"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’”
“Eyore” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!
By Paul Wickham Schmidt for Immigrationcourtside.com
Alexandria, VA, July 1, 2019. No, it isn’t as dramatic as pictures of drowned families and caged toddlers. But, the effects of the latest move by those running our U.S. Immigration Courts and their political handlers could turn out to be just as deadly. Judges and interpreters were shocked by EOIR’s recently announced truncation of the right to receive effective live interpretations during master calendars as well as more management-ordered “aimless docket shuffling” which both denies due process and artificially “jacks up” already overwhelming backlogs.
How important is master calendar? It’s where individuals make their initial appearance in court and are advised about their right to a lawyer, procedures for obtaining pro bono counsel, given warnings, plead to charges of removability, seek bond if detained, have possible relief from removability explained, file applications for relief like asylum, have hearing dates and filing deadlines set, learn the DHS position on applications, have current address confirmed, receive DHS fillings, make and receive rulings on preliminary motions, and receive warnings as to the dire consequences of failure to appear and meet filing deadlines, to name just some things that go on. In other words, “important stuff.”
What happens when non-judicial politicos interfere with judges’ individual case scheduling and docketing by setting artificial limits on when and how they use interpreters? Cases that have been rescheduled numerous times over the years get “moved to the back of the bus” once again.
Individuals and their lawyers faithfully show up for their long-awaited individual “merits” hearings, sometimes after having traveled hundreds of miles, witnesses and families in tow, only to be informed by a clerk that their cases have been taken off the docket without notice for the “convenience of the agency” and will be rescheduled for some unspecified later date. Evidence goes stale, memories fade, witnesses become unavailable, lawyers move on to other jobs, and country conditions change as these cases drag on literally forever because of political meddling and management incompetence. Perhaps worst of all, these same politicos and bureaucrats engineering the delays and backlogs attempt to shift blame to the victims and judges by limiting legitimate continuances, “expediting” cases that aren’t ready to be heard, and dishonestly calling for totally unneeded restrictive changes in the law.
Ostensibly, the truncation of interpretation resulted from mismanagement on the part of these same politicos and bureaucrats who hired additional judges in a hurry without planning for those judges’ support needs, including in person interpreters. And, take it from me as someone who spent thirteen years on the immigration bench and heard thousands of cases, “telephonic interpretation” is not by any means the equivalent of “in person” interpretation Indeed, at some point, I found the process for telephonic interpretation so time wasting and inadequate, that I just stopped using it. But, that was way back when individual judges had at least a little control over what happened on their dockets and what was necessary to achieve due process in an individual case.
More likely, this move is just another step the intentional “dumbing down” of the immigration court process and the systematic dismantling of what little remains of constitutional due process for those pleading for their lives in a system doing its best to “tune them out.” It will result in more illegal removal orders.
However, these will be hard for appellate courts to detect upon review, because they might not be readily apparent from the English language version of the transcripts. Besides, some Article III courts have also abandoned their duties to the Constitution in a mad rush to “rubber stamp” as many defective removal orders as possible to “clear” their own overcrowded dockets at the expense of integrity, fundamental fairness, and quite frankly, innocent lives.
So shocking has become this “under the radar” further de-professionalization of what disingenuously holds itself out to be a ”court” that readers have been sending me anonymous comments from some distraught individual professional court interpreters. Here’s what one such concerned interpreter had to say (edited to preserve confidentiality);
“Bottomline, no more in-person interpretation for master calendars. In addition, in-person interpreters will be assigned in three-hour blocks only. Judges will no longer be allowed to have two languages in one hearing. I think this means no more relay interpretation between indigenous languages and Spanish. I’m concerned about language access being curtailed.”
These further disgraceful developments, showing a complete disregard for legal norms and individual fairness, should be carefully documented in congressional oversight hearings with an eye toward a future independent Article I immigration court. In the meantime, the Article III courts could and should put a stop to this travesty and force the system to meet at least minimal standards of professionalism and due process pending needed legislative reforms.
No American citizen would want to trust him or herself to this parody of a court system. Yet, due process under our Constitution applies equally to “all persons,” not just citizens, and the stakes in these cases often are life or death. If we refuse to defend the rights of the least among us, who will stand for our rights when the forces of oppression shift their ugly gaze? Even exaulted, yet too often complicit, life-tenured Article III judges should be asking themselves that question.
Professor Kate Cronin-Furman University College, London
Professor Kate Cronin-Furman writes in the NY Times:
The debate over whether “concentration camps” is the right term for migrant detention centers on the southern border has drawn long-overdue attention to the American government’s dehumanizing treatment of defenseless children. A pediatrician who visited in June said the centers could be compared to “torture facilities.” Having studied mass atrocities for over a decade, I agree.
At least seven migrant children have died in United States custody since last year. The details reported by lawyers who visited a Customs and Border Protection facility in Clint, Tex., in June were shocking: children who had not bathed in weeks, toddlers without diapers, sick babies being cared for by other children. As a human rights lawyer and then as a political scientist, I have spoken to the victims of some of the worst things that human beings have ever done to each other, in places ranging from Cambodia to the Democratic Republic of the Congo to Sri Lanka. What’s happening at the border doesn’t match the scale of these horrors, but if, as appears to be the case, these harsh conditions have been intentionally inflicted on children as part a broader plan to deter others from migrating, then it meets the definition of a mass atrocity: a deliberate, systematic attack on civilians. And like past atrocities, it is being committed by a complex organizational structure made up of people at all different levels of involvement.
Thinking of what’s happening in this way gives us a repertoire of tools with which to fight the abuses, beyond the usual exhortations to call our representatives and donate to border charities.
Those of us who want to stop what’s happening need to think about all the different individuals playing a role in the systematic mistreatment of migrant children and how we can get them to stop participating. We should focus most on those who have less of a personal commitment to the abusive policies that are being carried out.
Testimony from trials and truth commissions has revealed that many atrocity perpetrators think of what they’re doing as they would think of any other day job. While the leaders who order atrocities may be acting out of strongly held ideological beliefs or political survival concerns, the so-called “foot soldiers” and the middle men and women are often just there for the paycheck.
This lack of personal investment means that these participants in atrocities can be much more susceptible to pressure than national leaders. Specifically, they are sensitive to social pressure, which has been shown to have played a huge role in atrocity commission and desistance in the Holocaust, Rwanda and elsewhere. The campaign to stop the abuses at the border should exploit this sensitivity and put social pressure on those involved in enforcing the Trump administration’s immigration policies.
Here is what that might look like:
The identities of the individual Customs and Border Protection agents who are physically separating children from their families and staffing the detention centers are not undiscoverable. Immigration lawyers have agent names; journalists reporting at the border have names, photos and even videos. These agents’ actions should be publicized, particularly in their home communities.
This is not an argument for doxxing — it’s about exposure of their participation in atrocities to audiences whose opinion they care about. The knowledge, for instance, that when you go to church on Sunday, your entire congregation will have seen you on TV ripping a child out of her father’s arms is a serious social cost to bear. The desire to avoid this kind of social shame may be enough to persuade some agents to quit and may hinder the recruitment of replacements. For those who won’t (or can’t) quit, it may induce them to treat the vulnerable individuals under their control more humanely. In Denmark during World War II, for instance, strong social pressure, including from the churches, contributed to the refusal of the country to comply with Nazi orders to deport its Jewish citizens.
The midlevel functionaries who make the system run are not as visibly involved in the “dirty work,” but there are still clear potential reputational consequences that could change their incentives. The lawyer who stood up in court to try to parse the meaning of “safe and sanitary” conditions — suggesting that this requirement might not include toothbrushes and soap for the children in border patrol custody if they were there for a “shorter term” stay — passed an ethics exam to be admitted to the bar. Similar to the way the American Medical Association has made it clear that its members must not participate in torture, the American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession. This will deter the participation of some, if only out of concern over their future career prospects.
The individuals running detention centers are arguably directly responsible for torture, which could trigger a number of consequences at the international level. Activists should partner with human rights organizations to bring these abuses before international bodies like the United Nations Human Rights Council. They should lobby for human rights investigations, for other governments to deny entry visas to those involved in the abuses, or even for the initiation of torture prosecutions in foreign courts. For someone who is “just following orders,” the prospect of being internationally shamed as a rights abuser and being unable to travel freely may be significant enough to persuade them to stop participating.
When those directly involved in atrocities can’t be swayed, their enablers are often more responsive. For-profit companies are supplying food and other material goods to the detention centers. Boycotts against them and their parent entities may persuade them to stop doing so. Employees of these companies can follow the example of Wayfair workers, who organized a walkout on Wednesday in protest of their company’s sale of furniture to the contractor outfitting the detention centers. Finally, anyone can support existing divestment campaigns to pressure financial institutions to end their support of immigration abuses.
Many Americans have been asking each other “But what can we DO?” The answer is that we call these abuses mass atrocities and use the tool kit this label offers us to fight them. So far, mobilization against what’s happening on the border has mostly followed standard political activism scripts: raising public awareness, organizing protests, phoning our congressional representatives. These efforts are critical, but they aren’t enough. Children are suffering and dying. The fastest way to stop it is to make sure everyone who is responsible faces consequences.
Dr. Cronin-Furman is an assistant professor of human rights.
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“The fastest way to stop it is to make sure everyone who is responsible faces consequences.”
That includes attorneys who defend indefensible policies in Federal Court as well as Federal Judges all the way up to the Supremes who fail to stand up for Due Process for individuals, and who insist on treating Trump’s overt attacks on our Constitution, democracy, and human dignity as within the scope of “normal” Executive actions rather than intentional and dishonest abuses requiring censure and strong, courageous, unconditional disapproval.
Ken Cuccinelli immediately stands out in an Administration that values cruelty. What a despicable and heartless thing to say.
Quote Tweet
The Washington Post
@washingtonpost
Jun 28
Ken Cuccinelli, head of citizenship service, blames migrant father for drowning deaths captured in photo (link: https://wapo.st/2NlcWTb) wapo.st/2NlcWTb
Thanks, Don, and well said! I’m proud to have you for our Representative here in Alexandria. You have been a constant voice of decency, common sense, and opposition to the “malicious incompetence” of the Trump Kakistocracy. And those of us in Virginia who survived the “Modern Day Jim Crow Era” of “Cooch Cooch” as Virginia Attorney General know just what a nasty, vile, unqualified, racist hack he has always been and always will be. Heck, even Mitch McConnell can’t stand him, and that says something!
“Cooch Cooch’s” latest despicable act of note comes along with provoking an immediate rebellion among Asylum Officers. As I predicted, “Cooch Cooch” has already distinguished himself as a “lowlife among bottom dwellers.”
Hi all: I volunteer on Tuesday nights at a free immigration law clinic run by the New Sanctuary Coalition, based in Judson Church In Greenwich Village, NYC. As you can imagine, fear has been running high since the announcement of multi-city raids. Micah Bucey, a minister at Judson, composed the following non-denominational centering prayer that is now recited before each clinic. I share with you for inspiration:
Spirit of Resistance,
You who are beyond the capacity of any border or name,
You who stretch beyond the indignity of any cage
You who envelop us in the power to persist, to protest, and to rehumanize, //
As we bring our passion and our pain to this place,
We offer gratitude for small gatherings that do monumental things,
We offer gratitude for a fierce community that unbuilds walls
And we offer gratitude for dreams of the world we are creating. //
We ask that you
Refresh us with new breath and energy for the long haul,
Guide us through fear, frustration, and panic,
Expand our hearts to envelop all those who pass through this room tonight and all those who have yet to make it to this room,
Ignite the fire of our faith in the truth that love knows no borders. //
Help us to never forget
That ICE is meant to melt,
That you cannot deport a movement,
And that the moral arc of the universe only bends toward justice if we keep bending it together. //
Four toddlers were so severely ill and neglected at a U.S. Border Patrol facility in McAllen, Texas, that lawyers forced the government to hospitalize them last week.
The children, all under age 3 with teenage mothers or guardians, were feverish, coughing, vomiting and had diarrhea, immigration attorneys told HuffPost on Friday. Some of the toddlers and infants were refusing to eat or drink. One 2-year-old’s eyes were rolled back in her head, and she was “completely unresponsive” and limp, according to Toby Gialluca, a Florida-based attorney.
She described seeing terror in the children’s eyes.
“It’s just a cold, fearful look that you should never see in a child of that age,” Gialluca said. “You look at them and you think, ‘What have you seen?’”
Another mother at the same facility had a premature baby, who was “listless” and wrapped in a dirty towel, as HuffPost previously reported.
The lawyers feared that if they had not shown up at the facility, the sick kids would have received zero medical attention and potentially died. The Trump administration has come under fire for its treatment ― and its alleged neglect ― of migrants who have been crossing the southern border in record numbers. The result is overcrowded facilities, slow medical care and in some instances, deaths.
Immigration authorities say they’re overwhelmed; activists say they’re not trying hard enough.
“It’s intentional disregard for the well-being of children,” Gialluca said. “The guards continue to dehumanize these people and treat them worse than we would treat animals.”
U.S. Customs and Border Protection declined to respond to HuffPost’s request for comment.
The Associated Press reported this week that children in border facilities don’t have adequate access to food, water, soap or showers. On Tuesday, a Justice Department attorney argued in court that the government should not have to provide detained children with soap, toothbrushes or beds.
The AP report is based on interviews a group of lawyers conducted with hundreds of children in three Texas-based Border Patrol stations last week as part of the Flores settlement ― an agreement that outlines conditions for detained children. The lawyers say children are also being held in these facilities for longer than the 72-hour limit the settlement specifies, and in some cases up to three weeks.
Lawyers are particularly concerned about the spread of illness inside Border Patrol facilities, which can sometimes turn fatal. Five children have died in Border Patrol custody since December, some of whom were initially diagnosed with a common cold or the flu. The processing center in McAllen, known as Ursula, recently quarantined three dozen migrants who were sick after a 16-year-old died of the flu at the same facility.
Children and their parents told lawyers that in some cases they didn’t have any access to medical treatment in Border Patrol facilities despite being visibly ill. Gialluca spoke with one 16-year-old mother whose toddler had the flu, but was told by a guard the child “wasn’t sick enough to see a doctor.” She said others also reported being denied medical attention despite having critically sick babies.
Medical experts say that because children have less developed immune and respiratory systems, their symptoms can escalate quickly if they aren’t properly treated.
Dr. Julie Linton, the co-chair of the American Academy of Pediatrics, previously told HuffPost that children can’t recover from illnesses in Border Patrol facilities. These centers are described as “hieleras” ― Spanish for iceboxes ― because of their freezing temperatures, and migrants describe sleeping on floors under bright lights that shine 24/7, with nothing but Mylar blankets to keep warm.
Gialluca met one 16-year-old mother whose 8-month-old baby was sick with the flu and forced to sleep outside for four days at the McAllen Border Patrol station. The mother said the guards took the clothing off the baby’s back, leaving her in a diaper, and forced them to sleep on concrete without a blanket.
A sick 2-year-old girl was shivering in a T-shirt and had shallow breathing, according to Mike Fassio, a Seattle-based immigration attorney who visited Ursula.
“I was very, very concerned,” he said, adding lawyers spoke with immigrants in a room outside of the facility. “When she left us, I knew she was going back to a place that was cold, crowded and unsanitary.” Fassio noted that guards referred to the children as “bodies.”
Some children were so exhausted they fell asleep during the interviews, said Clara Long, a senior researcher at Human Rights Watch who spoke with kids at a facility in Clint, Texas. Long met a 3-year-old boy who was dirty with matted hair and was being taken care of by his 11-year-old brother. She said that more than 10 sick children were being quarantined in cells.
While the group of roughly eight lawyers and interpreters at Ursula were supposed to be interviewing children about conditions in the facilities, they also ended up asking guards and government officials to bring kids to the hospital because they were so worried about their state. Gialluca added that she and her colleagues interviewed only a small portion of migrants in the facility, which is the largest processing center in the U.S. and can hold up to 1,000 people. She believes the number of migrants in need of hospitalization is likely much higher.
Government officials have blamed horrific conditions at detention facilities on the fact that Congress has not yet passed an emergency funding package that would include almost $3 billion to help care for unaccompanied migrant children. But Gialluca says border officials shouldn’t need more resources to treat immigrants like human beings.
“Money isn’t keeping guards from allowing people to access toilets,” she said. “Money isn’t causing guards to take clothing and medicine away from children.”
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Nicole Goodkind Political Reporter, Newsweek
Here’s Another report from Nicole Goodkind at Newsweek on the “malicious incompetence” and intentional misallocation of resources by Trump and his DHS sycophants that is willfully endangering kids’ lives as part of a cheap White Nationalist political stunt:
8-YEAR-OLD MIGRANTS BEING FORCED TO CARE FOR TODDLERS IN DETENTION CAMPS
A team of lawyers conducted 60 interviews with migrant children being held in an El Paso, Texas, detention camp and found conditions to be dismal.
Fifteen of those in the holding center had the flu and 10 more are quarantined with illness, according to the lawyers, who first gave the data to the Associated Press. Three infants are being detained alongside their teenage mothers, and many children are under the age of 12.
“A Border Patrol agent came in our room with a 2-year-old boy and asked us, ‘Who wants to take care of this little boy?’ Another girl said she would take care of him, but she lost interest after a few hours and so I started taking care of him yesterday,” one teenaged girl told the lawyers in an interview. The boy was not wearing a diaper and his shirt was covered in mucus, she said.
Law professor Warren Binford, who aided in the interviews, said she witnessed an 8-year-old girl caring for a 4-year-old child who was very dirty, the girl was unable to get the boy to take a shower. She also described the children she interviewed as sleep-deprived, often falling asleep while speaking with her.
“In my 22 years of doing visits with children in detention, I have never heard of this level of inhumanity,” said Holly Cooper, co-director of the University of California, Davis’ Immigration Law Clinic, to the AP.
The lawyers were inspecting the facility as part of the Flores agreement, which resulted from a landmark 1985 case that established that facilities where minor migrants are held must be kept “safe and sanitary.”
A representative of the Trump administration, the Justice Department’s Sarah Fabian, argued Tuesday that safe and sanitary conditions don’t necessarily have to include toothbrushes, soap or towels for children.
Nicole Goodkind is a political reporter at Newsweek. You can reach her on Twitter @NicoleGoodkind or by email, N.Goodkind@newsweek.com.
TRUMP ADMINISTRATION PLANS MAJOR ICE RAIDS FOR SUNDAY
U.S. immigration authorities plan to raid Miami, Houston, Chicago and Los Angeles and other cities. They intend to arrest up to 2,000 families, three U.S. officials with knowledge of the plans told The Washington Post. The orders reportedly come directly from President Donald Trump.
On Monday, the president tweeted: “Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in.”
Officials told The Washington Post that the Department of Homeland Security agency plans to hold families in hotel rooms until they are deported. Acting DHS Secretary Kevin McAleenan is allegedly targeting families that have completely dropped out of the court process, but has warned that the operation could lead to further cases of families being separated.
Los Angeles Police Department Chief Michel Moore confirmed the raids on Friday, saying that about 140 families in southern California will be targeted in pre-dawn raids early next week. The chief also made clear that the raids are done on a federal level and that the police department will not be involved.
On Thursday, Carla Provost, chief of the United States Border Patrol argued that the Department of Homeland Security was not receiving enough money to properly care for migrants on the southern border, and that was leading to terrible conditions in detention centers. On Wednesday, the Senate Appropriations Committee agreed to $4.6 billion in emergency funds for what the Trump administration has referred to as a “border crisis.”
Texas Congressman Joaquin Castro questioned how the agency could afford mass raids while asking for more money Friday. “The Trump Administration says it needs more money (supplemental bill) for the situation at the border yet they may be starting massive immigration raids next week. So how do you have the money for that if you’re running out of money ICE?” he tweeted.
“These potential raids are a disgusting political ploy to stoke fear and rile up Trump’s base for 2020,” wrote Sandra Cordero, Director of Families Belong Together, an immigration advocacy group, in a statement. “Past raids have left children alone and afraid in empty homes, praying they won’t be left to care for younger siblings by themselves, with no idea if they’ll see their parents again. This is yet another flagrant disregard for the welfare of children on behalf of a cruel administration bent on fomenting fear and creating chaos.”
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Come on, Carla, cut the BS and butt covering. The “mix” of arrivals at the Southern Border began to shift to refugee families from the Northern Triangle back in the summer of 2014. So, CBP and DHS have had five years to prepare for this “change” which is actually “old news.”
More “old news” is the increased flow of asylum seekers with kids which began back before Thanksgiving. Plenty of time for CBP and DHS to bring back retired asylum officers and adjudicators and reassign other adjudicative personnel to the border to insure prompt, orderly, safe, and efficient processing of asylum applicants at ports of entry, thus eliminating the incentive (or necessity) for folks to turn themselves in after crossing the border between ports.
Also, plenty of time to work with NGOs, pro bono groups, states, and communities to insure representation and proper placement of family groups in various locations throughout the country without panic or “dumping.”
Another bogus claim spread by Trump, Provost, and the rest of the sycophants: that the prevalence of kids among new asylum arrivals is somehow totally a response to the Flores settlement (which actually has been in effect for decades).
Undoubtedly, with the Trump Administration’s active assistance, unscrupulous smugglers and coyotes are encouraging some folks to bring children as the only way to have a shot at fair processing under the tilted U.S. asylum system promoted by Trump. Indeed, as I have observed before, the Trump Administrations has consistently been a “best friend” to gangs, smugglers, traffickers, cartels, and druggies seeking to “jack up” profits by further exploiting the human misery caused by the Trump Administration’s “maliciously incompetent “ approach to immigration, effective law enforcement, and humanity generally. https://apple.news/AFQw_eqcHSZCYxUznmP0wpQ
Undoubtedly, some of these unscrupulous individuals are telling families to travel with kids. But, the truth is that according to the UNHCR, over one-half of today’s refugees are children. https://www.unhcr.org/children-49c3646c1e8.html.
So, the prevalence of children among new arrivals should properly been seen as part of a sad worldwide trend that Trump and his cronies disgustingly have done everything possible to encourage, exploit, and aggravate. It most certainly is not primarily caused by the Flores settlement or by giving soap, toothbrushes, blankets, or medical care to children being abused in the “DHS Gulag” administered in part by disingenuous folks like Provost.
Any honest observer of what’s going on knows that the majority of the asylum applications that passed credible fear probably could have been granted (or given protection under the Convention Against Torture — “CAT”) by the Asylum Office without even going to Immigration Court under the proper generous interpretation of our asylum laws, an honest interpretation of CAT that reflects the true conditions in the Northern Triangle, and a very “doable” change in procedures.
Only dishonest fools in the Trump Administration (and a few from the Obama Administration) would maintain that gender isn’t a social group subject to widespread persecution in the Northern Triangle, deny that gangs have assumed the role of quasi-governmental entities thus making most of the harm they inflict on resisters “political persecution,” and make the beyond ludicrous claim that the corrupt failed states of the Northern Triangle have either the ability or much real interest in protecting those subject to persecution.
And, Carla, why aren’t you out there today registering a public protest of the waste of time and funds in ICE going after families with ridiculously inappropriate “raids” when everyresource could and should be focused instead on providing humanitarian assistance to asylum seekers arriving at the Southern Border?
This racist-inspired “Sunday Morning Reign of Terror” directed at U.S. ethnic communities is specifically designed to return helpless families to the very dangerous countries from which they originally fled! Thus, Trump and his phony DHS are intentionally feeding “fresh meat” to gangs and cartels and insuring that the cycle of northward migration, no matter how dangerous, will continue until everyone who needs to leave its either gone or dead (the latter apparently the “solution” favored by Provost, Trump, Morgan, McAleenan, Miller, and others).
Provost, McAleenan, Morgan, and their co-conspirators are all participants in a cynical scheme to intentionally “crash” the asylum system, rather than competently administering it. They are intentionally endangering the lives of children and other vulnerable asylum seekers, many entitled to legal protections, to promote, along with GOP restrictionists, totally bogus, dishonest, and completely unnecessary and unwarranted restrictions of the precious, life-saving right of refugees to seek asylum in the U.S.
It’s an unbelievably dishonest and cowardly scheme, and a complete breach of both oaths of office and public trust. It might be that those who long ago abandoned American values will lap up this insult to human values and human dignity.
But, there are plenty of us out here who know and understand exactly what you are doing. We will not only resist it, but will be historical witnesses to your cruel, inhuman, and unlawful schemes and gimmicks to “abuse and kill the innocent.” And, we’ll be keeping count.
Nick Miroff Reporter, Washington PostMaria Sacchetti Reporter, Washington Post
Nick Miroff & Maria Sacchetti report in WashPost:
President Trump said in a tweet Monday night that U.S. immigration agents are planning to make mass arrests starting “next week,” an apparent reference to a plan in preparation for months that aims to round up thousands of migrant parents and children in a blitz operation across major U.S. cities.
“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” Trump wrote, referring to U.S. Immigration and Customs Enforcement. “They will be removed as fast as they come in.”
Large-scale ICE enforcement operations are typically kept secret to avoid tipping off targets. In 2018, Trump and other senior officials threatened the mayor of Oakland, Calif., with criminal prosecution for alerting city residents that immigration raids were in the works.
Trump and his senior immigration adviser, Stephen Miller, have been prodding Homeland Security officials to arrest and remove thousands of family members whose deportation orders were expedited by the Justice Department this year as part of a plan known as the “rocket docket.”
In April, acting ICE director Ronald Vitiello and Homeland Security Secretary Kirstjen Nielsen were ousted after they hesitated to go forward with the plan, expressing concerns about its preparation, effectiveness and the risk of public outrage from images of migrant children being taken into custody or separated from their families.
Vitiello was replaced at ICE by former FBI and Border Patrol official Mark Morgan, who had impressed the president with statements on cable television in favor of harsh immigration enforcement measures.In his first two weeks on the job at ICE, Morgan has said publicly that he plans to beef up interior enforcement and go after families with deportation orders, insisting that the rulings must be carried out to uphold the integrity of the country’s legal system.
“Our next challenge is going to be interior enforcement,” Morgan told reporters June 4 in Washington. “We will be going after individuals who have gone through due process and who have received final orders of deportation.
“That will include families,” he said, adding that ICE agents will treat the parents and children they arrest “with compassion and humanity.”
U.S. officials with knowledge of the preparations have said in recent days that the operation was not imminent, and ICE officials said late Monday night that they were not aware that the president planned to divulge their enforcement plans on Twitter.
Executing a large-scale operation of the type under discussion requires hundreds — and perhaps thousands — of U.S. agents and supporting law enforcement personnel, as well as weeks of intelligence gathering and planning to verify addresses and locations of individuals targeted for arrest.
The president’s claim that ICE would be deporting “millions” also was at odds with the reality of the agency’s staffing and budgetary challenges. ICE arrests in the U.S. interior have been declining in recent months because so many agents are busy managing the record surge of migrant families across the southern border with Mexico.
The family arrest plan has been considered even more sensitive than a typical operation because children are involved, and Homeland Security officials retain significant concerns that families will be inadvertently separated by the operation, especially because parents in some households have deportation orders but their children — some of whom are U.S. citizens — might not. Should adults be arrested without their children because they are at school, day care, summer camp or a friend’s house, it is possible parents could be deported while their children are left behind.
Supporters of the plan, including Miller, Morgan and ICE Deputy Director Matthew Albence, have argued forcefully that a dramatic and highly publicized operation of this type will send a message to families that are in defiance of deportation orders and could act as a deterrent.
In this file photo from 2015, a man is detained by Immigration and Customs Enforcement agents in Los Angeles. New raids could target a large number of immigrants in major cities. (John Moore/Getty Images)
According to Homeland Security officials, nearly all unauthorized migrants who came to the United States in 2017 in family groups remain present in the country. Some of those families are awaiting adjudication of asylum claims, but administration officials say a growing number are skipping out on court hearings while hoping to live and work in the United States as long as possible.
Publicizing a future law enforcement operation is unheard of at ICE. Trump administration officials blasted Oakland Mayor Libby Schaaf last year for warning immigrants about an impending raid, saying she endangered agents’ safety.
“The Oakland mayor’s decision to publicize her suspicions about ICE operations further increased that risk for my officers and alerted criminal aliens — making clear that this reckless decision was based on her political agenda with the very federal laws that ICE is sworn to uphold,” then-ICE Deputy Director Thomas D. Homan said at the time.
Homan later retired, but last week Trump said Homan would return to public service as his “border czar.” On Fox News, Homan later called that announcement “kind of premature” and said he had not decided whether to accept the job.
Schaaf responded late Monday to the president’s tweet teasing the looming ICE roundups.
“If you continue to threaten, target and terrorize families in my community . . . and if we receive credible information . . . you already know what our values are in Oakland — and we will unapologetically stand up for those values,” she wrote.
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The pain, terror, racism, and disregard for human rights is real. But, the ability to summarily remove the “millions” of our fellow humans Trump claims as his objective might be limited by both reality (lack of resources) and the law.
Many of those with so-called “final orders” were tried “in absentia.” Many of those never received legal notice of their hearings. (All reputable studies show that asylum applicants who actually understand the system, have fair access to pro bono lawyers, and receive legally sufficient hearing notices appear at rates close to 100% of the time, even if they lose their cases).
If that is the case, and they can get lawyers, they can file a “motion to reopen” for lack of legal notice and receive a statutory stay of removal while both the Immigration Judge, and if denied, the Board of Immigration Appeals rule on the motion. And, the Immigration Courts are totally screwed up and backlogged due to Trump’s and the DOJ’s “malicious incompetence.” So, good luck with that.
Large numbers of deportees would also further destabilize the already “failed states” of the Northern Triangle thus insuring a continuing outward flow. Indeed, some of those deported might well “head north” again — only this time they won’t be dumb enough to entrust themselves to the U.S. legal system.
They will just disappear into the interior where their chances of being found again are probably less than their chances of being harmed in the Northern Triangle. No amount of authoritarian militarization of our internal police force is going to locate and remove 10-11 million people, most of them residing quietly and productively in our communities throughout America.
But, Trump has never been about results. (Nor has DHS for that matter). He’s all about White Nationalist hatred, racism, and appealing to a “base” that long ago abandoned the rest of America (the majority of us) and human values.
And let’s not forget the responsibility of Congress and the Article III Courts who for years have mostly overlooked the glaring Constitutional defects and clear incompetence and bias evident in the Immigration Court system as administered by the Department of Justice. It has taken the Article IIIs’ complicity in a legally defective system to produce these so-called “final orders” in the first place.
Every dead kid, broken family, and new forced gang recruit should be on their collective consciences. And, the primary result of the “New Reign of Terror” will undoubtedly be fear of cooperating with local police in solving crimes, thus making ethnic Americans “perfect victims” who have been abandoned by those who are failing in their legal duties to insure “equal justice for all.”
2020 might be our last chance to save our country and humanity. Don’t blow it! Who knows, the life you save might be your own!
The State Department recently published a brief, enigmatic notice announcing the formation of a new Commission on Unalienable Rights. With a modest budget of $385,074 and merely advisory powers, the commission received little attention beyond head-scratching over its strange name. Yet the significance of the endeavor should not be overlooked. It puts the government’s imprimatur on an assault upon one of the cornerstones of modern liberalism: international human rights.
According to the commission’s draft charter, its job will be to explore “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights” — rights of the sort that Abraham Lincoln and Martin Luther King Jr. upheld as ideals, the charter says.
This language may sound unusual to a modern ear, but it is easily translated. Start with that ungainly name of the commission. If “unalienable” sounds anachronistic, that’s because it is. Today, we normally use the word “inalienable.” But in the 18th century, the more common term was “unalienable.” The Declaration of Independence refers to “unalienable rights,” and there is little doubt the commission’s name is meant to recall that, in the words of the Declaration, the people are endowed with those rights “by their Creator.”
The State Department recently published a brief, enigmatic notice announcing the formation of a new Commission on Unalienable Rights. With a modest budget of $385,074 and merely advisory powers, the commission received little attention beyond head-scratching over its strange name. Yet the significance of the endeavor should not be overlooked. It puts the government’s imprimatur on an assault upon one of the cornerstones of modern liberalism: international human rights.
According to the commission’s draft charter, its job will be to explore “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights” — rights of the sort that Abraham Lincoln and Martin Luther King Jr. upheld as ideals, the charter says.
This language may sound unusual to a modern ear, but it is easily translated. Start with that ungainly name of the commission. If “unalienable” sounds anachronistic, that’s because it is. Today, we normally use the word “inalienable.” But in the 18th century, the more common term was “unalienable.” The Declaration of Independence refers to “unalienable rights,” and there is little doubt the commission’s name is meant to recall that, in the words of the Declaration, the people are endowed with those rights “by their Creator.”
This supposition is reinforced by the references to “natural law” and “natural rights,” terms that have also fallen out of fashion. In the 18th century, educated people used the phrases to refer to universal moral laws that transcended national boundaries and that generally (though not always) were thought to reflect God’s will. With the rise of nationalism in the 19th century, these abstractions lost much of their grip on people’s loyalties.
Finally, there is “human rights discourse.” Normally, we refer to “human rights law,” embodied in numerous treaties that were negotiated and (mostly) ratified after World War II. With names like the Convention on the Rights of the Child and the Convention on the Rights of Persons With Disabilities, these treaties purport to bar governments from mistreating their citizens. Yet “discourse” means “talk.” The implication here is that the human rights that people talk about are not, despite the treaties, actually law. They’re something else — advocacy. And this advocacy is wrong: It has “departed from . . . natural law and natural rights.”
The protections offered by modern “human rights law” differ from those of the “natural rights” regime of the 18th century. Those were (more or less) embodied in the British constitutional tradition, the common law, and the U.S. Bill of Rights: rights to political participation — freedom of speech, for example — and protection of person and property. Modern human rights are both broader and narrower, encompassing “economic rights” (for example, rights to work, to health care and to education), rights to not be discriminated against on the basis of race or ethnicity, and, according to some interpreters, expansive rights to reproductive freedom. Modern human rights law de-emphasizes property rights and, to some extent, speech rights. In a word, it’s lefty.
Modern human rights have also morphed into something like a system of universal moral values that transcends specific treaties. The United States, virtually alone among nations, has refused to ratify most of these treaties and accordingly is technically not bound by them. But much “human rights discourse” rejects the notion that countries can opt out of the rights system. Quite a few scholars and an occasional U.S. Supreme Court justice believe, to the intense irritation of conservatives, that left-leaning human rights treaties that the United States has never ratified nonetheless override American law. The influence of “foreign law” — including “human rights discourse” — has been apparent in Supreme Court opinions limiting the death penalty and striking down the criminalization of same-sex “sodomy.” Most of the offending decisions were written by the court’s most enthusiastic proponent of foreign law, then-Justice Anthony Kennedy. As the late justice Antonin Scalia put it : “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners.”
But today, other conservatives see an opportunity, and the Commission on Unalienable Rights is their declaration of intent. Its plainly stated goal is not just to wipe away the baleful foreign influence of human rights “discourse” but to revive (conservative) 18th-century natural law.
What does natural law require? Liberals, already dimly perceiving that they are about to be hoisted with their own petard, worry that natural law, in the hands of conservatives — specifically, Catholic conservative intellectuals, who kept alive the academic tradition of natural law long after mainstream secular intellectuals forgot what it was — means goodbye to reproductive rights and protections for sexual minorities. (ABC News reported that the Princeton professor Robert George, a prominent Catholic intellectual, natural-law theorist, and opponent of abortion rights and same-sex marriage, played a role in the creation of the commission; George did not respond to requests for comment from ABC or from The Washington Post.) The Commission on Unalienable Rights will, in other words, provide the ideological justification for the antiabortion foreign policy that the Trump administration has undertaken.
Natural law can also be used by conservatives to argue for expanded religious freedoms that override statutes with secular goals, and to push back against progressive government programs like universal health care. The “right to health,” a centerpiece of “human rights law,” is firmly rejected by natural-law theorists like George.
But the mission of the commission may be even bolder. If we take the idea of natural law seriously, it not only overrides statutes in foreign countries that protect abortion rights and respect same-sex marriage. It also overrides American laws that protect abortion rights and respect same-sex marriage. One can imagine a day when a Supreme Court justice, taking a page from Kennedy, invokes natural law — supposedly endorsed by the founders, after all, and embodied in the sacred Declaration — to vote to overturn Roe v. Wade and to prepare the path for an even holier grail, the abolition of state laws that grant abortion rights.
Liberals hoped that human rights, sanctified by the sacrifices of the victims of totalitarianism, would provide common ground in a world of competing ideologies. But what human rights actually helped produce was a liberal international order that has offended a great many people who do not share liberal values. The backlash began years ago in authoritarian countries, in developing countries that saw human rights as an affront to their traditions and as a mask for imperialist goals, and in highly religious countries. These countries advanced interpretations of human rights law that conform with their values or interests but made little headway against dominant elite opinion. What is new is that the government of the world’s most powerful nation, long acknowledged (if grudgingly) as the leader of the international human rights regime, has officially signed on to that backlash. Most of the offending decisions were written by the court’s most enthusiastic proponent of foreign law, then-Justice Anthony Kennedy. As the late justice Antonin Scalia put it : “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty . . . could be judicially nullified because of the disapproving views of foreigners.”
But today, other conservatives see an opportunity, and the Commission on Unalienable Rights is their declaration of intent. Its plainly stated goal is not just to wipe away the baleful foreign influence of human rights “discourse” but to revive (conservative) 18th-century natural law.
But the mission of the commission may be even bolder. If we take the idea of natural law seriously, it not only overrides statutes in foreign countries that protect abortion rights and respect same-sex marriage. It also overrides American laws that protect abortion rights and respect same-sex marriage. One can imagine a day when a Supreme Court justice, taking a page from Kennedy, invokes natural law — supposedly endorsed by the founders, after all, and embodied in the sacred Declaration — to vote to overturn Roe v. Wade and to prepare the path for an even holier grail, the abolition of state laws that grant abortion rights.
Liberals hoped that human rights, sanctified by the sacrifices of the victims of totalitarianism, would provide common ground in a world of competing ideologies. But what human rights actually helped produce was a liberal international order that has offended a great many people who do not share liberal values. The backlash began years ago in authoritarian countries, in developing countries that saw human rights as an affront to their traditions and as a mask for imperialist goals, and in highly religious countries. These countries advanced interpretations of human rights law that conform with their values or interests but made little headway against dominant elite opinion. What is new is that the government of the world’s most powerful nation, long acknowledged (if grudgingly) as the leader of the international human rights regime, has officially signed on to that backlash.
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Professor Posner confirms what folks like me have been saying for some time now: under Trump and his version of the GOP, America aspires to go from being a defender of human rights to being a leading abuser of those rights.
Forget the attempted “slight of hand” redefinition of human rights by a White Nationalist minority who has seized control of our Government. Kids in cages, abusing women, enabling gangs and cartels, suspending due process, blocking access to voting, dehumanizing the Hispanic and LGBTQ communities, greed, selfishness, grift, undermining the hard earned rights of African Americans, and promoting and protecting religious bigotry, among other disreputable developments, neither conforms to any version of human rights nor represents the views of the majority of Americans.
Make no mistake about it.No matter how flawed , the human rights instruments crafted as a result of “liberal Western democracy” in the post-World War II era have saved millions of human lives and prevented unfathomable additional human carnage. Undoubtedly, that makes Trump and some of his supporters supremely unhappy.
Those of us who continue to maintain the “quaint” view that all persons are entitled to “life, liberty, and the pursuit of happiness” (no matter how imperfectly conceived and disingenuously implemented by our Founding Fathers) had better wake up and join the battle! For, Trump and his far right minority zealots have every intention of reversing the results of World War II and making the hate, bias, disregard for truth, toxic nationalism, and contempt for the majority of the world’s humans exhibited by the “the then losers” the new international norm.
Don’t let them turn back the clock to 1939 in 2019!
Kate Morrissey reports for the San Diego Union-Tribune and LA Times:
Judge orders U.S. to hold asylum seeker
Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.
By Kate Morrissey
SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.
Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”
“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.
This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.
The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.
A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.
“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”
At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.
Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.
Each time, the government attorney responded that the man should continue in MPP.
Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.
“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.
Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.
The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.
Philabaum said that fact was significant.
“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.
“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”
DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.
Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.
He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.
“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”
“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”
“I cannot understand you,” the man responded.
In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.
ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.
Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.
Morrissey writes for the San Diego Union-Tribune.
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Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure!
Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.
Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?
PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.
OPINION BY: PAMELA HARRIS, Circuit Judge
KEY QUOTE:
Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.
Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.
We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.
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It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.
How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”
This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.
The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here! So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.
An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.
Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?
You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!
History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.
Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)
BIA HEADNOTE:
Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.
PANEL: Appellate Immigration JudgesMALPHRUS, MANN, and KELLY
OPINION BY: Judge Ana L. Mann
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Seems to me the BIA got this one all wrong. The Florida statute was amended specifically to broaden the definition of “marihuana” to include things that aren’t marihuana. How can the BIA say that there is no chance of prosecution? Since stalks, etc. are now “marihuana” it wouldn’t even be a defense to point out that you just possessed stalks.
The BIA has twisted item the concept of “far fetched” to include things that the legislature clearly contemplated when amending the statute.
The Supreme’s decision in Moncrieffe was clearly intended to be ameliorative. But the BIA has turned it into a “sword” for DHS. Moreover, since “stalks only” would no longer be a defense, why would any state case discuss it?
Generally the “Ferreira test” is impossible for any unrepresented respondent to meet. Indeed, I doubt that most detention center judges would have access to the necessary materials to research something so technical.
As my good friend and colleague in the Roundtable of Retired Judges, Judge Jeff Chase, added:
The Supreme Court and some of the circuits created case law that was designed to be clearer – i.e. it doesn’t matter what the respondent actually did, or what the actual sentence was, just look at the least culpable behavior covered by the statute.And the Supremes and some circuits obviously intended it to be ameliorative, given the harsh consequences of the immigration laws.
The BIA sees its mission as trying to render those higher court decisions meaningless.
How far we have come from an organization supposdly dedicated to using teamwork and best practices to “guarantee fairness and Due Process for all.”
Cages With ‘Kids’ Pop Up Around NYC To Protest Immigrant Detention
The art installations were meant to bring awareness to the horrific conditions children and other migrants face at the southern U.S. border.
Some people in New York City were confronted with an alarming image as they walked down the street on Wednesday morning: a chain-link cage on the sidewalk containing a child-size mannequin wrapped in a foil blanket, with audio playing of migrant children crying.
It was meant to draw Americans’ attention to the children and other migrants being held in alarming conditions at the U.S.-Mexico border.
Speakers in the cages played the viral recording released by ProPublica last summer of kids wailing for their “mamá” and “papá” after having been separated from them at the border as a result of the Trump administration’s “zero tolerance” immigration policy.
“We want to bring this back to the consciousness of the American people,” RAICES CEO Jonathan Ryan told HuffPost. “One of the many unfortunate consequences of the repeated traumatic stories coming from the border is that, as horrified and angry as people have been, we also become desensitized. It’s important for people … to be confronted with the reality that this is about children, human beings, whose lives are forever affected.”
“This is being done in our name by people who we elected,” he added. “And if we don’t do something to stop this, this will become who we are.”
About two dozen cages were dropped around the city from about 4 a.m. to 5 a.m., Ryan said. By midafternoon most of them had been taken down by police or city employees, with three remaining around 2 p.m., per Ryan. The New York Police Department confirmed to HuffPost that more than half a dozen cages had been removed around Manhattan, but did not respond to questions as to why.
The online campaign associated with the installations recalls the family separations under President Donald Trump’s hard-line zero-tolerance policy, which led to the separation of thousands of children from their parents last year. The policy sparked protests nationwide and was reversed by executive order in late June. But a January report from the Department of Health and Human Services found the administration may have separated thousands more kids from their families than was previously known, and it did not know how many or whether they were reunited.
RAICES also wants people to become aware of other issues migrants face, Ryan said.
He noted undocumented immigrant families are still separated “routinely” at the border, including when migrant kids are split from other guardians like uncles and aunts or older siblings. Separations occur inside the country too, he said, when a child’s undocumented mom or dad is arrested by immigration agents, for instance in a workplace raid.
U.S. Customs and Border Protection apprehended over 109,000 people at the border in April ― more than double the number of migrants detained during that month last year. A majority of the migrants apprehended were either families traveling together or unaccompanied kids.
A Department of Homeland Security watchdog, reporting on Border Patrol facilities in El Paso, Texas, found last month that detained migrants were kept in dirty and extremely crowded conditions, forcing some people to stand on toilets to get some breathing room.
Last week, Trump said he reached an agreement with Mexico that includes “rapidly” returning to Mexico anyone who crosses the border seeking asylum in the U.S. Advocates are concerned about the dangerous conditions in cities such as Tijuana and Ciudad Juárez, where more migrants will now be forced to wait as their claims are processed.
“When the American people hear stories of this problem being fixed by the ‘remain in Mexico’ policy, it hasn’t been fixed, it’s just further from their view,” Ryan said. “The suffering will only increase.”
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Ah, life in the ivory tower of the Article III Federal Judiciary, where you seldom are confronted with the human faces or ugly reality of your abuses and failures to protect the human rights of others.
The “Remain in Mexico” Program is an ongoing affront to our Constitution, the rule of law, and simple human decency for which the judges of the Ninth Circuit Court of Appeals who are enabling this ongoing humanitarian outrage and giving it “legal cover” should be held fully morally and historically accountable!
(Reuters) – Over two hours on June 1, a Honduran teenager named Tania pleaded with a U.S. official not to be returned to Mexico.
Immigration authorities had allowed her mother and younger sisters into the United States two months earlier to pursue claims for asylum in U.S. immigration court. But they sent Tania back to Tijuana on her own, with no money and no place to stay.
The 18-year-old said she told the U.S. official she had seen people on the streets of Tijuana linked to the Honduran gang that had terrorized her family. She explained that she did not feel safe there.
After the interview, meant to assess her fear of return to Mexico, she hoped to be reunited with her family in California, she said. Instead, she was sent back to Mexico under a Trump administration policy called the “Migrant Protection Protocols”(MPP), which has forced more than 11,000 asylum seekers to wait on the Mexican side of the border for their U.S. court cases to be completed. That process can take months.
Tania’s is not an unusual case. Once asylum seekers are ordered to wait in Mexico, their chances of getting that decision reversed on safety grounds – allowing them to wait out their proceedings in the United States – are exceedingly small, a Reuters analysis of U.S. immigration court data from the Executive Office for Immigration Review (EOIR) shows.
. . . .
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Read the full description of the Trump Administration’s judicially enabled all out assault on the legal, Constitutional, and human rights of vulnerable asylum seekers at the above link.
It’s worth noting that almost every “ameliorating exception” described in the first paragraph of the panel’s opinion is demonstrably untrue — children and those clearly in danger are being returned and the “discretionary parole” is largely a fraud that seldom is granted — according to the Government’s own data (which likely is also falsified or manipulated to some extent to mask or distort abuses). In other words, a “three-reporter panel” of Reuters is more interested and capable of getting to truth than a panel of life-tenured judges.
Oh, that it could be these judges’ kids or grandkids separated from family and sent to live on the mean streets of Tijuana while pursuing their legal rights under US law. Really, how do these child abusers and human rights scofflaws hiding in judicial robes sleep at night?
Guess the can’t hear the screams and moans of those whose rights they are failing to protect and whose human dignity they reject. I’ve heard eyewitness accounts and seen video evidence from the pro bono lawyers courageously (and sometimes at the risk of their own health and safety) trying to protect the lives and rights of asylum seekers at the Southern Border from these abuses of human rights that are enabled by “Remain in Mexico” (a/k/a the disingenuously named “Migrant Protection Protocols”). The truth is no secret for those who actually seek it rather than to ignore it.
Complicit Article III Judges and Government lawyers are keys to Trump’s “dehumanization” program. History must hold them accountable for their abuses of humanity.
WASHINGTON, DC – The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case review, according to a new report released today by Innovation Law Lab and the Southern Poverty Law Center, entitled The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.Download the press release here.The report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, links the current crisis of accountability to the Attorney General’s absolute control over the immigration court system.In conjunction with the report, the groups also announced the launch of an Immigration Court Watch app, which enables court observers to record and upload information on immigration judge conduct to create greater judicial accountability.
Under the Immigration and Nationality Act, the attorney general is required to create an immigration court system in which independent judges decide cases by applying law to the evidence on the record following a full and fair hearing. According to the report, however, today’s immigration courts are plagued by systemic bias and neglect.
“Despite the life-and-death stakes of many immigration cases within the current system, case outcomes have less to do with the rule of law than with the luck of the draw,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney. “Under the Trump administration, the attorneys general have gone even further by actively weaponizing the immigration court system against asylum-seekers.”
The report explains how the Office of Attorney General has created an immigration court system that is biased, inconsistent and driven by political whims. It also examines the conflict that arises when immigration judges, who are expected to be neutral arbiters, are supervised by the United States’ chief law enforcement officer who prioritizes deterrence and deportation of immigrants, instead of an impartial review process.
The report recommends removing the immigration courts from the attorney general’s control and recreating them as Article I courts. To ensure that immigration judges are insulated from political pressures, they must be selected based on merit, receive tenure and be removed only for good cause. The immigration courts must also include more effective mechanisms of internal and appellate accountability.
“One of the key factors driving the immigration court crisis is the failure of judicial accountability,” said Stephen Manning, executive director of Innovation Law Lab. “The new Immigration Court Watch app addresses that lack of accountability, ensures greater transparency and will be a valuable resource for collecting and storing usable data on the pervasive abuses in the immigration court system.”
The new tool will allow data on immigration judge conduct to be gathered and stored in both individual and aggregate forms. This will provide advocates with valuable information to fight systemic patterns of bias and other unlawful court practices. This data can be used to bolster policy recommendations, advocacy and legal strategies.
Advocates, attorneys and other court watchers are encouraged to access the app available here.
“By establishing a presence in immigration courts within their communities and sharing their observations and information, advocates can help us leverage the power of technology, collaboration and strategic alignment to create the first interconnected information system which captures data about due process issues in U.S. immigration courts in real-time,” Manning said.
Marion Steinfels marionsteinfels@gmail.com / 202-557-0430
Ramon Valdez ramon@innovationlawlab.org / 971-238-1804
The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, DC, is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, visit www.splcenter.org.
Innovation Law Lab is a nonprofit organization dedicated to upholding the rights of immigrants and refugees. By bringing technology to the fight for justice, Law Lab builds power for lawyers, human rights advocates, and immigrants in hostile immigration court jurisdictions, remote immigration detention facilities, and along the U.S.-Mexico border. For more information, visit www.innovationlawlab.org.
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Maybe the “Article III Enablers In Robes” need to start envisioning their kids and grandkids in cages, their daughters and granddaughters being gang raped, and their close relatives and best friends unnecessarily suffering and dying from intentionally life threatening conditions in prison where they are sentenced to indefinite confinement without rights and without being convicted of a crime.
No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.
Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.
BUREAUCRATS IN ROBES: IMMIGRATION “JUDGES” AND THE TRAPPINGS OF “COURTS”
AMIT JAIN*ABSTRACT
As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts—often the first-line adjudicators of deportation—are “courts” at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by in-depth interviews with twelve former IJs and three former supervisory officials, I argue that immigration courts present with superficial hallmarks of adversarial courts, but increasingly exhibit core features of a tightly hierarchical bureaucracy. Although not all features of an immigration bureaucracy are inherently unde- sirable, masking a bureaucracy with judicial trappings results in a deceptive facade of process that likely limits scrutiny from federal courts and calms public discontent with harsh immigration laws. In light of this phenomenon, enhancing IJ independence through the creation of an Article I immigration court would solve some problems with immigration adjudication but risk papering over others. Instead, achieving a fair system will require both procedural and substantive reforms.
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Read Amit’s full article at the above link.
Yes, I recognize that Amit undercuts my arguments for an immediate halt of this system and change to Article I without waiting for other reforms to “humanize” immigration law and put them more in line with the actual national perception of immigrants (which, as Amit points out, is nowhere near as racist and inhuman as Trump’s White Nationalist restrictionist abomination now being peddled by Trump, Pence, many in the GOP, at DHS, and most disturbingly, at DOJ. For example, most Americans would favor taking care of “Dreamers” now, without all the restrictionist “poison pills” attached). I agree that other practical and humanizing reforms are necessary; but without immediate Immigration Court intervention and reform every other immigration reform becomes meaningless and innocent people will continue to die, be tortured, and be abused “on our watch.”
Immigration Court reform can’t wait! Every day, the statute, our Constitution, international treaties, our national values, and human dignity are being mocked and destroyed by what is happening in our Immigraton Courts under the “Minister of Injustice” Bill Barr and his lawless and spineless sycophants in EOIR Management.
It’s past time for the Article III Courts to stop screwing around, do their Constitutional duty, and put a screeching halt to this abomination and blot on our national conscience. Stop these “Fake Courts” in their tracks!
No more “removal orders” until Congress creates an independent Immigration Court system that passes legal and Constitutional muster and complies with our treaty obligations. And, until that happens, the DOJ should be forbidden from any further meddling in the Immigration Courts. If the Immigration Court System is to continue to operate on an interim basis, it should be under an “Order of Supervision” from Article III Circuit Judges just as was done with Constitutionally deficient and defiant school systems in the South following Brown.
Either that or the Article III Courts should appoint an active or retired Article III Judge as a “Special Master” with authority to insure fair, impartial, and legal operation until Congress corrects these flaws.
Allowing human beings to be “degraded and railroaded” back to life threatening situations, often after having been abused, humiliated, threatened and mistreated by so-called “judges” and their White Nationalist overlords is no laughing matter! It’s a national disgrace, the elimination of which should be our highest national priority!
Escobedo v. Illinois(1964) – I remember the case from law school and it is one of those cases that stay with you. It’s a case that spoke so firmly to our profession and the constitutional right that our profession guards – the right to counsel. It’s the case where the attorney is trying to see the client, and the client keeps asking to see the attorney, and they are both at the police station, but the police continue to deny both the ability to meet and talk before the person is interrogated by police. The case fascinated me because the situation seemed so remarkable, really, incredible, and, of course, the Supreme Court, at that time, gave what I thought the correct response. I still think it is the correct response but what I missed then, and sometimes now, is how many of us think, then and now, it was not. But Escobedo is a Sixth Amendment case that applies in the context of criminal prosecutions so although I have thought of it often in the past three weeks, it is uncertain precedent to rely on in the context of immigration proceedings. It also strikes me now who Escobedo is, and I remember when we first discussed this case in law school, the complete absence of a discussion about his race and national origin, in the classroom.
I also think often of Fong Yue Ting v. United States (1893) and the U.S. Supreme Court’s reasoning that “The order of deportation is not a punishment for crime,” And what this reasoning means in a world where persons are incarcerated, prevented from touching, hugging and kissing their closest relatives, including their children, simply because they are immigrants in removal proceedings (a civil process, the Court continues to tell us – not a criminal process) and where persons are not allowed to meet with their attorneys in a room in which they can go over documents or testimony together, but instead meet only in cubicles that are completely separated from each other except for a quarter inch slit at the bottom of a plastic/glass divider. So it is literally physically impossible to point at a statement in a document and ask the client a question about that statement. And it is in fact physically impossible for a client to hand over to their attorney documents. They have to be taken apart and slipped across through that quarter inch slit. It took a client over an hour to slip over to me part of the file.
This is the world at La Salle Detention Center in Jena, Louisiana, one of the Geo owned and managed detention centers in Louisiana that currently houses only immigrant detainees. But the guards at La Salle know better – they are housing criminals at La Salle and the guards think of them as criminals, call them criminals, and treat them like criminals. Criminals, apparently, are undeserving of any kind of protection. The reason for the cubicle, I am told, is to make impossible the passing of contraband. I ask what contraband. I ask further, by attorneys? Attorneys are bringing in contraband? I ask amazed. And the answer I am given is yes, you’d be surprised. And I persist, What? What kind of things are attorneys bringing in? And the answer I get eventually is things like food.
At La Salle, inmates are separated and designated by clothing of different colors into different groups based on their alleged “dangerousness” or “security.” Inmates are written up for asking questions or making requests or complaining about things like missed mail or failures to deliver mail. Inmates are also restricted in accessing outside time, private time, and so many of the things those of us who are free take for granted, and those of us who are committed to serve a criminal sentence are denied. But these “inmates” aren’t serving a criminal sentence, as I remind the guards. They are civil detainees – they are not supposed to be treated like criminals serving a criminal sentence.
At La Salle, civil detention is criminal detention. I have had greater physical access to persons convicted of murder or persons who’ve been accused of criminal offenses. I’m somewhat nonplussed by the restrictions on meeting with someone who is facing removal from this country; and the impact of those restrictions on their right to counsel.
But I am even more nonplussed when those restrictions start being applied directly to me. In order to see a client, I have to turn my car keys in to the facility. I cannot take my bag or purse with me. This is for my safety I am told. Every time I visit a person at La Salle, I ask for access to the person. I know there is a room at La Salle in the visiting area that allows for that. I know that the facility has made this room available to consular officials visiting persons in the facility. But the facility refuses to make this room available for attorney-client visits. I ask every time and am refused every time. I leave multiple phone messages for the Warden but no one ever calls me back and no one with authority ever agrees to talk to me.
When I come for the hearing at La Salle Immigration Court with the family of a person I am representing, the guard refuses to allow the children of the person into the courtroom. I ask why not. Federal policy is that children 12 and older can attend court proceedings. There are signs in the waiting room at the facility that state this. But when I come with six law students and the family, the officer says no they have to be 15 and older (after looking the children over). So I ask why again. I explain that I’ve checked with the Court administrator and federal guidelines and the ICE–ERO on the case and the Court administrator said the children were allowed to attend. No one had indicated otherwise. So the officer goes off to check with someone. When she returns she says the ICE officer in charge of the facility has determined that the children cannot go in. I ask why? She says that’s what he’s decided. I say may I speak to him. That is not consistent with the federal policy and the court administrator approved it. I’d like to speak to him. She goes out again and comes back a bit later. Then a person not in uniform comes in waves to me and takes me into a bigger office. There he proceeds to threaten me with arrest – first, it sounds like he is going to arrest me himself but then he threatens that he is going to call the sheriff and have the sheriff arrest me. I ask him why he would do that. I am just trying to find out why the children can’t attend the hearing, given that it’s federal policy and I’ve gotten approval of the court administrator. He is physically shaking with anger as he tells me again he is going to call the sheriff and have me arrested. I agree to be arrested but remind him that the facility operates by force of law and regulation – it can’t operate as if law doesn’t apply here. I am an attorney, I explain, I have to be able to assert my client’s interests.
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Who are the “real criminals” here?
It takes lots of corruption, cowardice, and complicity to make this happen:A Congress that doesn’t care, a Supreme Court that disingenuously manufactures ridiculous legal fictions and turns a blind eye to glaring Constitutional violations, Article III Courts who can see that the results are inherently biased, coercive, and unfair but look the other way, a thoroughly corrupt Attorney General who has no interest whatsoever in justice, complicit politicos and bureaucrats at DOJ, EOIR, and DHS willing to violate ethical standards and their oaths of office, and those minions at the “bottom of the pyramid” who glory in the chance to exercise power in an arbitrary and abusive way.
Thanks goodness for dedicated, courageous lawyers like Isabel who are members of the “New Due Process Army,” fight for the legal rights of the most vulnerable among us, refuse to give in to the oppressors, and document and expose the vileness and lawlessness of the Trump Administration and its many enablers and retainers like Geo and its guards.
WASHINGTON, DC – The immigration court system has failed to fulfill the constitutional and statutory promise of fair and impartial case-by-case review, according to a new report released today by Innovation Law Lab and the Southern Poverty Law Center, entitled 
