"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.
If you have children, imagine how you would feel seeing them taken away like that. Hug your kids. Imagine not knowing where they are or whether you’ll ever get to hug them again.
Now imagine the terror and despair those 711 “ineligible” children must feel. It is monstrous to gratuitously inflict such pain. It is, in a word, torture.
In 120 cases, according to the government, a parent “waived” reunification with the child. This claim cannot be taken at face value, however, since immigration advocates cite widespread reports of parents being coerced or fooled into signing documents they did not understand.
Human nature binds parents with their children. It shocks and depresses me to have to write this, but I wonder whether Trump and his minions see these Central Americans — brown-skinned, with indigenous features — as fully human.
In 431 cases involving children between 5 and 17, officials reported, the parents have been deported. Where are they now? How could the government let this happen? If these parents were going to be denied permission to stay in the United States, what was the big hurry to kick them out? Why couldn’t the administration wait until their children could be brought back from wherever they were being kept?
Even more incredibly, in 79 cases, the children’s parents have been released into the United States. In other words, the parents have some legal status — but the government has their children.
And in 94 cases, according to Trump administration officials, the parents cannot be located. What are the odds, do you think, that these men and women will ever be found? Where do parents go to begin the process of tracking down their children? How do you tell a 5-year-old that she may never see her mother and father again?
That’s the reported situation for children 5 and older. The government is also still holding 46 children younger than 5 whom officials cannot or will not give back to their parents. Think of the trauma being inflicted on 2-year-olds — to make a political point.
All of this is happening because Trump has no respect for law or due process and no sense of empathy. He was reportedly upset this spring by a rise in border crossings by asylum-seekers, who by law had to be allowed to stay pending resolution of their claims. He and Sessions seized upon the pretext — for which they have not provided evidence — that children were being “trafficked” into the country for some reason.
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” Sessions said in May. “If you don’t want your child separated, then don’t bring them across the border illegally.”
Think, for a moment, of the millions of Irish, Italian, Eastern European and other immigrants who “smuggled” children into the United States — families such as Trump’s own. The only difference is that those earlier immigrants, though sometimes rejected at first, came to be seen as white.
Brown immigrants need not apply. Not if they want to see their kids again.
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Read Robinson’s complete op-ed at the above link.
“Right on” Eugene! We need “regime change,” sooner rather than later. And, we still don’t have an answer to Eugene’s earlier question: When, if ever, will Sessions and other Trump Administration officials be held accountable for their intentionally lawless and unconstitutional behavior?
The last legalization program was established by the Immigration Reform and Control Act of 1986, more than 30 years ago. The Democrats claim that this is because the Republicans won’t cooperate, but that isn’t true.
The Democrats could have established a legalization program without Republican cooperation during the first two years of Barack Obama’s administration. From January 2009 to January 2011, they had a majority in the House, and until Scott Brown’s special election in 2010, there were enough Democratic senators to overcome a filibuster.
And they could establish one now if they really wanted to.
Trump is willing to support legalization for 1.8 million aliens in the DACAprogram if the Democrats accept the three conditions in his framework on immigration reform and border security.
Trump wants to end chain migration. This should not be a deal-breaker if the legalization program were to be established by expanding the availability of Special Immigrant Juveniles (SIJ) status to include DACA participants, which could restrict the end of chain migration to them as opposed to ending it for everyone.
SIJ provisions state, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
Trump also wants a wall along the border with Mexico, which would make it more difficult for parents to make illegal crossings with their young children in the future. Adults may be able to climb over a wall 20 or 30 feet high, but young children can’t.
The Democrats have been willing to end the DVP in the past. Sen. Chuck Schumer’s (D-N.Y.) Gang of Eight bill would have repealed it in 2013 if it had been enacted.
The problem seems to be that legalization isn’t very important to the Democrats.
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Go on over to The Hill at the above link for Nolan’s complete article!
I agree with Nolan that legalization should be the focus.
I have also made a similar observation that during the first two years of the Obama Administration, Democrats could have solved what have become the three most pressing problems on the domestic front:
Legalization;
Dreamer relief; and
An independent U.S. Immigration Court.
Our country and the good folks caught up the in current system are paying the price every day for these failures. But, past is past. The important thing is not to make the same mistakes again if and when the Democrats and whatever “moderate” Republicans still remain get a chance to act.
The failure of the U.S. government to reverse the kidnapping of migrant children from their parents has been chalked up to incompetence. People want to believe that this act of extraordinary cruelty — and the Trump administration’s inability to fix it — stems from our leaders’ lack of experience or common sense.
But this too is a failure — of our collective imagination. Although the government claimed it met the Thursday deadline to reunite families, it admitted that hundreds of parents had been deported without their children. The separation policy was designed to inflict harm. And the resolution process is chaotic by design.
How else can we explain what has happened to these families? Some 14 million checked bags are managed by the Transportation Security Administration — and that’s just during Thanksgiving weekend. Even high school students can manage a coat check for an evening without losing everyone’s coats. They match each coat and owner with corresponding tickets, and do not store the coats outside the building, or even thousands of miles away from the event.
This administration will harm children in order to force Congress to agree to its absurd immigration policies.
The administration did not take even these basic measures when it began to separate children — not coats! — from their parents. It did not use corresponding numbers for the files of parents and children, or take photos of families together, or hand out hospital-style bracelets. It did not house families near one another, choosing instead to hold mothers in California and daughters in Chicago, fathers in Texas and sons in New York City.
In fact, the administration seems to have taken a comprehensive inventory of confiscated items — sneakers, toothpaste, rosaries — everything except which child belongs to which parent.
These are the actions of a government that intended to separate families but did not intend to reunite them. It meant to inflict so much suffering that other families wouldn’t make the dangerous trek. No matter how bad the violence might be in Central America, surely these families would choose to stay united rather than come and be separated.
In fact, through all the blather, the Trump administration has admitted as much.
“I would do almost anything to deter the people from Central America,” White House Chief of Staff John F. Kelly said in 2017. Even separate children from their parents, asked CNN’s Wolf Blitzer? “Yes.”
“We expect that the new policy will result in a deterrence effect,” Health and Human Services Assistant Secretary Steven Wagner told reporters in June.
“Hopefully people will get the message,” Atty. Gen. Jeff Sessions said casually on Fox News in June.
But according to the Department of Homeland Security, no one has been deterred. The number of families stopped at the border actually increased by 64% in the months after the administration began to separate families. So even if you could stomach traumatizing toddlers, this policy did not accomplish Sessions’ objective of sending a warning across the desert.
Still, cruelty has its uses. Across the country, Republicans have made the Trump administration’s immigration stance their rallying cry for reelection, running more than 14,000 campaign ads this year bragging about their efforts to “stop illegals.” And last month, Sessions spelled out the administration’s plan to use all the bad press for good.
“We do not want to separate parents from their children,” he clarified. “If we build the wall, if we pass legislation to end the lawlessness, we won’t face these terrible choices.”
In other words, this administration will harm children in order to force Congress to agree to its absurd immigration policies. But let’s be clear: No lawmaker of any party should ever accede to a legislative demand in response to the intentional infliction of harm.
The American people must also speak up. Our government has kidnapped children from their parents. It forces these lost boys and girls to say the Pledge of Allegiance while they are held captive in building wings named for U.S. presidents. (It is not hard to believe that President Reagan would be aghast.)
This is not who we are, we want to say, but that isn’t quite true. This policy reveals a darker side of America that has dehumanized black and brown people since our nation’s founding. Americans have stolen and enslaved black people, killed indigenous peoples and imprisoned Japanese Americans. The reason why this administration has pumped out racist rhetoric casting people as fish to be caught, infestations to be eradicated, and animals to be caged is because it has worked before.
Will it work again? That’s up to us.
Brian Schatz representsHawaii in the U.S. Senate.
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Senator Schatz provides a clear, succinct, powerful statement as to why we need regime change if American is to remain a great, diverse nation that uses the full abilities and respects the lives, dignity, potential, and rights of all of those who reside here now and may do so in the future.
“MAGA” has always been a not-so-thinly veiled exhortation to “Keep America As White As Possible For As Long As Possible No Matter How Much Damage We Inflict.”
Yeah, I remember that after his confirmation, I was willing to give Sessions “the benefit of the doubt” and hope that he meant his sworn testimony that he would rise above his past as a partisan Senator and represent the rights and dignity of all Americans (which, of course, would include those Americans residing here and protected by our Constitution regardless of “status”).
However, it didn’t take long to see that it was just more of the perjury and lies that roll so effortlessly off Sessions’s tongue. What he actually intended all along was to use his good fortune in being somewhat unexpectedly elevated to the Attorney Generalship to carry out a heinous, racist, xenophobic, homophobic, restrictionist, extreme right program directed against people of color, women, children, and other vulnerable minorities. This is the type of horrible program that had always driven him, but that had been able to inflict little actual damage on America due to Sessions’s “outlier” position, even among his fellow GOP Senators.
To be fair, that’s precisely what Senator Elizabeth Warren, Senator Corey Booker, and the Black Caucus tried to tell the Senate and the rest of American during the confirmation process. But, they were silenced or ignored. Now, innocent kids, families, abused women, and the international reputation of our entire nation are all “paying the price” for Sessions as AG.
Vote for “regime change” this November. Vote for accountability, decency, the real “rule of law,” and to rein in and ideally remove Jeff Sessions from office before he can do further damage to humanity and to our country!
IN THE 1990s, the United States was among the first countries to start granting sanctuary to LGBTQ refugees and asylum seekers fleeing persecution stemming from their sexual orientation or gender identity in their home countries. Now the Trump administration, intent on turning back the clock on almost every major facet of immigration policy, is increasingly complicit in their mistreatment.
As administration officials have intensified their efforts to hollow out the asylum system — narrowing eligibility criteria, creating bottlenecks for would-be asylum seekers at legal ports of entry and tearing apart families as a means of deterring future applicants — LGBTQ individuals have suffered inordinately. That is particularly true in the case of those from El Salvador, Honduras and Guatemala, the so-called Northern Triangle countries of Central America where sexual and gender-based violence is pervasive.
There are no statistics to indicate that LGBTQ asylum seekers are refused admittance to the United States more (or less) frequently than other applicants, though the rate at which migrants of all sorts are granted asylum seems to be plummeting because of the administration’s policies. However, sending LGBTQ migrants back across the southwestern border to Mexico subjects them to heightened risks: According to the U.N. High Commissioner on Refugees, two-thirds of such individuals reported that they had suffered sexual or gender-based violence in Mexico after entering that country.
In the case of those deported to their countries of origin in the Northern Triangle, their fates are often even worse. A report last year from the rights group Amnesty International said LGBTQ deportees were effectively “sent back to hell,” based on the horrific conditions from which they fled in the first place. The UNHCR reported that 88 percent of LGBTQ asylum seekers had been victims of sexual and gender-based violence in their countries of origin.
Police and other law enforcement authorities in Central America and Mexico are often indifferent, and frequently overtly hostile, to the fate of LGBTQ individuals. A 34-year-old transgender woman interviewed by Amnesty International said she had fled El Salvador after receiving threats from a police officer who lived near her; when she tried to report him, she said, “the response was that they were going to lock me and my partner up.” She finally fled to Mexico, where she was harassed and abused by officials before finally being granted refugee status.
Another Salvadoran transgender woman interviewed by Amnesty International said that after reaching the United States, she was detained for more than three months in a cell with men — “they never took account of my sexuality or that I was trans.” (Immigration and Customs Enforcement sometimes, but not always, detains transgender women in a dedicated facility whose capacity is 60 beds.)
To qualify for asylum in the United States, migrants must prove they are subject to persecution in their home countries based on specific criteria, including identification with a particular social group, and that the government is either complicit in their mistreatment or powerless to stop it. By any reasonable assessment, many or most LGBTQ asylum seekers meet those criteria.
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The qualification of LGBTQ individuals for asylum was established more than two decades ago by the BIA’s decision in Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990, 1994).
Since then, scores of well-documented LGBTQ asylum cases have been granted by the USCIS Asylum Office and in Immigration Court. Indeed, in the Arlington Immigration Court the cases were so well-documented by the counsel for the respondents that most could be “pre-tried” between the Assistant Chief Counsel and respondent’s counsel and placed on the Immigration Court’s “short docket” for brief hearings and granting of asylum.
Like refugees fleeing domestic violence, I found these cases to involve some of the most badly abused, most deserving, most grateful, and potentially most productive refugees that I dealt with over my many decades of involvement in t he U.S. refugee and asylum systems.
Once again, the biased, racist, White Nationalism of Trump, Sessions and their cronies have taken a well-working part of the asylum system and made it problematic.
President Donald Trump meets with President Vladimir Putin of Russia at the G-20 Summit, in Hamburg, Germany, in July 2017. CreditEvan Vucci/Associated Press
Put aside whatever suspicions you may have about whether Donald Trump will be directly implicated in the Russia investigation.
Trump is right now, before our eyes and those of the world, committing an unbelievable and unforgivable crime against this country. It is his failure to defend.
The intelligence community long ago concluded that Russia attacked our election in 2016 with the express intention of damaging Hillary Clinton and assisting Trump.
“In 2016, cyber actors affiliated with the Russian Government conducted an unprecedented, coordinated cyber campaign against state election infrastructure. Russian actors scanned databases for vulnerabilities, attempted intrusions, and in a small number of cases successfully penetrated a voter registration database. This activity was part of a larger campaign to prepare to undermine confidence in the voting process.”
And this is not simply a thing that happened once. This is a thing that is still happening and will continue to happen. As Director of National Intelligence Dan Coats told the committee in February, “Persistent and disruptive cyberoperations will continue against the United States and our European allies using elections as opportunities to undermine democracy.” As he put it, “Frankly, the United States is under attack.”
The Robert Mueller investigation is looking into this, trying to figure out what exactly happened in 2016, who all was involved, which laws were broken and who will be charged and tried.
“Special counsel Robert Mueller’s team has either indicted or gotten guilty pleas from 32 people and three companies — that we know of. That group is composed of four former Trump advisers, 26 Russian nationals, three Russian companies, one California man, and one London-based lawyer. Five of these people (including three former Trump aides) have already pleaded guilty.”
Twelve of those indictments came last week with a disturbingly detailed account of what the Russians did. As The New York Times put it:
“From phishing attacks to gain access to Democratic operatives, to money laundering, to attempts to break into state elections boards, the indictment details a vigorous and complex effort by Russia’s top military intelligence service to sabotage the campaign of Mr. Trump’s Democratic rival, Hillary Clinton.”
Whether or not Trump himself or anyone in his orbit personally colluded or conspired with the Russians about their interference is something Mueller will no doubt disclose at some point, but there remains one incontrovertible truth: In 2016, Russia, a hostile foreign adversary, attacked the United States of America.
We know that they did it. We have proof. The F.B.I. is trying to hold people accountable for it.
And yet Trump, the president whom the Constitution establishes as the commander in chief, has repeatedly waffled on whether Russia conducted the attack and has refused to forcefully rebuke them for it, let alone punish them for it.
In March, the White House, under pressure from Congress, seemed to somewhat reluctantly impose some sanctions on Russia for its crimes. As CNN reported that month, Congress almost unanimously passed the Countering America’s Adversaries Through Sanctions Act last summer, “hoping to pressure Trump into punishing Russia for its election interference.” But as the network pointed out:
“Trump signed the bill reluctantly in August, claiming it impinged upon his executive powers and could dampen his attempts to improve ties with Moscow.”
Instead, Trump has repeatedly attacked the investigation as a witch hunt.
Just last week at a joint press conference with British Prime Minister Theresa May, Trump said:
“I think I would have a very good relationship with Putin if we spend time together. After watching the rigged witch-hunt yesterday, I think it really hurts our country and our relationship with Russia. I hope we can have a good relationship with Russia.”
Now Trump is set to pursue just such a relationship as he meets one-on-one with the Russian president, Vladimir Putin, on Monday in Finland. As Trump said earlier this month at a rally:
“Will he be prepared? Will he be prepared? And I might even end up having a good relationship, but they’re going, ‘Will President Trump be prepared? You know, President Putin is K.G.B. and this and that.’ You know what? Putin’s fine. He’s fine. We’re all fine. We’re people.”
Actually, none of this is fine. None of it! Trump should be directing all resources at his disposal to punish Russia for the attacks and prevent future ones. But he is not.
America’s commander wants to be chummy with the enemy who committed the crime. Trump is more concerned with protecting his presidency and validating his election than he is in protecting this country.
This is an incredible, unprecedented moment. America is being betrayed by its own president. America is under attack and its president absolutely refuses to defend it.
Simply put, Trump is a traitor and may well be treasonous.
Charles M. Blow has been an Op-Ed columnist since 2008. His column appears every Monday and Thursday. He joined The Times in 1994 and was previously the graphics director. He also wrote the book “Fire Shut Up in My Bones.” @CharlesMBlow•Facebook
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Yup! Bogusly claiming that desperate refugees are a threat to our national security, failing to protect us, and in fact enabling and furthering the actual existential threats to our security from Putin. That’s Trump and his “fellow traveler” supporters!
Remember all oft he nonsense about the “Kobach Commission” and their bogus search for almost nonexistent “undocumented voters?” Compare all the pontificating about the “integrity of our election process” with the Administration’s “shrug off” of hard evidence that a foreign power actually did attempt to interfere in our elections with the purpose of sowing discord and electing Trump?
Trump makes enemies out of our friends, creates non-existent enemies, and treats our country’s enemies as if they were our friends!
After Mr. Ross’s explanation for the citizenship question’s origin shifted, Judge Furman said it appeared that the Commerce Department had acted in “bad faith” in deciding to add the question.
Mr. Ross said in a statement on March 26 that the Justice Department, which oversees enforcement of the Voting Rights Act, had asked that the question be placed on census forms. But late last month he reversed course, stating in a memo that he actually had been discussing the citizenship question “with other government officials” since shortly after taking office in February 2017 — and that the Justice Department had made its request only after he or his aides asked it to.
Judge Furman called Mr. Ross’s March explanation of his decision both “potentially untrue” and improbable because, he said, the Justice Department “has shown little interest in enforcing the Voting Rights Act.”
In an emailed response to questions, a Commerce Department spokeswoman, Rebecca Glover, said there was no inconsistency between the two statements. “Characterizations of the secretary’s prior public statements as somehow misleading are false,” she wrote. Whatever the run-up to the Justice Department’s request, she said, it remained the trigger that led to Mr. Ross’s “thorough and transparent assessment” of the need for a citizenship question.
Terri Ann Lowenthal, a former congressional expert on the census who is a private consultant to groups seeking an accurate 2020 count, called Mr. Ross’s revised timeline “disappointing and deeply troubling.”
“This seems to confirm that the Justice Department request for the citizenship question was a pretense to achieve a political goal through the census,” she said. “The pieces of the puzzle are starting to fit together, going back to when President Trump took office.”
In their lawsuit, which is led by the New York attorney general, Barbara D. Underwood, the plaintiffs imply that enforcing the Voting Rights Act was a pretext for another goal: ensuring that the nation’s 11 million-plus undocumented immigrants are not counted for the purpose of drawing congressional and other political districts, which are required to have equal populations.
The practical impact would be to reduce the number of congressional districts, and therefore Electoral College votes, in states with large numbers of noncitizens — often, though not always, Democratic strongholds.
Mr. Ross has not named the administration officials with whom he discussed the citizenship question after taking office. But other lawsuit documents released last month show that Mr. Ross received an email in July 2017 from Kris W. Kobach, the Kansas secretary of state who has taken a strong position against illegal immigration. Mr. Kobach urged Mr. Ross to add the citizenship question to the 2020 census because undocumented immigrants “do not actually ‘reside’ in the United States” but are counted for reapportionment purposes.
Mr. Kobach noted in the email that he had recently reached out to Mr. Ross “on the direction of Steve Bannon,” who was then the White House chief strategist. Documenting the extent of outsiders’ role in the citizenship decision will be a priority when the plaintiffs’ search for new evidence begins, experts said.
“That suggests very strongly that the directive here was ultimately a directive that came from the White House,” said Thomas Wolf, counsel at the democracy program of the Brennan Center for Justice at N.Y.U. School of Law.
The census tally, which includes everyone living in the United States regardless of immigration status, is used to reapportion political boundaries every 10 years to account for population changes. But a growing movement on the far right seeks to exclude undocumented immigrants from being counted during reapportionment; Alabama’s Republican secretary of state filed a lawsuit in May seeking to do exactly that.
If only citizens were counted for reapportionment, “California would give up several congressional seats to states that actually honor our Constitution and federal law,” one leader of the anti-immigrant movement, Representative Steve King, Republican of Iowa, said in February.
That is, for now, a distant prospect. But some experts say they believe asking about citizenship could accomplish the same goal by discouraging undocumented immigrants, even legal ones, from being counted.
“Their actions can produce a census that leaves out many of the people they don’t want counted for political representation,” Ms. Lowenthal said. “And there will be consequences, perhaps, well beyond what immigration hard-liners believe will only be reduced numbers in selected states.”
Tyler Blint-Welsh contributed reporting from New York.
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Read the complete article at the link.
These guys are totally disgusting. Sessions’s “we’ve gotta enforce the law” blather has always been totally bogo. Sessions is interested in enforcing only those laws that happen to support his racist, White Nationalist agenda. Even then, he lies, twists the meaning, and intentionally misuses statistics to support his perverted Jim Crow outlook.
My question is why the DOJ attorneys presenting these obviously untrue and dishonest positions in Federal Court haven’t been referred to their state bars for disciplinary proceedings and possible revocation of their law licenses? And, why isn’t our biased “chief lawyer” Jeff Sessions the subject of ethics and disciplinary procedures given his clear record of bias against people of color and his pushing of unlawful political/racial agendas based on lies before the Federal Courts?
Private attorneys who conducted themselves the way Sessions and his DOJ crew do before Federal Courts would be in deep trouble by now? Why are they getting away with it?
Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?
The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.
DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.
Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.
And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.
So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.
A precedent for a solution
Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.
We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.
How our two-track asylum system works
To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.
A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.
Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.
That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.
Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”
For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).
Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)
In the 1990s the system was also overwhelmed. We brought it back under control.
Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.
That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.
Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.
Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.
Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.
But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).
To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).
Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.
These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.
Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.
The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.
With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.
A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.
Concrete steps to fix the problems
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.Joe Raedle/Getty Images
There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:
1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.
But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.
This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.
This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.
2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.
Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.
In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)
Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.
The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.
Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.
Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.
To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.
3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.
A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.
The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.
But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.
Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.
But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.Orlando Estrada/AFP/Getty Images
4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.
It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.
In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.
That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.
These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.
The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.
Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.
Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.
MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL
By Paul Wickham Schmidt
As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.
David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.
David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).
Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.
The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!
With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.
Don’t Blame The Victims.
With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.
Let Judges Run The Courts.
The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.
Protection Not Rejection.
Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.
Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.
No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.
Detention Isn’t The Answer.
Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.
Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.
I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.
But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.
No, I Don’t Have All the Answers.
But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.
But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.
It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.
After a month of outrage at the cruelty of President Trump’s “zero tolerance” policy, last week we saw a stream of confounding and divergent statements on immigration: The president suggested depriving undocumented migrants of due process; Attorney General Jeff Sessions insisted that every adult who crossed illegally would be prosecuted; and the commissioner of Customs and Border Protection announced that families would once again be released together to await trial. Meanwhile, thousands of separated children and their parents remain trapped in a web of shelters and detention facilities run by nonprofit groups and private prison, security and defense companies.
It is important to understand that the crisis of separation manufactured by the Trump administration is only the most visibly abhorrent manifestation of a decades-long project to create a “state of exception” along our southern border.
This concept was used by the Italian philosopher Giorgio Agamben in the aftermath of Sept. 11 to describe the states of emergency declared by governments to suspend or diminish rights and protections. In April, when the president deployed National Guard troops to the border (an action also taken by his two predecessors), he declared that “the situation at the border has now reached a point of crisis.” In fact, despite recent upticks, border crossings remained at historic lows and the border was more secure than ever — though we might ask, secure for whom?
For most Americans, what happens on the border remains out of sight and out of mind. But in the immigration enforcement community, the militarization of the border has given rise to a culture imbued with the language and tactics of war.
Border agents refer to migrants as “criminals,” “aliens,” “illegals,” “bodies” or “toncs” (possibly an acronym for “temporarily out of native country” or “territory of origin not known” — or a reference to the sound of a Maglite hitting a migrant’s skull). They are equipped with drones, helicopters, infrared cameras, radar, ground sensors and explosion-resistant vehicles. But their most deadly tool is geographic — the desert itself.
“Prevention Through Deterrence” came to define border enforcement in the 1990s, when the Border Patrol cracked down on migrant crossings in cities like El Paso. Walls were built, budgets ballooned and scores of new agents were hired to patrol border towns. Everywhere else, it was assumed, the hostile desert would do the dirty work of deterring crossers, away from the public eye.
. . . .
Such defenses also gloss over the patrol’s casual brutality: I have witnessed agents scattering migrant groups in remote areas and destroying their water supplies, acts that have also been extensively documented by humanitarian groups.
The principle of deterrence is behind the current administration’s zero-tolerance policy. In an interview with Laura Ingraham on Fox News, Mr. Sessions, pressed on whether children were being separated from parents to deter crossers, conceded, “Yes, hopefully people will get the message.”
Administration officials have claimed that even this policy is “humanitarian,” in part because it may dissuade future migrants from bringing their children on the dangerous journey.
This ignores decades of proof that no matter what version of hell migrants are made to pass through at the border, they will endure it to escape far more tangible threats of violence in their home countries, to reunite with family or to secure some semblance of economic stability.
Policymakers also ignore that new enforcement measures almost always strengthen cartel-aligned human trafficking networks, giving them cause to increase their smuggling fees and push vulnerable migrants to make riskier crossings to avoid detection.
Jason De León, the director of the Undocumented Migration Project, argues that the government sees undocumented migrants as people “whose lives have no political or social value” and “whose deaths are of little consequence.”
This devaluation of migrant life is not just rhetorical: CNN recently revealed that the Border Patrol has been undercounting migrant deaths, failing to include more than 500 in its official tally of more than 6,000 deaths over 16 years — a literal erasure of lives.
The logic of deterrence is not unlike that of war: It has transformed the border into a state of exception where some of the most vulnerable people on earth face death and disappearance and where children are torn from their parents to send the message You are not safe here. In this sense, the situation at the border has reached a point of crisis — not one of criminality but of disregard for human life.
We cannot return to indifference. In the aftermath of our nation’s outcry against family separation, it is vital that we direct our outrage toward the violent policies that enabled it.
Francisco Cantú, a former Border Patrol agent, is the author of “The Line Becomes a River: Dispatches From the Border.”
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Read Cantu’s full article at the above link.
BTW, when I was at the “Legacy INS” I was told the “Maglite hitting the migrant’s skull” version of the Border Patrol’s definition of “toncs.”
Cantu confirms what I have said many times on this blog. Far from keeping us safer, the cruel, inhuman, dishonest, and racist policies of Trump & Sessions actually “strengthen cartel-aligned human trafficking networks,” thereby making us markedly less safe. They also degrade us as a nation and as human beings by essentially assisting in the deaths of desperate and vulnerable refugees who are only required to use the cartels in the first place because of the willful failures, incompetence, dishonesty, and immorality of our Government officials administering refugee and asylum programs!
Focus on this ugly truth: Under Trump, Sessions, Miller, and their White Nationalist buddies, our government sees undocumented migrants as people “’whose lives have no political or social value’ and ‘whose deaths are of little consequence.'”
Celebrate July 4 by “just saying no” to the Trump regime! Join the New Due Process Army, and stop the ugliness of Trump, Sessions, Miller, and their White Nationalist cabal! Channel your outrage into saving the lives of the most vulnerable among us and resisting the Trump kakistocracy! Restore the optimistic, progressive, inclusive, idealistic vision of America set forth by our Founding Fathers in their Declaration of Independence!
1) Government never had specific plan to reunify families, court testimony shows
By: Tal Kopan, CNN
In recent weeks, the government has stumbled trying to explain its plan for reunifying families in the wake of its much-criticized family separations policy at the border.
But newly reviewed court filings show that the byzantine system that has resulted in thousands of children separated for weeks and months from parents elsewhere in government custody was not an accident. It was always the design.
In fact, one of the women in an ongoing lawsuit over family separations can now was apparently one of the first separations that took place during a quiet pilot of the policy last year. The pilot program has been previously reported, but took on new attention on the heels of an NBC report about it Friday.
A government attorney admitted in court just days before the border-wide initiative was unveiled in early May that there was never a plan for parents like her to be proactively reunited with their kids.
And an analysis of the purported success of the pilot shows that the Department of Homeland Security’s justification that the program worked as a deterrent was likely based on dubious data.
A DHS official confirmed Friday that the agency first tested the policy of prosecuting parents caught illegally crossing the border in the El Paso sector in Texas from July to October of last year. The pilot had been previously reported, but was not widely known. NBC reported the effort anew Friday.
Ms. C, as she is known in court filings, was apprehended crossing the border illegally in late August 2017 and prosecuted in El Paso, according to court documents. She asked for asylum and in the midst of the legal process, the government took her 14-year-old son from her, sending him to a Health and Human Services facility in Chicago. They were separated for months.
2) Controversial ICE chief retiring, replacement expected to be named soon
By: Tal Kopan, CNN
Immigration and Customs Enforcement chief Tom Homan is serving his last day Friday, as the controversial face of the Trump administration’s crackdown on illegal immigration retires.
Homan’s final day was confirmed by spokeswoman Liz Johnson.
The polarizing face of the administration’s immigration enforcement, and a favorite of President Donald Trump himself, Homan had announced in April he would be taking his long-delayed retirement this month.
Homan has told the story of receiving the request to stay on as chief of ICE under Trump while celebrating at his going away party — a retirement that was deferred for a year and a half.
According to a source familiar, acting CBP Deputy Commissioner Ronald Vitiello is expected to be named acting director of ICE in Homan’s stead as soon as Friday.
Vitiello has been a familiar face for the media as well, often speaking with reporters about the President’s border wall project.
The White House has not responded to a request for comment.
3) Trump administration may further restrict asylum rights
By: Laura Jarrett and Tal Kopan, CNN
The Justice Department is considering a regulation that would prevent people from claiming asylum if they’re convicted of illegally entering the US, according to two sources familiar with the plans.
Such a rule would be a dramatic change in the landscape of US immigration law and could conflict with domestic law and long-standing international obligations.
The draft regulation was described to CNN as being in its very early stages and has not yet been submitted to the White House for review. Should it be implemented, it would likely result in immediate legal challenges from asylum-seekers and advocates.
A Justice Department spokesperson declined to comment.
The proposal was first reported by Vox.
Current law allows migrants to raise an asylum claim at any lawful port of entry to the US, as well as between valid ports of entry where crossing to the US is illegal.
The Immigration and Nationality Act states that anyone who arrives in the US “whether or not at a designated port of arrival” may apply for asylum if he or she has a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Yet another part of the law gives Attorney General Jeff Sessions the leeway to regulate which offenses “will be considered to be a crime,” in which case asylum is not available.
How exactly the rule will be tailored and whether it will include any exceptions remains unclear.
Join the New Due Process Army — Fight White Nationalism, Lies, Cowardice, and Bullying by Trump and his evil gang of immoral, scofflaw, racist “swamp monsters.”
Judge Roger Harris, Me, Judge Thomas Snow, & Judge John Milo Bryant (“The Non-Conformist”) head out to lunch on my last day at the Arlington Immigration Court, June 30, 2016
‘Just be a kid, OK?’: Inside children’s immigration hearings
By: Tal Kopan, CNN
As each immigrant child took their seat in his courtroom for their hearing, Judge John M. Bryant started the same way.
“How are you doing today?” he’d ask.
“Muy bien,” most would answer.
In a span of about 45 minutes, Bryant — an immigration judge in Arlington, Virginia — checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.
The day was known as a “master calendar hearing” — a swift introduction in court and the beginning of court proceedings for immigrants facing deportation.
The children had largely been in the country for some time, each fighting in court for the right to stay.
But though the immigration courts have long dealt with immigrant children, even those barely school age or younger, their turn through the unique, stand-alone immigration courts is getting new attention as the government’s “zero tolerance” border policy has sent thousands more children into the system without their parents.
The hearings were observed by six Democratic members of Congress: Whip Steny Hoyer of Maryland; Rep. Don Beyer, whose Virginia district includes the court; Congressional Hispanic Caucus Chairwoman Rep. Michelle Lujan Grisham of New Mexico; and Reps. Pete Aguilar, Nanette Diaz Barragán and Norma Torres, all of California.
At a news conference afterward, Beyer called the session “One of the best-case scenarios of a master calendar hearing, a sympathetic judge with kids with lawyers.”
The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.
“We know that in vast numbers of cases, there is not proper representation,” Hoyer said, adding that some kids are “not old enough to spell their own names, let alone represent themselves in court.”
In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in. One, a boy named José who had just finished ninth grade, was there for his second check-in and for his full asylum hearing received a court date of May 11, 2021 — likely to be just as he is finishing high school in the US.
The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and father, though Rodolfo’s case was being heard by itself. As he did with most of the children, Bryant asked Rodolfo if he was in school, translated by an interpreter via headphones provided to every immigrant facing the court.
“Hoy?” Rodolfo asked, confused — “Today?”
Bryant cheerfully prompted Rodolfo about what grade he had finished — kindergarten — and his teacher’s name — Ms. Dani. Bryant said he still remembered his own kindergarten teacher, Ms. Sweeney, from many years prior. “Hasta luego,” Bryant told Rodolfo, giving him a next court date of May 30, 2019.
While all the children in Bryant’s courtroom on this afternoon had attorneys, the Arlington Immigration Court is not typical of the country, where closer to 1-in-3 children are represented in court. Bryant was also generous with the continuances requested by attorneys as they waited to hear from the government on applications for other visas for the children, despite uniform opposition by the government attorney in court.
“Mr. Wagner, your turn,” Bryant joked at one point to the government attorney present, who dutifully recited the government’s opposition to granting continuances solely on the basis of waiting to hear back on a visa application. Bryant than immediately picked a day on his calendar for the immigrant and attorney to return.
One attorney for a 12-year-old girl, Rosemary, who was there with her mother, said they had applied for a Special Immigrant Juvenile visa, which is for minors who have been abused, abandoned or neglected by a parent. Bryant asked the attorney if the application was before a “sweet or sour judge.”
“I think it’s going to be a problem. It may have to be appealed,” the attorney replied.
The judge granted them a court date on February 28 of next year.
“Have a nice summer,” he said to the girl. “Just be a kid, OK?”
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“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!
No trace of the Jeff Sessions’s paranoia, xenophobia, bias, child abuse, and de-humanization of migrants here. It’s like one would expect a “real” U.S. Court to be run! Sadly, that’s not what’s happening in the rest of the country. Just ask folks in Charlotte, Atlanta, Stewart, Ga., or Houston how they are treated by Immigration Judges. It’s ugly, abusive, well documented, highly inappropriate, and needs to end!
Even more outrageously, rather than building on and replicating successful judicial models like Arlington, Sessions has actually adopted some of the worst imaginable “judicial” practices, encouraged bias, and has actually endorsed and empowered the actions of some of the most clearly biased and anti-immigrant, anti-asylum Immigraton Judges in the system. It’s a simply unacceptable waste of taxpayer money and abuse of our legal system by someone incapable of fulfilling his oath of office.
Imagine, with judges actually in control, lawyers for the respondents, time to prepare and file applications, empathy, courtesy, knowledge, kindness, concern for fairness, efficiency, and giving ICE’s obstructionist “rote objections” and other dilatory tactics encouraged and enabled by this Administration exactly the short shrift they so richly deserve, the U.S. Immigration Courts could potentially fulfill their original vision of “becoming the world’s best tribunals, guaranteeing fairness and due process for all.”
And, ICE could be once again required to function in the same highly-professional, courteous, collegial, respectful, and helpful manner that they did in Arlington during the last Administration. It’s disgraceful that rudeness and unfairness have become the norm under Trump. Things like that used to get even Government lawyers fired, disbarred, or disciplined. Now they appear to win kudos.
And, having dockets run by experienced judicial professionals like Judge Bryant with the help of professional staff responsible to him and his colleagues would promote fairness, quality, and efficiency over the “Amateur Night at the Bijou” atmosphere created by a biased, politicized, and totally incompetent Department of Justice and carried out by agency bureaucrats who aren’t judges themselves and are not qualified to administer a major court system.
Why not design a system “built for success” rather one that is built for failure and constant crisis? A well-functioning court system where “Due Process and Quality Are Job One” and which serves as a “level playing field” would actually help DHS Enforcement as well as the immigrants whose lives depend upon it.Fairness and Due Process are good for everyone. It’s also what our Constitution requires! Play the game fairly and professionally and let the chips fall where they may, rather than trying to “game the system” to tilt everything toward enforcement.
But, it’s not going to happen until either 1) Congress creates an independent U.S. Immigration Court, or 2) the Article III Courts finally step up to the plate, put an end to this travesty, remove the DOJ from its totally improper and unethical supervisory role, and place the Immigration Courts under a court-appointed “Special Master” to manage them with the goal of Due Process and judicial efficiency until Congress reorganizes them outside of the Executive Branch! Otherwise, the Article IIIs will have to do the job that Sessions won’t let the Immigration Courts perform!
Compare Judge Bryant’s professional performance with the “judicial meat processing plant/Due Process Denial Factory” being operated by U.S. Magistrate Judge Peter Ormsby on the Southern Border as described by Karen Tumulty of the Washington Post in my post from yesterday:
Who is the “real” judge here? It doesn’t take a “rocket scientist” to answer that one! Just some judges with the backbone, courage, and integrity not to “go along to get along” with Sessions’s assault on the integrity and independence of our justice system.
When Magistrate Judge Peter E. Ormsby stepped into the federal courtroom here Tuesday morning, 75 defendants rose to their feet.
Their ankles were shackled, and they wore headsets through which the proceedings would be translated into Spanish. In the hallway, just beyond the door, was a pile of handcuffs that had been removed before they entered the courtroom.
Most of the defendants appeared dressed in the same filthy, sweat-saturated clothes they had been wearing two days before, when they were apprehended crossing the Rio Grande aboard rafts.
In all but 11 of their cases, this criminal misdemeanor was the first time they had ever been found to have violated U.S. law.
Ormsby informed them his was not an immigration court. Many had already signed away their rights to further proceedings and had orders for what is known as “expedited removal.” They had done that before the 17 lawyers of the public defender’s office had met with any of them for the first time, just hours before.
The next two hours would see each one of them plead guilty and be sentenced, most to time already served.
With few exceptions, each case would be dealt with in under 75 seconds.
This was just the morning docket. It is what President Trump’s “zero tolerance” policy looks like here, where busloads of recently detained migrants roll up to the federal courthouse several times a day. Ormsby invited me and a handful of other observers there to sit in the jury box, because there was no room anywhere else.
The president contends that even this assembly-line version of justice is more than what those caught entering the country illegally should get.
“We cannot allow all of these people to invade our Country,” Trump tweeted Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
On that latter point, the president is correct — but it is for the reverse of the reasoning he offers. His zero-tolerance policy is putting even more stress on a legal system that already gives migrants far less than their day in court.
The outcome for many might be different if they had fuller access to the legal system, to which they are entitled in theory if not practice, and given an opportunity to make their case to stay in this country.
Trump has mocked proposals for adding to the number of immigration judges, who handle separate proceedings for those who want to remain.
“We have thousands of judges already,” he has claimed. That is incorrect. The number actually stands at fewer than 350 across the country. They are facing a backlog of more than 700,000 cases.
Just as critical as the scarcity of judges is the fact that so few migrants ever have a chance to consult an attorney.
Only about 14 percent of those who are detained have access to counsel, says American Bar Association President Hilarie Bass, who was here from Miami. She added that migrant adults with lawyers win slightly more than half their cases and get to stay in this country, while 9 out of 10 of those without representation lose and are deported.
For unaccompanied children, the disparity in outcomes is even greater. As Bass noted: “How can you ask a 12-year-old to walk into court and make a case for themselves?”
Under Trump’s zero-tolerance policy, more migrants are being prosecuted and deported on the border, rather than being sent to other parts of the country where they can await trial while staying with relatives or others who can take them in. That has compounded the challenge, because it adds to the backlog in this region and makes it more difficult for migrants to find lawyers.
In the current crisis, platoons of lawyers are arriving weekly to volunteer their services, but there are not nearly enough, says Kimi Jackson, director of the South Texas Pro Bono Asylum Representation Project. “What we need most here are Spanish-speaking immigration attorneys, particularly ones who can stay a little longer.” The need will remain for the foreseeable future, long after the journalists and cameras have moved on to the next story.
And even if help comes, it will be too late for most of those who appeared before Ormsby. As he worked his way through their cases, he expressed sympathy for the circumstances of poverty and violence that brought them from dangerous places in Honduras and El Salvador and Mexico to his courtroom. He wished them and their families well and urged them to go through the process of coming to the United States legally.
“Seeing the type of people you appear to be,” the magistrate added, “I hope that you will be successful with that.”
But everyone there knew that was a wish, and one unlikely to come true.
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Mostly first offenders who didn’t belong in criminal court anyway.
Why would nonviolent first offenders be shackled in court?
Anybody understand what they are pleading guilty to?
Everybody understand that they have a right to a full trial at which the Government would have to prove guilt?
Anybody understand what a port of entry is?
Anybody just looking for an officer to apply for asylum?
Anybody realize there are strong legal arguments that criminal sanctions can’t be invoked against good faith asylum seekers under international treaties to which the U.S. is party?
Anybody know the name of their court-appointed lawyer?
Anybody have a chance to speak with their lawyer in private in Spanish?
Anybody have a “know your rights” presentation about the immigration system?
Anybody know what a “credible fear” interview is, how to request one from the DHS, and how to get review of a denial?
Anybody know that asylum applicants who pass credible fear can request bond?
Anybody understand the consequences of a conviction?
Anybody pressured to plead guilty to get their kids back or get out of detention?
Anybody know how the asylum process works and how to apply?
Anybody know how important lawyers are for asylum seekers and how to get in touch with local pro bono lawyers?
Anybody separated from kids?
Anybody know that the Government has been ordered by a more conscientious Federal Judge to reunite families?
We’ll probably never know the answers, because that might have exceeded Judge Ormsby’s 75 second attention span and cut into his productivity stats.
I’ve commented before on the Judge Ormsby’s judicial performance (or lack thereof).
Judge Ormsby should be in line for a Jeff Sessions “Volume Is Everything — Due Process Is Nothing” award! He appears to be just the type of subservient judicial toady Trump & McConnell would love to have on the Supremes. And, I wouldn’t let the U.S. District Judges who are in charge of this judicial farce off the hook either.
Someday, the true history of the abuses of human values, human rights, and our Constitution now going on at our border under a White Nationalist regime will be written. And the “go along to get along” crowd will be held accountable for their conduct; by the judgment of history, if not by the law.
BALTIMORE, Md. ― Aracely Martinez Yanez, 33, knows she’s one of the lucky ones. A deep scar that carves a line through her scalp, from crown to cheek, is proof of that fortune.
She got lucky when her abusive partner shot her point-blank in the head, and she survived.
She got lucky when she escaped her tiny village in Honduras. Local villagers blamed her for her partner’s death; he killed himself and their two young sons after he shot her.
She got lucky when she wasn’t harmed as she made the treacherous 2,000-mile journey to America.
And she got luckiest of all when she was granted asylum after she got here.
If she were to make her journey to America now, she would likely be turned away. Last week, Attorney General Jeff Sessions ruled that immigration judges generally cannot consider domestic violence as grounds for asylum. Sessions overturned a precedent set during the Obama administration that allowed certain victims to seek asylum here if they were unable to get help in their home countries.
Domestic abuse of the kind experienced by Martinez Yanez is endemic in Central America. In Honduras, few services for victims exist, and perpetrators are almost never held criminally responsible. One woman is killed every 16 hours there, according to Honduras’ Center for Women’s Rights.
For many victims, the United States is their best shot at staying alive.
While the exact numbers are not available, immigration lawyers have estimated that the Trump administration’s decision could invalidate tens of thousands of pending asylum claims from women fleeing domestic violence. Advocates warn it will be used to turn women away at the border, even if they have credible asylum claims.
“This administration is trying to close the door to refugees,” said Archi Pyati, chief of policy at Tahirih Justice Center, a nonprofit organization that works with immigrant women and girls who have survived gender-based violence. They represented Martinez Yanez in her asylum case. Travel bans, increased detention and family separation are all being used as tools to deter individuals from coming here, Pyati said.
Still, that will not stop women from coming. Because there are thousands of women just like Martinez Yanez, and their stories are just as harrowing.
CHERYL DIAZ MEYER FOR HUFFPOST
Aracely Martinez Yanez is pictured with her three daughters: Alyson, 4, Emely, 11 and Gabriela, 7. She holds her only photograph of her murdered sons: Daniel, 4, and Juancito, 6.
A Violent Start
Martinez Yanez grew up in a tiny village in Honduras with her parents and seven siblings. Her family made a living by selling homemade horchata, a sweet drink made from milky rice, and jugo de marañon, cashew juice. They also sold fresh tortillas out of their house. Her childhood was simple and happy.
But after she turned 15, a man in her village named Sorto became obsessed with her. At her cousin’s wedding, he tried to dance with her. She pushed him off: He was 15 years her senior, and gave her the creeps. A few days later, Martinez Yanez said, he waited outside her house with a gun and kidnapped her. He took her to a mountain and raped her repeatedly.
“I wanted to die,” she told HuffPost through an interpreter at her home in Baltimore on Tuesday. “I felt dirty. He said that I was his woman, and that I would not belong to anyone else.” As she told her story, she rubbed her legs up and down, physically uncomfortable as she recalled the terrible things that had happened to her.
Over the next six years, she said, Sorto went on to rape and beat her whenever he pleased. In the eyes of the village, she was his woman, just like he said. She got pregnant immediately, giving birth to her first son, Juancito, at 16, and her second son, Daniel, at 18. Sorto would come and go from the village, as he had a wife and children in El Salvador. But when he wasn’t there, she said she was watched by his family.
As for help, there were no police in her village, she said. She had seen what happened to other women who traveled to the closest city to report abuse: It made things worse. The police did nothing, and the abuser would inevitably find out.
“I felt like I was worthless, like I had no value,” she said.
A few years after her sons were born, she became friends with a local barber who cut her children’s hair. He was sweet and respectful, nothing like Sorto, she said. They began a secret relationship. Sorto had been gone from the village for a few years, and Martinez Yanez hoped she was free of him. Then she got pregnant. Scared that Sorto would find out, she fled to San Pedro Sula, a city in the north of the country. She didn’t tell anyone where she had gone.
But Sorto found her anyway. He called her on the phone and told her if she did not come back to the village within the next 24 hours, he would kill her family, she said. Martinez Yanez got on the next bus back.
A few days after she returned, she said, Sorto told her that he was taking her and their two boys to the river. He brought a hunting rifle with him. The family walked through the mountainside. Martinez Yanez recalled handing her children some sticks to play with, and crouching on the ground with them. Then she felt the rifle pressing into her head. The rest is a blank.
Sorto shot her in the back of the head, and killed her two sons, before shooting himself. Juancito was 6, Daniel was 4. Somehow, Martinez Yanez, five months pregnant, survived. She was hospitalized for months and had to relearn to walk and talk. She is still deaf in one ear, and has numbness down one side of her body.
When she returned home to the village, she said, people threw rocks at her and called her names. Someone fired a gun into her house. Someone else tried to run her over with a bicycle. The community blamed her for the killings because she had tried to leave Sorto, she explained. His family wanted to avenge his death.
“The whole village was against me,” she said. “Children, adults. I couldn’t go anywhere by myself.”
A few months later she gave birth to a girl, Emely, but she was overwhelmed with stress. On top of grieving the death of her two sons, learning to live with a traumatic brain injury, and caring for her newborn, she was constantly worried about being killed by people in her village.
It was too much. She eventually fled to Tegucigalpa, the capital of Honduras, but Sorto’s family found her there too, she said. In a last-ditch effort to save Martinez Yanez’s life, her family paid over $7,000, an enormous sum for the family, to a coyote, a person who helps smuggle people across the border to the U.S. Emely, who was now 2, had to stay behind. They couldn’t afford to send her, too.
Martinez Yanez made the heartbreaking decision to go alone.
The Journey To Freedom
She left in the middle of the night, traveling with a group of four or five people. They were transported in a van for part of the trip, and then in taxis.
There was very little to eat or drink, she said, and she barely slept. Her stomach was upset and she suffered from debilitating headaches. In Mexico, she almost turned back.
“I missed my parents and my daughter so much,” she said. “But the threats and the conditions that I knew were waiting for me in my village gave me the motivation to continue to the U.S. to be safe.”
It took them two weeks to get to the U.S. border. Then they waited two days before attempting to cross, she said. She was terrified that she would be caught by immigration officials and sent back. She crossed the border illegally in February 2009, and went to her uncle’s house in Houston, Texas, before traveling on to Annapolis, Maryland, where her brother lived.
Women like Aracely are saving their own lives.Kristen Strain, a lawyer who worked on Martinez Yanez’s asylum case.
Martinez Yanez didn’t know that she could apply for asylum as a domestic violence victim until a few years later, when she sought medical care for her head injury in Maryland. There, she was referred to Tahirih Justice Center.
Kristen Strain, an attorney who worked on her case, wrote the legal brief arguing that Martinez Yanez should be granted asylum.
Generally, applicants must show that the persecution they have suffered is on account of one of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. Strain successfully argued that being a female victim of severe gender-based violence in Honduras counted as a particular social group for purposes of obtaining asylum.
“There simply aren’t laws in place that protect women like Aracely,” she said. “They have no recourse. It is accepted in their communities that women can be treated like men’s property.”
She said it took over a year to gather all the evidence for Martinez Yanez’s claim, which included a neurological evaluation, medical documents, news stories from Honduran papers about the shooting, dozens of interviews, and statements from friends and family in Honduras to corroborate her story.
“It is not as if it’s easy,” Strain said. “In addition to having to physically get here, which is harrowing and dangerous, women have to navigate a complex legal system that is difficult to understand, especially when they don’t speak the language. It’s hard for them to even know what their rights are, let alone find an attorney who can advocate for them.”
“Women like Aracely are saving their own lives,” she went on.
Martinez Yanez was granted asylum in 2013. Her daughter, Emely, was allowed to join her in 2014. While they talked on the phone regularly, the mother and daughter had not seen each other for five years.
CHERYL DIAZ MEYER FOR HUFFPOST
Martinez Yanez watches her daughters play outside the family’s Baltimore apartment.
A New Life
In her Baltimore home, more than 3,000 miles from the tiny village in Honduras where she was raised, Martinez Yanez likes to be surrounded by photos. They remind her of those she had to leave behind.
There’s one of her sister graduating college. Another of her parents beaming happily.
And then, hanging in the entrance to the kitchen, is a photograph of her with her two deceased sons. It is the only picture she owns of them. She brought it with her when she fled Honduras. When she spoke to HuffPost about her sons, she cried. She still doesn’t understand why they were killed.
Since she’s been in the U.S., Martinez Yanez has expanded her family. Emely, who is 11, now has two sisters: Gabriela, 7, and Alyson, 4.
“I’m very fortunate to be able to have my daughters with me,” she said. “I can’t ask for anything better to happen. I am so happy with my life.”
Martinez Yanez still struggles with the repercussions of being shot in the head. She is forgetful and can get confused easily. She said she has to put every appointment she has in her phone with an alarm, otherwise she’ll miss it.
She said she was grateful that she was granted asylum, and heartbroken for other women who may not have the same opportunity she did.
“I just feel so sad that other women in my situation, or even in worse situations than mine will not be allowed in the country anymore,” she said. “Here, I don’t have to hide or run away from anyone.”
********************************************
In my years at the Arlington Immigration Court, I had many well-documented, deserving cases like this. In those days, the ICE Office of Chief Counsel in Arlington followed the so-called “Martin Brief” in which DHS urged the BIA to recognize domestic violence as a proper basis for asylum under certain circumstances long before the BIA actually got around to deciding A-R-C-G-. Because the applicants were almost never held in detention, they were able to get top–flight pro bono representation from NGOs, Law School Clinics, Human Rights First, and “Big Law” Firms serving pro bono.
The cases were so well documented that they often could be “pre-tried” between counsel before the individual hearing date. The parties then often jointly asked me to set an earlier “short block hearing” (one hour or less) where the evidence could be introduced, discussed, and abbreviated testimony taken. At the end of those hearings, the parties jointly moved me for a grant of asylum.
So, without the interference of the DOJ politicos, here was an actual working system that helped get deserving cases granted and off the docket, conserved judicial resources, saved time, saved lives, and complied completely with Due Process. In other words, a smashing Immigration Court and U.S. system of justice “success story” by any rational measure!
That has all been disgracefully dismantled by Sessions. Now, following his perversion of the law in Matter of A-B-, He’s encouraging DHS and Immigration Judges to deny such cases without even hearing the testimony (even though every one of these individuals easily should qualify for the lesser relief of protection under the Convention Against Torture). That’s almost certain to result in appeals, prolonged litigation in the Courts of Appeals, and ultimately return of most cases to the Immigration Courts for full hearings and fair consideration.
At some point, not only is A-R-C-G- likely to be reinstated, but it is likely to be expanded to what is really the fundamental basis for these claims — gender as a qualifying “Particular Social Group.” It’s undeniably immutable/fundamental, particularized, socially distinct and clearly the basis for much of the persecution in today’s world!
In the meantime, however, those who don’t have the luxury of great pro bono representation, lack an attentive Circuit Court of Appeals, or who can’t get through the “credible fear interview” as it has now been “rigged for denial” by Sessions will likely be unlawfully returned to their home countries to suffer abuse, torture, and a lifetime of torment or death, along with those cute little kids in the pictures we’re seeing.
The White Nationalist, neo-Nazi regime of Trump, Sessions, and their enablers will be one of the most horrible and disgusting periods in our history. History will neither forget nor treat kindly those who failed to stand up to the racists and child abusers running and ruining our Government, and destroying many innocent lives in the process.
The events occurring now on our border with Mexico, where children are being removed from the arms of their mothers and fathers and sent to foster families or “shelters”, make me weep and gnash my teeth with sadness and rage. I know what they are going through. When we were children, my two siblings and I were also taken from our parents. And the problems we’ve experienced since then portend the terrible things that many of these children are bound to suffer.
My family was Jewish, living in 1942 in the Netherlands when the country was occupied by the Nazis. We children were sent into hiding, with foster families who risked arrest and death by taking us in. They protected us, they loved us, and we were extremely lucky to have survived the war and been well cared for.
Yet the lasting damage inflicted by that separation reverberates to this day, decades hence.
Have you heard the screams and seen the panic of a three-year-old when it has lost sight of its mother in a supermarket? That scream subsides when mother reappears around the end of the aisle.
This is my brother writing in recent years. He tries to deal with his lasting pain through memoir. It’s been 76 years, yet he revisits the separation obsessively. He still writes about it in the present tense:
In the first home I scream for six weeks. Then I am moved to another family, and I stop screaming. I give up. Nothing around me is known to me. All those around me are strangers. I have no past. I have no future. I have no identity. I am nowhere. I am frozen in fear. It is the only emotion I possess now. As a three-year-old child, I believe that I must have made some terrible mistake to have caused my known world to disappear. I spend the rest of my life trying desperately not to make another mistake.
My brother’s second foster family cared deeply about him and has kept in touch with him all these years. Even so, he is almost 80 years old now and is still trying to understand what made him the anxious and dysfunctional person he turned into as a child and has remained for the rest of his life: a man with charm and intelligence, yet who could never keep a job because of his inability to complete tasks. After all, if he persisted he might make a mistake again, and that would bring his world to another end.
My younger sister was separated from our parents at five. She had no understanding of what was going on and why she suddenly had to live with a strange set of adults. She suffered thereafter from lifelong, profound depression.
I was older: seven. I was more able than my siblings to understand what was happening and why. I spent most of the war with Dick and Ella Rijnders. Dick was mayor of a small, rural village, and he and Ella lived in a beautiful house next to a wide waterway. Ella had a warm smile and Dick referred to me as his “oldest daughter”. I was able to go to school normally, make friends, and became part of village life. I was extraordinarily lucky, but I was not with my own parents, sister, and brother. And, eventually, I also had to leave the Rijnders, my loving second “family”. I was returning to my own family, but this meant another separation.
In later life, I was never able to really settle down. I lived in different countries and was successful in work, but never able to form lasting relationships with partners. I never married. I almost forgot to mention my own anxiety and depression, and my many years in psychotherapy.
My grief and anger about today’s southern border come not just from my personal life. As a retired psychotherapist who has worked extensively with victims of childhood trauma, I know all too well what awaits many of the thousands of children, taken by our government at the border, who are now in “processing centers” and foster homes – no matter how decent and caring those places might be. We can expect thousands of lives to be damaged, for many years or for ever, by “zero tolerance”. We can expect old men and women, decades from now, still suffering, still remembering, still writing in the present tense.
What is happening in our own backyard today is as evil and criminal as what happened to me and my siblings as children in Nazi Europe. It needs to be stopped immediately.
This about race. It is no accident that virtually all of the separated parents and kids are Hispanic and the few others affected are almost all “of color.” We wouldn’t be having all this ruckus if the arrivals were White. Trump, Sessions, and Miller are White Nationalists in the “Bannon Mode.” Kelly and Nielsen have decided to come out of the closet and reveal their racist sympathies.
The harm is permanent. All experts say that the harm intentionally inflicted in these kids will be permanently disabling. More blogging on that later.
We’re sending these families to concentration camps masquerading as countries. Make no mistake about it, most of these folks are refugees fleeing persecution and torture at the hands of gangs and cartels that basically are the government in much of the Northern Triangle. Sessions & Trump have intentionally misconstrued the law, misrepresented facts, and violated Constitutional Due Process to artificially deny most of these individuals legal protections they deserve. Their return is likely to mean death, torture, a lifetime of abuse, extortion, rape, sexual enslavement, forced drug trafficking, or prostitution. Others will be forcibly impressed into a life of serving the gangs because we have turned our collective backs on them. Inhumanity is inhumanity; it’s only a matter of degree. And, that the Nazis were even worse in no way makes any difference to those we are sentencing to death, torture, or a lifetime of abuse. Dead is dead. Tortured is tortured. Decapitated is functionally the same as shot or gassed.
Sessions keeps parroting that misdemeanor unlawful entry “isn’t a victimless crime.” Perhaps he’s right. The “victims” here are the migrants and their families seeking to exercise legal rights to apply for asylum. The “criminals” are Sessions, Trump, Nielsen, Miller, Kelly and other Administration hard liners who engage in child abuse rather than protection. And, they lie about what and why they are doing it. Who will eventually bring the real criminals to justice?
Those looking for legal analysis should read no further. The following is a cry from the heart.
The respondent’s personal nightmare began the year after her marriage. For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.
It is most apt that Donald Trump became president by beating a woman. His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.
“The violence inflicted on [her] took many forms. Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant. He raped her on countless occasions.”
On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.
Sessions’ action was shockingly tone deaf. As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern. Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.” The year after Solnit wrote those words, our Department of Justice took a step in the right direction. In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.
“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.” The above were supported by sworn statements provided by the respondents’ neighbors.
It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women. #MeToo is a true civil rights movement, one that is so very long overdue. In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace. It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group. When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law. No one has appealed or challenged that determination in the four years since. Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?
The respondent’s “husband controlled, humiliated, and isolated her from others. He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’ He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’ When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”
Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come. As with Wallace and the Civil Rights Movement, justice will eventually prevail. But now as then, people deserving of his protection will die in the interim.
“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals. He also beat their children in front of her, causing her serious psychological damage.”
The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference. There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations. Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people. But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”
Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?
The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her. She does not believe there is anywhere” in her country “she could find safety.
Victims of domestic violence will continue to file applications for asylum. They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision. Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.
The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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