“EXISTENTIALISM AND THE MEANING OF LIFE IN THE U.S. IMMIGRATION COURT: FROM LAWRENCE TO THE WORLD BEYOND” – Page 6

GREAT NEWS FOR DUE PROCESS! — With A Boost From Roundtable Of Former Immigration Judges Member Judge John Gossart, CASA, & CAIR Coalition, Fairfax Co. Virginia Enacts Universal Representation!

Judge (Ret.) John F. Gossart, Jr.

Claudia Cubas, Litigation Director, CAIR Coalition

FOR IMMEDIATE RELEASE: Friday, May 10, 2019
FOR MORE INFORMATION, CONTACT:
Diana Castaneda, dcastaneda@wearecasa.org, 240-515-5561
Fairfax County Now First Virginia Jurisdiction to Fund Legal Representation
for Immigrants in Need
Fairfax, VA – CASA and CAIR Coalition are pleased to announce that the Fairfax County Board of
Supervisors voted to fund a $200k “Universal Representation” pilot program, which will provide legal
representation to immigrants living in Fairfax County who are facing deportation proceedings and in need
of counsel—including DACA recipients and TPS holders.
“With the passage of Universal Representation, CASA and our community are proud that Fairfax County
has taken a step forward in terms of equity by ensuring that immigrants are treated with dignity by
providing legal representation. We will continue advancing immigrant rights as one community,” said
Luis Aguilar CASA Virginia Director.
“As our communities continue to weather the capricious changes in immigration law and the threat of deportation hangs over so many of our neighbors, Fairfax County has taken a simple yet effective stance: provide Fairfax families with counsel when detained and facing deportation,” said Kelly White CAIR Program Director – Detained Adult Program.
The decision of Fairfax County is invaluable for the more than 175 Fairfax families facing immigration proceedings each year.
immigrant and mixed-status families from the threat of deportation. ###

Universal Representation protects due process by allowing immigrants to access their rights under U.S.
law.
“My husband and I work full-time to be able to give our family a place to live. We have two children
with DACA. If one of us is detained by ICE I know for sure we won’t have the resources to afford a
lawyer. This program will allow us to have legal representation,” said Carmen Rios Fairfax Co. Resident.
CASA especially appreciates and recognizes Supervisors Jeff McKay and John Foust’s exceptional
leadership in helping to protect immigrant and mixed-status families.

With almost 100,000 members across the states of Maryland, Virginia, and South Central Pennsylvania, CASA is the largest member-based Latino and immigrant organization in the mid-Atlantic region. CASA organizes with and litigates on behalf of low-wage immigrants. Visit us at www.wearecasa.org and follow us on Twitter at @CASAforall

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Never has representation been more critical. With EOIR joining the Trump Administration’s all out assault on migrants and Due Process, no individual should face these biased and politicized “courts” without legal representation committed to fight for justice to the “real” courts and to expose and document the parody of justice in today’s Immigration “Courts” under the unethical political leadership of EOIR.

Many thanks to Roundtable Member Judge John Gossart for passing this along.

Join the New Due Process Army. Fight the EOIR travesty!

PWS

05-12-19

COURTSIDE HISTORY: Trump’s American White Nationalist Antecedents Were The Racist Pols & Pseudo-Scientists Of A Century Ago! — The Lies & Ugliness Of The Past Are Being Repeated — Only This Time It’s People Of Color Rather Than Italians, Irish, Slavs, Catholics, & Jews Who Are Targeted For “Dehumanization” (Although It Would Be Wrong To Underestimate Trump’s Responsibility For The Revival Of Anti-Semitism)!

https://www.nytimes.com/2019/05/03/opinion/sunday/anti-immigrant-hatred-1920s.html

Daniel Okrent writes in the NY Times:

In early 1921, an article in Good Housekeeping signaled the coming of a law that makes President Trump’s campaign for immigration restriction seem mild by comparison. “Biological laws tell us that certain divergent people will not mix or blend,” it read. “The dead weight of alien accretion stifles national progress.” The author was Calvin Coolidge, about to be sworn in as vice president of the United States. Three years later, the most severe immigration law in American history entered the statute books, shepherded by believers in those “biological laws.”

The anti-immigrant fervor at the heart of current White House policymaking is not a new phenomenon, nor is the xenophobia that has infected the political mainstream. In fact, race-based nativism comes with an exalted pedigree — and that pedigree is something we all should remember as the Trump administration continues its assault on immigrants of specific nationalities. The scientific arguments Coolidge invoked were advanced by men bearing imposing credentials. Some were highly regarded scholars from Harvard, Princeton, Yale and Stanford. One ran the nation’s foremost genetics laboratory. Another was America’s leading environmentalist at the time. Yet another was the director of the country’s most respected natural history museum.

Together, they popularized “racial eugenics,” a junk science that made ethnically based racism respectable. “The day of the sociologist is passing,” said the Harvard professor Robert DeCourcy Ward, “and the day of the biologist has come.” The biologists and their publicists achieved what their political allies had failed to accomplish for 30 years: enactment of a law stemming the influx of Jews, Italians, Greeks and other eastern and southern Europeans. “The need of restriction is manifest,” The New York Times declared in an editorial, for “American institutions are menaced” by “swarms of aliens.”

Image

Protesters rallied last June against family separations in front of the United States Port of Entry in downtown El Paso, Texas. CreditVictor J. Blue for The New York Times

Keeping people out of the country because of their nationality was hardly a novel idea. The Chinese Exclusion Act of 1882 was avowedly racist. In 1923 a unanimous Supreme Court declared that immigrants from India could be barred from citizenship strictly on racial grounds.

What was different about the new, putatively scientific campaign was that even whiteness was no ticket to entry.

Writing about Slavic immigrants, the sociologist Edward A. Ross of the University of Wisconsin — later the national chairman of the American Civil Liberties Union — declared, they “are immune to certain kinds of dirt. They can stand what would kill a white man.” The president of Massachusetts Institute of Technology said newcomers from eastern and southern Europe were “vast masses of filth” who were “living like swine.”

The Washington Post editorialized that 90 percent of Italians coming to the United States were “the degenerate spawn” of “Asiatic hordes.” A Boston philanthropist, Joseph Lee, his city’s leading supporter of progressive causes, explained to friends why he became the single largest financial backer of the anti-immigrant campaign: His concern, he wrote, was that without a restriction law, Europe would be “drained of Jews — to its benefit no doubt but not to ours.”

The “biological” justifications for this nativism were first developed in Cold Spring Harbor, on Long Island, in laboratories financed by the widow of the railroad baron E.H. Harriman. (One of her goals, Mary Harriman said, was preventing “the decay of the American race.”) The laboratory’s head, the zoologist Charles B. Davenport, took the ideas of the British gentleman scientist Francis Galton — who had coined the word “eugenics” in 1883 — welded them to a gross misunderstanding of the genetic discoveries of Gregor Mendel, and concluded that the makeup of the nation’s population could be improved by the careful control of human breeding. One of the first steps, he believed, was to impose new controls on open immigration.

At first, Davenport wished to bar the immigration only of people afflicted by specific disorders — epileptics, the “feebleminded” and others of similarly troublesome (to Davenport) disability. But soon he was caught up in a racialist whirlwind initiated by “The Passing of the Great Race,” a book by Madison Grant, the founder of the Bronx Zoo and the era’s most prominent conservationist. A bilious stew of dubious history, bogus anthropology and completely unfounded genetic theory, Grant’s work persuaded Davenport and others that the American bloodstream was threatened not by suspect individuals, but by entire ethnic groups.

First published in 1916 and reissued in a series of revisions over the next eight years — all of them brought into print by Maxwell Perkins, the celebrated editor of F. Scott Fitzgerald and Ernest Hemingway — “The Passing of the Great Race” savagely denigrated the peoples of eastern and southern Europe while exalting the “Nordics” of northwestern Europe. With the presumed authority of scholarship, he summarized the essential argument of racial eugenics.

“Whether we like to admit it or not,” Grant wrote, “the result of the mixture of two races, in the long run, gives us a race reverting” to the “lower type.” Lower than Nordics were the questionable “Alpines.” Lower than the “Alpines” were the woeful “Mediterraneans.” And, he concluded, “the cross between any of the three European races and a Jew is a Jew.”

Grant was not an actual scientist. But Henry Fairfield Osborn, a world-famous paleontologist and his closest friend, definitely was. Osborn, who once expressed his opposition to the extension of the Westchester Parkway near his country estate because it would bring thousands of “East Side Jews” to the area, presided over the American Museum of Natural History for 25 years, and made that institution the beating heart of the combined eugenics and anti-immigration movement. “I am convinced,” said Osborn, that the “spiritual, physical, moral and intellectual structure” of individuals is “based on racial characteristics.” It wasn’t a matter of ethnic bias, he said — it was “cold-blooded” science.

Other scholars rallied to the cause. Robert M. Yerkes — his name immortalized today at the Yerkes National Primate Research Center in Atlanta — conducted a severely flawed series of tests of American servicemen purporting to establish the intellectual inferiority of eastern and southern Europeans. Charles W. Gould, a lawyer in New York, sponsored “A Study of American Intelligence,” by Carl C. Brigham, a young Princeton psychologist (and later the inventor of the SAT). Brigham’s conclusion: “There can be no doubt that recent history has shown a movement of inferior peoples or inferior representatives of peoples to this country.”

At the same time, Perkins and his colleagues at Charles Scribner’s Sons published a raft of books promoting racialized eugenics. Scribner publicists wrote in one promotion piece: “The inrush of lower races is threatening the very blood of our country.” Perkins’s authors were echoed in the country’s leading magazine, The Saturday Evening Post. “Race character is as fixed a fact as race color,” the Post declared. “Thirty years ago,” the magazine insisted in another article, “science had not perhaps sufficiently advanced to make us fully aware” of the danger of open immigration. Now it had.

Read more

Opinion articles about immigration.

Opinion | Janet Murguía

The American Family Makes This Country Great, and It’s in Danger

May 2, 2019

Opinion | Alan Cross

Alabama Is More Pro-Immigrant Than You Think

April 30, 2019

When the 1924 Immigration Act reached the floor of Congress, passage was assured. Albert Johnson, chairman of the House Immigration and Naturalization Committee, declared that “the fundamental reason” for immigration restriction was “biological.” During the floor debate, one congressman said the law was provoked by “the necessity for purifying and keeping pure the blood of America.” Given the arguments presented by so many of the nation’s leading scientific figures, who could disagree?

The resulting law established quotas by nation; they cut like a scythe. In the last year before their introduction, more than 220,000 Italians entered the United States. The quota slashed that number to less than 4,000. Reductions nearly as harsh were imposed on other eastern and southern European groups, while tens of thousands of slots reserved for Britons, Scandinavians and other “Nordics” went unfilled.

The 1924 quotas remained in force for more than 40 years — while the economic devastation of a worldwide depression hit southern Europe especially hard; while a 1939 measure that would have allowed 20,000 German Jewish children into the United States died in Congress, and the savagery of the Holocaust began; while the Nazis and their allies starved 350,000 Greeks and slaughtered 200,000 Serbs; and while displaced-persons camps stretched across the ruins of postwar Europe.

In 1920, Charles Davenport had asked Madison Grant, “Can we build a wall high enough around this country” to keep out the unwanted? They could, and they did.

Daniel Okrent is the author of “The Guarded Gate: Bigotry, Eugenics, and the Law That Kept Two Generations of Jews, Italians, and Other European Immigrants Out of America.”

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The race-based ”Aryan Nationalism” of 1920’s America helped pave the way for the Nazi atrocities of World War II.

Out of the failure of the West to save lives when it was possible before the start of World War II and the horrible human exterminations that followed came the 1951 U.N. Convention on Refugees. It is that Convention which Trump and other nationalist leaders throughout the Western World are committed to destroying.

At the recent Louisiana State Bar Immigration Conference, held on April 26, 2019, Attorney R. Andrew Free of Nashville, TN, who had been to the border and observed firsthand the lawless, counterproductive, and inhumane behavior of both the Mexican and U.S. authorities toward asylum seekers, particularly women and children, made an excellent “historical perspective” presentation.

Free traced the origins of today’s xenophobic and racist-inspired restrictionist immigration policies policies to two historic events: 1) the Eisenhower Administration’s 1954 “Operation Wetback” directed against Mexicans which resulted in some Mexican-American citizens and lawful residents being swept up in the indiscriminate “dragnet,” without any hint of due process, directed against Hispanic appearing and Spanish speaking individuals along the Southern Border; and 2) the highly racist Immigration Act of 1924, praised by such “modern day Jim Crows” as Jeff Sessions and his acolyte White House Advisor Stephen Miller.

Do we as a people REALLY want to be remembered the way Coolidge, Albert Johnson, and the host of racist “pseudo-scientists” are described in this article? Or, are we willing to take a stand against the White Nationalist restrictionist agenda being pushed by Trump and his many enablers?

How can we forget our own immigrant heritages and the nasty racist stereotypes thrown at almost every group of new immigrants, including of course enslaved African Americans and other “involuntary forced migrants,” who built America into a great nation!

Due Process Forever — White Nationalism Never!

PWS

05-09-19

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

*********************************************

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

The fee would put the United States out of step with most of the world, as the vast majority of countries do not require asylum seekers to pay any fee. Given the dire circumstances many asylum seekers come from, including economically, critics worry the fee would prove a barrier to those with legitimate claims.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

[The surge in migrants seeking asylum, explained]

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

The proposed changes will likely take some time to implement, if they ever are. Attorney General William P. Barr has 90 days to come up with a plan, and the move will undoubtedly be challenged in court.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.

It’s not rocket science — more like basic governing competence. Here are the elements:

Establish an independent Article I U.S. Immigration Court;
Invest in representation of asylum seekers;
Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
Reduce immigration detention;
Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.

PWS

05-01-19

DHS KAKISTOCRACY RIPS OFF VULNERABLE IMMIGRANTS AND THEIR FAMILIES!

https://www.washingtonpost.com/immigration/ice-is-holding-204-million-in-bond-money-and-some-immigrants-might-never-get-it-back/2019/04/26/dcaa69a0-5709-11e9-9136-f8e636f1f6df_story.html?fbclid=IwAR3vw-xzEXl2SSo2e-F0_kT54OSpZcckjBQz1WK26d2OBnsy0Rv6AADtniw&utm_term=.3a3765b59dfc

Meagan Flynn reports for WashPost:

U.S. Immigration and Customs Enforcement is holding on to more than $200 million in bond money that belongs to immigrants who have been in the agency’s custody, cash that has yet to be returned to thousands of immigrant families or the U.S. citizens who bailed them out, according to data obtained through open records requests.

The unreturned bond money stood at $204 million as of July 31, 2018, according to the data, which immigration law clinics at Stanford University and the University of California at Davis obtained and shared exclusively with The Washington Post. The pot of immigrant bond money grew by $57.3 million between September 2014 and July 2018, the data shows.

More than 18,000 bond payments went unclaimed in that four-year period, according to the data.

[Read the Stanford and U.C. Davis immigration report]

Though the trust fund — which the Treasury Department maintains — cannot be used for any other purpose, getting the money back to immigrants and their friends and families has proved a difficult and lengthy process. ICE officials said the agency makes multiple attempts to reach the people who posted the bond, but paperwork and checks mailed to them sometimes are undeliverable or receive no response, and it can be impossible to find the people if they moved out of the country. Those who do submit claims, ICE said, receive their funds within a month.

ICE did not provide data on average wait times to claim the money, and several lawyers and immigrants told The Post they have in some cases waited a year or longer after submitting for reimbursement.

Invisible walls: The lives altered by Trump’s crackdown on immigration

Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again. As bond amounts remain on the rise, lawyers said thousands of people are putting their life savings in ICE’s hands to secure an immigrant’s temporary freedom without any idea of when or if they’ll see the money again. Many immigrants say it takes far longer than a month to reclaim their funds.

“The toll on a poor family having to pay thousands of dollars in bond can’t be overstated,” said Jayashri Srikantiah, director of Stanford’s Immigrants’ Rights Clinic. “Clearly, something is breaking down when there are hundreds of millions of dollars sitting in an account that belongs to those immigrant families. If nothing else is clear, that is clear.”

Srikantiah and Holly S. Cooper, co-director of UC Davis’s Immigration Law Clinic, said they intend to push for congressional oversight of ICE’s bond system. They said the amassing of bond money indicates a serious problem and could amount to a massive theft from people who can least afford it.

Marco Antonio Torres Rojas, a father of three from Mexico, won his immigration case in August, but it took roughly seven months for ICE to return the $25,000 bond his family and friends paid to gain his release — seven years ago.

When he was detained in 2012 — for overstaying an H-2B work visa — an immigration attorney assured his family that paying the $25,000 bond would be the only way to stave off deportation. But for Rojas, a landscaper and snowplow driver in Minnesota, the sum appeared impossible. He and his wife had just a few thousand dollars in savings.

So they started pooling money: Three thousand from an aunt. Four thousand from a cousin. Eight thousand from Rojas’s closest friend. Sums that drove each into debt.

“We felt a sense of desperation,” Rojas said.

A Guatemalan migrant and his 10-year-old son look at the Miami cityscape outside an immigration courthouse in January. Some immigrants who are required to pay bond have to make difficult decisions about posting the cash payments, knowing they might not see the money back for years. (Brynn Anderson/AP)

Pay legal fees, or bond fees?

While criminal defendants typically can pay a bondsman 10 percent of the set bail amount to gain release, in the immigration system about 90 percent of bonds require cash for the whole amount upfront.

ICE initially sets bonds on a “case-by-case basis,” the agency said, though not everyone is eligible for bond or release.

For those who are eligible, bonds have been steadily rising since the second half of the Obama administration, after an influx of Central American immigrants. The average bond set by a judge was $3,000 to $5,000 for years, but it rose to $8,000 in fiscal year 2016, according to data from the Executive Office of Immigration Review. Bonds have remained at that level or slightly higher into the first months of fiscal year 2019.

Lawyers say the unexplained rises in fees have forced detainees into an impossible choice.

“I hear from people who call me asking, ‘Should I use the money to pay legal fees or pay the bond fees?’ ” Cooper said. “ ‘I only have one truck. If I sell it, it’s $5,000.’ ”

Once the money is raised — often from numerous people in each case — only a U.S. citizen or legal permanent resident can post the bond. Because many immigrants don’t have a close relative who fits the definition, they sometimes turn to acquaintances or neighbors, said Michelle N. Mendez, an immigration attorney at the Catholic Legal Immigration Network in Silver Spring, Md. That person, according to ICE policies, is the only one who will ever get a copy of the bond paperwork.

Mendez said many immigrants don’t know that once the bond is posted, only the person who posted the bond can get it back.

“Then life happens,” Mendez said. “Maybe they don’t keep in touch with the obligor. Maybe the obligor is not a person of integrity — he’s a fraudster. Or they just lose touch with the obligor, because the obligor is some random person they found to post the bond.”

[Nations targeted by U.S. for high rates of visa overstays account for small number of violators]

The person who posted the bond money might move across the country or even out of the country; they might lose the original paperwork required to reclaim the money back, creating additional hurdles; the obligor might die.

Gloria Contreras Edin, an immigration attorney in Minnesota, said she had one undocumented client whose obligor was on the brink of dying of cancer. Before the man died, her client wheeled him into her office so he could sign over the bond responsibilities to someone else. Her client, Anibal El Verengue, a Guatemalan who lives in Minnesota and was ordered removed in 2015 for entering the country illegally, said he would not have known to do this if he did not have an attorney to advise him.

A friend who lives in Idaho and is married to a U.S. citizen offered to be responsible for El Verengue’s bond; El Verengue said he has been waiting on a refund of the bond payment since December. He then had to pay a second bond after he was arrested on DUI charges, a bond that is still open, his attorney said.

“One friend who I owe money won’t even speak to me, because he doesn’t trust me anymore,” El Verengue said, whose application for asylum is pending.

María Sosa washes dishes in her apartment in the Panorama City neighborhood of Los Angeles. Her husband won his immigration case in October, and it took five months to get his bond payment back from the federal government. (Ivan Kashinsky for The Washington Post)

Money just sits there

Mendez said she discovered how dire the problem was in 2009, two years after a well-publicized immigration raid at a Baltimore 7-Eleven resulted in numerous deportations. When Mendez checked in on some of the families of the deported men, she discovered they were living in poverty.

“I wanted to make sure that when the breadwinner got deported, the family would have some money,” Mendez said. “Those were the cases where I started to think: How do we get this money back? Nobody really knew . . . At that point, they’re really so far removed from the bond posting — thinking, ‘Oh well. I lost my case. I’m not entitled to anything’ — that they just let it be.”

To assist the Baltimore-area families, she started investigating the process for bond refunds: Once an immigrant’s case is closed — win or lose — the bond is “canceled” so long as they met the legal conditions that went along with it. The person who posted the bond, not the immigrant, should receive notice by mail.

“ICE does not notify the alien for whom the bond was executed, because its contract is with the obligor,” ICE said in a statement.

ICE makes three attempts to locate the person, but if the person who posted the bond did not file paperwork indicating a change of address, it might not be possible to find them.

And even those who follow the procedures said the process is rife with delays.

María Sosa, a legal permanent resident in California, said her husband won his immigration case in October but that she did not receive a bond cancellation notice from ICE until January. Unable to speak English, she made numerous visits to an ICE office to understand what she needed to do to get her money back; she received it on March 29.

To pay the $3,000 bond in the first place, Sosa, a worker at a prepackaged food factory, borrowed money from three people and dipped into her savings, which were supposed to fund a visit to Mexico to visit family. While she was waiting for the check from ICE, she said, her father-in-law in Mexico grew seriously ill and died.

She said she and her husband could not afford to attend his funeral.

“The whole system is created in a way that doesn’t foster the accessibility to those funds,” Contreras Edin said. “And so many times the money is left and just sits there.”

ICE pays interest on bond money while unclaimed, up to one year. After that, the funds are transferred to the Treasury Department. The Treasury Department said it does not know what year the $204 million began accumulating. The U.S. government is not allowed to use the money unless immigrants fail to adhere to bond conditions and forfeit it, otherwise known as a bond breach.

Bonds can be breached for reasons such as failure to show up in court or failure to turn the immigrant over to authorities if ICE asks the obligor to do so. But there can also be mistakes. Mendez recalled a case in which ICE breached her client’s bond for failure to show up to be deported — but her client was still appealing the removal order, and ICE had apparently missed that information, according to 2015 correspondence with ICE she provided to The Post.

About $34.5 million in bonds are forfeited each year, money that ICE uses to defray detention and apprehension costs.

Advocates at Stanford and UC Davis argue that the arrangement creates a conflict of interest.

“They obviously have incentive to not exercise discretion favorably and to breach more bonds,” said Emily Child, who worked on the Stanford and UC Davis research with Cooper. “That money goes right back into their pockets.”

ICE said that all breach decisions can be appealed to the U.S. Citizenship and Immigration Service. When breaching bonds, agents consider whether the violation was an accident or intentional and whether the obligor or immigrant was acting in good faith, ICE said in a statement.

‘An incredible amount’

Rojas was getting nervous. It was March, and he had been waiting seven months for a check that would be addressed to his brother’s wife, the U.S. citizen who posted his bond.

He called his attorney, Contreras Edin, expressing his fear that something had fallen through the cracks. The lawyer’s office contacted ICE bond specialists. A few weeks later, the check arrived.

Cooper and Srikantiah said they believe that working with an attorney is crucial to recovering the bond money, and many immigrants and those who post the bonds don’t have lawyers or can’t afford one.

They argue that ICE’s systems are outdated and cumbersome, and they believe immigrants should receive copies of their bond paperwork in a language they can understand, something that could mitigate the possibility of fraud and ensure that those who pay bonds receive the money back when they are entitled to it.

“While something like $5,000 or $10,000 might not be a lot of money to the federal government, to an individual family that has pulled all of their money together in order to get a loved one out of detention, it’s an incredible amount,” Srikantiah said. “With detention growing at the rate it is, we think this is a really good time for Congress to provide some oversight and actually investigate why this is happening.”

***************************************

My favorite comment:

“So, we steal their children and their money. How contemptible.”

Says it all!

PWS

04-28-19

“DUH” OF THE DAY: Barr Is A Trump Flunky — Leah Litman Reports @ Slate

https://slate.com/news-and-politics/2019/04/obstruction-case-william-barr-doj-donald-trump.html

Photo By: Kimberly April Photography www.kimberlyapril.com

Litman writes:

It took Attorney General William Barr only one week from the release of the Mueller report to bring obstruction of justice charges against two governmental officials for interfering in a federal investigation. But the charges have nothing to do with the special counsel’s investigation into Russian interference in the election or the possible obstruction of that investigation.

Although the obstruction charges DOJ filed are not related to the Mueller report, they underscore just how far the attorney general bent over backward to spin the report in the president’s favor and how partisan the Department of Justice has become. The disparities between the two cases highlight how the Department of Justice, under Barr’s leadership, has become nothing more than a political arm of the Trump administration, particularly in its handling of possible obstruction charges stemming from the Mueller report.

The indictment against Judge Shelley Richmond Joseph, a Massachusetts district court judge, and Officer Wesley MacGregor, a Massachusetts trial court officer, alleges that the officers interfered with an Immigration and Customs Enforcement proceeding by preventing ICE from arresting an individual who was arrested on state charges and attended an arraignment hearing in state court. During the state court proceeding, Joseph asked an ICE officer to wait outside the courtroom while the court conducted the arraignment hearing. Earlier in the day, the judge had requested more information about one of the state charges in the case (a fugitive charge) after the prosecutor said the state would not seek to detain the defendant on the other charge (a drug charge).

After recalling the case, the judge observed that ICE was in the courthouse. The prosecutor then informed the court that the state did not believe the defendant was the fugitive from Pennsylvania for whom there was an arrest warrant and therefore believed that the fugitive charge was an error, which would mean that the defendant would be free to leave. The defense attorney, however, noted that ICE was convinced otherwise and suggested they would likely take the client into custody. The defense attorney then suggested that “the best thing for us to do is to … release him … and hope that he can avoid ICE.”

At that point, the judge noted the other alternative was to recall the proceedings again the next day and asked “ICE is gonna get him?” before directing the clerk to go off the record. The recording was turned off for 52 seconds, and when it resumed, the prosecutor renewed the claim that the defendant was not the person with a Pennsylvania warrant out for his arrest and moved to dismiss the fugitive charge against him. Because the state had already stated it would not seek to detain the defendant on the drug charges, the defendant was released, and the trial court officer escorted him through the back door.

This evidence provided the basis for Barr’s Department of Justice to indict the state judge and state officer for obstruction of justice and conspiracy to obstruct justice. Yet all of the reasons Barr has previously cited for opposing an obstruction investigation against the president suggest the Department of Justice should not have brought obstruction charges against Joseph and MacGregor either.

For example, in June, Barr wrote a memo as a private citizen arguing that obstruction laws should not “reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution.” Yet that is exactly what the obstruction-of-justice charges against Joseph and MacGregor cover. State judges do not persist with criminal charges that the district attorney has dropped, and state law does not require judges to detain individuals on the drug charges that remained. It was therefore “facially legitimate” and within the “discretion” of the judge not to detain the individual based on the drug charge. The judge also has total control of her courtroom and can decide through which doors to instruct people to come and go. And the state judge’s motive shouldn’t matter to the analysis because under Barr’s theory of obstruction, government officials can’t be charged with obstruction “based solely on his subjective state of mind” for “simply exercising his discretion in a facially lawful way.”

Or take Barr’s statement—given at a bizarre press conference just prior to the release of the Mueller report last week—that the president did not corruptly intend to obstruct the investigation because the president “was frustrated and angered by a sincere belief that the investigation was undermining his presidency.” A similar exculpatory argument could be made on behalf of Joseph and MacGregor. They, too, may have been “frustrated and angered by a sincere belief that” ICE’s investigations and presence in state courthouses undermined the integrity of state court proceedings. Or perhaps they were frustrated and angered by a sincere belief that ICE’s enforcement efforts were the result of the president’s apparent bias and animosity toward the Latino community.

Ultimately, the Justice Department’s indictment of Joseph and MacGregor is a reminder about how aggressively the federal government often reads the federal obstruction statute. For example, the indictment confirms that obstruction does not have to be particularly sophisticated or successful in order to constitute a crime—the trial court officer merely let the defendant out the back door, and the defendant was subsequently apprehended and now faces deportation.

It also demonstrates a contrast in the kind of evidence that often suffices to establish an obstruction-of-justice charge. In the case of Joseph and MacGregor, DOJ has some snippets of a courtroom conversation that indicated the judge wanted to do something she did not want publicly recorded and less than a minute without a recording. In the case of President Donald Trump and his associates, special counsel Robert Mueller compiled dozens of witnesses, contemporaneous notes, 10 separate incidents, 182 pages of a report, multiple instances of officials lying to investigators or not being forthcoming with them, and several damning instances of the president lying in an apparent effort to cover his tracks. All of this led Barr to his four-page summary conclusion that Trump had not committed a crime—a conclusion that flew in the face of Mueller’s findings.

The stark difference between the attorney general’s treatment of the obstruction case against Joseph and MacGregor and the obstruction cases at the heart of the Mueller report serves as a pointed reminder that Barr’s response to the obstruction issues raised by the Mueller report was partisan and unprincipled.

*****************************************

Golly gee, who woulda thought that a guy who “auditioned” for his job by promising to turn the DOJ into “Trump’s personal law firm” to be used against the United States of America and its people while being paid by same USA would turn out to be exactly the type of unethical hack that he promised to be? I mean we expect Trump sycophants to lie about everything. But, Barr only lies about the law when it suits Trump’s purposes — he’s made good on his promise to help Trump degrade and destroy American democracy.

PWS0

04-27-19

COLLISION COURSE: 3rd Cir. Case Shows How Article III Courts’ Demand For Cogent, Detailed Analysis From Immigration Judges Will Collide Head On With Barr’s Plans To Further “Dumb Down” The Immigration Court System! — Result Could Flood Article IIIs With More “Idiot Orders!” — Liem v. Attorney General

181955p

Liem v. Attorney General, 3d Cir., 04-19-19, published

PANEL: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION BY: Judge Rendell

KEY QUOTE:

Because the BIA did not explain its conclusion and did not meaningfully consider much of the evidence presented by Liem, we will grant his petition for review, vacate the denial of his second motion to reopen, and remand to the BIA for further proceedings consistent with this opinion. In doing so, we do not decide whether Liem has shown materially changed conditions in Indonesia warranting reopening of his removal proceedings. Rather, we conclude that the abovementioned evidence contradicting the BIA’s determination is strong enough to require the BIA to afford it more thorough consideration. We remand for the BIA to meet its heightened duty and meaningfully consider all of the evidence, which may or may not yield a different result.

**************************************

Welcome tho the world of today’s BIA, where it’s all about numbers — who cares about analysis.

And, Barr fully and contemptuously intends to make it even worse — stuff it down the throats of the Article IIIs — by encouraging more use of non-analytical “summary affirmances” at the same time that Immigration Judges are being pushed to enter more “idiot orders” denying relief without any real reasoning. Then, he’s going to count on “Trump’s Chumps” among the Article IIIs to “Chevron” and “Brand X” themselves right out of existence.

So, we’re about to find out how much integrity the Article IIIs really have. Will they resist and appropriately “stuff” Barr’s blatant, unethical attempt to shift the “backlog” to them by “just saying no” and returning these cases en masse? Will they finally step up to the plate and rule this entire Immigration “Court” farce unconstitutional, halting most removals until Congress establishes a Due Process compliant independent system?

Or, as Trump, Sessions, and now Barr count on, will they function as “Trump’s Chumps,” mere “stationmasters on the deportation railroad” whose job it is to count the cattle cars of humans heading south? Folks in robes willing to “go along to get along” with the “new Jim Crows” by tanking their responsibility to enforce the Constitution for migrants. Just “defer” to non-existent analysis and parodies of court proceedings because we’re dealing with the vulnerable who can’t fight back.

History will be watching how they perform. So far, Trump & Co. haven’t been completely right, particularly about the lower Federal Court judiciary. They have encountered quite a few judges appointed by both parties ready and willing to stop the Administration’s all out assault on the rule of law and our Constitution.

But, the Trumpsters haven’t been completely wrong about the higher Federal Courts either. The totally disingenuous performance of the “Trump Chump Five” during oral argument this past week at the Supremes on the “Census Case” — a “no brainer” teed up by the lower courts that an impartial and functional Court would have used to deliver a resounding 9-0 rebuke of Trump’s “DOJ Legal Sycophant Ethics-Free Team” — could have been scripted by Stephen Miller with a little help from Steve Bannon.

The big problem here is that folks in the “ivory tower” of the U.S. Circuit Courts and the Supremes operate outside the real world. They don’t seem to be able to picture themselves or their families or loved ones in the cattle cars heading south on the railroad. Indeed, unlike trial judges, they don’t even have to face the folks they are disenfranchising, dehumanizing, and whose legal rights they are trashing.

Their failure to connect the law with humanity, human rights, moral values, and simple fundamental fairness may well be the downfall for all of us. At some point, they might find that the “Liar-in-Chief” and his toadies no longer need their stationmasters — that complicit judges have become as dispensable as the humans whose lives and rights they have failed to protect.

PWS

04-27-19

LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!

https://www.jeffreyschase.com/blog/2019/4/21/a-better-approach-to-unable-or-unwilling-analysis

Apr 21 A Better Approach to “Unable or Unwilling” Analysis?

“K.H., a Guatemalan native and citizen, was kidnapped, beaten, and raped in Guatemala when she was seven years old.” That horrifying sentence begins a recent decision of the U.S. Court of Appeals for the Sixth Circuit denying asylum to that very same youth.

In that case, DHS actually stipulated that the applicant was persecuted on account of a statutorily protected ground. But the insurmountable hurdle for K.H. was her need to establish that the government of Guatemala was unable or unwilling to control the gang members who had persecuted her.

Asylum is supposed to afford protection to those who are fleeing something horrible in their native country. Somehow, our government has turned the process into an increasingly complex series of hoops for the victim to jump through in order to merit relief. Not long after Congress enacted legislation in 2005 making it more difficult for asylum seekers to be found believable, the Seventh Circuit Court of Appeals acknowledged that “asylum hearings are human events, and individuals make mistakes about immaterial points…Basing an adverse credibility finding on these kinds of mistakes appears to be more of a game of ‘gotcha’ than an effort to critically evaluate the applicant’s claims.” Sankoh v. Mukasey, 539 F.3d 456, 470 (7th Cir. 2008). More recent developments have extended the game of “gotcha” beyond credibility determinations and into substantive questions of law.

It is recognized that one can qualify for asylum where the persecutors are not part of the government, provided that the government is either unable or unwilling to control them. In a recent amicus brief, the Office of the United Nations High Commissioner for Refugees (UNHCR) correctly stated what seems obvious: that “the hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors.” As the whole point of asylum is to provide humanitarian protection to victims of persecution, of course the test must be the effectiveness of the protection. UNHCR continued that the fact that a government has enacted laws affording protection is not enough, as “even though a particular State may have prohibited a persecutory practice…the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.”

When I was an immigration judge, I heard testimony from country experts that governments were often inclined to pass laws or even create government agencies dedicated to the protection of, e.g. religious minorities solely for cosmetic reasons, to give the appearance to the international community that it was complying with international human rights obligations, when in reality, such laws and offices provided no real protection. But UNHCR recognizes that even where there is good intent, “there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.”

Yet U.S. law has somehow recently veered off course. In unpublished decisions, the BIA began applying what seems like a “good faith effort” test, concluding that the asylum applicants had not met their burden of establishing that the government was “unable or unwilling to protect” if there was evidence that the government showed some interest in the issue and took some action (whether entirely effective or not) to provide protection. Such approach wrongly ignored whether the government’s efforts actually resulted in protecting the asylum seeker. Next, former Attorney General Jeff Sessions weighed in on the topic in his decision in Matter of A-B-, in which he equated a government’s unwillingness to control the persecutors (which could potentially be due to a variety of factors, including fear, corruption, or cost) with the much narrower requirement that it “condone” the group’s actions. He further opined that an inability to control requires a showing of “complete helplessness” on the part of the government in question to provide protection. These changes have resulted in the denial of asylum to individuals who remain at risk of persecution in their country of origin.

In K.H., it should be noted that the evidence that convinced the BIA of the Guatemalan government’s ability to afford protection included a criminal court judge’s order that the victim be moved to another city, be scheduled for regular government check-ins as to her continued safety there (which the record failed to show actually occurred), and the judge’s further recommendation that the victim seek a visa to join her family in the U.S. A criminal court judge’s directive to move to another city and then leave for a safer country hardly seems like evidence of the Guatamalan government’s ability or willingness to provide adequate protection; quite the opposite. But that is how the BIA chose to interpret it, and somehow, the circuit court found reason to let it stand under its limited substantial evidence standard for review.

Challenges to these new interpretations are reaching the circuit courts. Addressing the issue for the first time, the Sixth Circuit in K.H. created a rather involved test. The court first set out two broad categories, consisting of (1) evidence of the government’s response to the asylum seeker’s persecution, and (2) general evidence of country conditions. WIthin broad category (1), the court created three subcategories for inquiry, namely: (1) whether the police investigated, prosecuted, and punished the persecutors after the fact; (2) the degree of protection offered to the asylum seeker, again after the fact of their being persecuted, and (3) any concession on the part of the government, citing a Third Circuit decision finding a government’s relocation of a victim to Mexico as an admission by that government of its own inability to provide adequate protection. (Somehow, the criminal judge’s order to relocate K.H. to another city and then seek a visa to the U.S. was not viewed as a similar concession by the BIA.)

Under broad category (2) (i.e. country conditions), the court established two subcategories for inquiry, consisting of (1) how certain crimes are prosecuted and punished, and (2) the efficacy of the government’s efforts.

Some shortcomings of this approach jump out. First, many asylum applicants have not suffered past persecution; their claims are based on a future fear of harm. As the Sixth Circuit approach is based entirely on how the government in question responded to past persecution, how would it apply to cases involving only a fear of future persecution?

Secondly, and more significantly, the Sixth Circuit’s entire approach is to measure how well a government acted to close a barn door after the horse had already escaped. The test is the equivalent of measuring the owner of a china shop’s ability to protect its wares from breakage by studying how quickly and efficiently it cleaned up the broken shards and restocked the shelves after the fact.

I would like to propose a much simpler, clearer test that would establish with 100 percent accuracy a government’s inability or unwillingness to provide effective protection from a non-state persecutor. The standard is: when a seven year old girl is kidnapped, raped, and beaten, the government was presumably unable to provide the necessary effective protection.

If this seems overly simplistic, I point to a doctrine commonly employed in tort law, known as res ipsa loquitur, which translates from the Latin as “the thing speaks for itself.” It is something all lawyers learn in their first year of law school. I will use the definition of the concept as found on the Cornell Law School website (which is nice, as I recently spoke there), which reads:

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

The principle has been applied by courts since the 1860s.

So where the government has stipulated that the respondent suffered persecution on account of a protected ground, should we really then be placing the additional burden on the victim of having to satisfy the “unable or unwilling” test through the above line of inquiry set out by the Sixth Circuit? Or would it be more efficient, more, humane, and likely to reach a more accurate result that conforms to the international law standards explained by UNHCR, to create a rebuttable presumption of asylum eligibility by allowing the asylum applicant to establish that the persecution would not ordinarily have occurred if the government had been able and willing to provide the protection necessary to have prevented it from happening? The bar would be rather low, as seven year olds should not be kidnapped, raped, and beaten if the police whose duty it was to protect the victim were both able and willing to control the gang members who carried out the heinous acts. The standard would also require a showing that such harm occurred in territory under the government’s jurisdiction (as opposed to territory in which, for example, an armed group constituted a de facto government).

Upon such showing, the burden would shift to DHS to prove that the government had the effective ability and will to prevent the persecution from happening in the first place (as opposed to prosecuting those responsible afterwards) by satisfying whatever complex, multi-level inquiry the courts want to lay out for them. However, DHS would not meet its burden through showing evidence of the government’s response after the fact. Rather, it would be required to establish that the Guatemalan government provides sufficient protection to its citizens to prevent such harm from occurring in the first instance, and that what happened to the asylum applicant was a true aberration.

Shifting the burden to DHS would make sense. It is often expensive to procure a respected country expert to testify at a removal proceeding. As more asylum applicants are being detained in remote facilities with limited access to counsel, it may be beyond their means to retain such experts themselves. The UNHCR Handbook at para. 196 recognizes the problems asylum seekers often have in documenting their claims. It thus concludes that “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”

Furthermore, ICE attorneys who should welcome the role of such experts in creating a better record and increasing the likelihood of a just result have taken to disparaging even highly respected country experts, sometimes subjecting them to rather hostile questioning that slows down proceedings and might discourage the participation of such experts in future proceedings. Therefore, letting ICE present its own experts might prove much more efficient for all.

Incidentally, UNHCR Guidelines published last year state that while the Guatemalan government has made efforts to combat gang violence and has demonstrated some success, “in certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection…” The report continued that some temporary police operations have simply caused the gangs to move their operations to nearby areas. The report further cited the problem of impunity for violence against women and girls, as well as other groups, including “human rights defenders, legal and judicial professionals, indigenous populations, children and adolescents, individuals of diverse sexual orientations and/or gender identities, journalists and other media workers.” The same report at pp. 35-36 also references corruption within the Guatemalan government (including its police force) as a “widespread and structural problem.” DHS would have to present evidence sufficient to overcome such information in order to rebut the presumption triggered by the fact of the persecution itself.

Another benefit of the proposed approach would be its impact on a victim’s eligibility for a grant of humanitarian asylum, which may be granted based on the severity of the past persecution suffered even where no fear of future persecution remains. A child who was kidnapped, raped, and beaten by gang members at the age of seven, and who will certainly suffer psychological harm for the rest of her life as a result, should clearly not be returned against her will to the country in which she suffered such horrific persecution. Yet the Sixth Circuit upheld the BIA’s denial of such humanitarian protection, because in affirming the Board’s conclusion that K.H. had not met her burden of showing the Guatemalan government was unable and unwilling to protect her (based solely on its after-the-fact response), it also upheld the BIA’s finding that K.H. did not meet all of the requirements necessary for her to have established that she suffered past persecution. This in spite of the fact that DHS stipulated that she did suffer past persecution on account of a statutorily protected ground. As only an applicant who established past persecution is eligible for humanitarian asylum, this very convoluted approach successfully blocked such remedy.

However, if the standard were to assume that the harm suffered by the asylum applicant triggers the presumption that the Guatemalan government was unable or unwilling to prevent it, the evidence that government’s subsequent efforts to prosecute those responsible and protect the victim would not serve to rebut the presumption. Rather, it would be considered as possible evidence of changed conditions in the country of origin sufficient to show that after suffering past persecution, the asylum applicant would now have no further fear of returning there. This critical distinction would then allow K.H. to be granted humanitarian asylum even if the government prevailed in its arguments, as opposed to facing deportation that would return her to the scene of such extreme persecution.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Mar 28 The Immigration Court: Issues and Solutions

More bad news for you irresponsible “judicial dudes.” “No reasonable adjudicator” could have reached the conclusion you did in this case!

Like Judge Chase, I’ve done enough of these cases, at both the trial and appellate level, to know a clear grant when I see one. Indeed, on this record, the idea that the Guatemalan government is willing or able to protect this young lady is preposterous. It doesn’t even pass the “straight face” test. So much for hiding behind your “standards of review” fiction. Think of K.H. as your daughter or granddaughter rather than
“a mere stranger” and then see how your “head in the sand” legal analysis works out.

The questionable conduct of the judges at all three levels in this case shows why our current Immigration Court system is so screwed up. Individuals who could efficiently be granted protection at the lowest levels in an honest, well-functioning, and professional system are instead made to ”run the judicial gauntlet” while various “black robes” work hard and occupy time looking for reasons to “stiff” their valid claims for protection. Indeed, in a well-functioning system, cases like this would be granted at the Asylum Office level and wouldn’t clog the courts in the first place.

An independent judiciary with courage and integrity is essential to the survival of our democracy. Sadly, this case is a prime example of a system in failure — at all levels.

PWS

04-25-19

NAIJ PRESIDENT HON. A. ASHLEY TABADDOR BLASTS BARR’S INTERFERENCE IN THE BOND SYSTEM FOR ASYLUM APPLICANTS!

https://apple.news/ABEcuPRD5QP20VeTp4Xv5jA

Tess Bonn @ The Hill

Hon. A. Ashley Tabaddor, President, National Association of Immigration Judges (“NAIJ”)

Tess writes:

Immigration judge calls Barr’s move to deny asylum-seekers bond hearings ‘highly problematic’

Immigration Judge Ashley Tabaddor called the Justice Department’s latest move to deny asylum-seekers bond hearings “highly problematic,” saying courts should not be used as a political tool by law enforcement.

“This in terms of the procedure that has been used is highly problematic,” Tabaddor, who is the president of the National Association of Immigration Judges, told Hill.TV’s Buck Sexton and Krystal Ball in an appearance on “Rising.”

“It is allowing the chief prosecutor of the United States to step in, in the middle of judicial proceedings and rewrite the law,” she continued.

Tabaddor added that Barr’s move is another example of why the immigrant court system should function independently of the Justice Department.

“It yet highlights again why immigration court proceedings should really be removed from the Justice Department and be outside of the purview of the political usage of the court as an extension of law enforcement,” she told Hill.TV.

Attorney General William Barr last week issued a new order directing immigration judges not to release asylum-seekers and detain them indefinitely while they await their court hearings.

Barr’s decision reverses a 2005 order, which said certain migrants who passed a “credible fear” interview could stay in the U.S. and seek release on bond until their case is heard in court. But Barr wrote that only the Department of Homeland Security has the authority to release asylum seekers.

The change comes amid an ongoing legal battle over the Trump administration’s policy that requires asylum-seekers to wait in Mexico while their claims make their way through the immigration court system.

Earlier this month, a federal judge issued a preliminary injunction against the policy, saying it failed to protect migrants from danger. Days later, the 9th Circuit Court of Appeals took action allowing the Trump administration to temporarily resume returning asylum-seekers to Mexico as it considers the administration’s appeal to the injunction.

Trump’s program of returning migrants to Mexico was initially launched in January, and the program is part of the administration’s crackdown on the recent influx of migrants at the southern border.

During a recent visit to the border, Trump said the U.S. is being overwhelmed by Central American migrants seeking asylum.

“We can’t take you anymore. I’m sorry. Can’t happen, so turn around,” Trump said, referring to the migrants.

—Tess Bonn

*************************************

Undoubtedly, the participation of Chief Trump Cheerleader and immigration enforcement advocate Bill Barr creates an “appearance of bias.” Indeed, it’s more than an “appearance;” it’s actual bias. So, his interference in the quasi-judicial process is unethical.

The only real question is why Barr, like his predecessor Sessions and their predecessors, is allowed to get away with violating clear standards of ethical conduct. Why don’t “real” Article III Courts fulfill their constitutional role by vacating both the decisions and any case in which an Immigration Judge relies on these invalid attempts to influence and control the quasi-judicial decision-making process for the benefit of a party — the DHS?

PWS

04-24-19

BILL BARR – Unqualified For Office – Unfit To Act In A Quasi-Judicial Capacity

There have been many articles pointing out that Bill Barr unethically has acted as Trump’s defense counsel rather than fulfilled his oath to uphold the Constitution and be the Attorney General of all of the American people. There have also been some absurdist “apologias” for Barr some written by once-respected lawyers who should know better, and others written by the normal Trump hacks.

Here are my choices for four of the best articles explaining why Barr should not be the Attorney General. It goes without saying that he shouldn’t by any stretch of the imagination be running the Immigration Court system. His intervention into individual cases in a quasi-judicial capacity is a clear violation of judicial ethics requiring avoidance of even the “appearance” of a conflict of interest. There is no “appearance” here. Barr has a clear conflict in any matter dealing with immigration.

http://nymag.com/intelligencer/2019/04/impeach-attorney-general-william-barr.html

Congress Should Impeach William Barr

By Jonathan Chait @jonathanchait

Attorney General William Barr. Photo: Brendan Smialowski/AFP/Getty Images

House Democrats are going to face a difficult decision about launching an impeachment inquiry into President Trump. Balanced against the president’s impressive array of misconduct is the fact that several more criminal investigations that may add to the indictment are already underway, and that impeaching the president might jeopardize the reelection of red-state Democratic members. But in the meantime, Attorney General William Barr presents them with a much easier decision. Barr has so thoroughly betrayed the values of his office that voting to impeach and remove him is almost obvious.

On March 24, Barr released a short letter summarizing the main findings of the Mueller investigation, as he saw them. News accounts treated Barr’s interpretation as definitive, and the media — even outlets that had spent two years uncovering a wide swath of suspicious and compromising links between the Trump campaign and Russia — dutifully engaged in self-flagellation for having had the temerity to raise questions about the whole affair.

Barr had done very little to that point to earn such a broad benefit of the doubt. In the same role in 1992, he had supported mass pardons of senior officials that enabled a cover-up of the Iran–Contra scandal. Less famously, in 1989 he issued a redacted version of a highly controversial administration legal opinion that, as Ryan Goodman explained, “omitted some of the most consequential and incendiary conclusions from the actual opinion” for “no justifiable reason.”

And while many members of the old Republican political Establishment had recoiled against Trump’s contempt for the rule of law, Barr has shown no signs of having joined them. He met with Trump to discuss serving as his defense lawyer, publicly attacked the Mueller investigation (which risked “taking on the look of an entirely political operation to overthrow the president”), called for more investigations of Hillary Clinton, and circulated a lengthy memo strongly defending Trump against obstruction charges.

The events since Barr’s letter have incinerated whatever remains of his credibility. The famously tight-lipped Mueller team told several news outlets the letter had minimized Trump’s culpability; Barr gave congressional testimony hyping up Trump’s charges of “spying,” even prejudging the outcome of an investigation (“I think there was a failure among a group of leaders [at the FBI] at the upper echelon”); evaded questions as to whether he had shared the Mueller report with the White House; and, it turns out, he’s “had numerous conversations with White House lawyers which aided the president’s legal team,” the New York Times reports. Then he broke precedent by scheduling a press conference to spin the report in advance of its redacted publication.

It is not much of a mystery to determine which officials have offered their full loyalty to the president. Trump has reportedly “praised Barr privately for his handling of the report and compared him favorably to former Attorney General Jeff Sessions” —whose sole offense in Trump’s eyes was following Department of Justice ethical protocol. Trump urged his Twitter followers to tune in to Barr’s conference, promotional treatment he normally reserves for his Fox News sycophants.

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The press conference was the final disqualifying performance. Barr acted like Trump’s defense lawyer, the job he had initially sought, rather than as an attorney general. His aggressive spin seemed designed to work in the maximal number of repetitions of the “no collusion” mantra, in accordance with his boss’s talking points, at the expense of any faithful transmission of the special counsel’s report.

Barr’s letter had made it sound as though Trump’s campaign spurned Russia’s offers of help: “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” he wrote. In fact, Mueller’s report concluded, “In some instances, the Campaign was receptive to the offer,” but that the cooperation fell short of criminal conduct.

Where Mueller intended to leave the job of judging Trump’s obstructive conduct to Congress, Barr interposed his own judgment. Barr offered this incredible statement for why Trump’s behavior was excusable: “[T]here is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said. “Nonetheless, the White House fully cooperated with the Special Counsel’s investigation,” and credited him further with taking “no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.”

Sincere? How can Barr use that word to describe the mentality of a man whose own staffers routinely describe him in the media as a pathological liar? Trump repeatedly lied about Russia’s involvement in the campaign, and his own dealings with Russia. And he also, contra Barr, repeatedly denied the special counsel access to witnesses by dangling pardons to persuade them to withhold cooperation.

It is true that many of Trump’s attempts to obstruct justice failed. As Mueller wrote, the president’s “efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

This is a rather different gloss on the facts than the happy story Barr offered the press. What’s more, it is a pressing argument for Barr’s own removal. Next to the president himself, the attorney general is the most crucial actor in the safeguarding of the rule of law. The Justice Department is an awesome force that holds the power to enable the ruling party to commit crimes with impunity, or to intimidate and smear the opposing party with the taint of criminality.

There is no other department in government in which mere norms, not laws, are all that stand between democracy as we know it and a banana republic. Barr has revealed his complete unfitness for this awesome task. Nearly two more years of this Trumpian henchman wielding power over federal law enforcement is more weight than the rickety Constitution can bear.

***************************************************

Dvid Leonhardt of the NY Times writes:

In the years after Watergate, Justice Department officials — from both parties — worked hard to banish partisan cronyism from the department. Their goal was to make it the least political, most independent part of the executive branch.

“Our law is not an instrument of partisan purpose,” Edward Levi, Gerald Ford’s attorney general, said at the time. Griffin Bell, later appointed to the same job by Jimmy Carter, described the department as “a neutral zone in the government, because the law has to be neutral.”

Attorney General William Barr clearly rejects this principle. He’s repeatedly put a higher priority on protecting his boss, President Trump, than on upholding the law in a neutral way. He did so in his letter last month summarizing Robert Mueller’s investigation and then again in a bizarre prebuttal news conference yesterday. As The Times editorial board wrote, Barr yesterday “behaved more like the president’s defense attorney than the nation’s top law-enforcement officer.”

Throughout his tenure, Barr has downplayed or ignored the voluminous evidence of Trump’s wrongdoing — his lies to the American people, his willingness to work with a hostile foreign country during a presidenial campaign, his tolerance of extensive criminal behavior among his staff and his repeated efforts to obstruct an investigation. Barr even claimed that Trump “fully cooperated” with that investigation, which Vox’s Ezra Klein notes is “an outright lie.”

Since he took office, Trump has made clear that he wants an attorney general who acts as first an enforcer of raw power and only second as an enforcer of federal law. In Barr, Trump has found his man. Together, they have cast aside more than four decades worth of Justice Department ideals and instead adopted the approach of Richard Nixon.

*********************************************

https://www.huffpost.com/entry/william-barr-misled-public-mueller-report_n_5cb8b2b0e4b032e7ceb60d05

The Ways William Barr Misled The Public About The Mueller Report

Instead of just releasing the special counsel’s findings, the U.S. attorney general spun the report to the benefit of President Trump.

President Donald Trump has long wished for an attorney general who would act as his own private lawyer, protecting him from any potential legal damage. He finally found his man in William Barr.

Barr could have released special counsel Robert Mueller’s report from the beginning. Instead, the attorney general chose to twice present his own interpretation of the special counsel’s findings on foreign interference in the 2016 U.S. election ― before allowing members of the public to see the report and decide for themselves whether Trump and his associates did anything improper.

The report, which finally came out on Thursday, paints a much more complicated picture of whether Trump obstructed justice than Barr let on.

The first time the public received a glimpse of what was in the Mueller report was on March 24, when Barr sent a four-page letter to congressional leaders summarizing his conclusions from the report the special counsel team had submitted to Barr two days earlier.

The second time the public heard about the report’s content was in a Thursday morning press conference when Barr went out of his way to echo Trump talking points, attacking the media and the president’s “political opponents.”

To the Justice Department’s credit, the redactions in the Mueller report were relatively light ― allowing the public to see a substantial amount of the content.

But still, in his public comments, Barr made sure to paint as positive a picture of Trump before the report became widely available.

Here’s how the attorney general misled the public:

He left out the Trump campaign’s expectation of benefiting from hacked material.

In his letter to Congress on March 24, Barr wrote:

The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ”[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election inference activities.”

While it’s true that the Mueller report did reach that conclusion, that quote is incomplete. Barr left out the first part, which was less complimentary to the Trump campaign.

Below is the full quote from the Mueller report, with the part Barr omitted in bold:

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

He said it was up to him to make a decision on obstruction of justice.

Attorney General William Barr went to bat for Trump in a Thursday morning press conference.

In his March 24 letter, Barr said Mueller’s team did not come to a conclusion on whether Trump had obstructed justice in the course of the investigation. Therefore, Barr claimed, it was now up to him to make that determination.

“The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” he wrote.

Barr said he concluded that the evidence “is not sufficient to establish that the President committed an obstruction-of-justice offense.”

But Barr never had to make that legal conclusion, as Matt Miller, a spokesman for the Justice Department under President Barack Obama, pointed out. And Mueller never asked Barr to so.

Indeed, the report said the special counsel’s team couldn’t come to such a conclusion:

[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.

The report also said that ultimately, the obstruction call wasn’t for Mueller to make. The special counsel decided not to make a decision on whether to prosecute Trump because the Justice Department’s position, according to an Office of Legal Counsel memo, is that a sitting president cannot be indicted.

“Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations … this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction,” the report states.

Furthermore, it seems clear that Mueller and his team expected that ultimately, Congress would make the decision on obstruction of justice.

NBC News reported earlier that some in Mueller’s office had said “their intent was to leave the legal question open for Congress and the public to examine the evidence.”

“[W]e concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice,” the report says.

In other words, Congress can impeach the president if it wants to do so.

He gave an incomplete picture of Trump’s actions that could be construed as obstruction of justice.

“In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct,” Barr wrote in his March 24 letter.

The report doesn’t let Trump off the hook quite so easily. It says Trump tried to obstruct justice ― but he didn’t succeed because his staff refused to follow his orders.

“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report reads.

The report detailed 10 acts by Trump that could amount to obstruction of justice.

He said Mueller found “no collusion.”

Special Counsel Robert Mueller has been called to testify before Congress about his report.

One of Trump’s favorite phrases is that there was “no collusion” between his campaign and the Russian government in the 2016 elections. He has tweeted it 84 times.

Barr used the phrase four times in his 18-minute remarks in Thursday’s press conference:

“Put another way, the special counsel found no ‘collusion’ by any Americans in the IRA’s illegal activity.”

“But again, the special counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations. In other words, there was no evidence of Trump campaign ‘collusion’ with the Russian government’s hacking.”

“After finding no underlying collusion with Russia, the special counsel’s report goes on to consider whether certain actions of the president could amount to obstruction of the special counsel’s investigation.”

“At the same time, there was relentless speculation in the news media about the president’s personal culpability. Yet, as he said from the beginning, there was, in fact, no collusion.”

But the Mueller report never actually said the investigation found no collusion. In fact, the report explains specifically why it doesn’t use the term “collusion.” The word only appears in the report as part of this explanation or in quoting someone else.

The Mueller report avoided using the term “collusion,” and explains why here.

Therefore, Barr repeatedly saying Mueller found “no collusion” was simply the attorney general adopting a Trump talking point.

He said Trump fully cooperated with the investigation.

Barr was extremely sympathetic to Trump in Thursday’s press conference. He tried to paint a picture of a president under extreme ― and unfair ― pressure, telling reporters, “As he entered into office, and sought to perform his responsibilities as president, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.”

He said Trump was “frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” so it’s not surprising if he may have lashed out a bit. And, he added, Trump deserved credit for “fully cooperat[ing]” with the special counsel at all:

Nonetheless, the White House fully cooperated with the special counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.

Trump, however, didn’t fully cooperate. He refused repeated requests to give an interview to Mueller and his team. The report said the special counsel’s team considered issuing a subpoena for Trump to testify but ultimately decided it wasn’t worth it:

The Mueller report says Trump refused to be interviewed by the special counsel and his team.

******************************************

Finally, this editorial form the SF Chronicle really “hammers home” Barr’s patent unfitness to continue serving.

https://www.sfgate.com/opinion/article/Editorial-Attorney-General-Barr-s-misplaced-13781659.php

Opinion

Editorial: Attorney General Barr’s misplaced loyalties

Chronicle Editorial Board

Updated 7:25 am PDT, Saturday, April 20, 2019

Photo: Tom Brenner / New York Times

Attorney General William Barr has been acting as if he is Presisdent Trump’s personal attorney.

President Trump has never made any secret of his desire to have an attorney general whose first loyalty was to him. Regrettably for the nation and the honest administration of justice, Trump unquestionably now has one in William Barr.

The attorney general has lost all credibility with his disgraceful handling of the rollout of the Mueller report into Russian interference into the 2016 election. Barr left the American people for more than a month with a seriously skewed characterization of the “principal conclusions” from Special Counsel Robert Mueller’s findings from the two-year investigation.

His four-page summary of those conclusions amounted to “nothing much to see here, folks.” While he was correct that the Mueller team could not make a case that anyone in Trump’s campaign broke the law by conspiring with Russians, the Barr summary was downright deceptive in its portrayal of the special counsel’s findings on possible obstruction of justice by the president.

Barr’s summary suggested that “difficult questions of law and fact” left it difficult for Mueller to determine whether Trump had obstructed the probe. Barr and his deputy took it upon themselves to conclude that “the evidence developed by the special counsel is not sufficient” to establish obstruction.

Americans who have now read the Mueller’s team’s own words in the 448-page report discovered that Barr’s account was highly misleading. In fact, Mueller’s hesitation was not based on an inability to decide; it was guided in part by a Department of Justice policy that a sitting president could not be indicted. Given that, Mueller suggested it would be unfair to accuse Trump of a crime when the president could not have a chance to defend himself in a “speedy and public trial” with the constitutional protections.

Barr also suggested that Trump could not have obstructed justice into an investigation of a crime he did not commit.

Mueller’s report clearly stated otherwise.

“The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong,” it stated. Mueller’s investigation detailed “multiple acts by the president that were capable of exerting undue influence over law enforcement investigations.”

Rather than punting the obstruction decision to Barr, Mueller very clearly noted that a decision on what to do with the substantial evidence of wrongdoing he collected should be made by Congress, which has the power of impeachment.

Barr never bothered to correct Trump’s exhortation of “complete and total exoneration.” Barr might as well have been on a Trump spokesman, rather than the nation’s chief law enforcement officer, at a bizarre Thursday news conference (before the report’s release) in which he offered a sympathetic explanation for Trump’s repeated efforts to stymie the investigation. Barr chalked it up to Trump’s anger and frustration.

Justice has been frustrated. Americans are justifiably angry. Barr has proved himself unfit for the high office he holds.

This commentary is from The Chronicle’s editorial board. We invite you to express your views in a letter to the editor. Please submit your letter via our online form: SFChronicle.com/letters.

**************************************************

Undoubtedly, Trump is unfit for office as many of us have been saying for some time now. The Mueller report confirmed what most thinking people already knew: the guy is dishonest, immoral, pathological, and a not very bright “con man.” (He’s also a racist and a White Nationalist would be authoritarian, although those admittedly were not points of emphasis in the Mueller report which focused on other aspects of his totally disgraceful conduct.)

But, I’ll concede that Trump’s removal is unlikely to happen except at the ballot box. Even that is uncertain with about 40% of American voters apparently wedded to a “beggar thy neighbor, who cares about the majority, country be damned” worldview. Trump is already focused on a “race-baiting” strategy of leveraging the most problematic aspects of our electoral college system while treating the interests of majority of Americans with mockery and disdain.

It remains to be seen whether any Democratic candidate can unite the diverse majority of Americans for at least long enough to save our country by removing Trump and, hopefully, his GOP enablers along with him. It also remains to be seen whether any country where 40% of the voters are so out of touch with reality and the common interests of the rest of us can actually be governed, once majority rule is restored.

But, Barr is a different matter. He’s not elected, he’s not President, and we don’t have to enable his continued unethical misuse of authority at the DOJ, at least not in the the all important area of the U.S. Immigraton Court.

If Congress won’t do the job by creating an independent Article I U.S. Immigration Court, it’s time for the Article III courts to invalidate precedents produced by Barr’s and Sessions’s unethical participation in individual quasi-judicial decision-making and to start invalidating removal orders entered by “courts” controlled by political enforcement officials, in clear contradiction to the Due Process requirement that individuals facing the life or death authority of the Federal Government are entitled to have fair and impartial decision makers and reasoned decisions. That can’t happen in a system controlled and directed by biased political “enforcement only” officials like Barr (and Sessions before him). Barr has made it crystal clear that he always will put the selfish interests of Trump above truthfulness, the law, due process, fundamental fairness, and the common good.

Letting this farce of a “judicial system” continue unfairly endangering individual lives and deferring to officials who are neither subject matter experts nor fair and impartial quasi-judicial decision makers is unconstitutional. By letting it continue, life-tenured Federal Judges both tarnish their reputations and fail to fulfill their oaths of office.

As a young attorney in the Department of Justice during the Watergate Era, I, along with many others, were indelibly impressed and inspired when then Attorney General Elliot Richardson and his Deputy William Ruckelshaus resigned rather than carry out Nixon’s illegal order to fire the Watergate Special Prosecutor (a/k/a/ “The Saturday Night Massacre”). Obviously, Barr has dragged the Department and its reputation down to new depths — back to the days of Nixon and disgraced (and convicted) Attorney General “John the Con” Mitchell, who actually planned criminal conspiracies in his fifth floor office at the DOJ.

Obviously, there are systemic problems that have allowed unqualified individuals like Barr and Sessions to serve in and co-opt the system of justice, and denigrate the Department of Justice. (I spoke to some recently retired DOJ officials who characterized the morale among career professionals at the DOJ as “below the floor”). Some of those can be traced to the lack of backbone and integrity in the “Trump GOP” which controls the Senate and refuses to enforce even minimal standards of professionalism, meaningful oversight, and independent decision making in Trump appointees. That’s what a “kakistocracy” is. It’s up to the rest of us to do what is necessary under the law to replace the kakistocracy with a functioning democracy.

PWS

04-20-19

ERIC LEVITZ @ NY MAG: Trump Is A Scofflaw Fraud, Particularly On Immigration — “It is abundantly clear, then, that the Trump administration’s fanatical opposition to illegal immigration is not rooted in a commitment to upholding U.S. law but rather in some other concern it does not wish to speak in public.”

https://apple.news/A1erR6RRPRnyc6GVYdS2PAw

Eric Levitz writes in NY Magazine:

PRESIDENT TRUMP

Trump Wants America to Stop Enforcing Its Immigration Laws

Donald Trump has nothing against “lawful immigrants” — in fact, he believes they “enrich our society and contribute to our nation.” And the president certainly has no investment in maintaining the United States as a majority-white nation; he is, after all, “the least racist person you have ever met.”

The left might try to defame this White House by insisting its hard-line immigration policies are motivated by nativism or even white-nationalist sympathies. But the administration has made its true motives perfectly clear: It has not adopted a “zero tolerance” policy toward undocumented immigrants out of animus for foreign people but simply out of reverence for American law.

“In a Trump administration, all immigration laws will be enforced,” Trump promised a crowd in Phoenix two months before his election. “Anyone who has entered the United States illegally is subject to deportation — that is what it means to have laws and to have a country.”

Trump has repeatedly invoked this absolutist commitment to the law when seeking to justify unpopular immigration policies. The president never offered an affirmative argument for canceling the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary work permits to 700,000 undocumented immigrants who were brought to this country as children. To the contrary, almost immediately after terminating DACA, the president claimed he supported protections for Dreamers in principle and implored Congress to write such protections into legislation. He didn’t want to hurt Dreamers — or use them as bargaining chips in negotiations with Democrats — he just felt the Executive branch did not have the authority to make immigration policy unilaterally. Sure, past Republican presidents (and the federal courts) might have considered deferred action to be within the Executive branch’s purview. But Trump was a stickler about the Constitution’s separation of powers. We are a nation of laws, not men. On such grounds, the president would later justify making America into the kind of nation that punishes migrant mothers by separating them from their children.

Of course, the white-collar-criminal-in-chief’s professed devotion to law and order was always a transparent fraud (this is a man who has publicly insisted that the attorney general’s job is to subordinate the law to the president’s personal interests). But even by this administration’s standards, its latest efforts to crack down on “illegal immigration” are gobsmacking in their hypocrisy.

Last week, the White House purged many of its own appointees from the Department of Homeland Security, suggesting that the president was looking to go in a “tougher” direction. Subsequent reporting has clarified that tougher was a euphemism for “lawless.”

Under U.S. law, any foreign national who sets foot on our nation’s soil has a legal right to seek asylum from persecution or violence in that person’s home country — if he or she can pass an initial screening conducted by asylum officials. And Congress designed such screenings with an eye toward minimizing the number of genuinely endangered people whom America sends back into harm’s way (rather than minimizing the number of economic migrants whom our asylum courts are forced to process). As a result, about 90 percent of those who claim asylum make it past the initial screening.

As violence and instability in Central America have sent hundreds of thousands of migrant families to our border, this law has created logistical problems for the Trump administration. Litigating asylum claims can take months, even years. And the United States does not have the resources to detain every asylum seeker who makes it past the initial test. Thus the White House finds itself in the position of releasing asylum seekers into the United States, likely allowing some number to slip into the country and thereby become undocumented immigrants.

For whatever reason, this administration cares more about curbing such immigration (even though undocumented immigration is associated with reductions in crime, and the U.S. has an acute need for more “low skill” labor) than it does about enforcing all of America’s immigration laws. As the New York Times explains:

In a separate conversation, President Trump implored then–DHS Secretary Kirstjen Nielsen to ban migrants from seeking asylum.

It is abundantly clear, then, that the Trump administration’s fanatical opposition to illegal immigration is not rooted in a commitment to upholding U.S. law but rather in some other concern it does not wish to speak in public.

*********************************

Duh!

Like policies driven by White Nationalism and racism. Or, maybe “malicious incompetence.” That’s why it’s important for Dems not to be hoodwinked into abandoning or wrongly watering down (under the guise of a bogus “compromise”) the laws that offer refugees and migrants at least some legal protections in response to Trump’s self-created crisis that doesn’t threaten U.S. security but does threaten the lives and rights of refugees and other migrants.

Indeed, the best short-term solution to the Southern Border would be to work in a competent, cooperative, and good faith manner to fairly administer the asylum and other protection laws that we currently have on the books.

But, a fair and efficient administration of the laws already on the books undoubtedly would result in more refugees from Central America (and elsewhere) being granted asylum or some other form of protection. And, since that could be done by adjudication and judicial officials, the Border Patrol could go back to protecting the borders from real threats.

But, that’s the result that Trump and his White Nationalist cronies don’t want. That’s why they are working so hard to make the mess worse while shifting blame to the victims. Pretty much the definition of official bullying and cowardice.

PWS

04-19-19

FOR THOSE WITH SIRIUSXM RADIO ACCESS: Listen To My Commentary On Matter of M-S- On The Dan Abrams Show On “POTUS Channel” For April 17, 2019 — Available “On Demand” On The SiriusXM App!

About Dan’s Show “”The Dan Abrams Show: Where Politics Meets The Law” on “POTUS Channel” on SiriusXM —

NEWS RELEASE
Dan Abrams, ABC News’ Chief Legal Analyst and Host of A&E’s “Live PD,” to Anchor Weekday Show Exclusively for SiriusXM
10/25/2018
“The Dan Abrams Show: Where Politics Meets The Law” will premiere on SiriusXM P.O.T.U.S. channel on October 29 NEW YORK, Oct. 25, 2018 /PRNewswire/ — Today SiriusXM announced that Dan Abrams will host an exclusive SiriusXM radio show starting October 29. “The Dan Abrams Show: Where Politics Meets The Law” will air live on weekdays on P.O.T.U.S. channel 124 at 2:00 p.m. ET.
On his new show, Abrams will analyze the biggest news stories of the day from a legal perspective. With so much of today’s breaking political news having a legal component, Abrams will delve into the issues with a team of specialists, including former federal prosecutors and other high-prole experts. The program will also feature one- on-one interviews with top newsmakers, panel discussions, and listener calls.
The addition of Dan Abrams to SiriusXM P.O.T.U.S. further positions the channel as a top source for political news, analysis, and discussion.
“The legal side of news stories is more important and prominent than ever,” said Abrams. “I’m thrilled to have this opportunity on SiriusXM to really dig in and separate the legal realities from the wishful spin for listeners and people calling in to the show.”
“Dan is the perfect voice to add to our great P.O.T.U.S. lineup,” said Megan Liberman, Senior Vice President of News, Talk, and Entertainment at SiriusXM. “There has never been a more critical time to address the intersection of law and politics, and I can’t think of anyone better to lead that conversation.”
1

Over the course of his career, Abrams has established himself as one of the nation’s top legal analysts, rst covering the O.J. Simpson trial for Court TV and NBC News. Now the Chief Legal Analyst for ABC News, Abrams is well known for his shrewd analysis of legal issues ranging from high-prole criminal trials to the Mueller investigations and the Supreme Court.
Abrams is also the host of A&E’s Live PD, the highest rated live show on all of cable among adults 18-49 and 25-54.
As a media entrepreneur, he created the inuential website Mediaite.com, which chronicles the intersection of media and politics, and founded the popular OTT and linear network Law&Crime, among other projects. His work has been acknowledged with numerous Emmy and Edward R. Murrow Awards, and he has covered nearly every major national legal story of the past two decades. The Duke University and Columbia Law School graduate also recently penned the New York Times bestselling book Lincoln’s Last Trial.
Below is the new SiriusXM P.O.T.U.S. lineup of top non-partisan political news and analysis programs:
The Morning Brieng with Tim Farley, 6:00 – 9:00 a.m. ET The Michael Smerconish Program, 9:00 a.m. – 12:00 p.m. ET Let’s Get After It with Chris Cuomo, 12:00 – 2:00 p.m. ET The Dan Abrams Show, 2:00 – 3:00 p.m.
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Check it out on your Sirius XM App, POTUS Channel, On Demand!

PWS

04-18-19

EUGENE ROBINSON @ WASHPOST: Trump’s Invented Border Crisis Channels Jim Crow: “The real crisis is that we have a president who wants to put up a “No Vacancies” sign for nonwhite immigrants — just like the “No Coloreds” signs I used to see in the Jim Crow South.”

https://www.washingtonpost.com/opinions/trump-invented-an-immigration-crisis-to-further-his-most-consistent-goal/2019/04/15/b2049ba0-5fbd-11e9-9ff2-abc984dc9eec_story.html

The Trump administration has manufactured and exacerbated an immigration “crisis” to further the president’s most consistent goal: to Make America White Again.

Tens of thousands of Central American asylum seekers, even hundreds of thousands, do not constitute a serious crisis — not for a continent-spanning nation of 330 million, a nation built through successive waves of immigration. The migrants have severely taxed and at times overwhelmed the systems at the border that must process and adjudicate their claims for refuge, but this is a simple matter of resources. We need more border agents, more immigration judges, more housing.

President Trump, however, treats the migrant surge like an existential threat. “We can’t take you anymore. We can’t take you. Our country is full,” he said this month at the border in California. But, of course, our vast nation is anything but full. Instead of “can’t,” what Trump really means is “won’t.”

On almost any issue you can think of, Trump is all over the map. But there is one position on which he has never wavered: antipathy toward nonwhite immigration. From his campaign charge that Mexican immigrants are “rapists,” to his fruitless quest to get funding for a border wall, to his gratuitously cruel policy of family separations, to his declaration of a national emergency, Trump has left not an iota of doubt about how he feels.

To be sure, sometimes the president uses anti-immigration rhetoric to inflame his base. But unlike with other issues, Trump seems actually to believe his demagoguery about would-be Latino migrants.

The administration acts as if it considers the asylum seekers to be less than human. What other conclusion can be drawn, after thousands of young children were taken from their parents and shipped to detention centers far away, as a deterrent to others who might seek entry? How else can anyone characterize the notion — now under active consideration, according to the White House — of transporting migrants hundreds or thousands of miles, not out of necessity but simply so they can be released in “sanctuary cities” and the districts of Trump’s political opponents?

Trump threatened to close the border. Here’s what could happen if he did

President Trump has pivoted from closing the southern border to imposing new tariffs on Mexico. But who will be the most affected? (Luis Velarde/The Washington Post)

That last Bond-villain idea is apparently the brainchild of White House adviser Stephen Miller, who seems to be the closest thing Trump has to an operational chief of staff — someone who shares his vision, however warped, and will move heaven and earth to bring it to life.

Miller’s history as an anti-immigration zealot goes back to his time as an aide to then-Sen. Jeff Sessions (R-Ala.) , who became Trump’s first attorney general. It is no exaggeration to say that Sessions, both in the Senate and in the Cabinet, was obsessed with reducing immigration, legal as well as illegal. Sessions is gone from the administration, but Miller remains, and clearly he has Trump’s ear.

Trump has said that the countries from which asylum seekers and economic migrants are fleeing are not sending “their best” people, and that entry should be based on “merit,” not on family connections. That would be a complete departure from the immigration policies that allowed Trump’s and Miller’s forebears to come to this country, but it sounds debatable — until you take into account Trump’s other remarks. He has reportedly disparaged nonwhite countries with a vulgar epithet and expressed a preference for immigrants from places like Norway, which happens to be one of the whitest countries on the planet. In the context of immigration policy, he has regaled crowds with the story — likely apocryphal — of his friend “Jim,” who used to go to Paris all the time but doesn’t anymore because “Paris is no longer Paris.”

Trump isn’t talking about gridlocked traffic on the Boulevard Peripherique. He’s talking about the black and brown immigrants who are changing the city’s complexion.

Does Trump seek political gain by stoking white Americans’ fears of the “browning” of the United States due to Latino immigration? Absolutely. But if his racism were purely situational — like his professed commitment to fiscal responsibility, or his supposed social conservatism — he would depart from it occasionally. And he doesn’t.

He might at least feign compassion for men, women and children who risk their lives to flee deadly violence at home. Instead, Trump cut off aid to Guatemala, Honduras and El Salvador, the countries from which most of the asylum seekers are coming. He does not comfort or embrace. He seeks only to punish.

The real crisis is that we have a president who wants to put up a “No Vacancies” sign for nonwhite immigrants — just like the “No Coloreds” signs I used to see in the Jim Crow South.

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Yup!

MAWA can’t possibly work. But, it could destroy America!

PWS

04-18-19

DC CIRCUIT: Beginning Of The End For Broken & Biased U.S. Immigration Court System? — Court Slams Military Tribunals For Same Type Of Patent Lack Of Impartiality Present In Immigration Court On A Daily Basis — “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.” — Aggressive Role, Control Of Enforcement-Biased AG’s Over Immigration Courts Appears In Conflict With Article III Court’s Reasoning!

https://www.washingtonpost.com/world/national-security/in-a-setback-for-guantanamo-court-throws-out-years-of-rulings-in-uss-cole-case/2019/04/16/6c63e052-606b-11e9-bfad-36a7eb36cb60_story.html

Missy Ryan reports for the Washington Post:

A federal court dealt a major blow to the Guantanamo Bay military commissions Tuesday, throwing out more than three years of proceedings in the case against the alleged mastermind of the 2000 bombing of the USS Cole.

In a unanimous decision, a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ruled that former military judge Vance Spath “created a disqualifying appearance of partiality” by pursuing a position as an immigration judge while also overseeing the case.

The judges also voided an order issued by Spath that sought to require two defense attorneys for the defendant, Abd al-Rahim al-Nashiri, to return to the case against their will.

The ruling is the latest blemish for the troubled commissions set up in the wake of the Sept. 11, 2001, attacks to try prisoners held at Guantanamo Bay, Cuba. Of a once-vast detainee population there, only 40 inmates remain. Nearly two decades after the attacks, the start of the trial of 9/11 suspects remains far off amid seemingly endless legal wrangling and procedural delays.

The decision also suggests that federal courts may no longer be as deferential to the war courts and to the larger Guantanamo system as they have been in the past, as commission proceedings drag on for years and some two dozen other detainees languish without the suggestion of a trial.

Nashiri, a Saudi national in his 50s, faces a possible death penalty for his alleged orchestration of a string of plots to bomb Western vessels, including the Cole attack, which killed 17 Americans. After his capture, Nashiri was subject to extensive torture in CIA custody.

“Many years ago, when Abd al-Rahim first heard he was being handed over to the Americans, he was actually happy because he thought the United States was a country of laws and rights and that he’d at least be treated fairly,” said Navy Lt. Alaric Piette, a member of Nashiri’s defense team. “Finally, after 16 years, with this ruling, that has actually happened. Which is to say that this will mean a lot to him.”

Spath, who recently retired as an Air Force colonel, suspended Nashiri’s case in early 2018 over a dispute with defense lawyers who resigned after finding a microphone in a room used for attorney-client discussions. The judge’s order that the attorneys remain on the case kicked off a complex controversy involving several legal bodies and resulted in the house arrest of a brigadier general tasked with overseeing commission defense teams.

A year into his involvement in the case, Spath meanwhile quietly applied to the Justice Department for a position as an immigration judge. Such judges are appointed by the attorney general.

The D.C. Circuit judges, in a stinging rebuke, responded this week by throwing out rulings in the case from the commission and at least some from its appeals body, beginning at the moment when Spath initiated his job application in November 2015.

“Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility,” Judge David Tatel wrote in the panel’s ruling. “Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system — from the prosecution team to the Justice Department to the CMCR [U.S. Court of Military Commission Review] to the judge himself — failed to live up to that responsibility.”

“This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality,” Tatel wrote.

The CMCR is the Guantanamo appeals body. Tatel was joined on the panel by Judges Judith Rogers and Thomas Griffith.

Michael Paradis, an attorney who represented Nashiri in the D.C. Circuit case, said the opinion revealed the judges’ frustration “that the system is cavalier about such basic roles and so broken as a consequence. The whole thing has become so shambolic.”

In a striking insight into the court’s thinking, the decision appeared to suggest that the judges considered what Tatel described as a “powerful case for dissolving the current military commission entirely” — that is, they examined the possibility of voiding the entire Nashiri case to date. Such a move would strike an even more massive blow to the military justice architecture of the post-9/11 era.

The government could appeal the ruling. A spokeswoman for the Justice Department declined to comment on pending litigation.

Spath’s successor on the military court also left to become an immigration judge.

Devlin Barrett, Maria Sacchetti and Nick Miroff contributed to this report.

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Legislative reform establishing an independent Article I Immigration Court outside the Executive Branch should be a bipartisan “no-brainer.”

Instead, while Congress diddles, the misdirected and mismanaged U.S. Immigration Courts under the DOJ continue full steam toward operational and legal disaster. Without a timely Congressional remedy, that could eventually leave the entire removal system in the hands of the Article IIIs.

Notably, the “precipitating event” here was the Military Judge applying to the DOJ to become an Immigration Judge while handling a case in which the DOJ had an interest.

How about Attorneys General who have taken “point position” on the Administration’s harsh and often illegal immigration enforcement initiatives intervening in individual cases (sometimes over the objection of both parties) to change results to give DHS Enforcement, a party, a victory? Or, that all Immigration Judges are selected, evaluated, assigned, and directed by the Attorney General, a non-quasi-judicial official who is the “chief enforcer” and “chief prosecutor?”

Time for the U.S. Immigration Courts to be required to comply with Due Process!

PWS

04-17-19

TRUMP’S MALICIOUS INCOMPETENCE HELPS FUEL INTERRELATED MIGRATION AND CLIMATE CHANGE DISASTERS IN THE NORTHERN TRIANGLE!

https://www.nytimes.com/2019/04/13/world/americas/coffee-climate-change-migration.html?smid=nytcore-ios-

Kirk Semple reports for the NY Times:

CORQUÍN, Honduras — The farmer stood in his patch of forlorn coffee plants, their leaves sick and wilted, the next harvest in doubt.

Last year, two of his brothers and a sister, desperate to find a better way to survive, abandoned their small coffee farms in this mountainous part of Honduras and migrated north, eventually sneaking into the United States.

Then in February, the farmer’s 16-year-old son also headed north, ignoring the family’s pleas to stay.

The challenges of agricultural life in Honduras have always been mighty, from poverty and a neglectful government to the swings of international commodity prices.

But farmers, agricultural scientists and industry officials say a new threat has been ruining harvests, upending lives and adding to the surge of families migrating to the United States: climate change.

And their worries are increasingly shared by climate scientists as well.

Gradually rising temperatures, more extreme weather events and increasingly unpredictable patterns — like rain not falling when it should, or pouring when it shouldn’t — have disrupted growing cycles and promoted the relentless spread of pests.

Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times

Image
Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times

The obstacles have cut crop production or wiped out entire harvests, leaving already poor families destitute.

Central America is among the regions most vulnerable to climate change, scientists say. And because agriculture employs much of the labor force — about 28 percent in Honduras alone, according to the World Bank — the livelihoods of millions of people are at stake.

Last year, the bank reported that climate change could lead at least 1.4 million people to flee their homes in Mexico and Central America and migrate during the next three decades.

The United States has allocated tens of millions of dollars in aid in recent years for farmers across Central America, including efforts to help them adapt to the changing climate.

But President Trump has vowed to cut off all foreign aid to Honduras, Guatemala and El Salvador because of what he calls their failure to curb the flow of migrants north.

Critics contend the punishment is misguided, though, because it could undermine efforts to address the very problems that are driving people to abandon their farms and head to the United States.

“If Donald Trump withdraws all the funds for Honduras, it’s going to generate more unemployment, and that’s going to generate more migration,” said María Esperanza López, the general manager of Copranil, a coffee-growers cooperative here in western Honduras. “And that’s going to result in more abandoned farms.”

“Climate change is destroying some farms,” said a coffee farmer, Fredi Onan Vicen Peña, right, shown with his father, Juan José Vicen.CreditCésar Rodríguez for The New York Times

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“Climate change is destroying some farms,” said a coffee farmer, Fredi Onan Vicen Peña, right, shown with his father, Juan José Vicen.CreditCésar Rodríguez for The New York Times

Coffee cultivators in the region are at particular risk of disruption because the crop is highly sensitive to weather variations.

Fredi Onan Vicen Peña, the coffee farmer whose brothers, sister and teenage son have already given up and joined the exodus north, reached over and tore a leaf off one of his plants.

It was a mottled yellow and brown: signs of coffee rust, a disease whose spread has been influenced by climate variability. As much as 70 percent of his crop, planted across five acres in a pine forest, had been affected, he estimated, and there was little chance he could salvage it.

“Climate change is destroying some farms,” said Mr. Vicen, 41.

Beyond that, some of his healthier plants had begun to blossom nearly two months ahead of schedule because of a heavy unseasonable downpour, throwing the entire growing cycle into doubt.

“This is not something we predicted,” Mr. Vicen said.

Average temperatures have risen by about two degrees Fahrenheit in Central America over the past several decades, making the cultivation of coffee difficult, if not untenable, at lower altitudes that were once suitable.

That has forced some farmers to search for land at higher altitudes, switch to other crops, change professions — or migrate.

“Some very fine families that have been producing quality coffee for a long time are now facing the decision of whether to stay in coffee,” said Catherine M. Tucker, a professor of anthropology at the University of Florida who has done research in Honduras for more than two decades.

Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times

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Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times

Some climate scientists say that in the absence of long-term meteorological data, it is hard for them to say with certainty whether the increasing variability is caused by long-term changes in the region’s climate. But, they say, they are leaning in that direction.

“It’s becoming so unusual, it’s almost certainly climate change,” said Dr. Edwin J. Castellanos, dean of the Research Institute at the Universidad del Valle de Guatemala, a university in Guatemala City, and one of Central America’s leading scientists in the field of climate change.

Climate change is rarely the sole factor in the decision to migrate. Violence and poverty are prime drivers, but climate change can be a tipping point, farmers and experts say.

“Small farmers are already living in poverty; they’re already at the threshold of not being able to survive,” Mr. Castellanos said. “So any changes in the situation may push them to have enough incentives to leave.”

The outlook for the region seems bleak. Reduced yields of coffee and subsistence crops like corn and beans could significantly increase food insecurity and malnutrition. By some predictions, the amount of land suitable for growing coffee in Central America could drop by more than 40 percent by 2050.

The number of coffee producers in the area where Mr. Vicen lives has dropped by a quarter in the past decade — to about 9,000 from about 12,000 — partly because of pressure from climate change, said Marlon Danilo Mejía, the regional coordinator for the Honduran Coffee Institute, an industry trade group.

A vast majority are small producers, managing less than about nine acres each, he said.

José Edgardo Vicen, 37, one of Mr. Vicen’s brothers, had weighed migrating for years. He had worked in the coffee fields since he was a boy, continuing the family tradition. In this part of Honduras, coffee is a major crop, with an increasing amount bound for North America, Europe and Asia.

Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times

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Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times

But after a rust outbreak and other pressures in recent years, including plunging commodity prices, the younger Mr. Vicen said he could no longer earn enough from his harvest to cover production costs.

He headed north with his 14-year-old son last August, crossed the border illegally and settled in Texas. A brother and a sister, driven by similar circumstances, left Honduras soon afterward and also sneaked into the United States.

“For the small producer, I promise you, there’s no way to get ahead,” said Mr. Vicen, who now works in construction and sends remittances home to support his wife and daughter.

When he was younger, harvest time “was like a party,” he recalled. Now, “there are only losses, no profits.”

Fifteen producers from the Vicens’ coffee cooperative — more than 10 percent of its members — have migrated to the United States in the past year, said Ms. Esperanza López, the general manager of the cooperative. They have joined thousands of others from villages in Honduras’s western highlands.

Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas at Austin, said that government statistics on apprehension of migrants at the southwest border of the United States in recent years reflect a sharp increase in people from western Honduras.

After large caravans of migrants arrived last fall in Tijuana, Mexico, a United Nations survey found that 72 percent of those surveyed were from Honduras — and 28 percent of the respondents had worked in the agricultural sector.

Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times

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Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times

The exodus of farm workers has worsened already serious labor shortages in western Honduras. Some industry leaders in the region joke that if the caravans in recent months were “the laborer caravans,” the next wave will be “the grower caravans.”

Coffee farmers have been scrambling to adjust to the changes, learning which species are more resistant to plague and drought, and branching out into other crops — like cacao, avocados or trees that produce construction-grade wood.

Nongovernmental and public-private initiatives have also taken root in coffee-growing regions of Central America and around the world to help guide farmers. Some have received the backing of the world’s biggest coffee sellers — like Starbucks, Tim Horton’s and Lavazza — trying to ensure their future supply.

Yet even the application of best practices is no guarantee that everything will be fine.

“The weather is crazy,” said Carlos Peña Orellana, 58, a farmer and member of a local coffee cooperative. “Everything’s out of control.”

He owns 12 acres of land but can afford to farm only about five. He gets by with income from a tomato greenhouse he built with the cooperative’s help, and with remittances from two sons who migrated to the United States after struggling through the rust crisis of 2012-13.

“They’re helping to revive the farm,” he said at his ramshackle ranch one recent afternoon. “It’s really difficult now.”

He turned to his youngest son, Carlos, 12, and saw a future migrant. Pointing a leathery finger, he said: “You’re next, right?” Mr. Peña chuckled. The boy squirmed, saying nothing.

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Can the “good guys” oust the Trump Kakistocracy at the ballot box before it’s too late? I was optimistic after my two-week Scarff Distinguished Professorship at Lawrence University that the upcoming generation understands these issues and is committed to action, not just talk, and certainly will work hard to undo the damage done by the current Administration’s intentionally ignorant and ill-intended approaches to both migration and climate issues.

PWS

03-16-19

Join the New Due Process Army. Fight the EOIR travesty!

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BILL BARR – Unqualified For Office – Unfit To Act In A Quasi-Judicial Capacity

The Ways William Barr Misled The Public About The Mueller Report

He left out the Trump campaign’s expectation of benefiting from hacked material.

He said it was up to him to make a decision on obstruction of justice.

He gave an incomplete picture of Trump’s actions that could be construed as obstruction of justice.

He said Mueller found “no collusion.”

He said Trump fully cooperated with the investigation.

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