Paul Wickham Schmidt – Page 238 – immigrationcourtside.com

THE HILL: NOLAN ON EUROPE’S CONTINUING MIGRATION ISSUES!

http://thehill.com/opinion/immigration/375610-the-migrant-crisis-is-still-a-growing-burden-for-europe

Nolan writes:

“Making the situation worse, pursuant to the EU’s Dublin II regulation, refugees are supposed to apply for asylum in the first EU country they reach, and EU nations are resisting any changes to this regulation that would cause them to receive more migrants.

This has created an impossible burden for Greece and Italy, which have become the main gateways for 1.5 million refugees arriving on Europe’s shores over the last three years.

The EU Commission sought to redistribute 160,000 asylum seekersthroughout the EU from Greece and Italy, but lack of cooperation from other EU nations made it impossible to achieve that goal. When the program ended, only 31,000 refugees had been resettled.

But fewer migrants are coming to Europe. Only 186,768 migrants came in 2017. The following chart provides an overview of arrivals that year.

The numbers have not gone down because fewer people need refuge.

European governments entered into partnership agreements with North African countries in 2017. They offered financial support to them in exchange for stepped-up border patrols and crackdowns on migrant smuggling in their territories.

While these agreements have succeeded in reducing the numbers, it has come at a human cost. In Libya, the launch point for most of the migrant journeys to Europe, migrants intercepted while fleeing from Libya are sent to detention centers. Government and NGO reports have documented widespread physical and sexual violence, more conditions and killings at these centers.

Crime.

In 2016, Germany accepted the largest population of asylum seekers in Europe, but it has not worked out well for Germany. According to a study conducted by the Zurich University of Applied Sciences, the German state of Lower Saxony has experienced a 10.4 percent increase in violent crime.

German criminologists claim that the best way to prevent violent crime among migrants is to provide them with better integration opportunities. It also could help if Germany allowed them to be reunited with their families. Germany recently limited family reunifications.

In view of Europe’s low natural population growth rate, refugee family reunification could be a great benefit by adding to the birth rate in the EU. In the first half of the 1960s, the population of the EU increased by only 0.8 percent a year, and the birth rate is even lower now.

The European economy, meanwhile, is growing, which is producing labor shortages. Europe needs population inflows from outside the EU to increase its workforce.

The EU needs to ensure that the Schengen Agreement does not prevent individual nations from securing their borders, and it should consider making a greater effort to integrate its migrant population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”

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I encourage you to go over to The Hill at the above link to read Nolan’s complete article.

It’s difficult to impossible to solve migration problems solely by working on them at the “receiving” end. I suspect that there will continue to be additional arrivals and more deaths unless and until the problems causing the refugee migration are addressed at the “sending” end.
Seems like the African nations acting as “middlemen” are the only “winners” here. The get paid by the EU for shutting down some routes for refugee migration. In the meantime, I suspect that they get paid by the smugglers for leaving some routes “open” or “looking the other way.”
Nolan’s point that Europe’s economic future might well depend on their better integrating migrants is well taken. Generally, the US has done a superior job of integrating migrants into our society. That’s one reason why our economy generally has done better than those of most EU nations.

PWS

02-27-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

3916

Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18

BIA’S PLANNED EXPANSION TO 21 JUDGES LIKELY TO RESULT IN EVEN MORE PRO-ENFORCEMENT BIAS!

2018-03980

The DOJ has finalized regulations (see above link) that would expand the authorized number of Appellate Immigration Judges serving as Board Members on the BIA from the current 17 to 21. Currently, there are 15 Appellate Immigration Judges actually on duty, including the Chair and Vice Chair.

The BIA once was authorized 23 Board Members, prior to the infamous “Ashcroft Purge of 2003” which artificially reduced the number of Appellate Immigration Judges to eliminate those judges perceived as “too liberal” by Ashcroft and his cronies. Because the number 12 was arbitrary, the BIA in fact never was able to operate properly with that reduced number of judges.

The DOJ therefore resorted to a number of “gimmicks” to keep the operation afloat while concealing their politicized mismanagement of the appellate function. Among the gimmicks were using senior BIA staff members as “Temporary Board Members,” misuse of “summary affirmances” to rubber stamp orders of removal, so-called “single-Member decisions” that often were in conflict with each other, elimination of authority to review facts “de novo,” and a “presumption against en banc precedents” used to suppress dissent. However, given that the BIA was carefully constructed with only judges likely to “go along to get along” with Administration enforcement views, there wasn’t likely to be much dissent anyway.

The immediate result of the “Ashcroft purge” was tanking of the BIA’s credibility and decision quality that quickly outraged many U.S. Courts of Appeals. This, in turn, resulted in boatloads of reversals and remands from the Courts of Appeals for new decisions, as well as pointed criticism in published Court of Appeals decisions, and media criticism from some of the most outspoken Article III Court of Appeals Judges.

Finally, Ashcroft’s successor, Attorney General Alberto Gonzalez, had to take steps to slow down the “deportation express” and restore at least some semblance of quality and civility to the adjudication process at both the BIA and Immigration Court levels. However, Gonzalez chose largely to blame Immigration Judges for the drop-off in quality, rather than acknowledging the DOJ’s primary role in creating the problems.

In the abstract, with an increasing case load and more Immigration Judges being appointed, an increase to 21 judges at the BIA seems logical. However, given the BIA’s already “DHS-leaning” jurisprudence, and the overtly anti-immigrant, restrictionist views expressed by Attorney General Sessions, it’s likely that expansion will mean further “packing” the BIA with judges who are biased in favor of the Administration’s alt-right restrictionist immigration enforcement agenda. That will be bad news for migrants and anyone else expecting the BIA to honor its long-forgotten pledge to “guarantee fairness and due process for all.”

Just another reason why America needs an independent Article I U.S. Immigration Court (including an open “merit-based” judicial selection system) now!

PWS

02-27-18

“GO POUND SAND” SUPREMES TELL TRUMP & SESSIONS ON DACA – HIGH COURT STIFFARMS DOJ’S FRIVOLOUS TRY TO END RUN LEGAL PROCESS!

https://www.cnn.com/2018/02/26/politics/daca-supreme-court/index.html

Ariane de Vogue and Tal Kopan report for CNN”

“Washington (CNN)The Supreme Court said on Monday that it will stay out of the dispute concerning the Deferred Action for Childhood Arrivals program for now, meaning the Trump administration may not be able to end the program March 5 as planned.

The move will also lessen pressure on Congress to act on a permanent solution for DACA and its roughly 700,000 participants — undocumented immigrants who came to the US as children.

Lawmakers had often cited the March 5 deadline as their own deadline for action. But the Senate failed to advance any bill during a debate earlier this month, and no bipartisan measure has emerged since.

Originally, the Trump administration had terminated DACA but allowed a six-month grace period for anyone with status expiring in that window to renew. After that date, March 5, any DACA recipient whose status expired would no longer be able to receive protections.

Monday’s action by the court, submitted without comment from the justices, is not a ruling on the merits of the DACA program or the Trump administration’s effort to end it.

At issue is a ruling by federal District Judge William Alsup of the US District Court for the Northern District of California, who blocked the plan to end DACA and held that the Trump administration must resume accepting renewal applications. The action means the case will continue going through the lower courts.

Alsup said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”

“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.

The 9th US Circuit Court of Appeals has generally allowed nationwide injunctions against the Trump administration actions from lower court judges under this President to stand, meaning the DACA program could be spared a year or more until the Supreme Court could take up the case in next year’s term, given the likely realities of the calendar.

Justice Department spokesman Devin O’Malley said the administration’s appeal to the Supreme Court was an uphill climb, given it came before the 9th Circuit ruled.

“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view, it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA,” O’Malley said. “We will continue to defend DHS’s lawful authority to wind down DACA in an orderly manner.”

University of Texas professor law and CNN legal analyst Stephen Vladeck said justices normally don’t weigh in at this stage.

“The justices have not granted such a request since 2004, but the government claimed that the urgency of settling the legal status of DACA, and the potential for nationwide confusion, justified such an extraordinary measure,” Vladeck said.”

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Good news for America on a number of fronts:

DACA immigrants get to keep their status and work authorization for now. While the Administration claimed (disingenuously) that removal of DACA recipients would not be a “priority,” loss of DACA status would mean loss of work authorization (and therefore jobs) for many and loss of in-state tuition eligibility for college for others. Thus, they would have been driven “into the underground.” Honest employers who insisted on following work authorization laws would have been penalized by loss of important, talented workers. Meanwhile, unscrupulous employers willing to overlook lack of work authorization or pay “under the table” at substandard wages would have been empowered by the Administration’s bone-headed actions to exploit Dreamers and U.S. workers alike.
Supremes rebuffed the arrogant Trump/Sessions attitude of entitlement. Whatever their disingenuous explanations might be today, in attempting to circumvent the Courts of Appeals to the Supremes, the Administration basically was touting that the GOP had “bought and paid for” five seats on the Supremes and that they expected their “wholly-owned Justices,” including of course the recently appointed Justice Gorsuch, to deliver on their demand for unprecedented special treatment. By forcing the Administration to follow the rules like everyone else, at least for now, the Supremes maintained some degree of dignity and judicial independence in the context of an Administration that publicly holds itself above the law and states that the only acceptable role of Federal Judges (particularly GOP appointees) is to “rubber stamp” Administration positions.
Litigation in the Courts of Appeals will further expose the absurdity of Session’s “legal position” on DACA. In the DACA litigation, the DOJ is incredibly asking the Federal Courts to invalidate the Executive’s own legal authority to exercise prosecutorial discretion on a consistent and disciplined basis. While courts have acknowledged that there are likely ways in which the Administration could go about terminating DACA, claiming that it is “illegal” isn’t one of them. Session’s bogus claim that an Administration doesn’t have authority to exercise prosecutorial discretion on a widespread basis is both disingenuous and absurd on its face. Obviously, this Administration has already chosen to exercise lots of prosecutorial discretion not to enforce environmental, health care, civil rights, ethics, and other “laws on the books” when it suited their purposes.
If the lower court rulings stand, Trump will have difficulty coming up with a “rational reason” to terminate DACA “on the merits.” Trump himself, as well as other Administration officials and politicos from both parties have widely and publicly praised DACA youth and their contributions to the United States. There is neither a legal nor a rational basis for terminating DACA. While Trump & Sessions might well attempt to do so, those attempts are also likely to be tied up in the Federal Courts for a long time. DACA created “settled expectations” on the part of the recipients, their employers, their schools, and even their U.S. families of continuing ability to, at a minimum, remain, work, and study in the United States, assuming continued “good behavior.” In my long experience in Government, Federal Courts have more often than not been anxious to find ways to protect such “settled expectations.”
Congress was going to “punt” on DACA anyway. I detected little if any interest on the part of GOP “leadership” in the House and Senate to fix DACA on a temporary or permanent basis for now. It’s going to take “regime change” — eventually replacing recalcitrant GOP legislators with Democrats more interested in governing in the public interest, including solving the Dreamer issue on a long-term basis (without otherwise damaging our permanent immigration system or further enabling lawless behavior by DHS). That’s going to take time, just like the litigation. In this case, time is the Dreamer’s and the bulk of America’s friend.

PWS

02-26-18

TRUMP ON PACE TO DEPORT ALL 11 MILLION UNDOCUMENTED AMERICANS BY 2070!

Tal Kopen reports for CNN:

http://www.cnn.com/2018/02/23/politics/trump-immigration-arrests-deportations/index.html

“Arrests of immigrants, especially non-criminals, way up in Trump’s first year

By Tal Kopan, CNN

In his first year in office, President Donald Trump’s administration’s arrests of immigrants — especially those without criminal convictions — were up substantially, but actual deportations lagged behind his predecessor, according to statistics released Friday.

The jump corresponds to Trump’s central pledge to crack down on illegal immigration, at least in terms of casting a wide net to catch undocumented or deportable immigrants.

Days after being inaugurated, one of Trump’s first actions was to release immigration agents of specific prioritization of who to go after, giving them wide discretion to target almost any undocumented immigrant as a priority.

According to new data from Immigration and Customs Enforcement, there was a 41% increase in the number of undocumented immigrants who were arrested by the agency in 2017 compared to 2016.

But the increase was driven by the agency arresting a significantly higher rate of immigrants without a criminal background. While the share of criminals arrested was up 17%, there was an increase 10 times that — of 171% — in the share of non-criminals arrested.

ICE had previously released fiscal year data, but on Friday released additional numbers from the last three months of 2017 as well, allowing for the year-to-year comparison.

In 2017, ICE made routine arrests of more than 155,000 immigrants, 30% of whom were not criminals. The final three months of the year, the rate of non-criminals arrested was even higher, at 35%.

That number was far lower, though, in 2016. That year the Obama administration arrested almost 110,000 immigrants, nearly 16% of whom were not criminals. In 2014, Obama’s Department of Homeland Security set priorities for ICE that focused first on serious criminals and national safety threats, followed by other public safety threats and immigrants who had recently had an order of deportation signed.

Unlike the increased arrests, at the end of 2017, deportations continued to lag behind the Obama administration’s pace, despite Trump’s repeated pledges to get undocumented immigrants “out” of the country.

In 2017, the administration deported nearly 215,000 immigrants, 13% fewer than the nearly 250,000 deported in 2016. The percentage of those individuals who were non-criminals was steady at just over 40%.

Deportations are a complex statistic to compare, however, because it can take many years to work an individual case through the immigration courts. The administration has also cited a decrease in the number of people apprehended at the border as part of the lagging numbers.”

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While “Gonzo” immigration enforcement is demonstrably bad for America, the good news here is that the pace at which it is proceeding insures its own ultimate failure. That’s great news for America and our future!

If Trump, Sessions & Co were actually able to remove all 11 million so-called “undocumented” Americans tomorrow, the American agriculture, hospitality, technology, construction, dairy, teaching, health care, child care, technology, restaurant, and sanitation industries, to name just a few, would cease to function, thus throwing our country into an economic and social tailspin from which we likely would never recover. When you are being governed by idiots, sometimes your only protection is in the idiocy and self-defeating nature of their own policies.

PWS

02-26-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
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In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18

DESTROYING AMERICA, ONE PRECIOUS, TALENTED LIFE AT A TIME — “Can something that irrational happen in America?” — In The Trump/Sessions/Miller White Nationalist Regime? — You Betcha!

https://www.washingtonpost.com/local/immigration/with-three-months-left-in-medical-school-her-career-may-be-slipping-away/2018/02/22/24a7a780-10f3-11e8-9570-29c9830535e5_story.html?hpid=hp_rhp-top-table-main_dacadoctors-830pm%3Ahomepage%2Fstory&utm_term=.ed15d711fa8f

Maria Sacchetti reports for the Washington Post:

MAYWOOD, Ill. — Rosa Aramburo sailed into her final year of medical school with stellar test scores and high marks from professors. Her advisers predicted she’d easily land a spot in a coveted residency program.

Then President Trump announced the end of the Obama-era program that has issued work permits to Aramburo and nearly 700,000 other undocumented immigrants raised in the United States.

“Don’t be surprised if you get zero interviews,” an adviser told her.

She got 10, after sending 65 applications.

But as she prepared to rank her top three choices last week, Congress rejected bills that would have allowed her and other “dreamers” to remain in the United States, casting new doubt on a career path that seemed so certain a year ago.

Employers and universities that have embraced DACA recipients over the past six years are scrambling for a way to preserve the program. They are lobbying a deeply divided Congress, covering fees for employees and students to renew their permits, and searching for other legal options — perhaps a work visa or residency through spouses or relatives who are citizens. Some companies have considered sending employees abroad.

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They are also awaiting the outcome of a court challenge to the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program, which has granted the young recipients a temporary reprieve and allowed them to continue renewing work permits for the time being. The Supreme Court could decide as soon as Friday whether to intervene in the case.

Nationwide, more than 160 DACA recipients are teaching in low-income schools through Teach For America. Thirty-nine work at Microsoft, 250 at Apple and 84 at Starbucks. To employers, the young immigrants are skilled workers who speak multiple languages and often are outsize achievers. Polls show strong American support for allowing them to stay.

Based in part on that data, many DACA recipients say they believe that the United States will continue to protect them, even as a senior White House official has indicated that Trump and key GOP lawmakers are ready to move on to other issues.

Human-resources experts warn that employers could be fined or go to jail if they knowingly keep workers on the payroll after their permits have expired. And while the White House has said that young immigrants who lose DACA protections would not become immediate targets for deportation, Immigration and Customs Enforcement says anyone here illegally can be detained and, possibly, deported.

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“I’ve gotten emails saying, ‘Oh, we loved you,’ ’’ Aramburo, 28, said one recent morning as she hurried to predawn rounds at a neurology intensive-care unit. “But in the back of my mind, I’m thinking, ‘What if I can’t finish?’ ”

Dreams and disbelief

Loyola University Chicago’s Stritch School of Medicine has 32 DACA recipients enrolled in its medical program. (Alyssa Schukar/for The Washington Post)

Cesar Montelongo is a third-year student in the school’s MD-PhD program. (Alyssa Schukar/for The Washington Post)
Nearly 100 DACA recipients are medical students enrolled at schools such as Harvard, Georgetown and the Stritch School of Medicine at Loyola University Chicago, which this May will graduate its first five dreamers, including Aramburo.

Loyola, a Catholic school, changed its admissions policies to allow DACA recipients to apply soon after President Barack Obama — frustrated by Congress’s failure to pass an immigration bill — declared in 2012 that he would issue the young immigrants work permits. Trump and other immigration hard-liners criticized the program as executive overreach.

Thirty-two students with DACA are enrolled at Stritch, the most of any medical school in the country, according to the Association of American Medical Colleges. Most are from Mexico, but there are also students brought to the United States as children from 18 other countries, including Pakistan, India and South Korea.

The school helped the students obtain more than $200,000 apiece in loans to pay for their education. Some agreed to work in poor and rural areas with acute physician shortages to borrow the money without interest.

Mark G. Kuczewski, a professor of medical ethics at Loyola, said the school was inspired to launch the effort after hearing about Aramburo, a high school valedictorian who earned college degrees in biology and Spanish and yearned to study medicine but could find work only as a babysitter because she was undocumented.

He said it is unthinkable that Congress may derail the chance for her and the other DACA recipients at Loyola to become doctors and work legally throughout the United States.

“We just can’t believe that that will happen,” Kuczewski said. “Can something that irrational happen in America?”

2:52
This nurse found hope in DACA, now his life is in limbo

Jose Aguiluz is a 28-year-old registered nurse who may face deportation from the United States if Congress doesn’t come to an agreement on DACA recipients. (Jorge Ribas, Jon Gerberg/The Washington Post)
Teach For America said its lawyers have pored over immigration laws to find ways to sponsor workers who lose their DACA protections. But the process often requires workers to leave the United States and return legally, a risk many young teachers are unwilling to take. The organization also offered to relocate teachers close to their families in the United States.

“They’re desperate. They’re stressed,” said Viridiana Carrizales, managing director of DACA Corps Member Support at Teach For America. “They don’t know if they’re going to have a job in the next few months.”

A spokesman for a major tech company who spoke on the condition of anonymity because of the sensitivity of political negotiations, said it asked DACA employees whether they would like to be transferred to another country where their work status would not be in jeopardy.

“It fell completely flat,” he said. “The employees were polled, and with virtual unanimity, the resounding answer was a ‘No, thank you.’ They considered it giving up.”

The Society for Human Resource Management said companies can defend workers and lobby Congress on behalf of DACA recipients. But the group, which has 240 member organizations, is also urging employers to consider what might happen if their employees’ work permits expire.

“The bottom line is, if people don’t have documents that allow them to work in the United States, they have to be taken off the payroll,” said Justin Storch, a federal liaison for the society.

Cesar Montelongo, a third-year medical student and a DACA recipient. (Alyssa Schukar/for The Washington Post)
‘Not just farmworkers or housekeepers’
On the snow-covered campus at Loyola University Chicago, medical students with DACA permits say they are continuing with their studies and renewing their work permits even as they keep one eye on Washington.

Cesar Montelongo, 28, a third-year medical student who attended the State of the Union address last month, spent part of one recent day examining bacteria in petri dishes in a school laboratory. His family fled a violent border city in Mexico when he was 10.

He is earning a medical degree and a PhD in microbiology, a high-level combination that could land him plenty of jobs in other countries. But he said he prefers the United States, one of “very few places in this planet you can actually achieve that kind of dream.”

Less than a mile away, Alejandra Duran, a 27-year-old second-year medical student who came to the United States from Mexico at 14, translated for patients at a local clinic for people with little or no insurance.

With help from teachers in Georgia, she graduated from high school with honors. She wants to return to the state as a doctor and work to help lower the rate of women dying in childbirth.

“A lot of things have been said about how illegal, how bad we are; that’s not the full story,” Duran said. “We’re not just farmworkers or housekeepers. We’re their doctors. We’re their nurses, their teachers, their paramedics.”

Alejandra Duran, a second-year student who intends to practice obstetrics and gynecology, translates for Dr. Matt Steinberger at the Access to Care clinic. (Alyssa Schukar/For The Washington Post)

Cesar Montelongo, a third-year medical student, examines Petri dishes in which he conducted an experiment looking at interactions of viruses with bacteria in the bladder. (Alyssa Schukar/For The Washington Post)
During rounds at the Loyola University Medical Center, Aramburo studied computer records, then examined stroke victims and patients with spinal and head injuries. Some may never regain consciousness, but she always speaks to them in the hope that they will wake up.

“That’s my dream: to make a difference in people’s lives,” she said. “I hope I can do it.”

In the glass-walled neurology intensive care unit, she and two physicians stood before a 45-year-old stroke victim who spoke only Spanish. The woman struggled to grasp what the two doctors were saying.

Aramburo stepped forward.

“You’ve had a small stroke,” she explained in Spanish, as the woman listened. “It could have been a lot worse. Now we’re going to figure out why.”

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Some of the WASHPOST comments on this article were predictably idiotic ands racist., Really, what’s happening to our country that folks have such perverted, ill informed, anti-social, and inhuman views?

These are American kids. Raised, educated, and residing in our country. They aren’t “taking places” from anyone, except, perhaps those of their classmates who are less talented or less ambitious. But, why would we want to reward mediocrity over merit just because someone was born here? Other American kids have the same opportunities that Dreamers have. If some chose not to take advantage of them, so be it!

When the Arlington Immigration Court was located in Ballston, Virginia, the kids from nearby Washington & Lee High would come over to the Mall for lunch. Undoubtedly, some of them were undocumented.

But, I couldn’t tell you who. They were just American kids. Even when they showed up in my courtroom, I couldn’t tell you who was the “respondent” and who was the “support group” until I called the case and the respondent came forward. Contrary to the White Nationalists, folks are pretty much the same.

As usual, Trump and his White Nationalist cronies have taken a win-win-win and created a lose-lose-lose! When Dreamers get screwed, they lose, US employers lose, and our country loses, big time! But, that’s what happens when policies and actions are based on bias, ignorance, and incompetence.

PWS

02-23-18

ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Julia Navarro, and her client, F-R, from El Salvador. This afternoon, Immigration Judge Emmett D. Soper granted F-R’s asylum application. The ICE trial attorney waived appeal so the grant is final. Granted asylum along with F-R were her twelve and nine year-young sons, who live with her, and her husband, who remains in El Salvador.

F-R testified that the Mara 18 gang tried to recruit her then ten-year young son, but that he refused. As a result, he was beaten, resulting in visible injuries. However, he refused to tell F-R who beat him, and why. Finally, after repeated beatings, he told F-R. She confronted the gang members and asked them to leave her son alone. In response, they burned her with lit cigarettes on her chest, stomach, and arms. In addition, they demanded that she pay them $5,000. And they continued to beat her son. F-R went to the police twice, but nothing was done. Finally, after further beatings of her son and renewed demands for the $5,000, F-R and her husband decided that she and her two sons should come to the USA. After she left El Salvador, the gang members poisoned two of her dogs, whom, she testified, she considered part of her family. At the conclusion of her direct examination, Julia asked F-R if she would confront the gang members again, and she said yes, because “my children are my life, and I would give my life for theirs.”

Congratulations also to Sarah DeLong, Dalia Varela, Jengeih Tamba, and Jonathan Bialosky, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
**************************************************

Congrats to all involved!

Once more proving my point that with great representation, time to prepare, and a fair Immigration Court, many, perhaps the majority, of the so-called “Northern Triangle Gang Cases” are highly grantable!

This definitely calls into question the Administration’s use of unnecessary detention, unwarranted criminal prosecutions, expedited removal, denial of access to counsel, detention courts, and “removal quotas” to “discourage” valid claims for protection. The Administration’s policies are an overt attack on Due Process and the Rule of Law! Harm to the most vulnerable among us is harm to all of us!

Three cheers for the “New Due Process Army!”

PWS

02-23-18

TAKING THE “SERVICE” OUT OF USCIS — Agency’s Mission Is Now To Serve White Nationalist, Anti-Immigrant Agenda — REWRITING HISTORY — US No Longer A Nation Of Immigrants — How Did All These NWGs (“Nasty White Guys”) Like Trump Cissna, & Sessions Get Here, Anyway?

https://www.vox.com/2018/2/22/17041862/uscis-removes-nation-of-immigrants-from-mission-statement

Dara Lind reports for Vox News:

“US Citizenship and Immigration Services isn’t for immigrants anymore.

That’s not an exaggeration. USCIS, the federal agency responsible for issuing visas and green cards and for naturalizing immigrants as US citizens, has unveiled a new mission statement that strips out all references to immigrants themselves — including taking out a line that called the US a “nation of immigrants.” And in an email to agency staff Thursday, as first reported by the Intercept’s Ryan Devereaux, director L. Francis Cissna bragged about the change — saying that USCIS wasn’t supposed to help immigrants and the US citizens seeking to sponsor them, but rather “the American people.”

The new mission statement, and Cissna’s justification, downplays the agency’s commitment to helping immigrants become American citizens and plays up the idea that US citizens attempting to bring their family members to the US don’t count as real Americans whose interests deserve to be protected.

USCIS’s new mission statement doesn’t just reflect the Trump administration’s hawkishness toward legal as well as unauthorized immigration. It encourages the notion that Americanness is a matter of blood and soil, of birth and descent, rather than an idea that anyone can be proud of regardless of where they were born.

Taking “citizenship” out of the mission of Citizenship and Immigration Services
The changes to the USCIS mission statement don’t change the work the agency actually does. But they make a symbolic statement that the Trump administration sees that work differently not just from how the Obama administration did, but from our traditional understanding of what Americanness means.

It’s not just the removal of the “nation of immigrants” line. The new mission statement removes all references to citizenship — instead of “immigration and citizenship benefits,” USCIS now just provides “immigration benefits,” and “promoting an awareness and understanding of citizenship” is kicked out of the mission entirely.

At the same time as the agency is deemphasizing the part of its job that involves turning immigrants into citizens, its new mission implies that the two groups — immigrants and Americans — are naturally in conflict:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.
Cissna’s email also told USCIS staff that they’re not supposed to call applicants “customers” anymore because their real customers aren’t immigrants — they’re the American people:

Referring to applicants and petitioners for immigration benefits, and the beneficiaries of such applications and petitions, as ‘customers’ promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law. […] Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve.” [emphasis added]
It’s an odd statement to make. For one thing, USCIS is the rare federal agency that isn’t primarily funded through taxes — most of the money to run the agency comes from application fees. Immigrants applying for visas, green cards, and citizenship — and the US citizens and companies that have to sponsor some of those applications — are paying USCIS for the services they provide. By a commonsense definition, that’s what a customer is.

But what’s even more jarring than the redefinition of “customer” is the definition of “American.” Cissna’s statement strongly implies that “applicants and petitioners” don’t count as part of the “American people.” That might make sense if he were talking just about people newly coming to the US, or even if he were distinguishing “Americans” from noncitizens. But he’s not.

The “applicants” Cissna refers to include immigrants who are applying for US citizenship — the part of USCIS’s function that got stripped out of the mission statement. Not only does the new mission statement suggest that helping immigrants become Americans is no longer part of USCIS’ job, but by distinguishing “applicants” from “the American people,” it suggests that they can’t.

Furthermore, the overwhelming majority of petitioners for immigrants are US citizens petitioning for family members (or American businesses petitioning for employees). Those citizens may have been born abroad, but they’ve naturalized. They are as American as anyone else.

Does the Trump administration believe immigrants can integrate?
USCIS tends to be the most obscure of the Department of Homeland Security’s three immigration agencies, precisely because it’s the one that doesn’t deal with immigration enforcement (Customs and Border Protection addresses border enforcement; Immigration and Customs Enforcement takes care of interior enforcement). But immigrant rights advocates have been worried about the agency.

Cissna worked for Senate Judiciary Committee Chair (and immigration hawk) Chuck Grassley (R-IA) before being appointed to USCIS. The agency’s ombudsman office, which is supposed to provide transparency to the people who used to be called “customers,” is headed by Julie Kirchner, the former executive director of the Federation for American Immigration Reform — a group whose mission includes reducing legal immigration to the US.

There are already indications that the new leadership is encouraging applications to be processed more slowly and with more scrutiny. In winding down the Deferred Action for Childhood Arrivals program, they were more aggressive than Trump’s statements implied. At the same time, there’s been an apparent slowdown in the processing of naturalization applications and of work permits for some categories of immigrants.

By overhauling the mission statement, it’s clear that the new leadership wants to be noticed.”

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The White Nationalist attack on America continues. At least they don’t make any secret about their xenophobia and disdain for immigrants, their rights, and their advocates.

It’s “war.” That’s why we need the “New Due Process Army!”

PWS

02-23-19

BIA PROVIDES FEEBLE GUIDANCE ON BORDER STATEMENTS — MATTER OF J-C-H-F-, 27 I&N DEC. 211(BIA 2018)! PLUS SPECIAL BONUS: MY “CRITICAL ANALYSIS!”

3915

Matter of J-C-H-F-, 27 I&N Dec. 211 (B IA 2018)

BIA HEADNOTE:

“When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.”

PANEL: BIA Appellate Immigration Judges MALPHRUS, CREPPY, and LIEBOWITZ

OPINION BY: JUDGE GARRY D. MALPHRUS

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MY ANALYSIS

Predictably, the respondent loses. Even though faulty analysis leading to unwarranted denial of asylum cases by the BIA and Immigration Judges is a recurring problem (see, e.g., Salgado-Sosa v. Sessions, recent 4th Circuit, Blogged here https://wp.me/p8eeJm-2aS), when was the last time the BIA explained how U.S. Immigration Judges should analyze and grant asylum? No, the BIA’s recent asylum jurisprudence is basically a one-sided “blueprint for denials that will pass appellate muster.” In reality, Due Process is supposed to be about protecting individuals (whether documented or undocumented) from Government overreach, not how to maximize DHS removals. But, you’d be hard pressed to get that from reading the BIA precedents.
What this decision really tells Immigration Judges: “Presume that sworn statements taken at the border are reliable. Feel free to use any inconsistencies against the asylum applicant. Go ahead and reject all efforts to explain. Deny the application based on credibility Don’t worry, we’ve ‘got your back’ on appeal.”
Even more seriously, although the BIA is supposed to consider “all relevant factors,” the panel totally ignored strong, impartial, widely disseminated evidence that statements taken at the border on Form I-867A are highly unreliable. Not only that, but such evidence is in the public realm and in fact was actually presented at EOIR training conferences at which Board Judges and staff were present!
Let’s reprIse a recent article by Hon. Jeffrey Chase, who was both an Immigration Judge and a BIA Attorney Adviser:”

In August 2016 I [Judge Chase] organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C. One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored. The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process. What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.” The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked. Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later. The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work). For the record, USCIRF is a bipartisan organ of the federal government. So this is a government-issued report making these findings.

The U.S. Court of Appeals for the Second Circuit has long recognized the problems inherent in the reliability of airport statements. In Ramseachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004), the Second Circuit held that “a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript.” The court determined that the airport statement in that case bore “hallmarks of reliability, as it is typewritten, signed by Ramseachire, and initialed on each page. The record also indicates that he was given the opportunity to make corrections to the transcription.”

But was that truly the case? The USCIRF study (the first of which was published a year after the Ramseachire decision) shows that the Second Circuit’s reliance may have been misplaced. The USCIRF researchers found instances in which the statement was not read back; when asked, a CBP agent stated “that he only reads back the contents if the interviewee requests it because it takes too long, and that the interviewee initialing each page only indicates that s/he received a copy of that page.”

As noted in the USCIRF study, the problems with airport statements go beyond merely summarizing or paraphrasing, to include actual misstatements and omissions. But the I-867 statements as prepared by the CBP agents give the appearance of being verbatim transcripts, and further claim to contain multiple safeguards to guarantee their accuracy which, pursuant to the findings of the USCIRF studies, may not have actually been employed. And based upon the appearance of those safeguards, immigration judges have relied on the contents of these statements to reach adverse credibility findings that result in the denial of asylum. And as in Ramseachire, many of those credibility findings are being affirmed on appeal.

This is not to say that all airport statements are unreliable. But the point is that, as in Ramseachire, courts see something that looks like a verbatim transcript, see additional signs that safeguards were employed to ensure accuracy, and as a result, afford the document more evidentiary weight than it might actually deserve. Under such circumstances, an immigration judge might reasonably rely on an airport statement purporting that the respondent had stated he came to the U.S. to work when in fact, he or she said no such thing. And the judge might discredit the respondent’s denial of such statement when the words are recorded in a seemingly verbatim transcript bearing the respondent’s signature and initials which says it was read back to him and found accurate.

Attorneys and immigration judges should therefore be aware of the report and its findings. The link to the report is: https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf

You can find Jeffrey’s commentary with my additional comments on “Courtside” here: http://immigrationcourtside.com/2017/09/22/use-with-extreme-caution-hon-jeffrey-chase-on-the-use-of-so-called-airport-statements-in-removal-proceedings-they-often-prove-to-be-highly-unreliable/
So we have clearly documented “credibility and reliability problems” with Forms I-867A, uncovered by the U.S. Commission on International Religious Freedom (“USCIRF”), a highly respected non-partisan body of experts. These problems have been festering for years, and remained just as bad in 2016 as they were more than a decade earlier when the USCIRF did its initial study! And, we have clear evidence that BIA Judges and staff were well aware of these unresolved problems, yet totally ignored them in this decision.
No wonder EOIR barely bothers to do judicial training any more! Obviously, anything that might require critical thinking or judicial analysis unfavorable to the DHS just goes in one ear and out the other!
How bad are Forms -867? Here’s a description of a well-publicized recent incident in which the Border Patrol “Sworn Statement” on Form I-867 asserted that a three-year old toddler was coming to America to “find work!” AllGov reports from June 20, 2015 (http://www.allgov.com/news/unusual-news/border-patrol-agents-accused-3-year-old-of-crossing-border-in-search-of-work-150520?news=856769):

Border Patrol agents claim that a 3-year-old boy said the reason he came to the United States was to look for work, thus making it easier for the undocumented immigrant to be deported.

The boy, hailing from Honduras and identified in court documents as Y.F., was allegedly interviewed in the summer of 2014 by Border Patrol agents trying to determine if immigrants had a credible fear of harm or death if they returned to their home countries. Those who claim such fear—and can prove it—have a shot at getting asylum in the United States, while those who say they came looking for work are most often deported.

Agents interviewed Y.F. and wrote on the appropriate form that he said he was looking for work. A brief (pdf) filed by the American Immigration Lawyers Association (AILA) with the Justice Department Board of Immigration Appeals points out the unlikelihood of that being true. “Y-F-’s interview, so painstakingly transcribed, sworn, signed and counter-signed, almost certainly never happened in the format in which it was memorialized. The impossibility of the interview, in spite of the DHS officers’ affirmations of veracity and the rule of government regularity is plain on the face of the writings themselves: Y-F- was three years old at the time he was interrogated,” the brief said.

AILA says that information on those forms, I-867 A/B, “are not inherently reliable because they often contain fake responses, do not accurately reflect testimony presented, and were almost always created under coercive conditions,” according to AILA.

The case of Y.F. isn’t unique. Earlier this year, the Department of Homeland Security (DHS) argued that a particular undocumented immigrant should be deported because she came to the United States to find work in Dodge City, Kansas, according to Elise Foley of Huffington Post. The immigrant was 11 days old at the time.

The case against the infant girl was thrown out because her mother claimed the baby was born in the United States. The boy, now 4, has been living in a detention center in Texas for a year. He has been approved for release, but his mother has not, so he remains in detention.

Maybe he can apply for a work release.

Let’s see what else the BIA Judges “blew by” in J-C-H-F-.
- The Border Patrol agent acted as the Spanish interpreter. Interpretation is a professional job. It’s different from being “bilingual.” Indeed, at one past ImmigratIon Judge Conference, we actually received a graphic demonstration from the EOIR Interpretation Staff of how and why being bilingual wouldn’t necessarily qualify someone to interpret accurately in a legal setting! In one ear, out the other, I guess. The BIA gives no explanation of how and why a Border Patrol Agent would be qualified to interpret accurately.
- Yeah, but the BIA says it’s all OK because the respondent “understands English.” I probably “understand” German. If you said something slowly and clearly to me in German I probably could “get the gist” and say “Ja,” “Nein,” or “Nicht Verstehen.” But, would that mean I really understood what was going on? Highly unlikely!
- There is a body of evidence out there that asylum applicants are often traumatized as well as afraid of figures of authority such as “border police.” That can have something do with border statements. Indeed this respondent made such a claim. But, the panel simply blew it off, saying that the respondent was offered an opportunity to speak “confidentially with an officer.” How would that address trauma and fear of authorities? The BIA never tells us.
- The BIA reassures us that the statement is reliable because it “contains a detailed recitation of the questions and answers relating to the applicant’s claim, including the purpose of his visit, the length of his stay, and the issue whether he feared any harm if returned to Mexico.” Yet these are the very aspects of the I-867 that the USCIRF has said are often inaccurate, manipulated, or outright falsified.

The BIA could have selected as a precedent a case that illustrated the inherent shortcomings of the Form I-867 and why they should be viewed critically by Immigration Judges with at least a degree of skepticism, if not an outright presumption of unreliability. The BIA could further have used such a decision as a forum to demand that the DHS show what steps it has taken to address the problems discovered by the USCIRF and to improve the process for insuring accuracy of border statements if they want them treated with a “presumption of reliability” in Immigration Court.
Instead, the BIA once again “stuck its collective head in the sand” and ignored the real due process, fairness, and integrity problems plaguing our asylum adjudication system at all levels!
We can only hope that some independent Court of Appeals will take a more critical and objective look at the “border statement issue” than the BIA has chosen to do in J-C-H-F.
I also hope that in the future, respondents’ counsel make better use of readily available public materials to challenge over-reliance on border statements than apparently was done in this case.

PWS

02-22-18

PRO BONO LAWYERS SAY CHANGES IN EOIR POLICIES IN NEW YORK SHAFT CHILDREN NEEDING REPRESENTATION IN COURT!

NYC’s Immigration Court Erodes Accommodations for Children Without Attorneys

David Brand reports for CityLife.org;

. . . .

Thousands of other undocumented immigrant children never get a lawyer and continue to experience that fear and uncertainty during deportation proceedings. Others choose to avoid court, exposing themselves to in-absentia removal orders.

Over the past few months, finding legal representation has become even more challenging for immigrant children in New York City because Manhattan’s federal immigration court has eroded several of the practices and provisions designed to help children connect with nonprofit and pro bono attorneys inside the courthouse, say four lawyers who direct programs that connect with unrepresented children at 26 Federal Plaza.

Legal Aid Society’s Immigrant Youth Project supervising attorney Beth Krause says the changes have led to fewer children getting legal representation and will likely doom more children to deportation — even if their situations or experiences merit asylum, protected status or visa eligibility.

“What this means is there are many, many children who are not getting consultation with a lawyer and many kids who do have relief available but, if they don’t talk to a lawyer, might not know it and give up,” Krause says.

Though children have no legal right to government-funded counsel in immigration court — a reality reaffirmed by the U.S. Ninth Circuit Court of Appeals in late-January — New York City’s court used to provide some accommodations to help children find attorneys. The court consolidated the juvenile docket on specific days and assigned the cases to specific judges with experience presiding over children’s proceedings.

The court also shared docket information with nonprofits like New York Law School’s Safe Passage Project, Catholic Charities, Legal Aid, The Door and other Immigrant Child Advocates Relief Effort (ICARE) participants and permitted the organizations to meet with children in empty courtrooms or other spaces.

These provisions enabled children to access free legal counsel because the organizations knew how many unrepresented children would appear at court and when their case would be called. The accommodations also facilitated more efficient courtrooms — especially on days when a judge’s docket includes dozens of cases — because lawyers could prepare their young clients for court and guide them through proceedings.

Gradually, however, the court has scattered children’s proceedings throughout the month and assigned the cases to various judges who are at times unfamiliar with child-friendly practices or special legal provisions granted to children, such as longer filing deadlines, say Krause, Safe Passage Project Director Lenni Benson, Catholic Charities Supervising Attorney Jodi Ziesemer and The Door’s Director of Legal Services Eve Stotland.

The court has even prevented the nonprofit organizations from screening children inside empty courtrooms or other spaces throughout the building, the four attorneys say.

. . . .

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

Read the complete article at the link.

This is the “New EOIR,” where “customer service” has become a dirty word! Anti-Due Process, Anti-Child, Anti-Lawyer, Anti-Asylum, ungrateful to those who are trying against all odds to provide fair hearings to those caught up in our totally screwed up and grotesquely mal-administered Immigration Courts.

EOIR has basically come “full circle.” Unfortunately, it now replicates some of the worst features of the “Legacy INS’s” administration of the courts that led to the creation of EOIR in the first place.

One long-time pro bono stalwart told me she actually had tears of rage in her eyes over the disrespectful treatment she and her colleagues received while trying to provide pro bono assistance at one local Immigration Court. “I’ve been doing this for years. It’s in addition to my other two full-time jobs. It costs me money to provide pro bono. Now this — no cooperation, no appreciation. I’m trying to help EOIR avoid gross injustices. And, they just put BS bureaucratic roadblocks in the way. I’m so angry!”

We need an independent, Due-Process-focused Article I U.S. Immigration Court!

PWS

01-21-18

BIGGIE ON GANG ASYLUM: PUBLISHED 4TH CIR. BLASTS BIA’S BOGUS APPROACH TO NEXUS IN GANG CASES — Court Eviscerates BIA’s Disingenuous Approach To Nexus In Matter of L-E-A- (Without Citing It!) – SALGADO-SOSA V. SESSIONS

4thGangsNexusSalgado-Sosa

Salgado-Sosa v. Sessions, 4th Cir., 04-13-18, Published

PANEL: GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.

OPINION BY: JUDGE PAMELA HARRIS

SUMMARY OF HOLDING (From Court’s Opinion):

“Reynaldo Salgado-Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS-13, which has repeatedly attacked his family for resisting extortion demands.

The agency proceedings focused on whether Salgado-Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS-13’s threats and membership in a cognizable “particular social group” – here, Salgado-Sosa’s family. The Board of Immigration Appeals found that Salgado-Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado-Sosa’s asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture.

We conclude that the Board erred in holding that Salgado-Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado-Sosa’s persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), affects Salgado-Sosa’s argument that a statutory “changed circumstances” exception allows consideration of his untimely application.”

KEY QUOTE FROM OPINION:

“For three reasons, we are “compelled to conclude,” see Hernandez-Avalos, 784 F.3d at 948, that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are “at least one central reason” for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa “on account of” his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 “what they wanted, which was the war tax,” led the gang to repeatedly threaten to kill his wife and son. J.A. 236; see J.A. 234, 315–16. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring

2 As before the IJ and Board, Salgado-Sosa’s argument in this court emphasizes evidence that he and his family were targeted because of his stepfather’s testimony against MS-13. But both on appeal and before the agency, Salgado-Sosa also has argued more generally that he fears persecution based on his membership in a “particular social[] group, as defined by Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).” Appellant’s Br. at 5; see also A.R. 101, 478–79. And our holding in Crespin-Valladares was not limited to family members of witnesses, but instead established that family membership itself is a “prototypical example of a [cognizable] particular social group.” 632 F.3d at 125 (internal quotation marks omitted). The IJ and BIA accordingly considered not only whether Salgado-Sosa was persecuted for being a family member of a witness, but also whether he was persecuted because of his kinship ties generally. See A.R. 126 (finding that Salgado-Sosa “has not demonstrated” that any persecution “would be on account of a statutorily protected ground, be that family group membership, as witnesses, or any other potential protected ground”) (emphasis added). Following that lead, we also consider whether the evidence shows that Salgado-Sosa was threatened on account of his familial ties, regardless of the role played by his stepfather’s testimony.

10

that “the reason why the gang members wants [sic] to hurt [Salgado-Sosa]” is that he “defended his stepfather from the gang member[s]” when they assaulted the family. J.A. 537 (emphasis added). And the IJ, as noted above, did not doubt the credibility of any of this evidence.

Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion. See J.A. 5–6, 126–27. On a proper reading of the nexus requirement and our cases applying it, that finding compels the conclusion that Salgado-Sosa’s kinship ties are a central reason for the harm he fears.

Our decision in Hernandez-Avalos v. Lynch is instructive. There, the petitioner applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. 784 F.3d at 947. The BIA rejected her assertion that the persecution was “on account of” familial ties, concluding that the petitioner “was not threatened because of her relationship to her son (i.e. family), but rather because she would not consent to her son engaging in a criminal activity.” Id. at 949. We found this distinction “meaningless” and “unreasonable” given that “[petitioner’s] relationship to her son is why she, and not another person, was threatened” by the gang. Id. at 950 (emphasis added). Thus, because the petitioner’s “family connection to her son” was at least one of “multiple central reasons” for the gang’s threats, we found the nexus

requirement satisfied, and rejected the BIA’s contrary determination as resting on “an 11

excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. at 949–50.

The same logic applies here. There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather. See Hernandez-Avalos, 784 F.3d at 950. However characterized, Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably “why [he], and not another person, was threatened” by MS-13. See id. Thus, the IJ and BIA erred by focusing narrowly on the “immediate trigger” for MS-13’s assaults – greed or revenge – at the expense of Salgado-Sosa’s relationship to his stepfather and family, which were the very relationships that prompted the asserted persecution. See Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) (holding that the BIA drew “too fine a distinction” between the “immediate trigger” for persecution – breaking the rules imposed on former gang members – and what ultimately led to persecution – protected status as a former gang member). On the IJ’s own unchallenged account of the facts – that Salgado-Sosa’s fear of persecution arises from the actions of his stepfather and his family – the only reasonable conclusion is that family membership is “at least one central reason for [his] persecution.” See Hernandez-Avalos, 784 F.3d at 950.

Third and finally, the BIA’s decision improperly focused on whether Salgado- Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his

family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- 12

Sosa’s family was “financial gain or personal vendettas,” neither of which is itself a protected ground under the INA. J.A. 6. But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family. Cordova v. Holder, 759 F.3d 332, 339 (4th Cir. 2014) (rejecting argument that feared persecution is not on account of membership in family if attacks on family are not related to protected ground). Instead, “[t]he correct analysis focuses on [Salgado-Sosa himself] as the applicant, and asks whether [he] was targeted because of [his] membership in the social group consisting of [his] immediate family.” Villatoro v. Sessions, 680 F. App’x 212, 221 (4th Cir. 2017). And once the right question is asked, the record admits of only one answer: whatever MS-13’s motives for targeting Salgado-Sosa’s family, Salgado-Sosa himself was targeted because of his membership in that family.

For all these reasons, it is clear that Salgado-Sosa has shown the required nexus between anticipated persecution and membership in a particular social group consisting of his family. Specifically, Salgado-Sosa has demonstrated that “at least one central reason” for the harm he faces is his connection to his stepfather and family. See 8 U.S.C. §1158(b)(1)(B)(i). Because the IJ and BIA relied exclusively on an erroneous determination as to nexus in denying withholding of removal, we vacate that denial and remand for further proceedings regarding Salgado-Sosa’s application.”

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

First, congrats to Alfred Lincoln (“Rob”) Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, who successfully represented Mr. Salgado-Sosa before the Fourth Circuit. Rob was a “regular” in the Arlington Immigration Court, particularly on my always challenging detained docket. One of the things I liked about him is that he was willing to take “tough cases” — ones where the respondent had a decent argument but by no means a “slam dunk winner.” He also practiced before the local Virginia criminal courts, so was familiar with what “really happens” in criminal court as opposed to the “Alice in Wonderland Version” often presented in Immigration Court.

Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) lives! One of my all-time favorite cases, because I was the Immigration Judge incorrectly reversed by the BIA on an asylum grant. I was right on all sorts of things, and the BIA was wrong! But, hey, who remembers things like that?

This decision is good news for justice and due process for asylum seekers. It spells some bad news for the BIA’s highly contrived decision in Matter of L-E-A-, 27 I&n 40 (BIA 2017). There, the BIA looked beyond primary causation (the “but for” rule) of a family-based PSG to find a secondary cause, “criminal extortion” that did not relate to the protected ground. In other words, the BIA encouraged IJs to look for any way possible to twist facts to deny family-based PSG asylum claims. Indeed, the only lame example that the BIA could cite that might qualify under their bizarre analysis was the long-dead Romanov Family of Russia.

Both Judge Jeffrey Chase and I ripped the BIA’s anti-asylum, anti-Due Process machinations in previous blogs:

http://immigrationcourtside.com/2017/05/25/new-precedent-family-is-a-psg-but-beware-of-nexus-matter-of-l-e-a-27-in-dec-40-bia-2017-read-my-alternative-analysis/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

What if EOIR concentrated on quality, Due Process, and fairness for asylum seekers, rather than merely looking for ways to deport more migrants (whether legally correct or not) in accordance with Sessions’s anti-migrant agenda? We need an independent Article I U.S. Immigration Court with an Appellate Division that acts like a U.S. Court of Appeals, not an extension of the Administration political agendas and DHS enforcement!

PWS

02-21-18

LA TIMES: NEW DHS ENFORCEMENT POLICIES SEEK TO PUNISH CHILDREN AND PARENTS SEEKING ASYLUM – Really, Is This What We’ve Become As a Nation In The “Age of Trump?”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=371cd9b8-56d5-4cca-a96c-53e177ee2201

Molly Hennessy-Fiske reports for the LA Times

EL PASO — Thousands of parents who crossed illegally into the U.S. in recent years have been held with their children at immigration detention centers. But the case of a Brazilian woman and her son illustrates what migrant advocates call a harsher approach to immigration enforcement that aims to separate parents and children.

She’s being held in Texas, while her son was taken to a shelter in Illinois. The unspoken goal, advocates say, is to discourage parents from crossing illegally or attempting to request asylum.

The Brazilian mother — who asked to be identified only as Jocelyn because she was fleeing domestic violence — entered the U.S. in August with her 14-year-old son, who she said was being threatened by gangs. They hoped to apply for asylum.

Migrant families like Jocelyn’s are usually processed by immigration courts, an administrative process. Such families are detained together or released with notices to appear at later court proceedings. President Trump promised to end the practice, dismissing it as “catch and release.”

Historically, most border crossers were sent back to their home countries, but the Trump administration has threatened to prosecute some migrant parents because entering the country illegally is a federal crime. The first offense is a misdemeanor, with a maximum sentence of six months. Those caught a second time face a felony charge with a maximum sentence of up to 20 years, depending on their criminal record. Once a case becomes a criminal matter, parents and children are separated.

According to public defenders and immigrant advocates, more and more immigrant families who come to the southern border seeking asylum are being charged in federal criminal courts from El Paso to Arizona. Jocelyn was charged with a misdemeanor, and her son was sent to a shelter in Chicago. Comprehensive statistics do not exist, but activists and attorneys say anecdotal evidence suggests the practice is spreading.

“There’s not supposed to be blanket detention of people seeking asylum, but in reality, that’s what’s happening” in El Paso, said Dylan Corbett, director of the Hope Border Institute, a nonprofit social justice group. “We’re still in this limbo in our sector and across the border: What’s going on? What are the new policies?”

Last week, 75 congressional Democrats led by Rep. Lucille Roybal-Allard (D-Downey) sent a letter to the secretary of Homeland Security expressing outrage at increased family separations and demanding officials clarify their policies within two weeks.

“We are gravely concerned that these practices are expanding and worsening, further traumatizing families and impeding access to a fair process for seeking asylum,” they wrote.

Homeland Security won’t say it is targeting families but does say it is making procedural and policy changes to deter illegal immigration.

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders,” said Tyler Houlton, a Homeland Security spokesman.

Jocelyn said she fled Brazil to escape an abusive husband. During a recent meeting at the El Paso detention center where she is being held, she lifted the sleeve of her white uniform to show scars on her arm that she said came from beatings by her husband, an armed security guard who refused to grant her a divorce.

She and her son flew to Mexico on Aug. 24, crossed the border two days later, turned themselves in to Border Patrol near El Paso and were told they would be separated.

“I didn’t know where they were taking him,” she said of her son. “They didn’t tell me. I asked many times. They just said ‘Don’t worry.’ ”

Elsewhere on the border, including Texas’ Rio Grande Valley to the east where most migrants cross illegally, many parents and children are still released together with notices to appear in immigration court.

To opponents of illegal immigration, the practice of charging migrants with criminal offenses is a good thing. Andrew Arthur, a former immigration judge now serving as a resident fellow at the conservative Washington-based Center for Immigration Studies, said criminal charges are a deterrent.

“The reason the children are there to begin with is this belief [among immigrants] that a parent with a child will not be detained,” Arthur said. He added that exposing children to smugglers who could abuse and kidnap them “borders frankly on child abuse.”

Last April, Atty. Gen. Jeff Sessions issued guidance to U.S. attorneys urging more aggressive prosecution of those illegally reentering the country. As the number of migrant families crossing illegally increased last summer, parents were detained by U.S. marshals, but their children were reclassified as unaccompanied minors and placed at shelters across the country by the Office of Refugee Resettlement.

Migrant advocates sued in federal court, arguing that when asylum seekers declare a fear of returning to their home country, federal law dictates that they be referred to an asylum officer, even if they crossed the border illegally, and their cases considered by immigration judges.

In October, El Paso immigrant advocates asked Border Patrol officials whether they were separating migrant parents from their children.

“They volunteered yes, we’re doing family separation,” Corbett recalled, adding that one agent “said it was standard practice locally here in the sector to separate all children 10 years and older from their family. We were all shocked.”

Afterward, Border Patrol attorney Lisa Donaldson emailed those who had attended the meeting, insisting that the “Border Patrol does not have a blanket policy requiring the separation of family units” and that any increase in separations “is due primarily to the increase in prosecutions of immigration-related crimes.”

Daryl Fields, a spokesman for the U.S. attorney’s office in western Texas, which files federal criminal charges, said each case is considered individually and that “we do not target individuals for prosecution based on their parental status.”

Federal public defenders said that criminally charging asylum seekers not only violates international treaties, it encourages migrants to plead guilty so they can end their case quickly, get deported and try to reunite with their children.

“It impacts the lawfulness or constitutionality of their guilty plea,” said Maureen Franco, the federal public defender for the western district of Texas. “They’re under the misconception ‘The quicker I get my case over with, the quicker I’ll get my children back.’ Any lawyer worth their salt will tell them it’s not like that.”

Franco’s office has asked a federal court to dismiss improper entry charges against four Central American parents and a grandmother whose children were removed after the adults were detained. A judge ruled in favor of the government Jan. 5. Federal public defenders are appealing.

Immigration attorney Bridget Cambria has handled 15 family separation cases, including several mothers charged and separated from their children in El Paso.

“There’s huge questions about whether it’s legal when they’re seeking asylum. They’re using the federal statutes as a reason to take their child,” Cambria said.

It’s not clear how many migrant parents like Jocelyn have been charged and separated from their children. Federal public defenders and U.S. district courts do not track them. U.S. Customs and Border Protection reported just five migrant family members referred for prosecution in federal criminal court this year fiscal year, which started in October. It reported seven last fiscal year and 21 the year before that.

Estimates from migrant advocacy groups are much higher.

In Arizona, the Tucson-based Florence Immigration and Refugee Rights Project saw 213 such cases last year, an increase from the 190 cases the year before. Legal director Laura St. John said the group has already served 23 separated families this year.

A dozen cases of family separation were reported by Washington-based Lutheran Immigration and Refugee Service. Hope Border Institute surveyed attorneys representing 90 asylum seekers in the El Paso area between June and November 2017 and found 94% had clients separated from their children.

In December, a host of immigrant advocacy groups filed a complaint with Homeland Security alleging that parents have been charged and separated from their children, “without a clear or reasonable justification, as a means of punishment and/or deterrence, and with few mechanisms to locate, contact, or reunite with family members.” The complaint is pending.

As for Jocelyn, a federal judge in Las Cruces found her guilty of crossing the border illegally, a misdemeanor, on Sept. 22. She received a suspended sentence and was transferred to immigration detention in El Paso. Instead of self-deporting, Jocelyn stayed to pursue her asylum claim.

She learned through the Brazilian Consulate that her son was at a Chicago shelter and she has since spoken to him by phone four times.

She said her son told her that other children of migrants in the shelter tried to run away because they missed their parents. Jocelyn urged her son to stay put. He promised he would.

She worries, but is hopeful. Immigration officials recently found she has a credible fear of returning home, the first step toward obtaining asylum, and a pro bono attorney is trying to get her released on bond.

She tried to reassure her son during a recent phone call. “As soon as I get out,” she said, “I will come get you.”

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

Wow! What a great way to spend U.S. Government funds! Picking on refugees — abused women and kids who have the audacity to seek to exercise their legal rights under our laws and International Conventions.

Let’s get down to the truth here. “Jocelyn” in the above article appears to be a legitimate refugee. Assuming she’s telling the truth — and she has the scars to prove it, she should be a “slam dunk” asylum grant under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (domestic violence can be a basis for asylum).

The logical way of proceeding would be to release her while making sure she gets linked up with a good pro bono organization who can assign a lawyer to investigate, confirm, and document her case and then file the asylum application with the Immigration Court. In my experience, a well-documented case like this could go on an “accelerated short docket.” There it could be granted, basically by stipulation of the parties, after short testimony to confirm key events and double-check for any criminal or security grounds. With adequate preparation, and cooperation between the pro bono lawyer and the DHS Assistant Chief Counsel, this case should take no more than 30 minutes, one hour “tops,” of precious hearing time.

No need for detention, clogging the Immigration Courts’ Individual Hearing dockets, or any other form of “Aimless Docket reshuffling.” Best of all, we’re in compliance with the laws and our Constitutional guarantees of Due Process. Sounds like a “winner” to me for all concerned.

I have no doubt that there are many “Jocelyns” out there among recent border arrivals. Even those who don’t technically have “grantable” asylum claims under the overly restrictive precedents, should, if credible, be able to document strong cases for relief under the Convention Against Torture given the breakdown in government authority and de facto control by gangs in most parts of the Northern Triangle, the source of most of today’s Southern Border asylum applicants.

So, why are we wasting money on detention and criminal prosecution to keep folks who seldom if ever present any threats to the United States from getting the protection to which our laws entitle them? Why are we trying to send (usually ineffective in any event) “don’t come” messages to people who have a right to seek protection under our laws? Why would we make it difficult for individuals to exercise their statutory right to be represented by counsel and to have adequate time to prepare their cases?

Sounds to me like DHS and the Administration are abusing our laws and our Constitutional guarantees and wasting lots of time and money in the process. Ultimately, that’s something of which we should be ashamed.

PWS

02-20-18

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