Populism – Page 6 – immigrationcourtside.com

WASHPOST CALLS OUT TRUMP’S RACIST ATTACKS ON MIGRANTS: “This is Trumpism at its ugliest: turning truth on its head; vilifying the “other”; sowing hatred and fear. It is un-American at its core; it’s also the president’s stock in trade.”

https://www.washingtonpost.com/opinions/unauthorized-immigrants-are-overwhelmingly-law-abiding-but-it-wont-stop-trump/2019/06/02/5f4f696a-8193-11e9-bce7-40b4105f7ca0_story.html

The Post Editorial Board writes:

UNDER THE Trump administration, deportation agents have arrested unauthorized immigrants with no criminal records at more than three times the rate they were arrested during the final two years of the Obama administration. That may be surprising given the White House’s relentless and sweeping characterization of such migrants as dangerous criminals, gang members and, in the president’s own words, “bad hombres.”

Or maybe not so surprising. Multiple studies have shown that immigrants generally commit crimes at a lower rate than native-born Americans. New data — the most comprehensive to date — suggest there is also no correlation between illegal immigrants and higher crime rates. Notwithstanding the president’s inflammatory rhetoric, most undocumented immigrants are law-abiding, which may help explain the growing percentage of those picked up by Immigration and Customs Enforcement agents who have no crime on their records.

The new data come from studies undertaken by the Pew Research Center and the Marshall Project, both nonpartisan outfits. Crunching the numbers, Pew broke down changes in the number of unauthorized immigrants in each of some 180 metropolitan areas in the decade that ended in 2016. Using those figures and places, the Marshall Project compared them with local rates of violent and property crime from the Uniform Crime Reporting program, published by the FBI.

The results showed that crime declined in the large majority of those metro areas, as it has for more than 20 years throughout the United States generally, whether the number of undocumented migrants increased or decreased in a particular place. Anna Flagg, a senior data reporter for the Marshall Project, wrote that “changes in undocumented populations had little or no effect on crime in the various metro areas under survey.” There was some data, albeit inconclusive, suggesting that crime fell even more in places with greater numbers of illegal immigrants.

As is often the case, the facts fly in the face of the Trump administration’s agenda, which is to convince Americans that undocumented migrants are a frightening threat. Nonetheless, the new data dovetail with several previous studies — from the libertarian Cato Institute; from Governing Magazine; and from Criminology, an academic journal — that also show no correlation between unauthorized immigration and crime rates. As The Post’s Fact Checker, Glenn Kessler, wrote this year, “the available research indicates that, when compared to U.S. citizens, illegal immigrants commit fewer crimes.”

By bending the data — or, in this case, ignoring facts to suit their own cynical political narrative — Trump administration officials have engaged in demagoguery and scare tactics, the better to whip up xenophobic hysteria. President Trump himself has made it clear he believes that strategy was critical to his electoral success in 2016; there is every indication he will revive and amplify it in the 2020 cycle.

This is Trumpism at its ugliest: turning truth on its head; vilifying the “other”; sowing hatred and fear. It is un-American at its core; it’s also the president’s stock in trade.

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White Nationalism and racism won’t resolve immigration issues. There is a pretty good socio-economic argument that much of Trump’s overblown, expensive, arbitrary, and capricious civil enforcement of immigration laws does more harm than good, removing productive members of our communities and often leaving unnecessary pain and suffering behind. Not too mention tying up public and private resources that could better be spent on things more beneficial to society.

PWS

06-04-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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PWS

05-20-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them; illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the “best ever.” I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University. In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, what’s the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

WELCOME TO FRANZ KAFKA’S AMERICA: Where Individuals Are Imprisoned Indefinitely In Substandard Conditions Without Trial For The “Crime” Of Asking For Protection Under Our Legal Process — The Objective: Coerce Them To Stop Asking For The Benefits Our Law Offers & Demoralize Them To The Point Where They Would Rather Be Killed Or Tortured Than To Proceed With Their Legal Cases!

https://apple.news/ADUUhY0-QSR6JBMSznV322A

Professor Stacy Burstin writes in USA Today:

I toured an immigration detention center. The prison-like atmosphere was mind-numbing.

Immigration detention is supposed to be a temporary stop — not an endless jail sentence with the goal of causing migrants to self-deport.

4:00 am EDT May. 16, 2019

Immigration detention is supposed to be a temporary stop, not a prison. But what else can one call a place with razor wire covered fences, holding cells, head counts, locked dormitories, solitary confinement, limited recreation, inadequate mental health services and no-contact visits?

While visiting the New Mexico border area as volunteers with Catholic Charities Immigration Legal Services of Southern New Mexico in March, a group of undergraduates, three law students, a campus minister and I toured the Otero County Processing Center. Management & Training Corp. (MTC) runs the facility for the federal Immigration and Customs Enforcement service.

A smiling ICE officer greeted us at the start of our visit, explaining that ICE likes giving tours of Otero to dispel criticisms circulating about immigration detention.

Inside an immigration detention center

Our first stop was the count room dominated by a large board covered with more than 900 colored tags on hooks — mostly blue and orange — representing the detainee population and designating the level of security and privileges afforded based on jumpsuit color. “Blues” have no known criminal history and simply entered the United States without papers. “Oranges” are divided into two groups — individuals who have a history of very minor crimes such as public intoxication, and those arrested for or convicted of other nonviolent crimes. “Reds” have arrests, convictions or other history involving violent activity.

Read more commentary:

My Sharpie marker might be the only thing keeping migrant mothers and children together

An illegal immigrant killed my daughter. Trump’s right — we must complete the border wall.

Stories from the border: The women asylum seekers I met need protection, not barriers

In the intake area, we found newly arrived men lingering in a large holding cell behind a locked, metal door waiting to be processed. A security officer explained the intake procedure, but it was hard for me to focus on his words because I couldn’t take my eyes off the mountain of duffel bags and backpacks full of their belongings piled next to a shower room. I later learned that same image haunted my students.

We passed through the medical unit where individuals receive basic medical care. Those with more serious conditions, we were told, are sent outside of the facility. Our guides told us that a psychiatrist visits once a month to oversee medication, and one full-time counselor is available for the 900 or more detainees. There is a small room where detainees deemed suicidal are watched.

Our guides also brought us into one of the dorms — locked housing where 50 men sleep on thin mattresses in rows of bunk beds. I was overcome with a sense of time standing still; boredom pervaded the room. Despite MTC’s commitment to “provide an atmosphere that is comfortable, safe, and conducive to making time pass quickly for those who find themselves in our care,” individuals are limited to two hours of recreation a day.

One of the students asked whether English classes are offered. Our guide replied that they are working on it, that such programs have not been instituted because those at Otero only stay for six to eight weeks. But we met detainees who reported being there for six to eight months or more.

The blues and oranges able to secure a job in the facility (only four of the 50 men in the dorm we visited were working at the time) earn at least $1 a day, the ICE-stipulated minimum wage. I couldn’t help but wonder whether the detainees we saw raking the grounds, mopping hallways, doing laundry or preparing food allowed MTC to meet its labor needs without actually paying for them.

A glimpse through a narrow window revealed the Secured Housing Unit — the solitary confinement block — a row of small cells where individuals causing problems are sent. Men who are vulnerable to bullying or abuse (including transgender women) can also request a move here for protection, though they would have to be pretty desperate to do so.

Immigrants need asylum, not imprisonment

Facilities like Otero are not supposed to be prisons. Most ICE detainees have not been convicted of any crime. For many others, they are detained even though a U.S. court had dismissed charges, authorized release while awaiting trial, or convicted and imposed a minimal sentence already served.

None of these men belong in jail.

Yet the realization that we were in a jail only intensified at our last stop — the visiting area. We found a large glass window running the length of a long table, seats placed on either side. Detainees are kept separate from loved ones and communicate by phone.

Immigration detention is supposed to be a temporary stop for individuals seeking a determination of whether they have a legal basis for staying in the United States. Yet many at Otero are eligible to apply for asylum and other forms of humanitarian protection.

Why are U.S. taxpayers paying a private company to provide housing, food and 24/7 security for individuals, the majority of whom pose no security threat and have a right under U.S. law to seek protection?

Why are these men consigned to live in a mind-numbing, prison-like atmosphere that leads many — in Otero and similar facilities around the country — to become so desperate to get out that they abandon valid claims and self-deport?

Unfortunately, my students and I came to the troubling conclusion that this desperation is not just the inevitable result of immigration confinement, but may actually be the goal in the first place.

Stacy Brustin, professor of law, is director of the Immigrant and Refugee Advocacy Clinic at The Catholic University of America Columbus School of Law in Washington, D.C.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

4:00 am EDT May. 16, 2019

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In the final “Kafkaesque” twist, perhaps Trump’s “maliciously incompetent” immigration policies will simply convince individuals needing refuge that our legal system is as worthless and dishonest as the ones they are leaving behind.

For the right price and degree of risk (and refugees are by nature risk takers) smugglers will be able to eventually get persistent individuals to the interior. There, as I have pointed out, their chances of avoiding forced removal will be much better than their odds of getting asylum in an unfairly biased, increasingly lawless system that uses illegal coercive methods and is stacked against their claims, no matter how valid or compelling.

Right now these folks are NOT a security risk, no matter what lies Trump and the restrictionists spread. A smart, humane, competent, and law-abiding Administration would simply encourage them to arrive at ports of entry, promptly screen them, apply the asylum laws in the generous way that they were intended, integrate those granted (probably the majority, under a fair, generous application of the law, in accordance with Cardoza-Fonseca) into our society, and return those who do not qualify after full due process in a humane and dignified manner.

Why would folks cross the border between ports of entry to turn themselves in to the Border Patrol if they could present themselves at a border port and be treated promptly, humanely, and fairly? That’s what would actually give us a secure border as well as many grateful, productive new residents who will help the U.S. It would also promptly separate out those who clearly can’t qualify for protection before they establish ties to the U.S.

With a smarter, common-sense approach to the Immigration Courts, universal access to counsel, and better, more professional, judges who were actually well-trained in recognizing and granting meritorious asylum cases (and not expected to function as a “Border Patrol junior auxiliary”), asylum cases could be completed in compliance with full Due Process in months, rather than years. The Border Patrol could go back to real law enforcement, which they are largely ignoring right now in a rush to do Trump’s bidding.

Instead, Trump seems determined to create a situation where many will die, smugglers will get richer, but more individuals will get to the interior where they will live, unscreened and perhaps exploited, but alive, as part of a growing “underground” or “immigration black market.” The Border Patrol won’t even be able to count them or “arrest” (arguably an inappropriate term for
“turn ins”) them as they do now to support their bogus claims of a “law enforcement emergency.” This self-created “emergency” — actually a humanitarian tragedy —has little to do with legitimate law enforcement. How maliciously incompetent can one Administration get?

And, no, “Trump’s Big Beautiful Wall” won’t stop professional smugglers! They are already laughing at his ineptness and anxiously waiting to see how his next nativist-driven dumb policy will improve their business and fill their coffers. The dumbest smuggler is probably smarter than Trump, and much less dangerous to America.

PWS

05-17-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
2
AILA Doc. No. 19051438. (Posted 5/14/19)

corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
3
AILA Doc. No. 19051438. (Posted 5/14/19)

6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
4
AILA Doc. No. 19051438. (Posted 5/14/19)

33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
5
AILA Doc. No. 19051438. (Posted 5/14/19)

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Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

COURTSIDE HISTORY: BEYOND TRUMP’S MYTHICAL “WHITE NATIONALIST NATION” LET’S SEE WHO BESIDES ENSLAVED AFRICAN AMERICAN FORCED MIGRANTS DID THE WORK THAT MADE AMERICA GREAT — The Essential Role Of Despised Chinese Immigrants! — “Chinese workers were often left out of the official story because their alienage and suffering did not fit well with celebration. . . .Without them, Leland Stanford would probably be at best a footnote in history — and the West and the United States would not exist as we know it today.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=258d1f6b-0c42-4c29-925d-a144ec4f47b1

Professor Gordon Chang of Stanford University writes in the LA Times:

Immigrants got the job done

History finally has its eyes on Chinese laborers who built transcontinental railroad’s western leg

By Gordon H. Chang

The nation’s first transcontinental railroad, completed 150 years ago today at Promontory Summit in Utah, connected the vast United States and brought America into the modern age. Chinese immigrants contributed mightily to this feat, but the historical accounts that first transcontinental followed often marginalized their role.

Between 1863 and 1869, as many as 20,000 Chinese workers helped build the treacherous western portion of the railroad, a winding ribbon of track known as the Central Pacific that began in Sacramento.

At first, the Central Pacific Railroad’s directors wanted a whites-only workforce. Leland Stanford, the railroad’s president, had advocated for keeping Asians out of the state in his 1862 inaugural address as governor of California. When not enough white men signed up, the railroad began hiring Chinese men for the backbreaking labor. No women worked on the line.

Company leaders were skeptical of the new recruits’ ability to do the work, but the Chinese laborers proved themselves more than capable — and the railroad barons came to consider them superior to the other workers.

My colleagues and I initiated an international research project — based, appropriately, at Stanford University — to investigate the enormous contribution Chinese workers made to the transcontinental project. It proved to be a formidable task, not least because no written record produced by what were called “railroad Chinese” is known to exist. Without letters, diaries and other primary sources that are historians’ stock in trade, we amassed a sizable collection of evidence that included archaeological findings, ship manifests, payroll records, photographs and observers’ accounts.

The material allowed us to recover a sense of the lived experiences of the thousands of Chinese migrants Leland Stanford came to greatly admire. He told President Andrew Johnson that the Chinese were indispensable to building the railroad: They were “quiet, peaceable, patient, industrious and economical.” In a stockholder report, Stanford described construction as a “herculean task” and said it had been accomplished thanks to the Chinese, who made up 90% of the Central Pacific Railroad’s labor force.

These workers showed their mettle, and sealed their legacy, on the peaks of the Sierra Nevada. Many observers at the time had assumed that Stanford and the railroad were daft for thinking they could link California with the East because an immense mountain range separated the state from Nevada and beyond. The Sierra Nevada is a rugged, formidable range, its inhospitableness encapsulated by the gruesome tragedy of the Donner party in 1847 and 1848. Trapped by winter storms in the mountains, they resorted to cannibalism.

To get to the High Sierra, Chinese workers cut through dense forests, filled deep ravines, constructed long trestles and built enormous retaining walls — some of which remain intact today. All work was done by hand using carts, shovels and picks but no machinery.

The greatest challenge was to push the line through the Sierra summit. Solid granite peaks soared to 14,000 feet in elevation. The railroad bed snaked through passes at more than 7,000 feet. The men who came from humid south China labored through two of the worst winters on record, surviving in caverns dug beneath the snow.

They blasted out 15 tunnels, the longest nearly 1,700 feet. To speed up the carving of the tunnels, the Chinese laborers worked from several directions. After opening portals along the rock face on either side of the mountain, they dug an 80-foot shaft down to the estimated midway point. From there, they carved out toward the portals, doubling the rate of progress by tunneling from both sides. It still took two years to accomplish the task.

The Chinese workers were paid 30% to 50% less than their white counterparts and were given the most dangerous work. In June 1867, they protested. Three-thousand workers along the railroad route went on strike, demanding wage parity, better working conditions and shorter hours. At the time it was the largest worker action in American history. The railroad refused to negotiate but eventually raised the Chinese workers’ pay, though not to parity.

After the Sierra, the Chinese workers faced the blistering heat of the Nevada and Utah deserts, yet they drove ahead at an astonishing rate.

As they approached the meeting point with the Union Pacific, thousands of them laid down a phenomenal 10 miles of track in less than 24 hours, a record that has never been equaled. A Civil War officer who witnessed the drama declared that the Chinese were “just like an army marching over the ground and leaving the track behind.”

Progress came at great cost: Many Chinese laborers died along the Central Pacific route. The company kept no records of deaths. But soon after the line was completed, Chinese civic organizations retrieved an estimated 1,200 bodies along the route and sent them home to China for burial.

The transcontinental railroad’s completion allowed travelers to journey across the country in a week — a trip that had previously taken more than a month. Politicians pointed to the achievement as they declared the United States the leading nation of the world.

The transcontinental railroad has been viewed in a similarly nationalistic way ever since. Chinese workers were often left out of the official story because their alienage and suffering did not fit well with celebration. And attitudes toward them soon soured, with anti-Chinese riots sweeping the country. The Chinese Exclusion Act of 1882 barred Chinese laborers from entering the United States and placed restrictions on those already here.

Federal immigration law prohibited Chinese citizens from becoming Americans until 1943.

As a faculty member of the university that bears his name, I am painfully aware that Leland Stanford became one of the world’s richest men by using Chinese labor. But I also try to remember that Stanford University exists because of those Chinese workers. Without them, Leland Stanford would probably be at best a footnote in history — and the West and the United States would not exist as we know it today.

Gordon H. Chang is a professor of history at Stanford University.

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

Sometimes, it takes too long. Often, the “real heroes” die unrecognized (like the more than 1,200 Chinese workers mentioned in this article or the many anonymous enslaved African-Americans whose uncompensated labor and ingenuity “propped up” at least five of our first seven Presdients) long before justice comes. And, frequently, the flawed folks who were wrongly acclaimed “popular heroes” of their day escape judgement within their lifetimes.

But, history has a way of eventually “getting it right.” Trump and his misguided followers eventually will be in for a reckoning.

It won’t be pretty. Once the subpoenas can’t be ignored, the testimony perjured, the innumerable lies, intentional misrepresentations, and squalid distortions presented as “business as normal,” and the full historical record becomes available for study and analysis, free from the political hoopla of the present, it will be much, much worse than we can possibly imagine. The true unpalatable nature of Trump and his enablers will be revealed for some future generations. And, those who stood against them and their racism, greed, dishonesty, and cruelty will be vindicated.

PWS

05-10-19

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

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

Aaron’s Blake reports for the Washington Post:

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

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

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

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

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

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

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

[The surge in migrants seeking asylum, explained]

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

05-01-19

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

https://apple.news/A1erR6RRPRnyc6GVYdS2PAw

Eric Levitz writes in NY Magazine:

PRESIDENT TRUMP

Trump Wants America to Stop Enforcing Its Immigration Laws

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

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

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

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

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

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

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

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

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

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

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

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

Duh!

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

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

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

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

PWS

04-19-19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yup!

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

PWS

04-18-19

JULIAN CASTRO: A Democrat With A Sane & Sound Immigration Plan!

https://www.julianforthefuture.com/news-events/people-first-immigration-policy/

People First Immigration Policy

By Julián Castro on April 2, 2019

People First Immigration Policy

Immigration Policy Summary

1. Reforming our Immigration System

Establish an inclusive roadmap to citizenship for undocumented individuals and families who do not have a current pathway to legal status, but who live, work, and raise families in communities throughout the United States.

Provide a pathway to citizenship for Dreamers and those under Temporary Protected Status and Deferred Enforced Departure, through the Dream and Promise Act of 2019, and defend DACA and TPS protections during the legislative process.

Revamp the visa system and strengthen family reunification through the Reuniting Families Act, reducing the number of people who are waiting to reunite with their families but are stuck in the bureaucratic backlog.

Terminate the three and ten year bars, which require undocumented individuals—who otherwise qualify for legal status—to leave the United States and their families behind for years before becoming citizens.

Rescind Trump’s discriminatory Muslim and Refugee Ban, other harmful immigration-related executive orders, racial profiling of minority communities, and expanded use of denaturalization as a frequently used course of action through the USCIS Denaturalization Task Force.

Increase refugee admissions, reversing cuts under Trump, and restoring our nation to its historic position as a moral leader providing a safe haven for those fleeing persecution, violence, disaster, and despair. Adapt these programs to account for new global challenges like climate change.

End cooperation agreements under Section 287(g) of the Immigration and Nationality Act and other such agreements between federal immigration enforcement agencies and state and local entities that erode trust between communities and local police.

Allow all deported veterans who honorably served in the armed forces of the United States to return to the United States and end the practice of deporting such veterans.

Strengthen labor protections for skilled and unskilled guest workers and end exploitative practices which hurt residents and guest workers, provide work authorization to spouses of participating individuals, and ensured skilled and unskilled guest workers have a fair opportunity to become residents and citizens through the Agricultural Worker Program Act.

Protect victims of domestic violence, sexual assault, and human trafficking, ensuring these individuals are not subject to detention, deportation, or legal reprisal following their reporting these incidents.

2. Creating a Humane Border Policy

Repeal Section 1325 of Immigration and Nationality Act, which applies a criminal, rather than civil, violation to people apprehended when entering the United States. This provision has allowed for separation of children and families at our border, the large scale detention of tens of thousands of families, and has deterred migrants from turning themselves in to an immigration official within our borders. The widespread detention of these individuals and families at our border has overburdened our justice system, been ineffective at deterring migration, and has cost our government billions of dollars.

Effectively end the use of detention in conducting immigration enforcement, except in serious cases.Utilize cost-effective and more humane alternatives to detention, which draw on the successes of prior efforts like the Family Case Management Program. Ensure all individuals have access to a bond hearing and that vulnerable populations, including children, pregnant women, and members of the LGBTQ community are not placed in civil detention.

Eliminate the for-profit immigration detention and prison industry, which monetizes the detention of migrants and children.

End immigration enforcement raids at or near sensitive locations such as schools, hospitals, churches, and courthouses.

Reconstitute the U.S. Immigration and Custom Enforcement (ICE) by splitting the agency in half and re-assigning enforcement functions within the Enforcement and Removal Operations to other agencies, including the Department of Justice. There must be a thorough investigation of ICE, Customs and Border Protection, and the Department of Justice’s role in family separation policies instituted by the Trump administration.

Reprioritize Customs and Border Protection (CBP) to focus its efforts on border-related activities including drug and human trafficking, rather than law enforcement activities in the interior of the United States. Extend Department of Justice civil rights jurisdiction to CBP, and adopt best practices employed in law enforcement, including body-worn cameras and strong accountability policies.

End wasteful, ineffective and invasive border wall construction and consult with border communities about repairing environmental and other damage already done.
Properly equip our ports of entry, investing in infrastructure, staff, and technology to process claims and prevent human and drug trafficking.

End asylum “metering” and the ‘Remain in Mexico’ policy, ensuring all asylum seekers are able to present their claims to U.S.officials.

Create a well-resourced and independent immigration court system under Article 1 of the Constitution, outside the Department of Justice, to increase the hiring and retention of independent judges to adjudicate immigration claims faster.

Increase access to legal assistance for individuals and families presenting asylum claims, ensuring individuals understand their rights and are able to make an informed and accurate request for asylum. Guarantee counsel for all children in the immigration enforcement system.

Protect victims of domestic and gang violence, by reversing guidance by Attorney General Jeff Sessions that prohibited asylum claims on the basis of credible fear stemming from domestic or gang violence.

3. Establishing a 21st Century ‘Marshall Plan’ for Central America

Prioritize high-level diplomacy with our neighbors in Latin America, a region where challenges in governance and economic development have consequences to migration to the United States, U.S. economic growth, and regional instability.

Ensure higher standards of governance, transparency, rule-of-law, and anti-corruption practice as the heart of U.S. engagement with Central America, rejecting the idea that regional stability requires overlooking authoritarian actions.

Enlist all actors in Central America to be part of the solution by restoring U.S. credibility on corruption and transparency and encouraging private sector, civil society, and local governments to work together – rather than at cross purposes – to build sustainable, equitable societies.

Bolster economic development, superior labor rights, and environmentally sustainable jobs, allowing individuals to build a life in their communities rather than make a dangerous journey leaving their homes.

Ensure regional partners are part of the solution by working with countries in the Western Hemisphere to channel resources to address development challenges in Central America, including through a newly constituted multilateral development fund focused on sustainable and inclusive economic growth in Central America.

Target illicit networks and transnational criminal organizations through law enforcement actions and sanctions mechanisms to eliminate their ability to raise revenue from illegal activities like human and drug trafficking and public corruption.

Re-establish the Central American Minors program, which allows individuals in the United States to petition for their minor children residing in Central America to apply for resettlement in the U.S. while their applications are pending.

Increase funding for bottom-up development and violence prevention programs, including the Inter-American Foundation, to spur initiatives that prevent violence at the local level, support public health and nutrition, and partner with the private sector to create jobs.

Finally a thoughtful, empirically-based, plan that stops wasting money, harming people, and limiting America’s future: Moving us forward rather than “doubling down” on all of the worst failures and most dismal mistakes of the past.

Castro’s plan echoes many of the ideas I have been promoting on immigrationcourtside.com and reflects the “battle plan” of the “New Due Process Army.” Most important, it establishes an independent Article I U.S. Immigration Court, the key to making any reforms effective and bringing back the essential emphasis on fulfilling our Constitutional requirement to “guarantee fairness and Due Process for all.”

While stopping short of recommending “universal representation,” something I would favor, Castro does:

Recognize the importance of increasing, rather than intentionally limiting access to counsel;
Promote “know your rights” presentations that help individuals understand the system, its requirements, their responsibilities, and to make informed decisions about how to proceed; and
Universal representation for children in Immigration Court (thus, finally ending one of the most grotesque “Due Process Farces” in modern U.S. legal history).

So far, Castro remains “below the radar” in the overcrowded race to be the 2020 Democratic standard-bearer. But, even if his presidential campaign fails to “catch fire” his thoughtful, humane, practical, and forward-looking immigration agenda deserves attention and emulation.

Many thanks to Nolan Rappaport for passing this along.

PWS

04-03-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges

Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution. The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century. America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef. The mother cuts the ends off the roast before she puts it in the oven. The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today. Circumstances change. Sometimes we need to reconsider assumptions and realign our practices to achieve our goals. The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting. But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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

There were a few good things about Rosenstein’s presentation:

As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ. He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d85e48a2-1a59-4182-854b-dfd9a146177c

TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.

And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.

Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.

For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.

But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.

The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.

More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.

The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.

More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1cbd9b3d-f2d0-4249-b602-37223ff3f407

The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.

ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.

Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”

The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.

The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.

Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.

The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.

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Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”

First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.

Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.

Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.

No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.

While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.

PWS

03-07-19

WORLD ECONOMIC FORUM: GOOD NEWS: Migration Is Good For The World, Sending & Receiving Countries Benefit, & The Oft-Repeated Myths Of Fiscal Burdens & Wage Depression For “Host Countries” Are False — BAD NEWS: Countries With Nationalistic Leaders Who Are “Invested In The Myths” Are Unlikely To Realize The Full Potential Of Migration

https://www.project-syndicate.org/commentary/global-compact-opposition-migration-development-by-mahmoud-mohieldin-and-dilip-ratha-2019-02

On December 19, 2018, the United Nations General Assembly voted to adopt the Global Compact for Safe, Orderly and Regular Migration, with 152 votes in favor, five votes against, and 12 abstentions. Supporters hailed the Compact as a step toward more humane and orderly management of migration, yet opposition remains formidable.

The Compact is not a legally binding treaty, nor does it guarantee new rights for migrants. In fact, the Compact’s 23 objectives were drafted on the basis of two years of inclusive discussions and six rounds of negotiations, focused specifically on creating a framework for international cooperation that would not interfere excessively in countries’ domestic affairs.

Because of misunderstandings about the Compact, it is worth taking a closer look at the migration challenge – and the vast benefits that a well-managed system can bring to host countries and home countries alike.

Migration is motivated, first and foremost, by lack of economic opportunities at home. With the average income level in high-income countries more than 70 times higher than in low-income countries, it is not surprising that many in the developing world feel compelled to try their luck elsewhere.

This trend is reinforced by demographic shifts. As high-income countries face population aging, many lower-income countries have burgeoning working-age and youth populations. Technological disruption is also putting pressure on labor markets. Moreover, climate change, as indicated by a recent World Bank report, will accelerate the trend, by driving an estimated 140 million people from their homes in the coming decades.

But, contrary to popular belief, nearly half of all migrants do not move from developing to developed countries. Rather, they migrate among developing countries, often within the same neighborhood.

Moreover, return migration is increasing, a fact that is often overlooked, often because migrants were denied entry into the labor market or their work contracts ended. For example, the number of newly registered South Asian workers in the Gulf states declined significantly – by anywhere from 12% to 41% – over the last two years. Between 2011 and 2017, the number of potential returnees in Europe – asylum-seekers whose applications were rejected or who were found to be undocumented – increased fourfold, reaching 5.5 million. Over the same period, the number of potential returnees in the United States more than doubled, to over three million. Return migration from Saudi Arabia and South Africa has increased as well.

Those migrants who remain in their host countries make substantial contributions. Although the world’s estimated 266 million migrants comprise only about 3.4% of the global population, they contribute more that 9% of GDP.

To achieve this, migrants must overcome high barriers to economic success. For example, unskilled workers, especially those from poor countries, often pay very high fees – which can exceed an entire year’s income for a migrant worker in some destination countries – to unscrupulous labor agents to find employment outside their own countries. That is why the Sustainable Development Goals (SDGs) include a target to reduce recruitment costs.

Migration also delivers major economic benefits to home countries. While migrants spend most of their wages in their host countries – boosting demand there – they also tend to send money to support families back home. Such remittances have been known to exceed official development assistance. Last year, remittances to low- and middle-income countries increased by 11%, reaching $528 billion, exceeding those countries’ inflows of foreign direct investment.

Globally, the largest recipient of remittances is India ($80 billion), followed by China, the Philippines, Mexico, and Egypt. As a share of GDP, the largest recipients were Tonga, Kyrgyzstan, Tajikistan, and Nepal. The increase in remittances during 2018 was due to improvement in the labor market in the US and the recovery of flows from Russia and the Gulf States.

But the potential of remittances to support sustainable development is not being met. A major obstacle is the high cost of transferring money.

Migrants sending money home pay, on average, 7% of the total of the transfer itself, owing to weak competition in the market for remittance services – a result of stringent regulations intended to combat financial crimes like money laundering – as well as reliance on inefficient technology. Achieving the SDG target of reducing transfer costs below 3% – which would support progress toward the target of increasing the total volume of remittances – will require countries to address these weaknesses.

We are closely monitoring these often-overlooked ways that migration can support development, owing to their links to SDG indicators. But recent research busts other migration myths as well, showing, for example, that migrants neither impose a significant fiscal burden on host countries nor depress wages for lower-skill native workers.

Migration flows are increasing – a trend that is set to continue. Fragmented migration policies shaped by popular myths cannot manage this process effectively, much less seize the opportunities to spur development that migration creates. Only a coordinated approach, as envisioned in the Global Compact, can do that.

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Written by

Mahmoud Mohieldin, Corporate Secretary, World Bank

Dilip Ratha, Manager of Migration and Remittances, Development Prospects Group of the World Bank

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Needless to say, the Trump Administration has rejected the Global Compact out of hand, as an “infringement on sovereignty,” and takes a unilateral “America first, last, and always, who cares about anyone else” approach to migration issues.

These authors speak a “core truth:”

Migration flows are increasing – a trend that is set to continue. Fragmented migration policies shaped by popular myths cannot manage this process effectively, much less seize the opportunities to spur development that migration creates. Only a coordinated approach, as envisioned in the Global Compact, can do that.

That’s why “regime change” will be essential for the U.S. to take full advantage of the benefits of migration and for our country to regain its leadership role on the world stage.

PWS

03-06-19

BIPARTISAN GROUP OF 58 NATIONAL SECURITY EXPERTS “CALLS B.S.” ON TRUMP’S BOGUS NATIONAL EMERGENCY!

https://www.washingtonpost.com/world/national-security/former-senior-national-security-officials-to-issue-declaration-on-national-emergency/2019/02/24/3e4908c6-3859-11e9-a2cd-307b06d0257b_story.html

Ellen Nakashima writes in the Washington Post:

A bipartisan group of 58 former senior national security officials issued a statement Monday saying that “there is no factual basis” for President Trump’s proclamation of a national emergency to build a wall on the U.S.-Mexico border.

The joint statement, whose signatories include former secretary of state Madeleine Albright and former defense secretary Chuck Hagel, comes a day before the House is expected to vote on a resolution to block Trump’s Feb. 15 declaration.

[Read the letter: Former national security officials dispute Trump’s emergency declaration]

The former officials’ statement, which will be entered into the Congressional Record, is intended to support lawsuitsand other actions challenging the national emergency proclamation and to force the administration to set forth the legal and factual basis for it.

“Under no plausible assessment of the evidence is there a national emergency today that entitles the president to tap into funds appropriated for other purposes to build a wall at the southern border,” the group said.

Albright served under President Bill Clinton, and Hagel, a former Republican senator from Nebraska, served under President Barack Obama.

Lawmakers argue over Trump’s national emergency declaration

Republican Sen. Lindsey O. Graham (R-S.C.) said he supported President Trump’s national emergency declaration to build the wall Feb. 17. (Reuters)

Also signing were Eliot A. Cohen, State Department counselor under President George W. Bush; Thomas R. Pickering, President George H.W. Bush’s ambassador to the United Nations; John F. Kerry, Obama’s second secretary of state; Susan E. Rice, Obama’s national security adviser; Leon E. Panetta, Obama’s CIA director and defense secretary; as well as former intelligence and security officials who served under Republican and Democratic administrations.

[Trump declares national emergency on southern border in bid to build wall]

Trump’s national emergency declaration followed a 35-day partial government shutdown, which came after Congress did not approve the $5.7 billion he sought to build a wall.

In announcing his declaration, Trump predicted lawsuits and “possibly . . . a bad ruling, and then we’ll get another bad ruling” before winning at the Supreme Court.

Trump’s actions are also drawing criticism from at least two dozen former Republican congressmen, who have signed an open letter urging passage of a joint resolution to terminate the emergency declaration. The letter argues that Trump is circumventing congressional authority.

A secondary border wall is under construction in Otay Mesa, Calif. (Sandy Huffaker/Getty Images)

The former security officials’ 11-page declaration sets out their argument disputing the factual basis for the president’s emergency.

Among other things, they said, illegal border crossings are at nearly 40-year lows. Undetected unlawful entries at the U.S.-Mexico border decreased from 851,000 to nearly 62,000 between 2006 and 2016, they said, citing Department of Homeland Security statistics.

Contrary to the president’s assertion, there is no documented emergency at the southern border related to terrorism or violent crime, they said, citing administration reports and independent think tank analyses.

[When Trump declared national emergency, most detained immigrants were not criminals]

Similarly, they state that there is no drug trafficking emergency that can be addressed by a wall along the southern border, noting that “the overwhelming majority of opioids” that enter the United States are brought in through legal ports of entry, citing the Justice Department.

They also argue that redirecting money pursuant to the national emergency declaration “will undermine U.S. national security and foreign policy interests.” And, they assert, “a wall is unnecessary to support the use of the armed forces,” as the administration has said.

Some of the same former officials wrote a joint declaration disputing the factual basis for the president’s order shortly after he took office in January 2017 barring entry to foreign nationals from seven predominantly Muslim countries. The former officials asserted that the order was not based on a bona fide national security assessment but on “a deliberate political decision to discriminate against a religious minority.”

Their views were filed as a joint declaration and later as a friend-of-the court brief in lawsuits challenging the original order and subsequent revisions, and it was cited by almost every federal judge who enjoined the ban. By the time the challenges reached the Supreme Court, the administration had significantly narrowed the ban, which the high court upheld on a 5-to-4 vote.

With respect to the declared national emergency, plaintiffs have filed two cases in the District of Columbia, two in California and one in Texas.

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It definitely will be worth noting for posterity those in the GOP who vote to sell out America by failing to stand up to Trump’s bogus national emergency ploy.

We also shouldn’t forget that if the GOP weren’t willing to sell out America because of fear of the “Off-base Trump Base” the vote to overturn his national emergency would be overwhelming and thereby “veto-proof.” A body that won’t stand up for its own Constitutional prerogatives, isn’t likely to strand up for the rights of anyone else.

PWS

02-26-19

INSIDE THE “NEW AMERICAN GULAG:” Conditions Are Cruel, Inhuman, Degrading, & Life-Threatening — Why Are We Funding The Perpetrators, Rather Holding Them Accountable & Demanding An End To Human Rights Abuses In America?

https://www.latimes.com/opinion/op-ed/la-oe-saadi-immigration-health-care-detention-facilities-2019025-story.html

Altaf Saadi, M.D., writes in the LA Times:

This week, a 45-year-old immigrant in the U.S. illegally died in Border Patrol custody. His death follows the December deaths of 7-year-old Jakelin Caal and 8-year-old Felipe Alonzo-Gomez in United States immigration custody, both of which prompted demands for improving healthcare for immigrants in detention.

As a physician who has evaluated dozens of individuals in Immigration and Customs Enforcement detention for legal groups and human rights organizations, I know that high-profile deaths are only one small piece of the story of severely substandard healthcare in America’s immigration detention system.

For example, in one detention center I met and reviewed the medical records of a man who had been thriving and holding steady employment for years while on schizophrenia medications. Then he was picked up and detained by ICE. In detention, he told me, ICE personnel abruptly stopped his medications. After a nearly two-week delay, an alternative medication was prescribed, but it was not as effective. His mental health deteriorated, and he experienced worsening auditory hallucinations and suicidal thoughts. He attempted suicide four times.

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention.

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Another individual I met with and whose medical records I reviewed had longstanding hypothyroidism, but ICE failed to provide her with thyroid medication in detention. When she was first hospitalized for worsening mental health, her thyroid hormone level was 60 times higher than normal. Despite the hospital medical team’s explicit instructions, ICE still failed to provide her thyroid medication when she returned to detention. It was not until a second hospitalization, again with a critically abnormal thyroid hormone level, that she finally received her medication.

I also met with a man who had developed a stomach ulcer and vomited blood after ICE medical personnel gave him ibuprofen repeatedly for back pain — even though he had reported symptoms of severe heartburn. Any physician applying the proper standard of care would know to minimize prescribing ibuprofen to an individual with severe heartburn.

The kinds of problems I saw are in keeping with the type repeatedly documented by immigrant advocates, filed in litigation and contained in the government’s own reports. According to Freedom for Immigrants, a national advocacy group seeking to end immigration detention, the top complaint they hear from detained immigrants is medical neglect.

In addition, multiple Department of Homeland Security inspector general reports have concluded that detention facilities repeatedly fail to comply with federal standards, including those requiring adequate healthcare. In 2017, a report noted delays in the provision of healthcare and a lack of adequate documentation. And the problems extend beyond healthcare. A report in January 2019 cited more than 14,000 deficiencies found during inspections of 106 immigrant detention facilities nationwide between October 2015 and June 30, 2018.

Substandard conditions can significantly harm an individual’s health. Many of the individuals I met with said they experienced sleep deprivation from lights being kept on 24 hours a day. Some said they had to wear dirty prison uniforms that caused urinary and vaginal infections. Others complained of being served rotten or inadequate food, a violation of standards that has been repeatedly documented in inspection reports.

Enter the Fray: First takes on the news of the minute »

Some detainees also reported verbal and physical abuse by guards, which can significantly worsen the mental health of immigrant detainees. For example, during one of his acute mental health crises, the schizophrenic man I interviewed recalled banging his body against a wall as he wrestled with voices telling him to kill himself. He said a guard referred to his distress as a “tantrum” and told him to “get over it.”

Other detainees told me that staff used frequent racial epithets and also referred to them as “crazies,” or “Loony Tunes,” or “trash.” As one detainee put it: “They see us not like human but as animals here.”

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention. None of the patients I interviewed died from the dangerous neglect they experienced, and so their experiences didn’t garner headlines. But their experiences were dangerous — and not uncommon. We need to hold the U.S. government accountable not just for the deaths that occur of immigrants in their custody, but also for the neglect and abuse that can lead to or exacerbate serious health problems.

Altaf Saadi is a neurologist, clinical instructor of medicine, and fellow at the National Clinician Scholars Program at UCLA. She has performed numerous evaluations for the Physicians for Human Rights Asylum Network.

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I continue to think that the bipartisan Goverment funding bill was not the right place to deal with the “New American Gulag.” But, Democrats should “keep hammering” on this important “below the radar screen” issue. Making an oversight record of the many abuses, false narratives, cover-ups, and lies underlying the Gulag should be a high priority.

What meaningful civil immigration detention reform could look like:

A “hard cap” probably in the area of 10,000 to 15,000 detention slots;
An end to private detention;
Enactment of strict standards governing the conditions of civil immigration detention;
A specific requirement for proper health and psychiatric care for those detained;
A bar on detention being used for “deterrence” or “punishment;”
Change in the law to permit all individuals in civil immigration detention to seek release on bond in U.S. Immigration Court (obviously, the Immigration Judges would retain the discretion to deny bond on the merits where warranted by the facts) with review by an Article III Court;
Periodic bond hearings every six months for those in “long-term detention;”
A requirement that access to counsel be a primary consideration in establishing immigration detention sites, and that pro bono groups and NGOs be consulted and given an opportunity to comment before any new immigration detention centers are established;
An end to the regulatory practice of allowing ICE Counsel to unilaterally block the order of a U.S. Immigration Judge pending appeal of a decision to release on bond (the Immigration Judge and the BIA would retain discretion to grant stays pending appeal, where appropriate, on application by ICE);
A statutory presumption in favor of ankle monitoring and other “alternatives to detention,” with physical detention being a disfavored, “last resort:”
Accountability for how detention dollars are spent and consequences for those in DHS and DOJ, including political officials, who violate or evade the law, including intentional falsification or misrepresentation of statistics, or who fail to implement the mandated reforms in a timely and reasonable manner.

Remember folks, these aren’t “beds,” or other “pieces of furniture;” these are fellow human beings, most of whose “offenses” consist largely of seeking to exercise their legal rights to fair treatment and Due Process under our laws and our Constitution!

PWS

02-25-19

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People First Immigration Policy

Immigration Policy Summary

1. Reforming our Immigration System

2. Creating a Humane Border Policy

3. Establishing a 21st Century ‘Marshall Plan’ for Central America

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