, and EOIR remains committed to ensuring that all immigration cases at both the immigration court and appellate levels are adjudicated efficiently and fairly consistent with due process.
Responsibility for the Board’s case management system and the duty to ensure the efficient disposition of pending cases fall on the Chairman, and Board members themselves are ultimately responsible for the adjudication of individual cases. Accordingly, nothing in this PM is intended to require—or should be construed as requiring—a change in the conditions of employment of any bargaining unit employees at the Board.
The Board maintains a goal developed under the Government Performance and Results Act (GPRA) of completing 90% of detained appeals within 150 days of filing. The instant PM does not alter that goal, and in all cases, it remains EOIR policy that the Board “shall issue a decision on the merits as soon as practicable, with a priority for cases or custody appeals involving detained aliens.” 8 C.F.R. § 1003.1(e)(8).
This PM supersedes any prior guidance issued by EOIR regarding the timely processing of cases on appeal.
This PM is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Further, nothing in this PM should be construed as mandating a particular outcome in any specific case.
Please contact your supervisor if you have any questions. _____________
WASHINGTON, DC – Today, the American Immigration Lawyers Association (AILA) reviewed and analyzed the recent policy memo impacting the workings of the Board of Immigration Appeals (BIA) which serves as the appellate arm of the immigration courts within the Department of Justice (DOJ).
Jeremy McKinney, Second Vice President of AILA noted, “This memo offers significant areas of concern. An earlier rule issued in August describing the reorganization of the Executive Office for Immigration Review (EOIR) at DOJ delegates authority from the Attorney General to the EOIR director to adjudicate cases ‘that cannot be completed in a timely fashion.’ As a political appointee and not an immigration judge, the director should not have that power. This memo goes even further and pressures BIA members to speed up adjudications without care for due process. Frankly, this latest memo only underscores the need for an independent immigration court to get these proceedings out from under the thumb of the nation’s prosecutor.”
Benjamin Johnson, AILA Executive Director stated, “The purported reasoning behind this memo is that BIA adjudication rates have stalled. What did they expect the appellate situation would look like when immigration enforcement was ramped up and targeted people with longstanding ties to their communities and potential equities in immigration cases? It was inevitable that the appeals caseload would increase. This memo actually urges BIA adjudicators to dismiss appeals, before a transcript of the original hearing is even reviewed. The result of this policy change will be even more federal court litigation as people seek to get their fair day in court. Everything about this system is incongruent with an independent decision-making body.”
It just keeps getting worse and worse, as Congress and the Article IIIs shirk their duties to intervene and enforce Due Process in our broken and “maliciously incompetently” managed Immigration “Courts.”
As one “Roundtable” member noted, in an amazing public ripoff, the Administration is raising the appeal fees by nearly 1000% so abused immigrants subjected to the EOIR “Kangaroo Court” will now “pay more for less justice!”
But, all is not lost! NDPA Lt. General and Roundtable stalwart Judge Lory D. Rosenberg has put out a timely format (below) for filling out a Notice of Appeal (“NOA”) that will be “McHenryproof” and will also highlight to the Article III Courts of Appeals the stunning denial of Due Process and encouragement of sloppy work, “worst practices,” and corner cutting at EOIR. Let’s see whether being flooded with inferior, biased work product by the BIAwill finally spur the Article IIIs to take some long overdue corrective action (as they did during the due process disaster at EOIR that followed the “Ashcroft Purge” at the BIA).
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Dear NAIJ Members,
On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.
Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.
ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.
Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.
The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.
Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:
If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.
Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!
Seventeen year-old Josue and his mom, Esperanza, were visibly drained. They had just spent more than four hours at their asylum trial inside an immigration court at 26 Federal Plaza in Lower Manhattan, answering questions from their attorney and a government lawyer. We are withholding their full names to protect their identities because they’re afraid.
“It was exhausting,” said Josue, whose angular haircut was neatly combed for the occasion. In Spanish, he told us the judge seemed nice but, “you feel bad if you don’t know if you are going to be allowed to stay or if you have to go.”
The teen and his mother crossed the U.S. border in California in the summer of 2018. At the time, a rising number of families were entering the country, and the Trump administration wanted to send a message to them by swiftly deporting those who don’t qualify for asylum. But immigration judges are so busy, they can take up to four years to rule on a case. In November, judges in New York and nine other cities were ordered to fast track family cases and complete them within a year.
This is how Esperanza and Josue wound up going to trial just 10 months after they arrived in the U.S. and moved to Brooklyn. They were lucky to find attorneys with Central American Legal Assistance, a nonprofit in Williamsburg that’s been representing people fleeing the troubled region since 1985.
Listen to reporter Beth Fertig’s WNYC story on Josue and Esperanza’s cases.
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Winning asylum was never easy. But in 2018, former Attorney General Jeff Sessions made it tougher for people like Josue and Esperanza when he issued his own ruling on an immigration case involving a woman from El Salvador who was a victim of domestic violence. He wrote: “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.”
Immigration judges were bound to give heavy weight to that ruling. Their courts are run by the Department of Justice, whose boss is the Attorney General. And the AG’s boss, President Trump, frequently asserts that too many migrants lie about being threatened by gangs when they’re just coming for jobs. “It’s a big fat con job, folks,” he said at a Michigan rally this year.
Esperanza and Josue went to court soon after Sessions’ decision. She was fighting for asylum as a victim of domestic abuse; Josue claimed a gang threatened his life. Both would eventually lose their cases.
Josue’s case
Esperanza and Josue are typical of the Central American families seeking asylum these days, who say they’re escaping vicious drug gangs, violence and grinding poverty. The two of them came from a town outside San Pedro Sula, one of the most dangerous cities in the world.
During their trial, Josue testified under oath about how gang members repeatedly approached him outside his high school, asking him to sell drugs to the other students. He tried to ignore them, and gave different excuses for resisting, until one day when they spotted him playing soccer and became more aggressive. That’s when he said the gang leader put a gun in his face.
“He told me that if I didn’t accept what he wanted he was going to kill my whole family, my mother and sister,” he said, through a Spanish interpreter.
“I was in shock,” he said. “I had no other choice to accept and said yes.”
He told his mother and they left Honduras the next day. When Josue’s lawyer, Katherine Madison, asked if he ever reported the threat to the police he said no. “That was practically a suicide,” he said, explaining that the police are tied to the gang, because it has so much power.
Josue said his older sister later moved to Mexico because she was so afraid of the gang.
Winning asylum is a two-step process. You have to prove that you were persecuted, and that this persecution was on account of your race, religion, nationality, social group or political opinion. Madison, Josue’s attorney, argued that in Honduras, defying gangs is a risky political statement.
“They function in many ways as the de facto government of the areas where people like Josue lived,” she told WNYC/Gothamist, summing up the arguments she submitted to the judge. “They make rules. They charge basically taxes, they say who can live there and who can’t.”
And they’re known to kill people who don’t obey.
In her ruling, issued in August, Immigration Judge Oshea Spencer found Josue did experience persecution. But she denied his application for asylum. She said much of what he described “were threats and harm that exist as part of the larger criminal enterprise of the gangs in Honduras and not on the basis of any actual or perceived opposition to the gangs.”
Esperanza’s case
Esperanza’s attorney argued that her life was at risk because the gang member threatened Josue’s family. But Spencer didn’t find that specific enough. She wrote that the gang members “were motivated by their efforts to expand their drug trade, not the family relationship.” Among other cases, she referred to a recent decision by the current Attorney General, William Barr, that makes it harder for the relatives of someone who’s been threatened to win asylum.
Esperanza also lost on a separate claim that she deserved asylum because she was repeatedly beaten by Josue’s father. In court, she testified about years of abuse culminating in an incident in which he chased her with a machete. She said she couldn’t get the police to issue a restraining order, and said he kept threatening her after she moved to another town to stay with relatives.
Madison argued that women like Esperanza belong to a persecuted social group: they can’t get help from the authorities in Honduras because they’re viewed as a man’s property. The country is one of the deadliest places to be a woman; police are known to ignore complaints; and it’s extremely hard for women to get justice.
But Spencer ruled that there is no persecuted social group made up of “Honduran women who are viewed as property” for being in a domestic relationship.
Echoing the Sessions’ ruling, the judge said these categories “all lack sufficient particularity,” and called them “amorphous” because they could be made up of a “potentially large and diffuse segment of society.”
She also cited evidence submitted by the government that showed conditions in Honduras are improving for women. This evidence came from a 2018 State Department report on human rights in Honduras. Immigration advocates claim it’s been watered down from the much harsher conditions described in the last report from 2016. It’s also much shorter in length.
Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.
“This was decided by a brand new judge who didn’t have any immigration experience prior to becoming an immigration judge,” he said, referring to the fact that Spencer was previously an attorney with the Public Utility Commission of Texas. He said she went through training which, “These days, includes being told that we don’t consider these to be really good cases.”
Sitting judges don’t talk to the media but Chase noted that they must consider the facts of each individual case, meaning the former Attorney General’s ruling doesn’t apply to all cases. He noted that some women who were victims of abuse are still winning asylum. He pointed to a case involving a Guatemalan woman who was raped by her boss. A Texas immigration judge found she did fit into a particular social group as a woman who defied gender norms, by taking a job normally held by a man.
During Josue and Esperanza’s trial, there was a lot of back and forth over their individual claims. A trial attorney from Immigration and Customs Enforcement questioned why Esperanza didn’t contact the police again after moving to another town, where she said her former partner continued to threaten her. Esperanza said it was because her brother chased him away and the police “don’t pay attention to you.”
The ICE attorney also asked Josue if his father was physically violent with anyone besides Esperanza. Josue said he did fight with other men. San Diego immigration lawyer Anna Hysell, who was previously an ICE trial attorney, said that could have hurt Esperanza’s case.
“The government was able to make the arguments that he didn’t target her because of being a woman that was in his relationship,” she explained. “He just was probably a terrible person and targeted many people.”
Hysell added that this was just her analysis and she wasn’t agreeing with the decision.
Attorney Anne Pilsbury said she believes Esperanza would have won her case, prior to the asylum ruling by Sessions, because she suffered years of abuse. But she said Josue would have had a more difficult time because gang cases were always tough. And like a lot of migrants, Josue had no evidence — he was too afraid to go to the cops. Pilsbury said immigration judges are even more skeptical now of gang cases.
“They’re getting so that they won’t even think about them,” she said. “They aren’t wrestling with the facts. They’re hearing gang violence and that’s it.”
She said Judge Spencer does sometimes grant asylum, and isn’t as harsh as other new judges. New York City’s immigration court used to be one of the most favorable places for asylum seekers. In 2016, 84 percent of asylum cases were granted. Today, that figure has fallen to 57 percent, according to TRAC at Syracuse University. Meanwhile, the government is forcing migrants to wait in Mexico for their immigration court cases or seek asylum in other countries before applying in the U.S., as the national backlog of cases exceeds one million.
Pilsbury, who founded Central American Legal Assistance in 1985, said immigration courts are now dealing with the result of a regional crisis south of the border that’s never been properly addressed since the wars of the 1980s.
“The anti-immigrant people feel it’s broken because people get to come here and ask for asylum and we feel it’s broken because people’s asylum applications aren’t seriously considered,” she explained. “We should be doing more to understand what’s going on in those countries and what we can do to help them address the chronic problems.”
Esperanza and Josue’s cases will now be appealed. Madison said she believes the judge ignored some of her evidence about gangs. She’s now turning to the Board of Immigration Appeals. However, it’s also controlled by the Justice Department — meaning the odds of getting a reversal are slim. If they lose again, the family can go to a federal circuit court which may have a broader definition of who’s eligible for asylum.
But Esperanza and Josue won’t be deported as long as their case is being appealed. On a late summer day, they seemed relaxed while sitting in a Brooklyn park. Esperanza talked about how happy she is that Josue is safe at his public high school, and can even ride a bike at night with his friends.
“He goes out and I’m always trusting the Father that just as he goes out, he comes back,” she said.
Even if they knew they would lose their asylum case, both said they still would have come to the U.S. because the risk of staying in Honduras was too great. Josue said the gang would definitely find him if he ever returned because their networks are so deep throughout the country. He’s now taking the long view. He knows there will be a Presidential election next year.
“It’s like a game of chess,” Josue said. “Any mindset can change at any moment. Maybe Trump changes his mind or maybe not. But I would have always made the decision to come.”
With translation assistance from Alexandra Feldhausen, Lidia Hernández-Tapia and Andrés O’Hara.
Beth Fertig is a senior reporter covering immigration, courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.
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CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.
By clicking on the link at the top and going to Beth’s article on The Gothamist, you will be able to get a link to the original WNYC audio broadcast of this story.
It’s not “rocket science.” Better, fairer outcomes were available that would have fulfilled, rather than mocked, our obligation to provide Due Process and protection under our own laws and international treaties.
Here’s how:
Esperanza’s claim is a clear asylum grant for “Honduran women” which is both a “particular social group” (“PSG”) and a persecuted group in Honduras that the government is unwilling or unable to protect.
Although the last two Administrations have intentionally twisted the law against Central American asylum seekers, Josue has a clear case for asylum as somebody for whom opposition to gang violence was an “imputed political opinion” that was “at least one central reason” for the persecution. See, e.g,https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion.
In any event, on this record, Josue clearly showed that he faced a probability of torture by gangs with the acquiescence of the Honduran government, and therefore should have been granted mandatory protection by the Immigration Judge under the Convention against Torture (“CAT”).
The Immigration Judge’s assertion that things are getting better for women in Honduras, one of the world’s most dangerous countries for women where femicide is rampant, not only badly misapplies the legal standard (“fundamentally changed conditions that would eliminate any well founded fear”) but is also totally disingenuous as a factual matter. See, e.g.,https://www.nytimes.com/interactive/2019/04/05/opinion/honduras-women-murders.html.
Additionally, Honduras remains in a state of armed conflict. See, e.g.,https://www.tandfonline.com/doi/full/10.1080/23740973.2019.1603972?needAccess=true. Under an honest Government, granting TPS to Hondurans (as well as Salvadorans and Guatemalans affected by environmental disasters heightened by climate change) would be more than justified.
Under honest Government following the rule of law, well-documented cases like this one could be quickly granted by the USCIS Asylum Officer or granted on stipulation in short hearings in Immigration Court. Many more Central Americans could be granted CAT relief, TPS, or screened and approved for asylum abroad. They could thereby be kept off of Immigraton Court dockets altogether or dealt with promptly on “short dockets” without compromising anybody’s statutory or constitutional rights (compromising individual rights is a “specialty” of all the mostly ineffective “enforcement gimmicks” advanced by the Trump Administration).
Over time, the overwhelming self-inflicted Immigration Court backlogs caused by the Trump Administration’s “maliciously incompetent” administration of immigration laws (e.g., “Aimless Docket Reshuffling”) would be greatly reduced.
That, in turn, would allow the Immigration Courts to deal with cases on a more realistic timeline that would both aid rational, non-White-Nationalist immigration enforcement and provide real justice for those seeking protection under our legal system.
As I’ve said before, it’s not “rocket science.” All it would take is more honest and enlightened Government committed to Due Process, good court management, and an appropriate legal application of laws relating to refugees and other forms of protection. I doubt that it would cost as much as all of the bogus “enforcement only gimmicks” now being pursued by Trump as part of his racist, anti-migrant, anti-Hispanic agenda.
Poor judicial decision making, as well illustrated by this unfortunate wrongly decided case, not only threatens the lives of deserving applicants for our protection, but also bogs down an already grossly overloaded system with unnecessarily protracted litigation and appeals of cases that should be “clear grants.”
Contrary to the intentionally false “party line” spread by “Big Mac With Lies” and other corrupt Trump sycophants at the DHS and the DOJ, a much, much higher percentage, probably a majority, of asylum applicants from the Northern Triangle who apply at our Southern Border should properly be granted some type of legal protection under our laws if the system operated in the fair and impartial manner that is Constitutionally required. The Trump Administration aided by their sycophants and enablers, all the way up to the feckless Supremes, are literally “getting away with murder” in far, far too many instances.
Consequently, quickly identifying and granting relief to the many deserving applicants would be a more efficient, humane, and lawful alternative to the “Kill ‘Em Before They Get Here” deterrence programs being pursued by Trump, with the complicity of the Supremes, the Ninth Circuit, and some of the other Federal Circuit Courts who have been afraid to put a stop to the extralegal nonsense going on in our Immigraton Courts, detention centers (the “New American Gulag”), our Southern Border, and countries like Mexico, El Salvador, Guatemala, and El Salvador where we are basically encouraging extralegal abuses and gross human right violations against migrants. It will eventually come back to haunt our nation, or whatever is left of our nation after Trump and his gang of White Nationalist thugs, supporters, appeasers, apologists, and enablers, are done looting and destroying it.
President Trump’s latest assault on immigration, cutting the number of refugees accepted to a mere 18,000 from 30,000 last year, is better than the complete ban that some of his aides were seeking. But looking at mere numbers misses the point.
This is the administration’s latest message to anyone dreaming of a freer life in America: that they should just stay away. The Trump administration has systematically acted to bar as many refugees and asylum seekers as possible, virtually from its first day, supplanting America’s traditional welcome to the world’s desperate people with a spirit of xenophobia and bigotry.
Led by Stephen Miller, a zealot who has planted lieutenants throughout the government, the Trump White House has made its anti-immigration campaign something akin to a crusade, with “the wall” along the Mexican border as its symbol.
The administration has tried to scare away Central Americans by separating children from their parents when families arrive at the border seeking asylum; it threatened to end “temporary protected status” for people escaping natural and other disasters in a number of countries, including Haiti, Nicaragua and Sudan; it suspended the Deferred Action for Childhood Arrivals program, which let undocumented immigrants who arrived here as children stay and work; it has dramatically deported immigrants without regard for their ties to family and community; and it has enacted a system that would prevent migrants from seeking asylum if they passed through another country without first seeking asylum there.
Any question about the mind-set guiding the administration should have been put to rest by President Trump’s icy explanation to reporters earlier this month for why he was barring residents of the hurricane-battered Bahamas from taking refuge in the United States.
“I don’t want to allow people that weren’t supposed to be in the Bahamas to come into the United States, including some very bad people and some very bad gang members, and some very, very bad drug dealers,” he said. He offered not a shred of proof of any such danger, while the shattering evidence of Bahamians’ needs still lies everywhere.
The limit announced by the State Department on Thursday is far below the 110,000 refugees a year that President Barack Obama said in 2016 should be let in. Most of the 18,000 slots, moreover, are already filled by Iraqis who worked with the American military, victims of religious persecution and some Central Americans. That would leave only 7,500 slots for families seeking unification, like parents of Rohingya children who have already been admitted.
The proffered reason for the cut was the huge backlog in immigration courts as the number of people seeking asylum is expected to reach 350,000. Most refugees trying to enter the United States, though, have already been cleared. So it’s not immediately clear how lowering the annual limit will help ease the backlog.
There are enormous backlogs, and the United States cannot let in everyone who wants to come. But the severity of the cutbacks makes clear that the administration’s rationale hides its real motive: to score political points with a base of voters fearful of immigration by seeming to keep out as many people as possible.
This shortsighted politicking denies a fundamental virtue — and key advantage — of America’s democracy: that it is a land of immigrants and refugees. It ignores the contributions of immigrants to the greatness of the United States.
There is no sensible argument for opening the borders to everyone. Any refugee or asylum program needs a solid vetting process. But Mr. Trump’s approach is not the answer. Congress should have stepped in long ago with serious immigration reform. But that failure is no reason for Americans to be taken in by Mr. Trump’s fear-mongering and evasive explanations.
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The New Due Process Army is out there courageously standing up against racist cowards like Trump, Miller, “Cooch Cooch,” and their sycophantic minions like “Big Mac With Lies,” Matt Albence, and the totally corrupt and immoral Billy Barr!
Due Process Forever — Trump, Miller, & Their Corrupt Cronies, Never!
A federal judge in Los Angeles has blocked the Trump administration from activating new regulations that would have dramatically expanded its ability to detain migrant children with their parents for indefinite periods of time, dealing a blow to the president’s efforts to tamp down unauthorized border crossings.
U.S. District Judge Dolly M. Gee issued the permanent injunction Friday, hours after hearing arguments from the Justice Department and advocates for immigrants in a long-running federal case in the Central District of California.
Lawyers for the Justice Department had urged Gee to allow the Trump administration to withdraw from the Flores Settlement Agreement, a 1997 federal consent decree that sets basic standards for detaining migrant children. The decree led to a 20-day limit for holding children in detention facilities that have not been licensed by the states for the purpose of caring for minors.
President Trump has called Flores a “loophole” that has enabled hundreds of thousands of families, many from impoverished Central American countries, to cross the southern boundary and claim asylum. Those migrants generally are quickly released into the United States because of the 20-day limit on detaining children.
The Department of Homeland Security and the Department of Health and Human Services issued new rules in August that sought to terminate the settlement and lift the 20-day limit by allowing the federal government to license such facilities.
In the ruling Friday, Gee wrote that the regulations “fail to implement and are inconsistent with the relevant and substantive terms of the Flores Settlement Agreement,” and therefore cannot take effect, noting that the agreement is a binding contract that was never appealed.
“Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy,” she wrote. “Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets.”
The Justice Department is widely expected to appeal the decision, but a spokesman for the department did not signal the administration’s next steps Friday.
“The Department of Justice is disappointed that the court is continuing to impose the outdated Flores Agreement even after the government has done exactly what the Agreement required: issue a comprehensive rule that will protect vulnerable children, maintain family unity, and ensure due process for those awaiting adjudication of their immigration claims,” a spokesman said. “The Trump Administration will continue to work to restore integrity to our immigration system and ensure the proper functioning of the duly enacted immigration laws.”
Withdrawing from the settlement is part of Trump’s “beautiful puzzle,” an assortment of tough immigration enforcement measures designed to reduce the flow of Central American families and unaccompanied minors streaming across the U.S.-Mexico border.
Rep. Joaquin Castro (D-Tex.), chair of the congressional Hispanic Caucus, hailed the ruling Friday.
“I am pleased that our justice system has stopped the Trump Administration plans to indefinitely detain families in prisonlike conditions,” Castro said. “This victory gives us hope and is a reminder to us all — elected officials, immigration lawyers, organizers, and advocates — to keep fighting. Flores is not a loophole — it’s a lifesaving standard that protects the basic rights and dignity of migrant children.”
Acting Homeland Security Secretary Kevin McAleenan, who has pushed for the termination of the Flores pact, said officials did not want to hold families longer than 50 days, but critics said the proposed regulations left open the possibility that minors could be detained for months or years.
More than 800,000 migrants have been taken into federal custody at the border this year, and the majority have been in family units. Advocates say they are fleeing dangerous and unstable regions in Central America’s “Northern Triangle,” the nations of Guatemala, Honduras and El Salvador.
Undoubtedly, Trump’s personal “Solicitor General,” Noel Francisco, will ask the Supremes to bypass the Ninth Circuit and endorse official child abuse. And, based on she Supremes’ majority’s totally spineless performance in allowing the “Let ‘Em Die In Mexico” program to proceed, notwithstanding its blatant Constitutional, statutory, and regulatory defects, why not? (Barr v. East Side Sanctuary Covenant). The Supremes are establishing themselves as “Trump’s Court” – a feckless and complicit body of judicial cowards — just like he arrogantly claims.
How many more kids and families will die, be mistreated, or scarred for life because the supposedly most powerful judges in our nation are afraid to stand up to lawless, immoral, and inhumane actions by Trump & his toadies?
WASHINGTON—The union representing the nation’s more than 400 immigration judges filed a labor complaint against the Justice Department, escalating an already tense situation between the Trump administration and the judges carrying out its immigration policy.
The judges—who unlike most other jurists work for the Justice Department—based their complaint on two recent incidents.
The most recent occurred in late August, when the Executive Office of immigration Review, which oversees the judges, included a link to a blog post on a white nationalist website in its daily news briefing emailed to all employees. The blog post in question described immigration judges using several racial and ethnic slurs, angering judges around the country and prompting a formal letter to the office’s director.
The other incident came in April, when the union sought clarification from the Justice Department on whether the judges’ positions made them regular employees or managers in the course of contract negotiations. The Justice Department didn’t respond to the query but later filed a petition with the Federal Labor Relations Authority to decertify the union, on the basis it considered the judges managers.
The union’s complaint was filed with the Federal Labor Relations Authority, and could slow the Justice Department’s attempts to disband the union.
The judges’ union, known formally at the National Association of Immigration Judges, allows its leadership to fill a unique role as government employees empowered to criticize their employer and, by extension, the administration’s immigration policies.
The union has been outspoken about the government’s efforts to exert increasing political control over the nation’s immigration court system, narrowing the judges’ discretion around who can qualify for asylum.
Attorney General William Barr, for example, overruled the Board of Immigration Appeals in deciding people with family ties to gang targets or others with domestic violence claims couldn’t qualify for asylum. More recently, the administration has been temporarily allowed to enforce a rule disqualifying anyone for asylum if they traveled through a third country en route to the U.S. The rule faces further court challenges.
In its effort to move more quickly through a backlog of pending cases that has grown to more than one million, the Justice Department has also placed new quota requirements on the judges. It has pressed individual judges to move through cases faster, giving judges a one-year deadline to decide each case and setting a 700-case annual quota. Only about a third of judges are on track to meet that goal, according to A. Ashley Tabaddor, the union’s president.
The administration has also begun shifting cases to judges known to work quickly, sometimes handing cases to courts located far from where an immigrant is living. More recently, it has also begun diverting some judges from their normal duties to hear cases of the government’s “remain in Mexico” program, under which migrants who have claimed asylum must wait in Mexican cities while their cases make their way through the courts.
The government has set up makeshift tent courts at ports of entry to process these cases more quickly, and judges have been hearing cases using a videoconferencing tool. These courts, unlike most others in the country, aren’t open to the public or to journalists.
The union rebuked the tent courts’ closed conditions as “another glaring reason why the immigration courts have been deprived of key characteristics of what it means to be a court in the United States.”
The union has also argued that immigration courts should be given judicial independence, rather than answering to the Justice Department’s political leadership.
Thanks, Michelle, for bringing into the national spotlight this important story about the DOJ’s improper influence over the U.S. Immigration Courts and their outrageous attempts to suppress and punish truth and dissent.
We need an independent Article I U.S. Immigration court enacted by Congress. Until that happens, vulnerable individuals will continue to have their most important rights denied by this unconstitutional parody of a fair and impartial court system. In the meantime, the Article III Courts continue to ignore the glaring constitutional defects that must be addressed before approving any more defective “removal orders” and denials of asylum and other relief emanating from these fatally defective “captive courts” that have been “redesigned” to function as part of the DHS enforcement apparatus.
Asylum seekers I meet flee something even worse than Trump’s unethical immigration agenda
Our immigration policies seek to discourage border crossings by making life difficult for migrants. But almost nothing could be worse than going home.
Updated 8:38 am EDT Sep. 24, 2019
The Trump administration recently announced it intends to end the Flores settlement, an agreement that has been in place since 1997 and sets minimum standards for the treatment of children in detention. Under Flores, the detainment of children is restricted to a maximum of 20 days in order to limit their exposure to the harsh conditions and negative health impacts of detention. Overturning this agreement would allow children to be detained with their families indefinitely.
As a physician who works with adults seeking asylum in the United States, part of my role is to understand the magnitude of violence that a person has experienced and that has motivated their journey to our country. The stories I hear, and the physical and psychological scars that these asylum seekers bear, are a vivid portrayal of the forces driving migration.
The Trump administration has rationalized their decision to overturn Flores using the concept of deterrence. Ken Cuccinelli, acting director of Citizenship and Immigration Services, explained the decision this way:
“This is a deterrent, because they know that instead of rushing the border, which is what’s been going on for a number of years now, by using the massive numbers coming to the border and overwhelming our facilities and our capacity to hold folks and our court rulings, which is what the Flores rule was, that now they can and will to the extent we’re able to do so, hold them until those hearings happen.”
In other words, if migrant families know they face prolonged detainment in the United States, they might reconsider making the journey at all. This flawed logic exemplifies a fundamental misunderstanding of the context of migration to our southern border today.
‘Push’ and ‘pull’ — but especially ‘push’
Migration is driven by a combination of “push” and “pull” factors. In economic migration, migrants are being pulled to the USA by promises of better jobs or educational opportunities in the destination country.
But much of the record level of migration from Central America here has been driven, not by the allure of better opportunities, but by an epidemic of violence in the home countries — by push factors. In fact, a recent Doctors Without Borders report found that nearly 40% of migrants cited direct attacks or threats to themselves or their families as the main reason for fleeing their countries. The majority of these people originate from El Salvador, Honduras and Guatemala — the Northern Triangle — one of the most violent parts of the world today.
The principle of deterrence is based on the idea that any act has associated positive and negative outcomes. If you are able to increase the associated negative outcomes, then you may ultimately reach a tipping point where it is no longer in the actor’s best interests to perform the act.
In the case of migration, if you can increase the negative consequences of crossing the border without legal status, then at some point the harm of doing so outweighs the potential benefit. But as I listen to the histories of asylum seekers — to the accounts of torture, of gang rape, of family members, including children, being murdered in front of you — deterrence seems not only morally dubious but futile. When this is the push, is there anything in the world that could deter you from running?
How cruel are we willing to be?
I recently met one asylum seeker fleeing years of imprisonment and brutal sexual violence by a gang in her home country in the Northern Triangle. After a harrowing escape and journey leading to our border, she presented herself to Customs and Border Patrol Protection agents and requested asylum. She was taken into custody and sent to a detention facility in California, where she had been awaiting her asylum hearing for months.
After sitting with her for hours, hearing her story and examining her scars, I asked her how she felt about being in detention. She shrugged. When she arrived at the U.S. border seeking safety, she certainly hadn’t expected to be put in jail. But she also told me that the detention center wasn’t all that bad — no one rapes her there.
Many of the asylum seekers I have met give a similar, stark assessment of the pros and cons of migrating to the USA. I have led clinics in New York, Massachusetts and California that conduct forensic medical evaluations for people seeking asylum, and the terror that they are fleeing is consistent.
Through my work with the Los Angeles Human Rights Initiative, I met another young woman who had been imprisoned by a gang and subjected to torture and gang rape before escaping and coming to the United States. She told me she would rather die in detention than be deported home to the Northern Triangle to face her former captors who awaited her there.
A third woman in California, who was applying for asylum on the grounds of domestic violence, was resolute when she spoke with me about her heart-breaking decision to leave her son behind with family when she fled her ruthless husband, a police officer in her town. When I asked whether she ever regretted her decision, she said no. Leaving her son had felt like dying, but the abuse her husband had subjected her to was worse than death.
Apart from being unethical, the human rights abuses generated by the Trump administration’s immigration policies will simply not accomplish their objective of stemming the tide of migration. The bleak reality is that, to deter people from seeking safety in our country, we would have to do so much worse than locking them up with their children indefinitely. Unless we are willing to be more cruel than what they are fleeing, deterrence is not an option.
Unfortunately, I think that Dr. Emery has underestimated the racism-fueled intentional cruelty of the Trump Administration as well as the cowardice and fecklessness of many Federal Judges, particularly at the appellate level.
Sending asylum applicants to Mexico, Guatemala, Honduras, and El Salvador, some of the most dangerous country in the world, plagued by corruption, and without functional asylum systems takes lawlessness, cruelty, complicity, and open mockery of our justice system to a new level!
I agree with her that it probably won’t be enough to stop refugees from coming. But, it might well be enough to stop them from using our legal system and to just take their chances with the smugglers and the extralegal immigration system that Trump and his courts have been working so hard to expand and enable.
As I have said numerous times, Trump and his immoral scofflaw DHS & DOJ sycophants are the “best friends” of professional smugglers, cartels, gangs, rapists, kidnappers, and extortionists. By diverting attention and resources from real law enforcement to punishing individuals who are trying to use our legal system, Trump and his cronies and enablers have been an amazing boon and “profit center” for criminals.
It seems perversely appropriate that it was on 9/11 that the Supreme Court removed the legal barrier to the Trump Administration’s most recent deadly attack on the right to asylum in this country. I continue to believe that eventually, justice will prevail through the courts or, more likely, through a change in administration. But in the meantime, what we are witnessing is an all-out assault by the Trump Administration on the law of asylum. The tactics include gaming the system through regulations and binding decisions making it more difficult for asylum seekers to prevail on their claims. But far uglier is the tactic of degrading those fleeing persecution and seeking safety here. Such refugees, many of whom are women and children, are repeatedly and falsely portrayed by this administration and its enablers as criminals and terrorists. Upon arrival, mothers are separated from their spouses and children from their parents; all are detained under dehumanizing, soul-crushing conditions certain to inflict permanent psychological damage on its victims. In response to those protesting such policies, Trump tweeted on July 3: “If illegal immigrants are unhappy with the conditions in the quickly built or refitted detention centers, just tell them not to come. All problems solved!”
How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.
Those in Trump’s administration who have given more thought to the matter don’t seek to solve the problem, but rather to make it someone else’s problem to solve. By disqualifying from asylum refugees who passed through any other country on their way to our southern border or who entered the country without inspection; by forcing thousands to remain exposed to abuse in Mexico while their asylum claims are adjudicated, and by falsely designating countries with serious gang and domestic violence problems as “safe third countries” to which asylum seekers can be sent, this administration is simply outsourcing refugee processing to countries that are not fit for the job in any measurable way. Based on my thirty-plus years of experience in this field, I submit that contrary to Trump’s claim, such policies create very large, long-term problems.
I began my career in immigration law in the late 1980s representing asylum seekers from Afghanistan, many of whom were detained by our government upon their arrival. In the late 1980s and early 1990s, Afghans constituted the largest group of refugees in the world. At one point, there were more than 6 million refugees from Afghanistan alone, most of whom were living in camps in Pakistan. Afghan children there received education focused on fundamentalist religious indoctrination that was vehemently anti-western. The Taliban (which literally means “students”) emerged from these schools. The Taliban, of course, brought a reign of terror to Afghanistan, and further provided a haven for Al-Qaeda to launch the 9/11 terrorist attacks. The outsourcing of Afghan refugees to Pakistan was the exact opposite of “all problems solved,” with the Taliban continuing to thwart peace in Afghanistan up to the present.
Contrast this experience with the following: shortly before I left the government, I went to dinner with a lawyer who had mentioned my name to a colleague of his earlier that day. The colleague had been an Afghan refugee in Pakistan who managed to reach this country as a teen in the early 1990s, and was placed into deportation proceedings by the U.S. government. By chance, I had been his lawyer, and had succeeded in obtaining a grant of asylum for him. Although I hadn’t heard from him in some 25 years, I learned from his friend that evening that I had apparently influenced my young client when I emphasized to him all those years ago the importance of pursuing higher education in this country, as he credited me with his becoming a lawyer. Between the experiences of my former client and that which led to the formation to the Taliban, there is no question as to which achieved the better outcome, and it wasn’t the one in which refugees remained abroad.
In 1938, at a conference held in Evian, France, 31 countries, including the U.S. and Canada, stated their refusal to accept Jewish refugees trapped in Nazi Germany. The conference sent the message to the Nazis on the eve of the Holocaust that no country of concern cared at all about the fate of Germany’s Jewish population. The Trump administration is sending the same message today to MS-13 and other brutal crime syndicates in Central America. Our government is closing the escape route to thousands of youths (some as young as 7 years old) being targeted for recruitment, extortion, and rape by groups such as MS-13, while simultaneously stoking anti-American hatred among those same youths through its shockingly cruel treatment of arriving refugees. This is a dangerous combination, and this time, it is occurring much closer to home than Pakistan. Based on historic examples, it seems virtually assured that no one will look back on Trump’s refugee policies as having solved any problems; to the contrary, we will likely be paying the price for his cruel and short-sighted actions for decades to come.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
The late Maury Roberts, a legendary immigration lawyer and former BIA Chair, wrote in 1991: “It has always seemed significant to me that, among all the members of the animal kingdom, man is the only one who captures and imprisons his fellows. In all the rest of creation, freedom is the natural order.”1 Roberts expressed his strong belief in the importance of liberty, which caused him consternation at “governmental attempts to imprison persons who are not criminals or dangerous to society, on the grounds that their detention serves some other societal purpose,” including noncitizens “innocent of any wrongdoing other than being in the United States without documents.”2
The wrongness of indefinitely detaining non-criminals greatly increases when those being detained are asylum-seekers fleeing serious harm in their home countries, often after undertaking dangerous journeys to lawfully seek protection in this country. The detention of those seeking asylum is at odds with our obligations under the 1951 Refugee Convention, which at Article 31 forbids states from penalizing refugees from neighboring states on account of their illegal entry or presence, or from restricting the movements of refugees except where necessary; and the International Covenant on Civil and Political Rights, which guarantees at Article 9, para. 4 the right of detainees to have a court “without delay” determine the lawfulness of the detention order release if it is not.
In 1996, in response to an increase in asylum seekers at ports of entry, Congress enacted a policy known as expedited removal, which allows border patrol officers to enter deportation orders against those noncitizens arriving at airports or the border whom are not deemed admissible. A noncitizen expressing a fear of returning to their country is detained and referred for a credible fear interview. Only those whom a DHS asylum officer determines to have a “significant possibility” of being granted asylum pass such interview and are allowed a hearing before an immigration judge to pursue their asylum claim.
In 2005, the Board of Immigration Appeals issued a precedent decision stating that detained asylum seekers who have passed such credible fear interview are entitled to a bond hearing. It should be noted that the author of this decision, Ed Grant, is a former Republican congressional staffer and supporter of a draconian immigration enforcement bill enacted in 1996, who has been one of the more conservative members of the BIA. He was joined on the panel issuing such decision by fellow conservative Roger Pauley. The panel decision was further approved by the majority of the full BIA two years after it had been purged of its liberal members by then-Attorney General John Ashcroft. In other words, the right to bond hearings was the legal conclusion of a tribunal of conservatives who, although they did not hold pro-immigrant beliefs, found that the law dictated the result it reached.
14 years later, the present administration issued a precedent decision in the name of Attorney General Barr vacating the BIA’s decision as “wrongly decided,” and revoking the right to such bond hearings. The decision was immediately challenged in the courts by the ACLU, the Seattle-based Northwest Immigrant Rights Project, and the American Immigration Council. Finding Barr’s prohibition on bond hearings unconstitutional, U.S. District Judge Marsha Pechman issued a preliminary injunction blocking the decision from taking effect, and requiring bond hearings for class members within 7 days of their detention. The injunction additionally places the burden on the government to demonstrate why the asylum-seeker should not be released on bond, parole, or other condition; requires the government to provide a recording or verbatim transcript of the bond hearing on appeal; and further requires the government to produce a written decision with particularized determinations of individualized findings at the end of the bond hearing.
The Administration has appealed from that decision to the U.S. Court of Appeals for the Ninth Circuit. On September 4, an amicus brief on behalf of 29 former immigration judges (including myself) and appellate judges of the BIA was filed in support of the plaintiffs. Our brief notes the necessity of bond hearings to due process in a heavily overburdened court system dealing with highly complex legal issues. Our group advised that detained asylum seekers are less likely to retain counsel. Based on our collective experience on the bench, this is important, as it is counsel who guides an asylum seeker through the complexities of the immigration court system. Furthermore, the arguments of unrepresented applicants are likely to be less concise and organized both before the immigration judge and on appeal than if such arguments had been prepared by counsel. Where an applicant is unrepresented, their ongoing detention hampers their ability to gather evidence in support of their claim, while those lucky enough to retain counsel are hampered in their ability to communicate and cooperate with their attorney.
These problems are compounded by two other recent Attorney General decisions, Matter of A-B-and Matter of L-E-A-, which impact a large number of asylum claimants covered by the lawsuit who are fleeing domestic or gang violence. Subsequent to those decisions, stating the facts giving rise to the applicant’s fear can be less important than how those facts are then framed by counsel. Immigration Judges who are still navigating these decisions often request legal memoranda explaining the continued viability of such claims. And such arguments often require both a legal knowledge of the nuances of applicable case law and support from experts in detailed reports beyond the capability of most detained, unrepresented, newly-arrived asylum seekers to obtain.
Our brief also argues that the injunction’s placement of the burden of proof on DHS “prevents noncitizens from being detained simply because they cannot articulate why they should be released, and takes into account the government’s institutional advantages.” This is extremely important when one realizes that, under international law, an individual becomes a refugee upon fulfilling the criteria contained in the definition of that term (i.e. upon leaving their country and being unable or unwilling to return on account of a protected ground). Therefore, one does not become a refugee due to being recognized as one by a grant of asylum. Rather, a grant of asylum provides legal recognition of the existing fact that one is a refugee. 3 Class members have, after a lengthy screening interview, been found by a trained DHS official to have a significant possibility of already being a refugee. To deny bond to a member of such a class because, unlike the ICE attorney opposing their release, they are unaware of the cases to cite or arguments to state greatly increases the chance that genuine refugees deserving of this country’s protection will be deported to face persecution
The former Immigration Judges and BIA Members signing onto the amicus brief are: Steven Abrams, Sarah Burr, Teofilo Chapa, Jeffrey S, Chase, George Chew, Cecelia Espenoza, Noel Ferris, James Fujimoto, Jennie Giambiastini, John Gossart, Paul Grussendorf, Miriam Hayward, Rebecca Jamil, Carol King, Elizabeth Lamb, Margaret McManus, Charles Pazar, George Proctor, Laura Ramirez, John Richardson, Lory D. Rosenberg, Susan Roy, Paul W. Schmidt, Ilyce Shugall, Denise Slavin, Andrea Hawkins Sloan, Gustavo Villageliu, Polly Webber, and Robert D. Weisel.
We are greatly indebted to and thankful for the outstanding efforts of partners Alan Schoenfeld and Lori A. Martin of the New York office of Wilmer Hale, and senior associates Rebecca Arriaga Herche and Jamil Aslam with the firm’s Washington and Los Angeles offices in the drafting of the brief.
Notes:
Maurice Roberts, “Some Thoughts on the Wanton Detention of Aliens,”Festschrift: In Celebration of the Works of Maurice Roberts, 5 Geo. Immigr. L.J. 225 (1991).
Id. at 226.
UNHCR,Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees at Para. 28.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
Thanks, Jeffrey, my friend, for courageously highlighting these issues. What a contrast with the cowardly performance of the Trump Administration, Congress, and the ARTICLE IIIs!
I’m proud to be identified with you and the rest of the members of our Roundtable of Former Judges who haven’t forgotten what Due Process, fundamental fairness, refugee rights, and human rights are all about.
Also appreciate the quotation from the late great Maurice A. “Maury” Roberts, former BIA chair and Editor of Interpreter Releases who was one of my mentors. I‘m sure that Maury is rolling over in his grave with the gutless trashing of the BIA and Due Process by Billy Barr and his sycophants.
Hon. Jeffrey S. Chase Jeffrey S. Chase BlogElora Mukherjee “American Hero” Clinical Professor of Law & Director of the Immigrants’ Rights Clinic Columbia Law School
“I’m held with my son in a cage. There are about 60 people in my cages, and more in some of the other cages. There are six cages in my area. They are all very, very full.”
The above words are part of “Exhibit 29,” which is read by my friend Lenni Benson, a professor at New York Law School and founder of the school’s Safe Passage Project, which provides representation to unaccompanied children in immigration court. The words are the sworn declaration of a 17-year-old girl, identified by the initial “L.”
There are 65 such declarations, each the actual statement of a child detained at border detention facilities in this country in June 2019. Recently, Waterwell, the wonderful civic-minded theater and film production company responsible for the immigration court based play The Courtroom filmed a number of actors, lawyers, clinical professors, advocates, and other interested individuals in a dark studio in the East Village in New York City. I was honored to be one of those filmed. We each sat at a simple table with the written exhibit and a glass of water, and under the direction of Waterwell’s Artistic Director, Lee Sunday Evans, each read a single declaration.
Article 37(b) of the Convention of the Rights of the Child states that “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” A 1997 settlement agreement, known as the Flores Settlement, legally binds our government in limiting the length of time it can detain immigrant children, and holding the government to a standard of humane treatment under prescribed conditions of health, hygiene, education, and privacy. From the contents of the declarations, the Trump Administration has made a mockery of these rules.
Exhibit 3, read by David Gomez, the president of Hostos Community College, memorializes the words of a five year old from Honduras separated from his father upon arrival at the border, as he states “I have not been told how long I have to stay here. I am frightened, scared, and sad.” My fellow former immigration judge, Betty Lamb, read the statement of a 14 year old girl, who was taking care of two younger parentless girls (one of them 4 years old and sick), who said that she was holding the two in her lap as she spoke trying to comfort them. She then added “I need comfort, too. I’m bigger than they are, but I am a child, too.” (Exhibit 54).
At this time when our nation is led by scoundrels, we are in need of heroes. Towards this end, please take a moment to write down the name of Elora Mukherjee, a true hero. She is a clinical professor of law and Director of the Immigrants’ Rights Clinic at Columbia Law School. She has devoted her career to aiding immigrant children, whom she began visiting in detention facilities in 2007, and litigating violations of the Flores Settlement. Watching her read her own 22 minute statement gave me nightmares. She described the overwhelming stench of the hundreds of detained children, who were very hungry and seriously traumatized. One six year old she tried to question ended up sitting in her lap crying inconsolably, until a guard eventually gave him a lollipop “as an incentive to bring him back to his cell.” (Exhibit 63). Many of the children were seriously in fear of the guards. A number of the children were sick.
I am a native-born American citizen. I have lived here my entire life. Yet I never felt more foreign than while watching these videos. I hope that readers of these words feel the same way. No government of a country that is truly ours, that reflects the morals and values that we possess and believe in, could ever treat children this way. And no decent, moral people, regardless of their political affiliation or their views on immigration, could ever support or approve of the government responsible for such treatment. These children will never get over this. It is one thing for children to arrive here already traumatized and be granted safe haven under our laws. It is entirely another matter for the government of this country to deliberately cause children to suffer in a way that will scar them for life.
Please visit the site of these powerful videos through this link. You can also view the one-minute trailer here. And then please, please help amplify by sharing through social media and email.
Thanks for this project go to Columbia Law School’s Center for Institutional and Social Change and Immigrants’ Rights Clinic; to Waterwell, the Broadway Advocacy Coalition, and Project Amplify; and to all those who participated as readers in the videos.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
(Below: iPhone photo of me filming my segment, taken by Elizabeth Lamb).
Go to Jeff’s blog at the link for the picture of him presenting.
What kind of country tortures and torments vulnerable children in search of legal protection while actually employing their corrupt, cowardly, and totally dishonest abusers, like Kevin “Big Mac With Lies” McAleenan, on the public payroll? Big Mac was at it again today, presenting a fictionalized defense of the Administration’s policy of promoting and encouraging human rights abuses, lying about the Flores settlement, and endangering the lives of refugee families!
McAleenan and his fellow immoral sycophants are a disgrace to America!
And, as I have said before, both Congress and the Federal Judges who have enabled these crimes against humanity by failing to take strong action to stop the Trump Administration’s abuse and to hold perpetrators like McAleenan legally accountable also share a major part of the responsibility!
It’s beyond disgusting! Life-tenured judges who should know better becoming “Modern Day Jim Crows!” What truly horrible, negative “role models” for younger attorneys fighting for the rights of the most vulnerable and to uphold our Constitutional system.
Speaking of good role models (in addition, of course, to Laura and Leidy, who are among the “best ever”), Justices Sotomayor and Ginsburg should be congratulated for having the courage to speak out forcefully in Barr v. East Bay Sanctuary Covenant on the “right side of history” and against their colleagues’ disgraceful dereliction of duty and betrayal of their oaths to uphold the Constitution against all enemies, foreign and domestic.
And, there have been few greater enemies of the U.S. Constitution and the true “rule of law” than Trump and his band of political, bureaucratic, and judicial sycophants!
WASHINGTON — The nation’s immigration judges lost a key leader this week, the latest in a string of departures at the top of the system amid a backlog of cases and a migrant crisis at the southwestern border.
The official, David Neal, said that he would retire from his position as head of the judges’ appeals board effective Saturday. “With a heavy heart, I have decided to retire from government service,” Mr. Neal wrote in a letter sent to the board Thursday and obtained by The New York Times.
He gave no reason for his abrupt departure and asked his colleagues to “keep true to your commitment to fairness and justice.”
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No replacement has been announced, and a Justice Department spokesman declined to comment, citing a policy to not do so on personnel matters.
Mr. Neal’s decision follows a shake-up at the Executive Office for Immigration Review, the court system that adjudicates the country’s immigration cases, including asylum cases. It is part of the Justice Department, not the judicial branch.
Three of its senior career officials — MaryBeth T. Keller, the chief immigration judge; Jean King, the general counsel; and Katherine H. Reilly, the deputy director — all left their roles this summer. Ms. King stayed at the immigration office in a different post.
Mr. Neal’s departure also comes amid the backdrop of the Trump administration’s efforts to curb both illegal and legal immigration, which have taxed the immigration courts, the criminal courts and border patrols along the nation’s southwestern border and prompted long-running discontent among immigration judges that they are being used to expedite deportations.
As Mr. Trump has sought to suppress immigration and cut down on the number of people who claim asylum in the United States, he has notched two wins at the Supreme Court.
On Wednesday, justices said in an unsigned order that amid an ongoing legal battle, the administration could bar most Central American migrants from seeking asylum in the United States if they passed through another country and were not denied asylum there. That decision will allow the administration to effectively bar migration across the southwestern border by Hondurans, Salvadorans, Guatemalans and others who must travel through other countries to get to the United States.
And in July, the Supreme Court said that the Trump administration could use $2.5 billion in Pentagon money to build a barrier along the border with Mexico, which would help Mr. Trump fulfill a campaign promise to build a wall on the border to stop immigration.
Amid these hard-line policies, a vocal group of immigration judges — part of the larger total of about 400 judges and appeals judges — have been at loggerheads with the Trump administration for more than a year.
Leaders of the judges’ union have pushed back against the imposition of quotas that they have said would expedite deportations at the expense of due process. Under former Attorney General Jeff Sessions, they accused the Justice Department of trying to turn the immigration courts into a deportation machine.
Mr. Sessions treated the judges “like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts.
Some judges have also bristled at a recent Justice Department decision that handed over the power to rule on appeals cases to the director of the office, a political appointee. The judges saw the move as an attempt to undermine their authority.
That decision also directly impacted Mr. Neal, demoting him “in practice,” by transferring his authority to decide appeals cases to the director of the office, said Ashley Tabbador, the president of the union that represents immigration judges.
“This regulation upends the entire system created to decide these cases,” Ms. Tabbador said. Should the new system run into problems, “the chairman would have been held accountable. I would have quit, too, if I were in David’s position.”
Though they are part of the Justice Department, many immigration judges view themselves as independent arbiters of the law and believe they must act within the confines of existing immigration statutes.
They have long deliberated over whether they should be part of the Justice Department — a debate that has intensified under President Trump.
Last month, tensions increased when a daily briefing that is distributed to federal immigration judges contained a link to a blog post that included an anti-Semitic reference and came from a website that regularly publishes white nationalists.
After the episode, the immigration review office said that it would stop sending the daily briefing and would not renew its contract with the service that provided it.
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The farce taking place as the Trump DOJ politicos “remake” the Immigration Courts into a tool of DHS enforcement and repression of Due Process and fundamental fairness will go down as one of the darkest and most disturbing episodes in American legal history.
The inability or unwillingness of the other two branches of Government, Congress and the Article III Judiciary, to intervene and fulfill their Constitutional duties of protecting Due Process, fundamental fairness, equal protection, First Amendment rights of union members, and separation of powers show a catastrophic failure of American institutions that are charged with protecting and advancing all of our rights.
In the end, nobody including Trump’s tone-deaf supporters and enablers, will escape the adverse consequences of giving in to White Nationalist authoritarianism.
When a 2-year-old Guatemalan boy had trouble staying silent in an immigration courtroom, the judge pointed his finger at him.
“I have a very big dog in my office, and if you don’t be quiet, he will come out and bite you,” the judge, V. Stuart Couch, a former Marine, yelled at the toddler in a 2016 hearing, according to a formal complaint shared by the Charlotte Center for Legal Advocacy and first reported this week by Mother Jones.
“Do you want him to bite you?” Couch asked.
The boy, his mom and their advocate were all soon sobbing. Couch later acknowledged that he “did not handle the situation properly,” according to the judge who investigated the complaint, Deepali Nadkarni.
Clearly, Couch didn’t have a child’s well-being in mind on that day. But ignoring the welfare of our young is a day-to-day problem in America, where our children are falling behind those in other wealthy countries.
On Thursday, 10 Democratic presidential candidates will debate. It would be a natural opportunity to provoke a national conversation on the subject. But a question about child poverty hasn’t been asked at a presidential debate in 20 years, not since a Republican primary debate in 1999, according to the Children’s Defense Fund.
Presidential candidates have been asked about the World Series, about cursing in movies, even about flag lapel pins more recently than they have been questioned about child poverty. We’ve had 147 presidential debates in a row without a single question on the topic (here’s a petition calling for more questions on the issue). I hope Thursday’s debate won’t be the 148th.
UNICEF says America ranks No. 37 among countries in well-being of children, and Save the Children puts the United States at No. 36. European countries dominate the top places.
American infants at last count were 76 percent more likely to die in their first year than children in other advanced countries, according to an article last year in the journal Health Affairs. We would save the lives of 20,000 American children each year if we could just achieve the same child mortality rates as the rest of the rich world.
. . . .
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Read Kristof’s complete op-ed at the link.
Couch is one of America’s worst judges. One might therefore fairly ask why he recently was “rewarded” for his bias, unprofessionalism, and documented poor performance when Trump Sycophant Barr “elevated” him to the appellate bench? Perhaps, so he can abuse more women and children across the country?
But, as the Supremes and the GOP have decided to endorse and encourage child abuse, the question is whether the Dems can get it together to end the abuse before it’s too late for America and the world.
Child abusers like Trump, Couch, Barr, and the gang over at DHS are used to getting away with it. They are encouraged by a do nothing Congress, complicit Federal Judges, and a Trump base that has declared war on traditional American values and human decency. But, the consequences of their misconduct, and the unwillingness of the US political and legal system to stand up for children, won’t end well in the long run.
In the meantime, remember the names of the abusers and their enablers, some of them serving in our highest court and as GOP Senators and Representatives.
Cite as: 588 U. S. ____ (2019) 1 SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19A230 _________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. EAST BAY SANCTUARY COVENANT, ET AL.
ON APPLICATION FOR STAY [September 11, 2019]
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from grant of stay.
Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law. After several organizations representing immi- grants sued to stop the rule from going into effect, a federal district court found that the organizations were likely to prevail and preliminarily enjoined the rule nationwide. A
2 BARR v. EAST BAY SANCTUARY COVENANT SOTOMAYOR, J., dissenting
federal appeals court narrowed the injunction to run only circuit-wide, but denied the Government’s motion for a complete stay.
Now the Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces. Because I do not believe the Government has met its weighty burden for such relief, I would deny the stay.
The Attorney General and Secretary of Homeland Security promulgated the rule at issue here on July 16, 2019. See 84 Fed. Reg. 33829. In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country. Id., at 33835, 33840; see also 385 F. Supp. 3d 922, 929–930 (ND Cal. 2019).
The District Court found that the rule was likely unlawful for at least three reasons. See id., at 938–957. First, the court found it probable that the rule was inconsistent with the asylum statute, 94 Stat. 105, as amended, 8 U. S. C. §1158. See §1158(b)(2)(C) (requiring that any regulation like the rule be“consistent”with the statute). Section 1158 generally provides that any noncitizen “physically present in the United States or who arrives in the United States . . . may apply for asylum.” §1158(a)(1). And unlike the rule, the District Court explained, the statute provides narrow, carefully calibrated exceptions to asylum eligibility. As relevant here, Congress restricted asylum based on the possibility that a person could safely resettle in a third country. See §1158(a)(2)(A), (b)(2)(A)(vi). The rule, by contrast, does not consider whether refugees were safe or resettled in Mexico—just whether they traveled through it. That blunt approach, according to the District Court, rewrote the statute. See 385 F. Supp. 3d, at 939– 947, 959.
Cite as: 588 U. S. ____ (2019) 3
SOTOMAYOR, J., dissenting
Second, the District Court found that the challengers would likely prevail because the Government skirted typical rulemaking procedures. Id., at 947–951. The District Court noted “serious questions” about the rule’s validity because the Government effected a sea change in immigration law without first providing advance notice and opportunity for public comment. Id., at 930; see also 5 U. S. C. §553. The District Court found the Government’s purported justifications unpersuasive at the preliminary-injunction stage. 385 F. Supp. 3d, at 948–951 (discussing statutory exceptions to notice-and-comment procedures).
Last, the District Court found the explanation for the rule so poorly reasoned that the Government’s action was likely arbitrary and capricious. See id., at 951–957; 5 U. S. C. §706. On this score, the District Court addressed the Government’s principal justifications for the rule: that failing to seek asylum while fleeing through more than one country “raises questions about the validity and urgency” of the asylum seeker’s claim, 84 Fed. Reg. 33839; and that Mexico, the last port of entry before the United States, offers a fea- sible alternative for persons seeking protection from persecution, id., at 33835, 33839–33840. The District Court examined the evidence in the administrative record and explained why it flatly refuted the Government’s assumptions. 385 F. Supp. 3d, at 951–957. A “mountain of evidence points one way,” the District Court observed, yet the Government “went the other—with no explanation.” Id., at 955.
After the District Court issued the injunction, the Ninth Circuit declined the Government’s request for a complete stay, reasoning that the Government did not make the required “ ‘strong showing’ ” that it would likely succeed on the merits of each issue. ___ F. 3d ___ (2019), 2019 WL 3850928, *1 (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987)). Narrowing the injunction to the Circuit’s borders, the Ninth Circuit expedited the appeal and permitted
4 BARR v. EAST BAY SANCTUARY COVENANT SOTOMAYOR, J., dissenting
the District Court to consider whether additional facts would warrant a broader injunction. 2019 WL 3850928, *2– *3.
The lower courts’ decisions warrant respect. A stay pending appeal is “extraordinary” relief. Williams v. Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J., in chambers); see also Maryland v. King, 567 U.S. 1301, 1302 (2012) (ROBERTS, C. J., in chambers) (listing stay factors). Given the District Court’s thorough analysis, and the serious questions that court raised, I do not believe the Government has carried its “especially heavy” burden. Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions. It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.
Setting aside the merits, the unusual history of this case also counsels against our intervention. This lawsuit has been proceeding on three tracks: In this Court, the parties have litigated the Government’s stay request. In the Ninth Circuit, the parties are briefing the Government’s appeal. And in the District Court, the parties recently participated in an evidentiary hearing to supplement the record. In- deed, just two days ago the District Court reinstated a na- tionwide injunction based on new facts. See East Bay Sanc- tuary Covenant v. Barr, No. 4:19–cv–4073, Doc. 73 (ND Cal., Sept. 9, 2019). Notably, the Government moved to stay the newest order in both the District Court and the Ninth Circuit. (Neither court has resolved that request, though the Ninth Circuit granted an administrative stay to allow further deliberation.) This Court has not considered
Cite as: 588 U. S. ____ (2019) 5
SOTOMAYOR, J., dissenting
the new evidence, nor does it pause for the lower courts to resolve the Government’s pending motions. By granting a stay, the Court simultaneously lags behind and jumps ahead of the courts below. And in doing so, the Court side-steps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process. I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.
***
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanc- tuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
********************************************
Justice Sotomayor’s dissent says it all, but, alas, in vain.
09-11-19 will be remembered as the day that justice, human rights, and human decency died in America!
Shame on Justices Breyer and Kagan for “going along to get along” with the dismantling of the Refugee Act of 1980. The “blood of the innocents” will be on their hands and the hands of their five colleagues.
The “Dred Scottification” (or “dehumanization”) of immigrants, Latinos, and other minorities that Justice Breyer once predicted, yet lacked the guts to speak out against in this case, is now in full swing. It will increase unabated, now that the Supremes’ sellout to authoritarian racism is assured. And don’t expect “Moscow Mitch” and his gang of toadies to put up any opposition.
The American justice system has been dismantled. But history will remember the roles of each of those “Black Robed Cowards” who participated in its demise.
With this atrocious decision, the Supremes have basically made themselves irrelevant to the battle for fairness and individual rights under the Constitution. As I have suggested before, self-created irrelevance might come back to haunt them.
Catherine Rampell Opinion Columnist Washington Post
Catherine writes in the Washington Post:
You’ve heard of the Wars on Drugs, Terror, Poverty, even Women. Well, welcome to the War on Children.
It’s being waged by the Trump administration and other right-wing public officials, regardless of any claimed “family values.”
For evidence, look no further than the report released Wednesday by the Department of Health and Human Services’s own inspector general. It details the trauma suffered by immigrant children separated from their parents under the Trump administration’s evil “zero tolerance” policy.
Thousands of children were placed in overcrowded centers ill-equipped to provide care for them physically or psychologically. Visits to 45 centers around the country resulted in accounts of children who cried inconsolably; who were drugged; who were promised family reunifications that never came; whose severe emotional distress manifested in phantom chest pains, with complaints that “every heartbeat hurts”; who thought their parents had abandoned them or had been murdered.
Such state-sanctioned child abuse was designed to serve as a “deterrent” for asylum-seeking families, as then-Chief of Staff John F. Kelly and other administration officials made clear.
Of course, they failed to recognize just how horrific are the conditions these asylum-seeking children are fleeing — conditions that further decreased HHS’s ability to adequately care for them.
“Staff in multiple facilities reported cases of children who had been kidnapped or raped” back in their home countries, the IG report states. Other children witnessed family members raped or murdered.
But hey, Trump believes these kiddos must be punished further for the crime of seeking refuge — a.k.a., the “invasion” of America.
Despite this and other abundant evidence that government facilities are not able to care for children for extended periods, last month, the administration also announced a new policy that would allow it to keep children (along with their families) in jail-like conditions for longer periods of time.
This is hardly the only way the administration has knowingly enacted policies that harm children.
In August, it finalized a rule that would make it more difficult for immigrants to receive green cards if they have used certain safety-net services they’re legally entitled to — or if government officials suspect they might ever use such services. Confusion and fear about the policy and whom it affects abound. This has already created a “chilling effect” for usage of social services, with immigrant parents disenrolling even their U.S.-citizen children just to be safe.
Last fall, for instance, I interviewed a green-card-holding mother who decided not to enroll her underweight newborn in a program that would have provided free formula (even though the program in question was not mentioned in the rule, and the baby is a U.S. citizen). Huge recent declines in children’s Medicaid and Children’s Health Insurance Program enrollment are also believed to be at least partly a result of fears about this policy change.
If Your Dog Does This, It Could Be Them Signaling A Warning
And lest you think only immigrant or brown children are being targeted in this war: U.S. servicemembers’ children, of all sorts of backgrounds, are being hurt, too.
The Trump administration is siphoning billions from various defense projects to fund border wall construction, despite promises that Mexico would pay for it. This might sound unlikely to affect kids, but somehow the Trump administration found a way. Among the projects losing funds are schools for the children of U.S. servicemembers based in Kentucky, Germany and Japan, and a child-care center at Joint Base Andrews in Maryland.
Trump’s proposed federal budgets have likewise axed funding for other programs that serve children, such as subsidized school meals and Medicaid. Indeed, both federal and state GOP officials more broadly are still working to kill the Medicaid expansion, as well as other Affordable Care Act provisions that benefit kids.
The GOP has likewise ignored the pleas of children who want their lives protected from gun violence, or who want their futures protected from a warming planet.
A year ago, I offered a suggestion : that Democrats make children the theme of their midterm campaign. They mostly ignored me and still did okay. Nonetheless, I’m re-upping it.
Because even without Trump’s baby jails and proposed Medicaid cuts, our country’s emphasis on children’s well- being is seriously deficient.
Last year, for the first time on record, we spent a greater share of the federal budget servicing the national debt than we did on children, according to an analysis out next week from First Focus on Children. Spending on children as a share of the federal budget is also expected to shrink over the coming decade, crowded out by both debt service and spending on the elderly.
This is despite the fact that spending on children (especially low-income children) has among the highest returns on investment of any form of government spending.
Whatever the opposite of Trump’s War on Children is, that’s what Democrats should be running on.
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Thanks, Catherine, for speaking out so clearly and articulately about what has become our #1 National Disgrace: Trump’s War On Human Decency & Future Generations and its sleazy cast of supporting characters like Pence, Kelly, Miller, Nielsen, “Big Mac With Lies,” Homan, Albence, Morgan, “Cooch Cooch,” “Gonzo Apocalypto,” Barr, Cotton, Graham, and others with their glib immorality and disregard for truth, our Constitution, the rule of law, and basic human values.
Who thought the U.S. would ever stoop so low — to use our government’s power and might to abuse defenseless, already traumatized, and highly vulnerable children. (Catherine’s article does’t even get into how, with the help of scofflaw Attorneys General Sessions and Barr and some complacent Article III Judges, the Administration has manipulated asylum law and Immigration “Court” procedures to deny children and other asylum seekers the legal protection to which they are entitled under U.S. and international laws.)
There are many groups out there in the “New Due Process Army” fighting every day against this kind of outrageous behavior by our elected leaders, their corrupt cronies, and their many “go along to get along” enablers in the bureaucracy. Join or donate to one today!
The war to save America and humanity from Trump’s vile and cowardly agenda is one that we can’t afford to lose: For the sake of future generations!
