"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
BEFORE DAWN on Saturday morning, Aldo Martinez, a paramedic in Fort Myers, Fla., responded with his ambulance crew to a man who, having just been diagnosed with covid-19, was having a panic attack. The man didn’t know that Mr. Martinez, 26 years old, is an undocumented immigrant; nor that he is a “dreamer”; nor that his temporary work permit under an Obama-era program has been targeted by President Trump.
The covid-19 patient was not aware that Mr. Martinez’s ability to remain in the United States, as he has since his parents brought him here from Mexico at age 12, now hangs in the balance as the Supreme Court weighs the future of Deferred Action for Childhood Arrivals, the program known as DACA. What the man did know was that Mr. Martinez, calm and competent, spent 45 minutes helping to soothe him, explaining the risks and symptoms and how to manage them.
[[Full coverage of the coronavirus pandemic]]
Some 27,000 dreamers are health-care workers; some, like Mr. Martinez, are on the front lines, grappling with a deadly pandemic. They are doctors, nurses, intensive care unit staff and EMTs trained to respond quickly to accidents, traumas and an array of other urgent medical needs.
Until now, because of DACA, they have been shielded from deportation and allowed to work legally. Their time may be running out.
The Supreme Court heard oral arguments in the fall on the Trump administration’s attempt to rescind the program; it is expected to rule in the coming months. If, as appears likely, the court’s conservative majority sides with the administration, Mr. Martinez and thousands of other health-care workers would lose their work permits and jobs, and face the threat of deportation. So would another 700,000 DACA recipients — food prep workers, teachers and tutors, government employees, and students, including those enrolled in medical programs.
That would be catastrophic, and not just for the dreamers themselves, young people in their 20s and 30s who have grown up here. It would also be catastrophic for the United States.
Mr. Trump could halt the threat to dreamers with the stroke of a pen, by issuing an executive order. He has referred to DACA recipients as “some absolutely incredible kids” and promised that they “shouldn’t be very worried” owing to his “big heart.” But, so far, he has taken every possible step to chase them out, and his administration has made clear that if it prevails in the Supreme Court, dreamers will be subject to deportation.
That would give Mr. Martinez about four months. His current DACA status expires Aug. 5, and it would probably not be renewable if the administration prevails.
[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]
“I don’t want people thanking me because I expose myself to covid — I’m not here for the glamour of it,” Mr. Martinez told us. “The principle is when people are having an emergency, they don’t have safety or security — you’re there to provide that for them in a time of need.”
Now it’s a time of need for Mr. Martinez himself, and hundreds of thousands of other dreamers like him. The country needs them as never before. Will Mr. Trump step up to provide them with safety and security?
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Let’s be clear about responsibility for this unconscionable self-inflicted looming disaster. There was an exceptionally well-justified nationwide injunction in effect against the Trump regime’s lawless attempt to terminate DACA, no “Circuit split,” and absolutely no emergency reason for the Supremes to take the DACA case. None, unless they were going to summarily affirm the lower court injunction. Yet, they went out of their way to intervene in an apparent effort by the “J.R. Five” to advance the regime’s gratuitously cruel and wasteful White Nationalist, racially motivated immigration and anti-human rights agenda.
At oral argument, although acknowledging the sympathetic circumstances, the GOP Justices showed little genuine concern for the human and legal consequences facing the “Dreamers” if the “J.R. Five,” as most expect them to do, “pull the plug” on these kids. Things like the consequences of loss of work authorization or permission to study and having to live your life in constant fear of arrest and removal seemed to go over the heads of the intentionally tone-deaf and condescending GOP majority.
At oral argument, Justice Sonia Sotomayor said it very clearly: “This is not about the law,” she said. “This is about our choice to destroy lives.”https://www.nytimes.com/2019/11/12/us/supreme-court-dreamers.html?referringSource=articleShare. Her GOP colleagues, not for the first or last time, appeared anxious to tune out “the truth she spoke” and instead to please the regime’s overlords by unleashing the cruelty and wanton destruction of humanity.
Ever since their horrible “cop out” in the so-called “Travel Ban cases,”J.R. and his GOP buddies have been enabling a toxically unconstitutional invidiously motivated attack on the due process rights and human dignity of some of America’s most vulnerable “persons.” Often, they bend the normal rules applicable to everyone else “on demand” from “Trump uber-toady” Solicitor General Noel Francisco. They have played a disgraceful and cowardly role in the regime’s, largely successful to date, efforts to “Dred Scottify” and dehumanize the most vulnerable among us.
As Mark Joseph Stern very cogently said in Slate:
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.
Life tenure makes these guys effectively unaccountable for their immoral and illegal actions. But, history will not forget where they stood in the face of bigotry, racism, cruelty, and tyranny.
A great democracy deserves and needs better from its life-tenured judiciary. Much better! The necessary shift from kakistocracy to democracy will require “regime change” in both the Executive and the Senate. November must be the starting place if we wish to survive as a democratic republic!
Willie Nelson Country Music “Hall of Famer” & American Icon
“Vote ‘Em Out”
By Willie Nelson
If you don’t like who’s in there, vote ’em out
That’s what Election Day is all about
The biggest gun we’ve got
Is called “the ballot box”
So if you don’t like who’s in there, vote ’em out
Vote ’em out (vote ’em out)
Vote ’em out (vote ’em out)
And when they’re gone we’ll sing and dance and shout
Bring some new ones in
And we’ll start that show again
And if you don’t like who’s in there, vote ’em out
If it’s a bunch of clowns you voted in
Election Day is comin’ ’round again
If you don’t like it now
If it’s more than you’ll allow
If you don’t like who’s in there, vote ’em out
Conservatives gutted the social safety net. Now, in a crisis, they’re embracing it.
By Tracy Jan
March 25 at 10:00 AM ET
Throughout his term, President Trump has chipped away at the social safety net, proposing budgets that gutted housing assistance, food stamps and health insurance for the poorest Americans. When Congress rejected those cuts, the Trump administration enacted rules to make it harder to access federal benefits, such as requiring recipients to work.
Now, with businesses shuttered, workers laid off, and scores more worrying about buying groceries, being evicted and getting sick, the swelling need for federal assistance has forced even conservative lawmakers to embrace government protections in a series of sweeping stimulus bills.
Under the $2 trillion stimulus deal reached in the Senate early Wednesday, Republicans are proposing sending direct cash payments of $1,200 to individual Americans, an idea that, on the surface, echoes former Democratic presidential candidate Andrew Yang’s universal basic income platform. They want to bolster the unemployment insurance system after many GOP-led states spent years enacting restrictive criteria and reducing benefits.
“Anybody who is a moderate-wage worker who just experienced an economic lockdown in their state is in distress. Most people don’t have savings,” said Robert Rector, a research fellow at the Heritage Foundation, a conservative think tank that guides much of the Trump administration’s policymaking.
[Facing eviction as millions shelter in place]
Rector, an architect of the 1996 federal welfare overhaul that instituted work requirements under President Bill Clinton, generally opposes safety net measures that do not promote work and marriage. But he would like to see more-generous benefits for individuals and cities in crisis in response to the coronavirus — for a finite period of time.
“Quite frankly, I’m willing to spend more money right now,” he said. “It’s a very different thing in an emergency.”
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The $100-billion-plus Families First coronavirus response package Trump signed last week dramatically expands paid sick leave and family medical leave for tens of millions of workers, provisions aimed at blunting the economic impact of the pandemic.
The United States lags behind other developed countries when it comes to providing universal health care as well as paid leave for sick workers and those who have to care for family members.
“Here we had this ‘strong economy’ and all of a sudden the bubble has burst, and policymakers are scrambling to put into place basic protections other societies have,” said Rebecca Vallas, a senior fellow at the left-leaning Center for American Progress.
[As layoffs skyrocket, the holes in America’s safety net are becoming apparent]
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Read Tracy’s full article at the link.
We recently went through a period of sustained economic growth and high employment that started under Obama and continued under Trump, until now. A wise nation might have used increased tax revenues to shore up the safety net, repair infrastructure, reduce spending on futile wars and defense overruns, invest for the future, and/or reduce deficit. Instead, the GOP frittered away the opportunity by mindless Government shutdowns and unnecessary tax cuts that lined the pockets of the already well-off while doing little to help the long term situation of the average American family. Indeed companies were encouraged to cut benefits to workers to pay out more to shareholders and to their executives, without much regard to the competence or value to the company of the latter.
Now, the embarrassing inadequacies and gaps of our safety net are being exposed every day. Even the GOP has turned, albeit somewhat reluctantly, to throwing several trillion into the breach, as long as it all doesn’t all go to those who need it most. Natural disasters have become the “new normal.” But, under Trump and his kakistocracy, America has consistently been underprepared to meet them.
That the hardest hit Americans get a substantial chunk of this emergency funding is a tribute to Pelosi, Schumer, and the Dems. Left to their own devices, Trump, Mitch, and the GOP would have basically mailed a modest check (or checks) to most Americans (other than the poorest) and funneled the rest into the pockets of their businesses buddies and state cronies with little oversight or accountability. Can you imagine the Grifter-in-Chief and his toadies being allowed to divvy up the loot, in secret, no less?
This emergency is unusual in nature. But, emergencies come and emergencies go. Presidents come and they (thankfully) go. What doesn’t go away is the need for a strong well-developed safety net that covers basic health care, unemployment, income assistance, and retirement benefits for all Americans, not just the wealthy. History has shown that’s not likely to happen as long as the GOP grifters remain in power.
We have a chance to save America and put ourselves on a better course for the future. Vote Trump and his GOP out in November. Your future and that of future generations will depend on it.
There are, to vastly overgeneralize, two basic types of books written by critics of the Trump presidency: One class of books tells us things we never knew, such as how tyrannies arise or how Deutsche Bank operates outside meaningful scrutiny or control. The other tells us what we already know and seem to have forgotten. “American Nero,” by Richard W. Painter and Peter Golenbock, is very much in that latter category and serves to remind us, in icy, granular detail, of what has happened to constitutional democracy in three short years, and all that we have absorbed, integrated and somehow moved beyond. In some sense, then, it stands less as a unified argument than as a scrapbook of things that no longer horrify us.
The fact that it went to press just before the Senate impeachment trial, and thus cannot account for the near-collapse of an independent Justice Department, the capitulation of Senate Republicans who believed that President Trump had inappropriately sought Ukrainian election interference but who felt somehow helpless to hold him to account, and recent lawsuits against opinion journalists in major newspapers, actually only highlights the fact that even when one believes the situation cannot get worse, it always gets worse, and often in the span of mere weeks.
Painter, who served as White House chief ethics counsel under George W. Bush, and Golenbock, the author of several New York Times bestsellers, seek to chronicle the erosion of the rule of law in the Trump era, and in some ways, the most chilling parts of the book are not the descriptions of Trump’s lawlessness, whether in the form of attacking the press, benefiting financially from his presidency, obstructing the Mueller probe or fawning over despots. Much of this will be familiar to anyone who has tried to keep up with the events of recent years. But set against the context of historical precedent, the case becomes crisper. In their descriptions of the Salem witch trials, the internment of Japanese Americans after Pearl Harbor, the suspension of habeas corpus during the Civil War, the Palmer Raids and the pointless waste of the McCarthy era, the authors remind us that each of those actions was taken under color of law, effectuated by presidents, congressmen and lawyers.
Indeed they are quick to remind us, in a terrifying chapter on the rise of the Third Reich, that judges, prosecutors and democratically elected officials formed the very backbone of Nazi Germany. And that the transformation of Germany from democratic republic to bloody dictatorship took place in less than three months. In urging Americans to stand up for the rule of law — and its bulwarks of religious tolerance, guarantees of due process, truth, a free press and freedom from corruption — Painter and Golenbock archly make the more complicated case that law itself is often deployed to break the rule of law. As was the case in Nazi Germany, the breakdown can be progressive and can come in the guise of statutes, codes and court cases; these trappings do not make descent into autocracy lawful, they merely make it invisible.
. . . .
*****************
Read the rest of Dahlia’s review at the link.
Not to quibble too much, but Dahlia, like many liberals who aren’t immersed in the ongoing immigration disgrace under this regime, doesn’t really “get” the essence of Jeff “Gonzo Apocalypto” Sessions, ascribing to him some minimum sense of ethics. No, despite his pretenses of great religiosity, Sessions, one of the most dangerous and committed White Nationalists of our time, has no discernible morality or ethics.
What he does have, however, is a driving racist commitment, combined with a mean streak of pure misogyny, to strip brown-skinned migrants, particularly vulnerable abused female refugees, of every vestige of their Constitutional and legal rights and to demean and dehumanize them: “Dred Scottify” if you will.
His “mistake,” was to put carrying out his White Nationalist program in front of the personal interests of the Trump Family. That’s how he found himself out of a job and on Trump’s “enemies list.”
Perhaps “Gonzo,” never the brightest bulb in the pack, actually thought that going “above and beyond” in carrying out Trump’s assault on migrants and their humanity would “compensate” for his lack of demonstrated public personal loyalty to the corrupt interests of the Trump Family. If he did, he was wrong.
Sessions saw himself as the attorney for White Nationalist Nation, first and foremost. And, to give him credit, he did as much damage to our Constitutional institutions and the rule of law in his relatively short tenure as anyone, including Barr, although Barr now perhaps has an opportunity to overtake his predecessor.
Additionally, Sessions probably realized that backing off on his promise under oath to Congress to follow the attorneys’ ethical code and disqualify himself from the Clinton investigation and his public commitment to follow DOJ Ethics advice and recuse himself from the Trump/Russia investigation could 1) lead to his eventual disbarment, and 2) might even subject him to criminal prosecution.
At a minimum, within the Department of Justice itself, acting against the ethics advice of DOJ Ethics’ Counsel deprives the actor of any “safe haven defense” based on following such advice. Consequently, self-preservation, rather than sensitivity to some moral code, was probably also a driving factor for Gonzo.
In line with observations in American Nero, accountability has all but disappeared from our crumbling Government institutions where Trump and his toadies are concerned. That’s why it’s probably going to be up to the “court of history,” especially where the role of Article III Judges like Roberts and his crew are concerned, to establish at least some moral and historical accountability for the unraveling of democracy and human values in the face tyranny.
“American Nero.” Yeah, that’s a really “spot on” description of Trump and the dangerousand immoral toadies surrounding him in the Kakistocracy.
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
Mon 16 Mar 2020 00.00 EDTLast modified on Mon 16 Mar 2020 09.20 EDT
Daira García wakes up at 5.50am. She takes out her dog, then tries to eat some breakfast before boarding the bus that gets her to school by 7.26 in the morning.
After class, she heads back home, where her parents, Silvia and Jorge, watch Noticiero and sip mate (she sometimes tries the drink as well but admits she’s never quite gotten used to it). They eat something, talk. When Daira goes off to finish her homework, she forgoes the desk in her room to curl up in her parents’ bed.
“It’s more comfy,” she quips.
Daira, 17, has a fairly standard routine for an American teenager: school, homework, family time. But unlike most kids, the schedule she’s come to rely on each day could easily be disrupted at any point.
Silvia and Jorge traveled from Argentina to the United States as 2001 became 2002, and with a new year came their new life in an unknown country. Daira’s big brother was just an infant then; now a college student, he doesn’t even really remember the place where he was born. And yet he’s only shielded from deportation because of Deferred Action for Childhood Arrivals (Daca), an Obama-era program the Trump administration has been trying to end for years. Silvia and Jorge, meanwhile, have no protection and could be picked up by agents from Immigration and Customs Enforcement (Ice) at any time.
Daira begins to cry just thinking about it.
“We’ve never had a plan for it if it happened,” Silvia says in Spanish. “Maybe we don’t give much thought to that because we think it’s healthier.”
Daira García, an aspiring artist, depicts family separation. She is a US citizen, but both her parents are undocumented. Illustration: Daira García/The Guardian
An estimated 4.1 million US-citizen children lived with at least one undocumented parent in recent years, according to the Migration Policy Institute. They’re kids who anti-immigrant groups disparage as “anchor babies”, a derogatory term that insinuates these children are little more than pawns used by their immigrant parents to get a foothold in the US and eventually become citizens themselves.
It’s a narrative trope that completely misrepresents the harsh realities of America’s current immigration laws, as well as just the natural progression of life, experts suggest.
“People have this notion that you have a child in the United States, now you’re a citizen. It’s what people think because it’s the easy way to explain it. So it’s an easy way to make up a myth,” said David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association.
It’s true that children born on US soil have been granted citizenship through the 14th amendment to the US constitution, and that a landmark supreme court decision set the precedent for that right to be extended to almost all children of foreigners. But Americans can’t just immediately safeguard their family members from deportation. In fact, a US citizen must be 21 years oldbefore they can sponsor their parents for a green card. They also must be able to financially support their parents.
Now the Trump administration’s new public charge rule targeting low-income immigrants is adding yet another burden.
Even if parents do get a green card, they have a five-year holding period before they can finally apply for naturalization.
In the end, the so-called “anchor baby” pathway to citizenship is at least a 26-year endeavor, even for those who entered the US legally.
“It’s ludicrous to think that that’s some sort of a tactic that people use to come here, get citizenship, ’cause it just isn’t true,” said Leopold. “It’s a myth, and it’s a specious talking point.”
A talking point that’s popular among anti-immigrant groups, pundits and the Republican party.
. . . .
***********************************
Read the rest of Alexandra’s article at the link.
This is what “Dred Scottification” preached by Trump, Miller, Sessions, “Cooch Cooch,” and their White Nationalist allies, and encouraged and enabled by the willfully “tone-deaf” Roberts Court, is all about. Ultimately, their aim is to consciously dump on our fellow citizens and human beings because of the color of their skin or their ethnic origin, or perhaps in some cases, their religion. Utterly disgusting!
The “Beauty of the 14th Amendment” is that it eventually automatically solves the issues that politicians of both parties, but primarily the GOP, have been avoiding for decades. Over time, a generation of so-called “undocumented” residents passes into history; the new generation are full U.S. citizens who will achieve their full potential in America and exercise the political power necessary to put the toxic views, actions, and rhetoric of the “nativist right” behind us as we move forward as a nation. Thus, we avoid creating generations of “perpetually disenfranchised” members of our society.
No, the 14th Amendment doesn’t take the place of a long overdue, sane legalization program and some reality and market-based reforms of our legal immigration system. But, it does provide a “fail safe” against the callous misrule of Trump, the GOP, and the enabling actions of the Roberts Court.
Dahlia Lithwick Legal Reporter SlateHonorable James Dannenberg Retired State Judge Hawaii
Dahlia Lithwick reports for Slate:
James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.
On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
Dear Chief Justice Roberts:
I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
Please remove my name from the rolls.
With deepest regret,
James Dannenberg
**********
So true. I’d also compare JR’s subservience to a transparently racist, White Nationalist, authoritarian agenda to White Supremacist darling Chief Justice Roger Taney, author of the Dred Scott decision. Roberts is knowingly enabling the “Dred Scottifing” of Hispanics, African Americans, Muslims, political opponents, the LGBTQ community, journalists, minority voters, and a host of others on the authoritarian regime’s “enemies” list.
At a time when America needs a Chief Justice with the courage and integrity to stand up for our Constitution, the rule of law, and the lives of the most vulnerable among us, we instead get Roberts.
J.R. Is quick to stand up for the rights of corporations, guns, and the Executive. But, when it comes to the rights of individuals — things like due process, human rights, and the right to be treated with human dignity, he’s nowhere to be found.
Only Justice Sotomayor had the guts and intellectual integrity to stand up for the future of humanity, simple human decency, and the rule of law by voting to deny the regime’s fraudulent stay request. Typically, Roberts & Co. didn’t even have the decency and intellectual honesty to provide a rationale for their life-threatening action. A reasoned decision is one of the “minimal requirements for due process” that Roberts and the Supremes’ majority ignore on a regular basis when rolling over for Trump toady Solicitor General Noel Francisco and his transparently fabricated “emergencies.” Francisco is another one whose disingenuous role and disregard for legal ethics in carrying out Trump’s wanton cruelty and human rights abuses should never be forgotten.
The damage caused by Roberts’s failure to lead and protect humanity isn’t legalistic or academic. It’s “real harm” to “real people.”
Let’s get “up close and personal” with what happens to individuals who fled to our country seeking only due process and fair and humane treatment, just to find Roberts’s and his Supremes’ immorality and warped sense of justice.
Here’s what Roberts’s complicity looks like:
The burns from the acid attack Elizabeth endured while she was kidnapped.The acid burned all the way through to the bone in Elizabeth’s left ankle. Courtesy of Elizabeth.Courtesy of Elizabeth Elizabeth’s acid burns.
That’s right folks. Torture, proudly presented to you by Chief Justice John Roberts and the majority of the United States Supreme Court. Who would have thought it could happen here? Like Judge Dannenberg, I spent a lifetime respecting the Supreme Court and even defending their decisions, including ones with which I disagreed. That has ended with the corruption, dishonesty, and inhumanity of the Roberts Court in the Age of Trump. Unworthy of America. Unworthy by of respect.
And here’s some narrative to go with it from Adolfo Flores over at BuzzFeed News:
Elizabeth left her home in Guatemala after being brutally beaten by the father of her daughter. She went to the police who refused to help her despite filing a complaint against him. The beatings in front of her daughter continued. Fearing that one day soon he’d kill her, Elizabeth left with her daughter.
“There’s a reason why there are so many femicides,” Elizabeth said.
The pair arrived near Ciudad Juárez in late July. She got off a bus she took with her daughter that was supposed to take them to Ciudad Juárez and got into what she believed was an Uber. She asked the driver to take her to the bridge that connects the city to El Paso. But as the city lights started to fade and the streets turned to desert and cliffs, Elizabeth realized the driver was taking her away from the city.
For about 12 days she was kept inside a dirty home, occasionally fed old food, and assaulted. Different men touched her genital area and licked her breasts in front of her daughter, according to documents provided by her attorneys. She wasn’t raped, but later had brownish discharge from her vagina she believes was the result of the men hurting her with an object or fingers.
Her attorneys said they believe the men were in the cartel, but don’t know for sure. They threatened to rape her and her daughter if she didn’t provide them with a number to call family for ransom. After days of holding her for ransom that her family couldn’t pay, the men threw chemical acid on her legs that resulted in second-degree burns. Despite closing her eyes and covering her ears, her then-10-year-old daughter could hear her mother’s screams, later telling Elizabeth she would never forget the sound of them.
At one point their kidnappers went outside and her daughter realized they left the door open. Elizabeth was too weak and in too much pain from the acid burns, but her daughter persisted.
“‘I don’t want them to kill us, torture us, or do something worse,'” Elizabeth recalled her daughter saying. “‘I can’t take this anymore, I feel like I’m going to die from sadness.'”
The pair ran from the house and were eventually chased by their kidnappers, armed with large black weapons, Elizabeth said. She fainted from the pain and heat, so her daughter ran ahead and flagged down police officers who called for help. A helicopter arrived shortly after to pick up Elizabeth.
Elizabeth woke up in a hospital and was discharged after seven days despite her left ankle still bleeding and with the bone exposed. Elizabeth said the hospital was overcrowded and didn’t have enough space, but believes she was discharged quickly because she was an immigrant and not a priority for the hospital’s staff.
She was taken to a shelter that was later closed due to bad conditions. At a second shelter, the director and staff helped cure her ankle — which smelled and cause her to fear she would get gangrene — with medication and topical creams because Elizabeth was too scared to venture outside.
In November, Elizabeth had recovered enough to walk, so she went with her daughter to the Arizona border and presented herself to CBP officers to request asylum. She told them about her attack and was taken to a hospital in Tucson to be medically screened. The doctor prescribed her medication to avoid infection. Then CBP sent her back to Ciudad Juárez.
On Jan. 31, Palazzo and other attorneys walked with her to a border crossing and asked that she be allowed to fight her case in the US. She was interviewed on the phone by the asylum officer who later said she failed.
While Elizabeth was in Ciudad Juárez, the shelter operators asked her if she could watch the door while they ran an errand. A shootout occurred shortly after between criminals and police near the shelter. Men who were running from the police ran up to the shelter’s doors and told Elizabeth to let them in. She faced them and refused, but they threatened to come back for revenge before running off.
Last week, a day before Elizabeth was due at a court hearing in El Paso, she was in the streets of Ciudad Juárez when one of her kidnappers approached her and recognized her. Filled with dread, Elizabeth and her daughter quickly made their way to the shelter to hide. Her fear then was that the men would come looking for her there.
The next day, on Friday, she went to her immigration court hearing in El Paso. She joined other immigrants in MPP who present themselves at the border in the predawn hours of the day to be transported to immigration court. Her plan was to ask for another non-refoulement interview, but that same morning, a federal appeals court blocked the Trump administration policy.
For the entire day, attorneys, immigrants, and advocates tried to understand what the 9th Circuit Court of Appeals’ order affirming a 2019 preliminary injunction meant for people stuck in Mexico, but also what would happen to those who had court hearings in the US that day, like Elizabeth. Sending them back would surely violate the judges’ order, some immigration attorneys said.
By Friday night, the 9th Circuit stayed its initial order blocking the Trump administration from enforcing MPP and the policy was allowed to continue. Still, Elizabeth and her daughter remained in CBP custody, and attorneys weren’t sure authorities were going to release her into the US.
She was interviewed three times about her fears of being sent back to Mexico. Her daughter told a US asylum officer about the nightmares she has, how she can’t sleep, and that she had trouble eating. Eventually, Elizabeth was told she passed her interview, was released Monday with an ankle monitor, and sent to reunite with family in Kansas.
Elizabeth was worried about the costs of continuing to receive medical care in the US for her acid burns, but she is determined to start a new chapter in her life.
“I’ve suffered a lot,” she said, “but for the first time in a long time, I feel safe.”
UPDATE
March 7, 2020, at 12:54 a.m.
This post was updated to include the more than 1,000 public reports of rape, torture, kidnapping, and other violence against immigrants sent back to Mexico.
There are lots of Elizabeths out there who have been silenced, some forever, by the likes of Roberts and other “unjust judges.” But, eventually, their stories will be told in all their grim and horrifying detail. At that point, folks like Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and their enablers will attempt to “rewrite history,” to eschew moral and legal responsibility and shift the blame elsewhere with the “usual BS” like “just following the law,” “calling balls and strikes,” “just following orders.” Those are largely the same pathetic excuses offered by those who advanced the cause of human slavery, created Jim Crow, enabled genocide against Native Americans, and helped Hitler.
One of the most important tasks of the younger generation of the New Due Process Army is to bear witness and insure that J.R. & Co. don’t “get away with murder,” literally. Their job is to insure that the stories of those wronged by enablers of the Trump regime are heard loudly and clearly; to confront the complicit with the judgements of history; to insure that the descendantsof those who “stood small” and failed humanity know who their ancestors “really were” when the chips were down; and to make sure that history never again repeats itself in the form of John Roberts or anyone like him being allowed to hold positions of great trust and public responsibility in our judiciary.
Take a good like at the pictures above of Elizabeth’s legs and ankles. Those aren’t the results of somebody legitimately “just calling balls and strikes.” Roberts has “struck out.” Unfortunately, however, the rules allow him to continue to play the game to the detriment of our nation and human decency and the continued torment of those to whom he has willfully and inexcusably denied justice.
Due Process Forever; The Complicity of John Roberts, Never!
Jessica Schulberg Politics & Extremist Groups Reporter HuffPost
Jessica Schulberg reports for HuffPost:
During his first address to the nation on the global coronavirus pandemic, President Donald Trump characterized COVID-19 as a “foreign virus” while touting his decision to institute travel restrictions with China and announcing plans to close the U.S. to visitors from most of Europe.
Meanwhile, he has been raked by critics — and the markets — for failing to thoroughly explain how the government plans to address the lack of tests and spiking number of cases across the U.S. His administration has for weeks downplayed the threat of the virus, even as experts warned it is on track to spread exponentially.
Trump clearly sees the novel coronavirus as just another foreign invader to keep out — a viewpoint reflected both in his policy proposals and the way he and his administration talk about the virus. This approach is in line with his overarching political strategy of exploiting Americans’ fears to justify racist, nativist policies.
“This is the most aggressive and comprehensive effort to confront a foreign virus in modern history,” Trump said Wednesday about his administration’s response while blaming the European Union for failing to take steps to prevent contagion. Several European countries have fewer cases of coronavirus per capita than the U.S.
It’s not just Trump. Health and Human Services Secretary Alex Azar repeatedly referred to the disease as the “China coronavirus” during a briefing last month. Anti-immigration zealot Rep. Paul Gosar (R-Ariz.) — who is in self-quarantineafter being exposed to coronavirus at the Conservative Political Action Conference in Maryland — has gone out of his way to describe the virus as the “Wuhan virus,” a reference to the location of the first outbreak.
When Gosar’s critics argued that the congressman shouldn’t spread racist stereotypes, Rich Lowry, the editor of the right-wing National Review, wrote an entire column insisting the illness be called the “Wuhan virus.” “China deserves to be connected to the virus that it loosed on the world,” he argued.
**************
For those who don’t know the history, the “Reichstag Fire” in 1933 was a pivotal step in the Nazi’s rise to power in Germany. At the time, Hitler blamed Communists. The actual cause of the fire has since been debated by historians: some say the Nazis started it themselves, while others say that it was an accident, or the act of a single arsonist.
Regardless of cause, all agree on the result. Hitler used it as a pretext to eradicate the constitution, punish the opposition, and place draconian authoritarian measures in place using the fiction of “national security.” This eventually led to the Holocaust and a World War that killed approximately 75 million.
Fact is that the coronavirus isn’t “foreign.” Viruses don’t possess or recognize nationality. Nor was it spread in the U.S. primarily by “foreigners.” Most cases initially reached the U.S. through U.S. citizens who took cruises or traveled abroad after the start of the virus abroad had been publicized.
Mexico, a frequent target of the Trump regime’s racism, has reported fewer than ten confirmed cases of coronavirus, as opposed to over 1,000 in the U.S. The Northern Triangle of Central America also appears to have avoided major outbreaks to date. On the other hand, the illegal and inhumane anti-asylum policies of the regime, as enabled by the Supremes and complicit Article III Courts, appear to present a realistic danger of spreading the virus to all of those countries which are ill-equipped to handle it.
The market as well as all medical experts recognized and reacted negatively to the idiocy of Trump’s Oval Office speech. The U.S. preparation, public education, and actual response to coronavirus has been one of the poorest and most inept in the world to date. To the extent that the U.S. has mitigated the disease, it has been largely the result of decisive actions by State Governors and local officials of both parties, although primarily Democrats, along with universities and sports leagues.
Expect Trump and his White Nationalists to use the danger to our public health that he didn’t cause, yet unnecessarily aggravated, as an excuse for more irrational, cruel, xenophobic, racist attacks on migrants. And, you can expect the “Chief of Complicity,” John Roberts, and his accomplices to continue to help promote Trump’s attack on human decency, truth, and our democratic institutions. John Roberts has never seen a transparently false “emergency” from Trump that he didn’t love or racism or religious bigotry so obvious that he would actually call it what it is.
Incompetent governance by a corrupt, selfish kakistocracy that promotes myths and conspiracy theories over truth, scientific knowledge, and the common good does not cause epidemics. But, it does unnecessarily aggravate them, hinder effective control, and gravely endanger the public health. It simple terms, it kills! Yet another reason why “regime change” in November might be America’s last chance for survival.
The coronavirus has surfaced perhaps the only competent high level official in the entire Trump Administration — Dr. Anthony Fauci. In case you haven’t noticed, there is no resemblance whatsoever between the scientific truth spoken by Dr. Fauci, who paints a honest but grim picture of the Administration’s half-assed efforts to date, and the unadulterated BS and party line spouted by Trump and the second most unqualified individual in the U.S. to handle a pandemic Mike “Super Sycophant” Pence. Talk about a “Confederacy of Dunces!” I’m just surprised that Trump hasn’t fired Fauci yet, given the well-known Trumpian aversion to all things true.
I’ve watched the smirking nitwit Rich Lowry of the National Review (too) many times on the “talking heads” where he is a favorite because he is one of the few Trump apologists who can put two consecutive sentences together in the English Language. Most of what he says is BS, but at least it’s comprehensible and reasonably articulate BS. And, despite the endless smirk, he isn’t as overtly rude and aggressively crude as most Trumpists. Jessica’s article confirmed my already low opinion of Rich. As Rome burns, by all means, let’s pontificate on what we should call the fire.
Kevin Euceda, a 17-year-old Honduran boy, arrived at the U.S.-Mexico border three years ago and was turned over to the custody of the Department of Health and Human Services until his request for asylum could be decided by immigration courts. During that period, he was required, as are all unaccompanied minors in custody, to meet with therapists to help him process what he had gone through.
In those sessions, Kevin was encouraged to speak freely and openly and was told that what he said would be kept confidential. So he poured out his story of a brutalized childhood, of how MS-13 gang members moved into the family shack after his grandmother died when he was 12, of how he was forced to run errands, sell drugs and, as he got older, take part in beating people up. When he was ordered to kill a stranger to cement his position in the gang, Kevin decided to run.
His therapists submitted pages of notes over several sessions to the file on him, as they were expected to do. But then, HHS officials — without the knowledge of the teen or the therapists — shared the notes with lawyers for Immigration and Customs Enforcement, who used them in immigration court to paint the young migrant as a dangerous gang member who should be denied asylum and sent back to Honduras. In sharing those therapy notes, the government did not break any laws. But it most assuredly broke its promise of confidentiality to Kevin, violated standard professional practices — the first therapist involved quit once she learned her notes had been shared — and offended a fundamental expectation that people cannot be compelled to testify against themselves in this country.
Kevin, whose story was detailed by the Washington Post, wasn’t the only unaccompanied minor to fall victim to such atrocious behavior, though how many have been affected is unknown. The government says it has changed that policy and no longer shares confidential therapy notes, but that’s not particularly reassuring coming from this administration. It adopted the policy once; it could easily do so again.
Last week, Rep. Grace F. Napolitano (D-Norwalk) and Sen. Jeff Merkley (D-Ore.) introduced the Immigrants’ Mental Health Act of 2020 to ban the practice, which is a necessary preventive measure. The bill would also create a new training regimen to help border agents address mental health issues among migrants and require at least one mental health expert at each Customs and Border Patrol facility. Both of those steps are worth considering too.
That the government would so callously use statements elicited from unaccompanied minors in therapy sessions to undercut their asylum applications is part of the Trump administration’s broad and inhumane efforts to effectively shut off the U.S. as a destination for people seeking to exercise their right to ask for sanctuary. Jeff Sessions and his successor as attorney general, William Barr, have injected themselves into cases at an unprecedented rate to unilaterally change long-established practices and immigration court precedent.
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases. Advocates argue persuasively that the efforts have undermined due process rights and made the immigration courts more a tool of President Trump’s anti-immigration policies than a system for measuring migrant’s claims against the standards Congress wrote into federal law.
Of course, trampling legal rights and concepts of basic human decency have been a hallmark of the administration’s approach to immigration enforcement — witness, for example, its separation of more than 2,500 migrant children from their parents. Beyond the heartlessness of the separations, the Health and Human Services’ inspector general last week blasted the department for botching the process. Meanwhile, the administration has expanded detention — about 50,000 migrants are in federal custody on any given day, up from about 30,000 a decade ago — and forced about 60,000 asylum seekers to await processing in dangerous squalor on Mexico’s side of the border.
There are legitimate policy discussions to be had over how this government should handle immigration, asylum requests and broad comprehensive immigration reform. In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.
****************
The LA Times is ”on top” of the grotesque perversion of the Immigration “Courts” under nativist zealot Jeff “Gonzo Apocalypto” Sessions and Trump toady Billy Barr to carry out a White Nationalist political agenda:
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases.
Who’a NOT “on top” of what’s happening: The GOP-controlled U.S. Senate, Chief Justice Roberts, a number of his Supremely Complicit colleagues, and a host of Court of Appeals Judges who allow this unconstitutional travesty to continue to mock the Fifth Amendment and the rule of Law, while abusing and threatening the lives of legal asylum seekers every day!
With 2.5 Branches of our Government led by anti-democracy zealots and cowards, House Speaker Nancy Pelosi is our only remaining bulwark against tyranny! Capable as she is, she can’t do it all by herself!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Due Process Forever; Complicit Courts & Other Immoral Enablers, Never!
Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.
Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”
The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.
Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”
As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)
The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.
Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.
His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.
But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.
. . . .
**********
Read the complete article at the link.
So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”
But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!
I also found this comment telling:
Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”
Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/
And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.
I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).
As one of my esteemed Round Table colleagues said recently:“In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”
Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
So much for the bogus ”passive “umpire” calling balls and strikes.”
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
***********************
For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
Ex-federal prosecutor: DOJ has a virus, everything Barr touches dies
Former Assistant US Attorney Gene Rossi explained why he was one of the 1,100 former Justice Department staffers who called for Attorney General Barr’s resignation.
Wow! Amazing! The “rest of the legal world” is just starting to “discover” the truth of what many of us in “immigration world” have been saying ever since Jeff “Gonzo Apocalypto” Sessions set his first White Nationalist nativist foot in the door at DOJ and “Due Process began to die.”
Corruption comes in all sorts of sizes and shapes. I guess Billy Barr’s corruption is easier for “legal elites” to understand and relate to than Gonzo’s and Barr’s “mere” deconstruction of Due Process for, and dehumanization of, migrants and other vulnerable minorities, particularly those of color.
Also interesting how Article III Federal Judges have “suddenly discovered” the threats to their independence and due process that many of them, starting with the Supremes’ majority, have been studiously ignoring as long as only migrants and asylum seekers’ lives were at stake. Wake up “oh exalted robed ones,” and start standing up for the Constitution, the rule of law, and human decency before Trump and his cronies wipe it all out! As many of us have been saying, but far too many of you have been “tuning out,” when you stand up for the rights of the most vulnerable among us you are standing up for everyone’s rights including your own. A truly independent judiciary is useless to authoritarian regimes and “unitary Executives!”
Due Process Forever; The DOJ’s Corruption Under Trump Never!
Hillary Scholten Democrat Candidate for Congress Michigan 3rd District
Brilliant
Courageous
Creative
Compassionate
Committed
Caring
Concerned
Genuine
Reputation for integrity
Family-friendly
Dedicated parent
Michigan born and raised
Michigan values, All-American vision
A leader and role model for the “New Due Process Army”
That’s my friend HILLARY SCHOLTEN — our candidate for a return to the basic values that made our country great!Join me, meet Hillary in person, and find out more about one of American politics’ most refreshing, down-to-earth, and exciting “new faces” and her positive vision for all Americans. “Michigan’s Values are America’s Values!” Hillary is America’s future! Help put her to work for us and for all Americans now!
— “Hillary was held in such high regard universally at the BIA. In addition to all of her other attributes, she is highly inclusive and a consensus builder, which is so important in the present climate.”
***Honorable Jeffrey S. Chase, Retired U.S. Immigration Judge, Former BIA Senior Advisor, Author of “Jeffrey S. Chase Blog,” & a Leader of the Round Table of Former Immigration Judges
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The Freudian concept of psychological projection refers to the behavior of people who, unable to acknowledge their own weaknesses, ascribe those same failings to others. President Trump provides a striking example in his multiple post-impeachment rants calling those who sought his removal “vicious” and “mean.” His choice of the word “mean” caught my attention, because I’ve been thinking for some time now that the United States has become a mean country.
There has been meanness, and worse, in the world, of course, long before there was a President Trump. But it doesn’t require suffering from the agitation of Trump derangement syndrome to observe that something toxic has been let loose during these past three years.
Much of it has to do with immigration: the separation of families at the border and the effort to terminate DACA, the program that protects from deportation undocumented young people brought to the United States as children. Removing this protection for hundreds of thousands of productive “Dreamers,” now pursuing higher education or holding jobs (or both), is an obvious lose-lose proposition for the country. It is also simply mean.
And the meanness radiates out from Washington. The mayor of Springfield, Mass., one of the biggest cities in one of the bluest states, has taken the president up on his offer to let local officials veto the resettlement of refugees in their communities. Tennessee enacted a law to cut off state money to cities that declare themselves “sanctuaries” from federal immigration enforcement. (At the same time more than a dozen counties in Tennessee have endorsed a growing “Second Amendment sanctuary” movement for gun rights.)
The meanness spreads to the lowest ranks of the country’s judiciary. USA Today reported two weeks ago that a common pleas judge in Hamilton County, Ohio, has adopted the practice of summoning ICE whenever he has a “hunch” that the defendant standing before him is an undocumented immigrant. “I’m batting a thousand. I haven’t got one wrong yet,” Judge Robert Ruehlman boasted.
In the Arizona desert, where thousands of border-crossing migrants have died from exposure and dehydration in the past decade, Border Patrol agents have been filmed kicking over and emptying bottles of water left for the migrants by volunteers. (This practice evidently preceded the Trump administration; the Border Patrol, in its union’s first-ever presidential endorsement, endorsed Mr. Trump’s candidacy in 2016, deeming him “the only candidate who actually threatens the established powers that have betrayed our country.” )
The United States attorney’s office in Tucson has been prosecuting people who enter the Cabeza Prieta National Wildlife Refuge without a permit to leave lifesaving bottles of water and cans of food along common migratory routes. In 2018, a federal magistrate judge, in a nonjury trial, convicted four people for illegal entry and abandoning property in the desert wilderness. The four are volunteers for No More Deaths/No Más Muertes, a ministry of the Unitarian Universalist Church of Tucson.
In their appeal before a federal district judge, Rosemary Márquez, the four invoked the Religious Freedom Restoration Act, arguing that their actions were driven by their faith and their belief in the “sanctity of human life.” The government responded that the four had simply “recited” religious beliefs “for the purpose of draping religious garb over their political activity.” (I’m not holding my breath for the Trump administration to similarly ridicule the religious claims of employers who say they can’t possibly include the birth-control coverage in their employee health plans, as the Affordable Care Act requires, lest they become complicit in the sin of contraception.)
The administration met its match in Judge Márquez. On Jan. 31, finding that the Religious Freedom Restoration Act barred the prosecution, she overturned the convictions. Her 21-page opinion noted that human remains were regularly found in the area, and she had this to say about that fact:
“The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization. In other words, the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death. This gruesome logic is profoundly disturbing.”
The headline on this column promises some thoughts about the Supreme Court, so I’ll now turn to the court. The country’s attention was focused elsewhere two weeks ago when five justices gave the Trump administration precisely what it needed to put into effect one of the most meanspirited and unjustified of all its recent immigration policies. This was the radical expansion of the “public charge” rule, which bars from admission or permanent residency an immigrant who is “likely at any time to become a public charge.”
The concept of “public charge” in itself is nothing new. It was part of the country’s early efforts to control immigration in the late 19th century, where it was used to exclude those likely to end up in the poor house or its equivalent. That historic definition — “primarily dependent on the government for cash assistance or on long-term institutionalization” — was codified in 1999 “field guidance” issued to federal immigration officers.
Last August, the administration put a new definition in place. Any immigrant who receives the equivalent of 12 months of federal benefits within a three-year period will be deemed a public charge, ineligible for permanent residency or a path to citizenship. The designated benefits include nutrition assistance for a child under the SNAP program; receipt of a Section 8 housing voucher or residence in public housing; and medical treatment under Medicaid. The new rule, titled Inadmissibility on Public Charge Grounds, aggregates the benefits — that is, three of the benefits received in a single month count as three months of the 12.
States, cities, and nonprofit organizations around the country promptly filed lawsuits, with varying preliminary outcomes. The plaintiffs argued that the drastic change in definition was “arbitrary and capricious,” violating the Administrative Procedure Act’s core requirement of “reasoned decision making.”
In October, a federal district judge in New York, George Daniels, ruled in favor of two sets of plaintiffs, one group headed by New York State and the other, a coalition of nonprofit organizations. Judge Daniels noted that the government was “afforded numerous opportunities to articulate a rational basis for equating public charge with receipt of benefits for 12 months within a 36-month period, particularly when this has never been the rule,” but that its lawyers “failed each and every time.” He explained that “where an agency action changes prior policy, the agency need not demonstrate that the reasons for the new policy are better than the reasons for the old one. It must, however, show that there are good reasons for the new policy.”
And Judge Daniels added: “The rule is simply a new agency policy of exclusion in search of a justification. It is repugnant to the American dream of the opportunity for prosperity and success through hard work and upward mobility.” Noting that the policy would immediately cause “significant hardship” to “hundreds of thousands of individuals who were previously eligible for admission and permanent residence in the United States,” he issued a nationwide injunction to block its implementation.
The United States Court of Appeals for the Second Circuit put the government’s appeal on a fast track but refused, in the interim, to grant a stay of the injunction. So, predictably, the administration turned to its friends at the Supreme Court and, equally predictably, got what it wanted. By a vote of 5 to 4, the court granted a stay of the injunction to last through a future Supreme Court appeal.
Granting a stay at this point was a breathtaking display of judicial activism. The Second Circuit will hear the case promptly; briefs are due on Friday. More to the point, the court’s summary action, without full appellate review, changes the lives of untold numbers of people for the worse, people who immigrated legally to the United States and who have followed every rule. Being kicked off the path to citizenship puts them directly on the path to deportation, without any explanation from the highest court in the land of why this should be the case.
Of the five justices in the majority — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — only Justices Gorsuch and Thomas deigned to write anything. In a four-page concurring opinion, they made clear their determination to hold up this case, Department of Homeland Security v. New York, as an example of “the gamesmanship and chaos” that they said was attendant on “the rise of nationwide injunctions.”
I don’t remember such hand-wringing a few years back when anti-immigrant states found a friendly judge in South Texas to issue a nationwide injunction against President Barack Obama’s expansion of the DACA program to include parents of the “Dreamers.” The Supreme Court let that injunction stand.
Do the justices realize how they are being played? I started this column by mentioning psychological projection, a distorted view of others engendered by a distorted view of oneself. That’s Donald Trump, seeing himself the innocent victim of attacks from vicious and mean people. There’s another kind of projection, the image reflected when light strikes a mirror. Who do these five justices see when they look in their mental mirrors? Could it be Donald Trump?
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Eventually, the New Due Process Army will win the war to restore justice, Due Process, and the rule of law to our Republic. And one of the lessons should be: Better Federal Judges driven by fairness, scholarship, practicality, compassion, kindness, respect for all persons, and the courage to speak out for the rights of the people against tyranny and corruption.
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Yes, Linda, I think the Supremes’ Justices and other Article IIIs who aid the “dehumanization” and “Dred Scottification” of migrants, asylum seekers, and “the other” by the regime know full well that they are “being played.” They are willing, sometimes as in the case of the recent totally gratuitous nonsense about targeting nationwide injunctions flowing off the pens of Gorsuch and Thomas actually eager, to “go along to get along” — even when it often means hanging braver lower court colleagues who had the courage to speak truth to power and stand up to tyranny “out to dry.”
Like judges during the Jim Crow era and other disastrous episodes of legal history, they think they can hide out in their ivory towers behind legal gobbledygook that most first-years law students can recognize as the nonsense “cop out” that it is. They also knowingly and intentionally betray the legions of courageous, ethical lawyers, many working pro bono in dangerous and unhealthy conditions, to uphold the rule of law in America and to defend human rights and human decency.
Hopefully, our Republic will survive this dark time, and these folks “working at the retail level,” many “charter members” of the New Due Process Army, will form the core of a future, better judiciary that will put Due Process and humanity first, above party loyalty and bizarre, often nonsensical, right wing theories used to justify lawlessness, injustice, unfairness, and invidious discrimination.
Many, many thanks to pro bono superheroes CHRISTOPHER T. CASAMASSIMA and SOUVIK SAHA and all of our other great friends over at WILMER CUTLER for once again “making us look smart!”
And here’s a summary of our argument excerpted from our brief:
INTRODUCTION AND ARGUMENT SUMMARY
Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.
1
Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.
2
A complete list of amici is included in this brief’s addendum.
Case 19-2284, Document 93, 02/11/2020, 2776030, Page13 of 55
Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.
Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).
Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:
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Case 19-2284, Document 93, 02/11/2020, 2776030, Page14 of 55
First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.
Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.
Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.
Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for
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Case 19-2284, Document 93, 02/11/2020, 2776030, Page15 of 55
individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.
Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.
Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.
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Once again it’s an amazing honor and privilege to join my wonderful sisters and brothers in our continuing team effort to restore and enhance Due Process in our U.S. Immigration Courts.
There has never been a better time to be a Hooker for Jesus.
Under Attorney General Bill Barr’s management, it appears no corner of the Justice Department can escape perversion — even the annual grants the Justice Department gives to nonprofits and local governments to help victims of human trafficking.
In a new grant award, senior Justice officials rejected the recommendations of career officials and decided to deny grants to highly rated Catholic Charities in Palm Beach, Fla., and Chicanos Por La Causa in Phoenix. Instead, Reuters reported, they gave more than $1 million combined to lower-rated groups called the Lincoln Tubman Foundation and Hookers for Jesus.
Why? Well, it turns out the head of the Catholic Charities affiliate had been active with Democrats and the Phoenix group had opposed President Trump’s immigration policies. By contrast, Hookers for Jesus is run by a Christian conservative and the Lincoln Tubman group was launched by a relative of a Trump delegate to the 2016 convention.
That Catholic Charities has been replaced by Hookers for Jesus says much about Barr’s Justice Department. Friends of Trump are rewarded. Opponents of Trump are punished. And the nation’s law enforcement apparatus becomes Trump’s personal plaything.
Federal prosecutors Monday recommended that Trump associate Roger Stone serve seven to nine years in prison for obstruction of justice, lying to Congress, witness tampering and other crimes.
Then Trump tweeted that the proposed sentence was “horrible and very unfair” and “the real crimes were on the other side.” And by midday Tuesday, Barr’s Justice Department announced that it would reduce Stone’s sentence recommendation. All four prosecutors, protesting the politicization, asked to withdraw from the case.
But politicization is now the norm. Last week, Barr assigned himself the sole authority to decide which presidential candidates — Democrats and Republicans — should be investigated by the FBI.
Also last week, the Department of Homeland Security, working with the Justice Department, announced that New York state residents can no longer enroll in certain Trusted Traveler programs such as Global Entry — apparent punishment for the strongly Democratic state’s policies on illegal immigrants.
On Monday, Barr declared that the Justice Department had created an “intake process” to receive Rudy Giuliani’s dirt from Ukraine on Joe Biden and Hunter Biden — dirt dug in a boondoggle that left two Giuliani associates under indictment and Trump impeached.
The same day, Barr’s agency announced lawsuits against California, New Jersey and King County (Seattle), Washington — politically “blue” jurisdictions all — as part of what he called a “significant escalation” against sanctuary cities.
On Tuesday, to get a better sense of the man who has turned the Justice Department into Trump’s toy, I watched Barr speak to the Major County Sheriffs of America, a friendly audience, at the Willard Hotel in Washington.
Even by Trumpian standards, the jowly Barr, in his large round glasses, pinstripe suit and Trump-red tie, was strikingly sycophantic. “In his State of the Union, President Trump delivered a message of genuine optimism filled with an unapologetic faith in God and in American greatness and in the common virtues of the American people: altruism, industriousness, self-reliance and generosity,” he read, deadpan.
Trump, he went on, “loves this country,” and “he especially loves you.” The boot-licking performance continued, about Trump’s wise leadership, his unbroken promises and even the just-impeached president’s passionate belief in the “rule of law.”
Then Barr turned to the enemy. He attacked “rogue DA’s” and “so-called social-justice reformers,” who are responsible for “historic levels of homicide and other violent crime” in Philadelphia, San Francisco, Seattle, St. Louis, Chicago and Baltimore. Politicians in sanctuary jurisdictions, he said, prefer “to help criminal aliens evade the law.” Barr vowed to fight these foes with “all lawful means” — federal subpoenas to force them to turn over “information about criminal aliens,” dozens of lawsuits to invalidate statutes and attempts to deny them both competitive and automatic grants.
In response to a question, Barr railed against tech companies’ use of encryption: “They’re designing these devices so you can be impervious to any government scrutiny,” he protested.
Maybe people wouldn’t be so sensitive about government scrutiny if the top law enforcement official weren’t using his position to punish political opponents and reward political allies.
Instead, with Barr’s acquiescence, we live in a moment in which: Trump’s Treasury Department immediately releases sensitive financial information about Hunter Biden, while refusing to release similar information about Trump; Trump ousts officials who testified in the impeachment inquiry and even ousts the blameless twin brother of one of the witnesses; and Trump’s FBI decides to monitor violent “people on either side” of the abortion debate — although the FBI couldn’t point to a single instance of violence by abortion-rights supporters.
This week, the Pentagon released a new color scheme for Air Force One, replacing the 60-year-old design with one that looks suspiciously like the old Trump Shuttle.Surprised? Don’t be. Soon the entire administration will be able to apply for a Justice Department grant as a newly formed nonprofit: Hookers for Trump.
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Barr’s inspirational lesson for new lawyers: Once you achieve fame, fortune, and protection from corrupt politicos and complicit judges, it’s virtually impossible to get your law license revoked for unethical performance. As long as you thumb your nose at the law and ethical rules right in public, right in front of judges, you’re essentially immune. The “rules” only apply to those poor suckers at the bottom of the “legal totem pole.”
This is actually a fairly new development under the Trump regime. In the past, even high-profile lawyers who violated their ethical obligations got zapped: John Mitchell, Dick Kleindienst, Bill Clinton(technically, he might have “surrendered his law license” in lieu of disbarment), Webb Hubbell, etc.
But, during the Trump regime, Federal Judges seem content to just “roll their eyes” at lies, false narratives, thinly veiled racist or religiously bigoted rationales for policy, and simply astounding conflicts of interest (how about running a biased and unconstitutional Immigration “Court” right in plain view?) streaming out of an ethics-free zone at the “Department of Hookers for Trump.”
U.S. District Judge Amy Berman Jackson was actually a “target” of Roger Stone’s contemptuous and openly threatening behavior. It will be interesting to see how she deals with the sudden reversal and baseless plea for mercy from Barr for this unrepentant and totally unapologetic criminal.
As if to resolve any doubts as to his contempt for America and democratic institutions, the cowardly “Bully-in-Chief” unleashed an unprovoked twitter tirade against Judge Jackson and the career prosecutors in the case. https://www.washingtonpost.com/nation/2020/02/12/trump-stone-judge/
Perhaps predictability, this was followed by an impotent call by Senate Democrats for the uber corrupt Billy Barr to resign and for the equally corrupt and spineless Sen. Lindsey Graham (R-SC) to stop slithering around the Capitol and schedule an “investigative hearing” into improper political influence at the “Department of Hookers for Trump.”https://apple.news/Az2hAo6yqT8uKJSuAX26F1Q Don’t hold your breath, folks!
This is not “normal.” This is not “right.” It’s time for those of us who still believe in American democracy to take a stand in November to remove Trump and the sociopathic element that he represents in our society from power. Otherwise, the “race to the bottom” will continue, unabated. And more innocent people will be hurt by or die because of this unprincipled, totally immoral lunatic.
In June 1939, about 900 Jewish refugees sailed close to Florida on the St. Louis in hopes of finding protection in the United States. U.S. authorities refused to let the ship dock. Desperate passengers sent cables to President Franklin D. Roosevelt, who never responded.
A State Department telegram stated that the passengers must “await their turns on the waiting list and qualify for and obtain immigration visas before they may be admissible in the United States.” Nearly all the passengers had already been refused admission to Cuba. Canada rejected them too. They had no choice but to return to Europe, where 254 of the passengers were eventually killed in the Holocaust.
Eighty years later, a modern version of this tragedy takes place daily at our southern border. This time, most of these people are fleeing rape, assault and death from the northern triangle of Central America — Honduras, El Salvador and Guatemala — as well as political oppression in Cuba, Venezuela and elsewhere. They are fleeing to save their lives and their children’s lives. They hope to find safety in the United States. When they get to America, U.S. authorities turn them around.
I spent a week recently in Juárez, Mexico, with four of my law students. We visited shelters across the city and its outskirts to provide pro bono legal services to some of the estimated 20,000 migrants there who are trying to apply for asylum in the U.S.
We met political dissidents from Cuba who had been jailed and beaten for refusing to join party meetings, mothers from Central America who had survived excruciating years of domestic violence and fled to save their children’s lives, and fathers with the courage to resist the ever-increasing violence of gangs in their communities. Nearly all genuinely feared being harmed and killed in their home countries.
Why are they in Juárez? A slew of policy changes enacted over the last year by the Trump administration has made it nearly impossible for asylum seekers to enter the United States through the southern border. Among them is the Migrant Protection Protocols program, which requires asylum seekers who try to enter the United States through the southern border to remain in Mexico while their asylum cases are processed in U.S. immigration courts. Since last January, when the new protocols were put in place, more than 60,000 asylum seekers have been stranded in Mexico.
The new rules make it nearly impossible for asylum seekers to find lawyers who can represent them in immigration court. Hardly any lawyers are willing to cross into Juárez to represent asylum seekers. Given the complexity of immigration law and language and cultural barriers, the process of seeking asylum when someone is in the United States is hard enough. Requiring asylum seekers to remain in Mexico makes navigating the process virtually impossible. Ninety-six percent of individuals stranded in Mexico do not have a lawyer to help them apply for asylum.
Of the 29,309 cases that had been completed under MPP as of December, just 187 people had been granted asylum — a reflection of the almost insurmountable barriers imposed by the new protocols. U.S. law requires asylum seekers to be given “credible fear” interviews to allow them into the U.S. while they go through the asylum process; MPP has eliminated that step.
While asylum seekers, including thousands of children and women, wait in Mexico they have become targets for vicious crimes by local and transnational gangs and cartels. According to a recent report from Human Rights First, there have been at least 816 publicly reported cases of murder, rape, torture, kidnapping and other violent assaults, including 201 cases of children being kidnapped or nearly kidnapped. These numbers almost certainly understate the violence since many victims don’t report crimes committed against them for fear of reprisal.
When U.S. officials rejected the St. Louis, the horrors that would befall the passengers were foreseeable. Congress and the U.S. State Department eventually apologized for refusing to let in the refugees on board — but it was 70 years too late.
One year after the inception of MPP, we clearly see the dangers befalling asylum seekers forced to remain in Mexico. U.S. government officials know that these regions of the border are extremely dangerous. The U.S. State Department’s travel advisories warn U.S. citizens not to travel to some of the same Mexican border towns where American authorities send asylum seekers. These areas are designated as level 4 risks — the same danger assessment as for Afghanistan, Iraq and Syria.
The Trump policy is not only inhumane and dangerous, it is also illegal. Under U.S. immigration law, asylum seekers are not to be turned away at the border when they have credible fears of persecution. As the union representing DHS asylum officers explained, “MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.”
We can’t turn a blind eye to the daily tragedies inflicted by Migrant Protection Protocols. The Asylum Seeker Protection Act, which would prohibit the use of federal funds to carry out MPP, has been pending in Congress for months. It’s time to uphold our nation’s core commitment to protecting those seeking safety in this country.
Elora Mukherjee is the Jerome L. Greene Clinical Professor of Law at Columbia Law School and director of its immigrants’ rights clinic.
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Professor Leah Litman Assistant Professor of Law University of Michigan Law
Last Tuesday, in explaining her vote to acquit Donald Trump of abuse of power and obstruction of Congress, Sen. Susan Collins suggested that the president had learned a “pretty big lesson” simply from being impeached and that he would be “much more cautious” about engaging in similar behavior again. By Friday, Trump had issued a series of firingsof public officials who had testified against the president during the impeachment inquiry, demonstrating his takeaway from impeachment: He can use the powers of his office to do whatever he wants. Having gotten away with abuses of power again and again, Trump is now unleashed to continue to corruptly use the powers of his office without consequence. He has already begun to show what that will look like over the remainder of his presidency.
In legal escapades outside of the realm of impeachment, for instance, Trump and his administration have internalized the lesson that if no one will stop you, there’s no reason to stop. Less than two years ago, the Supreme Court upheld the third iteration of the president’s ban on entry by nationals of several Muslim-majority countries (the “travel ban”). By upholding the ban, the court made clear that it would not stop the president from incorporating his bigotry into official immigration policy. Since then, the president has dramatically expanded the scope of the travel ban to other countries with substantial Muslim populations and has enacted several other immigration restrictions that disproportionately disadvantage nonwhite immigrants. After receiving a pass on xenophobia, the president has continued to do it again and again. Last week, he expanded the entry ban to cover five additional countries (Nigeria, Kyrgyzstan, Sudan, Eritrea, and Myanmar) with substantial Muslim populations. In one of those countries (Myanmar), a group of Muslims (the Rohingya) are fleeing religious persecution and genocide. The president had previously said, according to the New York Times, that Nigerians should “go back to their huts.”
With respect to impeachment, several senators came close to admitting that their impeachment votes signify that they are unwilling to stop the president from abusing his office. Sen. Lamar Alexander of Tennessee explained his vote against calling witnesses in almost exactly those terms. The senator claimed that there was no point in hearing from additional witnesses because he had already concluded that the president engaged in the conduct he was accused of. (The House has maintained that the president corruptly threatened to withhold financial assistance to Ukraine to get Ukraine to announce an investigation into former Vice President Joe Biden.) The senator explained that, in his final analysis, the president’s conduct mattered less than the Senate’s ability to continue to confirm more conservative judges and the risk that a Democrat would win the presidency.
That reasoning obviously invites the president to do the same thing—or worse—again and he wasted no time in retaliating against impeachment witnesses Lt. Col. Alex Vindman and Ambassador to the European Union Gordon Sondland. If Republicans senators and their constituents value conservative judges and tax breaks for the wealthy more than holding a president accountable for wrongdoing, then the president will just keep doing wrong.
Again, it is not just the Senate that has failed to curb the president’s worst impulses and told the president that he can get away with even more than he’s already done. As a candidate, Trump had promised to ban Muslims from entering the United States. After his election, the president immediately suspended entry from several Muslim-majority countries without so much as informing, much less consulting, any relevant agencies. And his advisers admitted that the travel ban was an effort to make a Muslim ban that looked (somewhat) more legal. The Supreme Court ultimately blessed that effort in 2018 under a 5–4 vote that split along ideological lines.
The five conservative justices, much like the Republican senators, said they didn’t care. In fact, the justices, like the Republican senators, acknowledged that the entry ban may very well have been motivated by anti-Muslim animus. But they claimed that, in light of the president’s expansive powers over immigration, the court would uphold the entry ban so long as someone could think that the ban had a valid purpose (such as protecting national security) even if the ban actually had an illegitimate one (such as targeting Muslims). And, the court continued, a person could think the president’s entry ban had a valid purpose because the ban did not apply to all of the world’s Muslims, among other reasons.
Again, it does not take a genius to see how that decision signals that the court is unwilling to stop the president from making policy based on bigoted, thinly veiled Islamophobia or racism. The president received the message and has run with it. His expanded travel ban clearly targets countries based on race and religion. The odds of this Supreme Court reversing course and stopping him this time is virtually nil.
Indeed, the administration apparently felt so emboldened by the court’s earlier ruling that its expanded entry ban largely abandoned the original pretense of the rationale for the earlier entry ban. Previously, the administration stated it was responding to information sharing deficiencies in some countries. The administration now suggests it is trying to restrict immigration: Officials stated they are suspending entry from Nigeria because some Nigerians overstay their visas.
The administration has created other immigration restrictions that likewise disadvantage nonwhite immigrants. They have refused to process asylum applications from Central American migrants who did not apply for asylum in other countries they passed through on their way to the United States. They have tried to prohibit asylum applications from people who enter the United States outside of ports of entry. And they have authorized immigration officials to refuse to admit immigrants who might ever use public benefits (even temporarily). The Supreme Court approved this last effort just two weeks ago, again through a 5–4 decision split along ideological lines.
With the Senate’s blessing, the president will continue to corruptly abuse the powers of his office to undermine elections and our rule of law—and, as demonstrated by the Friday Night Massacre, he will do so in even more aggressive and ostentatious ways. With the court’s blessing, the president will expand his racist, xenophobic, and anti-Muslim immigration practices with little limit to what he may try to enact.
Neither the Senate nor the Supreme Court has been willing to stand up to the president for abusing the powers of his office for personal benefit or to stoke bigotry for partisan ends. By failing to do so, they have encouraged Trump to abuse his powers even more. It is unclear what, if anything, can stop him now.
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Alison Leal Parker Managing Director, U.S. Program Human Rights Watch
Alison Parker is the managing director of the U.S. Program at Human Rights Watch.
Asylum seekers in the United States face dangerous, even deadly, consequences when their claims are not taken seriously.
Those at risk are people like Santos Amaya, a Salvadoran police officer who had received death threats from gang members. He was deported from the United States in April 2018 and was shot dead, allegedly by gangs, that same month. People like a young Salvadoran woman who fled domestic violence and rape and was deported to El Salvador in July 2018. She now lives in fear, hiding from her abusers.
These lives hang in the balance while the Trump administration attacks every legal means of protecting them in the United States.
On Feb. 5, Human Rights Watch released a report that identified 138 cases of Salvadorans who had been killed since 2013 after being deported from the United States; more than 70 others were beaten, sexually assaulted, extorted or tortured. These numbers are shocking but certainly an undercount, because no government or entity tracks what happens to deportees.
The Trump administration has put pressure on immigration judges to use overly narrow readings of the definition of a refugee. This approach may result in judges denying asylum to people like Amaya and the young Salvadoran woman — survivors of domestic violence, people who fear violence at the hands of gangs, or people who fear being targeted based on their family relationships. The administration has further proposed several new obstacles to gain asylum, including barring people convicted of illegal reentry into the United States, an offense often committed by people desperate to seek safety.
The Trump administration has tried to destroy the U.S. asylum process in other ways — among them by forcing people to remain in dangerous and inhumane conditionsin Mexican border towns while their claims are processed under its Migrant Protection Protocols. A Syracuse University analysis of government data revealed that as of December, 7,668 Salvadorans have been forced to wait in Mexico for their asylum claims to be processed. We have documented cases, included in a tallymaintained by Human Rights First, of Salvadorans who have been kidnapped and attacked while waiting.
The United States is also returning asylum seekers to Guatemala, after pressing its government to sign an “asylum cooperation agreement,” despite the fact that many Guatemalans are fleeing for the same reasons as their Salvadoran neighbors.
Salvadorans in the United States are at risk for reasons other than the Trump administration’s attempt to eviscerate the right to seek asylum. More than 220,000Salvadorans are affected by the administration’s decision to end temporary protected status and Deferred Action for Childhood Arrivals (DACA) protections. The administration also decided to end work authorization for Salvadorans with TPS, which allowed many Salvadorans to come to the United States in 2001 after a series of natural disasters.
These policies cover people who have worked, raised families, educated themselves and built their lives in the United States. This alone should be reason to value their relationship to the United States and regularize their legal status. But the killings and abuse that many Salvadorans will face if they are returned makes the need for Congress to enact legislation to protect recipients of these programs even more acute.
Former long-term residents of the United States face unique risks. Salvadorans who have lived in the United States are often extorted by gangs, as two cases we investigated in detail illustrate. In each, the person’s long-term residence meant that they were seen as having more wealth than most Salvadorans. They were repeatedly extorted by gangs and ultimately killed for their refusal to pay bribes.
But the Trump administration is not solely at fault here. Existing law, passed long before President Trump took office, has largely barred people with criminal convictions from seeking asylum, even when they face harm. They include a young man whose case we investigated, who at age 17, in 2010, fled gang recruitment and violence for the United States. After serving a sentence for two counts related to burglaries in the United States, he was denied protection, deported in 2017 and killed about three months later.
There is a simple way to prevent the murders and abuse we spent the past year and a half investigating: Give all noncitizens a full and fair opportunity to explain what abuses they fear before deporting them. As Sen. Robert Menendez (D-N.J.) said in a statement after we released our report, the United States must stop “knowingly signing a death sentence by forcibly returning vulnerable people to the very place they fled.”
The right to a fair hearing on claims for protection should apply to everyone — including the more than 59,000 people waiting in dangerous and inhumane conditions in Mexican border towns, people who had been living under the TPS or DACA programs, or those who have paid their debt to society after serving criminal sentences.
Now U.S. authorities are on notice about what is likely to happen when they deport Salvadorans without adequately considering their cases. This shameful and illegal practice should stop.
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Unfortunately, Eleora,Leah, & Alison, the MPP (better known as “Let ‘Em Die in Mexico”) is just the tip of the Trump/Miller neo-fascist iceberg here. As “fixed against them” as the Immigration Court hearing process for asylum seekers has now become at the Southern Border, with complicit Article IIIs looking the other way (so far), the regime as now come up with far more reliably deadly and “cost effective” alternatives.
Indeed, I’d argue that death, torture, rape, extortion, and exploitation of refugees from the Northern Triangle has always been a main objective of the Trump regime’s White Nationalist, anti-asylum policies, just like inflicting punishment through child separation and thereby achieving “deterrence” was the real objective of the “zero tolerance policy.”
Obviously, folks in charge lied about it to the press, the Congress, and to the U.S. courts. And, to date, they have gotten away with it. But, oppressors, particularly arrogant and self-righteous ones, usually leave “paper trails.” Despite shredding machines and “lost” databases, I imagine that the truth about Miller, Bannon, Sessions, Barr, Cuccinelli, and others will eventually come out when historians finally get their hands on the “Trump regime papers.” I’ll be long gone by then. But, I can virtually guarantee that the whole truth will be much, much worse than we can even imagine at this point.
It isn’t that the regime and even the Article III Federal Courtsdon’t know what happens or is likely to happen to those “orbited” to the Northern Triangle. It’s just that the don’t care. As I constantly point out, this is all about dehumanizationand “Dred Scottification“ of “the other.”If we dehumanize them, its easier to ignore what we’re doing to them. How else could anybody justify the absolute unconstitutional farce and mockery of fundamental fairness and the rule of law that unfolds in our Immigration “Courts,” run by an openly enforcement-driven DOJ every day, right in plain view. The evidence has always been “out there.” “Extermination as deterrence” has become part of our national policy right here in the 21st Century.
Matthew 25:44-46 English Standard Version (ESV):
44 Then they also will answer, saying, ‘Lord, when did we see you hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to you?’ 45 Then he will answer them, saying, ‘Truly, I say to you, as you did not do it to one of the least of these, you did not do it to me.’ 46 And these will go away into eternal punishment, but the righteous into eternal life.”
