"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.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
President Donald Trump last year advocated dropping the refugee cap as low as 5,000 people, down from 50,000, according to a former administration official – a cut far more drastic than even his most hawkish adviser, Stephen Miller, proposed at the time.
Ultimately, the administration restricted to 45,000 the flow of refugees into the U.S. this fiscal year – the lowest since the program began in 1980, and less than half the target of 110,000 that President Barack Obama set in his last planning cycle.
But the discussion set the terms of the administration’s refugee policymaking. Now Miller and a group of like-minded aides are pressing to reduce drastically the number of people entering the U.S., both legally and illegally.
The immigration hawks are moving forward despite the blowback they got over their imposition of a “zero tolerance” prosecution policy at the southern border that resulted in the separation of thousands of migrant children from their parents, according to interviews with more than a dozen current and former administration officials and outside White House advisers.
One Republican close to the White House and a former White House official familiar with the discussions predicted the cap could fall as low as 15,000 in 2019, continuing a contraction of overall immigration, both legal and illegal. A tiny group of key administration officials led by the National Security Council’s Mira Ricardel were planning to meet Friday to debate the coming year’s refugee cap. Late Thursday, however, a White House official said the meeting about refugees had been postponed. It is not yet determined when it will be rescheduled.
“Inside the Washington beltway, this is a numbers game that’s being carried out by people who don’t care about refugees and are orienting this to their base,” said Anne Richard, who was assistant secretary of state for population, refugees and migration in the Obama administration
Miller, a policy adviser to Trump since the campaign and, before that, an aide to then-Sen. Jeff Sessions, has made immigration his signature issue. White House officials are loath to cross him given his passion for the subject and his close relationship with the president, according to people familiar with dynamics inside the administration.
“Miller is not deterred,” said one Republican close to the White House. “He is an adamant believer in stopping any immigration, and the president thinks it plays well with his base.”
Miller declined to comment. A White House spokesman did not respond to a request for comment on Thursday.
Behind the scenes, Miller, 32, has been contacting every relevant Cabinet secretary to convey his interpretation of the president’s thoughts on the refugee cap in an effort to sway the decision, said a former White House official familiar with the discussions.
The wild card is Secretary of State Mike Pompeo. No one is quite sure where he stands on the matter – but his State Department is stocked with Miller allies, including deputy assistant secretary of state Andrew Veprek and John Zadrozny, who’s been named to Pompeo’s policy planning staff.
“Is Pompeo going to let his department be used by Miller as an arm of the Domestic Policy Council?” asked the former White House official. “Is he going to take his marching orders from a thirtysomething who’s orchestrated a hostile takeover? This is the moment for Pompeo to show that he is running his own show over there.”
When asked for comment, a State Department official said “each year the president makes an annual determination, after appropriate consultation with Congress, regarding the refugee admissions ceiling for the following fiscal year. That determination is expected to be made prior to the start of fiscal year 2019 on October 1, 2018.”
The refugee cap is just one of several hawkish policies that Miller and his like-minded allies throughout the federal agencies are pursuing on immigration. Through rule-making and executive authority, the Trump administration continues to explore ways to narrow asylum eligibility requirements; to detain together families who cross the border illegally; and to reduce the number of people who acquire legal immigration status through “cancellation of removal” – one of the few avenues left for certain undocumented immigrants.
Inside the country, the Miller cadre intends to make life more difficult for undocumented immigrants already living and working here. U.S. Immigration and Customs Enforcement, said another Republican close to the White House, intends to continue with its increased focus on worksite enforcement.
This long laundry list of policies to reduce immigration comes on the heels of the “zero-tolerance” policy, which the administration effectively ended following outcry from conservative religious leaders, Republican lawmakers, and even many White House staffers. The administration is now under a federal court order to reunify the parents and children that it separated as a result of the policy.
Miller was distraught in the aftermath of the zero tolerance fiasco, said two Republicans close to the White House. He considered zero tolerance an essential component to his efforts to deter immigration. For his troubles, he got heckled at D.C. restaurants, prompting him in one instance angrily to pitch $80 worth of takeout sushi into a trash bin. Protesters showed up at his apartment complex chanting, “Stephen Miller/ You’re a villain/ Locking up/ innocent children.”
But Miller and other immigration hardliners quickly recovered, and have continued to hold under-the-radar meetings to pursue policies that already are altering the U.S.’s self-perception as a nation of immigrants. White House chief of staff John Kelly is broadly supportive of these efforts, and Miller has been careful to keep his plans fairly secret, speaking only infrequently in larger White House meetings, according to two Republicans close to the White House.
Despite signing an executive order that largely reversed the zero tolerance policy that Miller championed, Trump strongly supports Miller’s efforts because he views immigration as a winning political issue as he heads into the 2018 midterms–one that puts Democrats on the defensive.
“On the political side of things, the Democrats have put themselves now in more peril than ever,” a White House official told POLITICO in June during the height of the family separations. “Through their uninformed, highly inaccurate hysteria, they have elevated the issue of immigration and border security to the forefront of the mid-terms, and this is a much better issue for Republicans. So the reality is they are turning off a lot of swing voters, and they are also motivating a lot of Republican-leaning moderate and conservative voters to go out and vote.”
A recent Gallup poll found the share of Republicans who agreed that immigration was the country’s most important problem doubled at the height of the administration’s family separations policy. In July, 35 percent of Republicans called it a top issue, up from 17 percent in May.
The question remains whether the increased Republican interest in immigration represented support for or opposition to Trump’s family separations policy. A strong majority of Republican voters — 76 percent — approved of how Trump handled family separations at the border, according to a Quinnipiac University pollfrom early July. But the same poll found a similar percentage of Republicans — 70 percent — agreeing that the Trump administration must be held responsible for reunifying separated parents and children.
In Republican congressional primaries, candidates have adopted Trump’s tone on immigration, but no one knows how that will play in the general election, according to Rick Wilson, a Florida-based Republican strategist and Trump critic.
“It pleases Donald Trump, it pleases a certain portion of the base,” Wilson said. “But it’s not without its own downside risks.” Among these, he said, is alienating suburban women and Hispanic voters. “You’re holding onto a base you were going to hold onto anyway.”
Limiting refugee numbers may also upset religious groups that historically have handled resettlement for the government. If the Trump administration opts for a lower refugee ceiling, that may also scale back funding to the nine religious and charity agencies that facilitate the process nationwide.
The State Department’s refugee bureau signaled a possible spending drawdown in a March request for resettlement proposals, saying it “expects to fund a smaller number of recipient agencies” in fiscal year 2019.
Refugee organizations will lobby Pompeo, publicly and privately, to defend the program. The secretary praised “the strength, courage, and resilience of millions of refugees worldwide” during World Refugee Day in June, but also is considering the possible elimination of the department’s refugee office.
“The refugee resettlement program is about so much more than just saving lives,” said Melanie Nezer, senior vice president of public affairs at the Hebrew Immigrant Aid Society, a resettlement agency. “It’s also a diplomatic tool, it’s a foreign policy tool, it stabilizes countries that are hosting the refugees.”
The United Nations refugee agency has identified 1.4 million refugees worldwide in need of resettlement, of whom only a small number are placed each year. In 2017, for instance, the U.N. sent just 75,000 refugees to receiving nations for resettlement, according to an annual report.
Kay Bellor, a vice president with the Lutheran Immigration and Refugee Service, said refugees could be stranded in host countries such as Turkey and Lebanon if the U.S. doesn’t open its doors.
“They’re languishing in refugee camps, their kids are not getting educated, they’re not contributing economically. It’s a pretty horrible situation,” she said. “You’re going to warehouse people who otherwise would be able to move on with their lives.”
Bellor added that it would send a “terrible signal” to host countries. “It’s hard to imagine how this might impact their response,” she said.
The Trump administration argued last year that refugee resources should be shifted to reduce the backlog of asylum seekers in the U.S., which stood at more than 300,000 cases in January.
Nezer doesn’t accept that rationale. “There’s no credible evidence that getting rid of the program serves any purpose other than to keep people out,” she said.
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Will the asylum system, which is created by statute, and the withholding of removal system, which is guaranteed by statute enforcing an international treaty obligation, be “the last stand of America” as country that respects human rights and the rule of law?
Perhaps asylum will continue; but, not if Jeff Sessions has anything to say about it. He’s actively in the process of “deconstructing” U.S. asylum law and reducing it to nothing.
This Congress won’t stop him. Will the Article III Courts? While they have been critical of many aspects of the BIA’s performance and Sessions’s border policies, they have been avoiding the real issue: How can you have Due Process of law in a system run by an overt White Nationalist xenophobic racist with no respect for the Constitution, human dignity, or the rule of law and who publicly favors one party, the DHS. Not much respect for the Article IIIs either as shown by the flippant, disrespectful, disingenuous “in your face judge” response to Judge Sabraw by Sessions’s DOJ lawyers in the “child separation” case. (Judge not amused; more on that later.)
If the Article IIIs, including the spineless Supremes, don’t have the courage to stand up to this authoritarian scofflaw Administration on the immigration charade that is unfolding right now, they might find themselves swallowed up by the Trump Swamp themselves. And, I don’t know who will be “willing or able” to throw them a lifeline.
“The articles — which have appeared in Breitbart News, the Conservative Review and other outlets — have alarmed veteran officials in both parties as well as current executive branch staffers. They say the stories are adding to tensions between career staffers and political appointees as they begin to implement Trump’s agenda, and they worry that the stories could inspire Trump to try purging federal agencies of perceived enemies.
The claims posted on the conservative sites include allegations of anti-Israel and pro-Iran bias against staffers at institutions such as the State Department and the National Security Council. Breitbart News, whose former executive chairman Steve Bannon is now Trump’s chief strategist, has even published lists of workers that the president should fire.
Washington veterans say they can’t recall similar targeting of government employees, who are required to stay apolitical and generally shun the spotlight.
“It’s deeply unfair to single people out and question their loyalty,” said William Burns, president of the Carnegie Endowment for International Peace and a former longtime diplomat. “It’s demoralizing for institutions. It’s demoralizing for professionals, and it’s offensive.”
Elliott Abrams, a veteran of the George W. Bush administration who was passed over last month for the role of deputy secretary of state because of his past criticism of Trump, agreed with Burns. Career staffers, he said “are trying to do their jobs and will respond to presidential leadership — including from a new president when an administration changes.”
U.S. civil and foreign service officers have long been seen by Republicans and Democrats as the backbone of government — subject matter experts who help political appointees administer their policy agenda regardless of who serves as commander in chief. But many in the Trump administration and its allies on the right are skeptical of career staffers, believing they are part of an American “deep state” that is working in secret to undermine the president.
Several people who have been targeted did not respond to requests for comment. But one said the information being spread is unnerving, in part because even if Trump’s top aides don’t always believe the reports they read in the conservative press, they may still feel pressure to act from voters in the Republican base who do believe the accounts.”
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Wow, what a grotesque distortion by the right wing media of the critical role of the career civil servant in American Government!
Political appointees in the Executive Branch are usually expected to show of loyalty to the President and the Administration. But, career public servants are non-political, merit-based, appointees who are sworn to uphold the Constitution of the United States, not to be personally loyal to any particular President or Administration. In fact, a requirement for any long-term career civil servant is the ability to serve conscientiously and effectively in administrations of either party which happens to be in power.
That being said, of course a civil servant who fails to carry out direct orders from his or her superiors, including political appointees, or who consciously undermines agency programs is insubordinate and subject to discipline up to and including removal. But, even in those situations, there are legal requirements which must be followed for discipline and removal. Civil servants can not be summarily dismissed just because they worked for or helped carry out the programs of the previous administration, which, after all, was their job.
In most countries outside the Unites States and a few other so-called “Western Democracies,” government is the personal possession of the ruler. He or she controls the mechanisms and staffing of government and hands out government positions as rewards to cronies, family members, and supporters. The devices of government are used largely to reward friends and punish and suppress enemies. The general populace has no real expectation of honesty, integrity, or assistance in any matter. Bribes are a routine requirement for obtaining any favorable action or avoiding any sanction. Indeed, I spent the better part of the last 13 years as an Immigration Judge hearing daily accounts of such abuse from individuals seeking refuge in the United States.
The modern U.S. system of government where civil servants owe allegiance to the Constitution and people of the United States, rather than to our individual political rulers, is the “gem” of our democracy, stability, and success as a nation. An attack on the merit civil service by the right wing media and also, sadly, by some GOP legislators is a direct attack on the foundations of our nation.
