"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?
These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.
Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.
Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.
Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.
And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.
Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”
But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.
The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.
Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.
. . . .
Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.
Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”
Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.
“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.
. . . .
Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”
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Read Stern’s complete article at the above link.
Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!
“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.
But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.
Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.
This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.
. . . .
In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.
Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.
Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.
If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.
Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.
Expedited removal proceedings are not used for unaccompanied alien children.
Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.
ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.
Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”
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Read Nolan’s full article over on The Hill at the above link.
I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.
I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..
Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!
Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.
The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.
As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.
For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:
Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.
Here’s a link to the full Castro opinion and my previous blog on the decision:
I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.
The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.
Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.
Mark Joseph Stern and Perry Grossman report for Slate:
“JURISPRUDENCE
THE LAW, LAWYERS, AND THE COURT.OCT. 19 2017 6:32 PM
Trump’s Dred Scott
In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time.
By Perry Grossman and Mark Joseph Stern
Jeff Sessions and Roger B. Taney
Attorney General Jeff Sessions, left, and Chief Justice Roger B. Taney
Saul Loeb/Getty Images and Library of Congress
Throughout his presidential campaign, Donald Trump maligned undocumented immigrants as violent criminals and sexual predators who deserved to be rounded up and deported. Once in office, Trump transformed this rhetoric into policy, implementing a nationwide crackdown on immigrant communities. Now, the president’s dehumanizing disparagement of undocumented people has now seeped into his administration’s legal positions. This week, the Department of Justice is arguing in court that undocumented, unaccompanied minors have no right to abortions—and that undocumented immigrants may have no constitutional rights at all. This argument does not only contravene Supreme Court precedent. It also draws upon an inhuman notion of constitutional liberty most notoriously espoused in Dred Scott v. Sandford.
The Justice Department’s radical new theory arose out of a disturbing case in Texas that revolves around a 17-year-old referred to as Jane Doe in court filings. Doe arrived in the United States several months ago, unaccompanied by her parents and lacking documentation. She was placed in a federally funded Texas shelter, at which point she learned she was pregnant. Doe requested an abortion, but under state law, minors cannot receive the procedure without either parental consent or judicial approval. So Doe obtained what’s known as a judicial bypass and asked permission to attend a state-mandated counseling session before undergoing the procedure.
Her shelter refused to allow her to attend that counseling session, citing federal regulations promulgated by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that federally funded shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director. A Trump appointee and longtime anti-abortion activist, Lloyd has refused to allow minors to access abortion services. Instead, he has directed shelters to take these women to “crisis pregnancy centers,” which “counsel” them not to get abortions. At least once, Lloyd himself called a pregnant minor to talk her out of terminating her pregnancy. If a minor still wants to get an abortion after navigating these obstacles, ORR instructs its shelters to block her from attending her appointment.
Doe’s shelter followed these guidelines, taking her to a crisis pregnancy center and calling her mother to tell her Doe was pregnant. But Doe persisted, and in October, her court-appointed attorneys filed suit along with the American Civil Liberties Union in a federal district court in Washington, where ORR is headquartered. Doe argues that ORR’s rules violate her constitutional rights by placing an undue burden on her access to abortion.
On Wednesday, U.S. District Judge Tanya Chutkan held a hearing in the case. While defending the government, Department of Justice attorney Scott Stewart strongly implied that undocumented women do not have a right to abortion. Here, Stewart was echoing an amicus brief filed by the Texas attorney general’s office, which proclaimed that “unlawfully present aliens” living in the United States have no constitutional right to abortion access. Chutkan then asked Stewart whether Doe has any constitutional rights; Stewart declined to make that “concession.”
Chutkan ruled against the government and issued a temporary restraining order guaranteeing Doe the ability to terminate her pregnancy. (She is currently 15 weeks pregnant, and abortion is illegal after 20 weeks in Texas.) The DOJ appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which will hear arguments in the case on Friday morning. In its motion, the agency argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to let a minor go to an abortion clinic. It also claimed that, even if undocumented minors have a constitutional right to abortion care, the administration was not unduly burdening that right, because minors who want to terminate their pregnancies can leave the country. This argument is merely another way of stating that women like Doe have no right to an abortion in the United States.
By excluding undocumented immigrants from the protections of Planned Parenthood v. Casey, the Trump administration is essentially asserting that they do not qualify as “person[s]” under the Due Process Clauses of the Fifth and 14th Amendments. The Supreme Court has ruled that the liberty component of the Due Process Clause protects a woman’s right to terminate her pregnancy without a substantial obstacle. If arbitrary regulations that severely burden clinics qualify as such an unconstitutional obstacle, as the Supreme Court has held, then surely self-deportation does as well. Thus, the sole plausible interpretation of the DOJ’s posture is that the Due Process Clause does not protect undocumented women like Doe. Put simply, undocumented women are not people for constitutional purposes.
If the government can force Doe to carry her pregnancy to term, what can’t it do?
This theory parallels the Supreme Court’s most infamous ruling. Dred Scott was a black man born into slavery who moved with his “master” from a slave state to a free state. Upon his master’s death, Scott sued for his freedom. In 1857, Chief Justice Roger B. Taney—a virulent racist whose statue was removed from the grounds of the Maryland State House in August—wrote an opinion dismissing Scott’s suit. Taney held that black people were not “persons” based on the language of the Constitution and that Scott, as a black man, therefore had no right to sue in the federal courts. Black men, Taney wrote, were “so far inferior” to whites that they had “no rights which the white man was bound to respect.”
Following the Civil War, Dred Scott was overturned by the 13th and 14th Amendments. These amendments ensured that everyone born in the United States would be a citizen. They also granted all “person[s]”—not just citizens—due process and equal protection under the law. Trump has already raised the specter of Dred Scott through his call to end birthright citizenship, the constitutional command that lay at the heart of the Civil War amendments. Now his administration is invoking the decision again in its attempt to deprive undocumented immigrants of their personhood under the Constitution.
The government has rarely alleged that undocumented immigrants may be deprived of rights protected by the liberty component of due process, what’s also known as “substantive” due process. Its few attempts have been unsuccessful. In 2003, the Bush administration argued that substantive due process does not apply to immigrants who reside in the country illegally. The 6th U.S. Circuit Court of Appeals, sitting en banc, emphatically rejected this claim, explaining
If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. … [W]e do not believe that our Constitution could permit persons living in the United States—whether they can be admitted for permanent residence or not—to be subjected to any government action without limit.
Perhaps recognizing the extremism of its argument, the Trump administration has left open the possibility that undocumented immigrants are entitled to some unspecified “minimal standards” of constitutional protection. But if those minimal standards don’t include the basic right to bodily autonomy, then the 6th Circuit’s query still stands. If the government can force Doe to carry her pregnancy to term against her will, what can’t it do? The administration’s attempt to exert complete control over Doe’s reproductive system is a straightforward deprivation of constitutional liberty that opens the door to equally egregious future abuses.
On Friday morning, the Justice Department will return to court once more to argue, in effect, that Jane Doe is not a “person” worthy of due process protections. It might as well cite Dred Scott for the proposition that the government may strip undocumented immigrants of their constitutionally protected liberty. The 14th Amendment was designed to end such capricious discrimination against individuals living in the United States. But to the Trump administration, immigrants like Doe aren’t even people—just possessions of the state, awaiting deportation.”
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Just when you think that Gonzo Apocalypto can’t sink any lower, he manages to achieve new depths!
“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum
by JASON DZUBOW on OCTOBER 17, 2017
In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.
Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.
While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”
Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”
First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.
Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.
And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.
None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.
The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.
The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.
Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.
Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.
These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.
I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”
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Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.
Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.
Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.
Few Americans know about our nation’s system of immigrant detention centers. Each year, the US government locks up roughly 440,000 immigrants in over 200 immigrant prisons. These facilities have grown into a highly privatized, lucrative, and abusive industry that profits off the misery of immigrants awaiting deportation.
Here at Brave New Films, we’re doing everything we can to expose the abuses of the deportation-industrial complex. In our new film, Immigrant Prisons, we explore conditions inside the detention centers, exposing substandard medical care, widespread physical and sexual abuse, virtual slave-labor working conditions and more. These abuses happen behind closed doors with little to no oversight.
Our film, created in partnership with advocates for detainee rights, is shining a light on a particularly dark corner of the American justice system. Watch now and share with friends.
It’s important to remember that immigration detention is a civil form of confinement. “This is not criminal custody, this is not someone who’s been convicted of a crime,” says attorney James Fife of the Federal Defenders of San Diego. “This is just someone who’s being held for the government’s convenience so that the person’s available” for processing, said Fife.
Unlike with criminals who have been convicted of a crime, there’s no time limit on how long people can be held at immigration detention centers. It’s hard to believe, but immigrants can be locked up indefinitely without a criminal offense or bond hearing. In the film we highlight the case of a Kenyan immigrant, Sylvester, who spent nine years and four months in immigration detention. Another immigrant describes her time in detention as being “like a legal kidnapping.”
Immigrant detention centers are overseen by US Immigration and Customs Enforcement, or ICE, a division of the Department of Homeland Security. Since ICE was created in 2003, there have been 177 confirmed deaths in detention centers. Medical neglect is the greatest contributing factor.
In the film, we speak with Gerard, a former detainee who almost died during his 11 months at a California facility. He was denied medical care for two weeks as a severe infection spread in his body. The private-facility managers kept ignoring his requests until it was nearly too late. Such medical neglect contributed to nearly half of all deaths in immigrant prisons.
Christina Fialho, the executive director of CIVIC and a leading advocate for detainee rights, says that “denial of medical care at immigration-detention facilities is routine.” This substandard medical care is often accompanied by substandard food, unsanitary water, and generally unhygienic living conditions.
Fialho says that immigrant-detention centers are also plagued by abuse. “Guards with little to no training are kicking, hitting, sexually assaulting people in immigration detention,” she says. Each year thousands of complaints alleging sexual and physical abuse and substandard medical care are filed with authorities, but very few cases are ever investigated.
Adding insult to injury, detainees at for-profit detention centers are often coerced into working for virtually no money. The for-profit companies that run the facilities have all the wrong incentives and a captive workforce at their disposal. The food they provide detainees is frequently so inadequate that detainees feel they have no choice but to work for $1 a day to buy additional food from the commissary, often at inflated prices. Fialho doesn’t mince words about this practice: “Detention centers are starving people into working in order to then cut staff salaries.”
The two largest private detention-center operators, CCA and Geo Group, got started in the 1980s. In fact, CCA’s very first contract was for locking up immigrants. In the past 20 years, the two companies have made over $12 billion in profits, largely from immigrant detention.
Wrongful-death lawsuits and class-action lawsuits alleging forced labor have helped expose abuses at private immigrant prisons, but systemic reforms are needed. Stock in CCA and Geo Group slid after the Obama administration moved to end the use of private prisons by the federal government, but the stocks rocketed up after the 2016 election. President Trump, who received major contributions from the private-prison industry, reversed President Obama’s order on private prison use and has proposed a 25 percent increase in ICE’s budget.
Immigrant Prisons is our first film on the deportation industrial complex. In future films we’ll explore how private-prison companies promote policies and procedures that line their own pockets, and profile the individuals who are working to perpetuate our abusive immigration-enforcement system.
Unlike the private prison industry, we don’t have millions to spend on advertising and lobbying. But there is a powerful grassroots movement rising up in this country to take on abuses in our immigration system.
I hope you will join the movement and share Immigrant Prisons with your networks. You can also screen the film for free at schools, houses of worship, and community meetings for local media and elected officials through our Brave New Educators program. Together we can bring detained immigrants out from the darkness and provide them with the respect and dignity that we owe to all people.
We premiered the film last night in Santa Monica with our friends at The Young Turks. Cenk Uygur moderated a panel which included Pastor Noe who was recently released from an immigrant prison. If you or someone you know has a powerful story about immigrant prisons, please get in touch.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
SAFE AT HOME: Sandra Gutierrez fled from Honduras with her children after receiving death threats from gangs and was granted asylum by Judge Dalin Holyoak in 2016. She now lives in Oakland, California, where she takes English classes and works as a janitor. REUTERS/Stephen Lam
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
“GROSS DISPARITIES”
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
Video: High-stakes game of chance in U.S. immigration courts
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
HEADING NORTH: Many Central Americans who sought safety in the United States during the 2014 migrant crisis caught a ride through Mexico on the freight train nicknamed “The Beast,” shown here chugging through Oaxaca state. REUTERS/Jose de Jesus Cortes
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
MEAN STREETS: Gang graffiti covers buildings in Tegucigalpa, the Honduran capital, where rampant violence has prompted thousands of people in recent years to seek asylum in the United States. REUTERS/Jorge Cabrera
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
Reade Levinson
Heavy Odds
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.
As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.
This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”
If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.
If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.
The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.
The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”
Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”
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The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.
It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.
The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.
How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process
When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?
Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.
In U.S. Government parlance, there’s a term for that: fraud, waste, and abuse!
The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.
Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.
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Nickole speaks truth. Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.
Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.
Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.
In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant. This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”
Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.
I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials.
“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft. Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining credibility. These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes. The following are some thoughts on strategy when appealing credibility findings to the Board.
1. Don’t offer alternative interpretations of the record.
You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record. If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently. Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
2. Does the record support the IJ’s finding?
On occasion, the discrepancy cited by the IJ is not found in the transcript. IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated. For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says. It is worth reviewing the record carefully.
3. Does the REAL ID Act standard apply?
The REAL ID Act applies to applications filed on or after May 11, 2005. With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date. However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard. In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard. For example, did the IJ rely on non-material discrepancies to support the credibility finding? If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.
4. Did the IJ’s decision contain an explicit credibility finding?
Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief). Therefore, review the decision carefully to determine if an explicit credibility finding was made. In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility. In such cases, argue on appeal that the statutory presumption of credibility should apply.
5. Did the credibility finding cover all or only part of the testimony?
As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition. A respondent may be credible as to parts of his or her claim, but incredible as to other aspects. There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus. However, there are variations in the application of the doctrine among the circuits, and there are exceptions. For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility. However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.” The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding). Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony. If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.
6. Did the IJ rely on a permissible inference, or impermissible speculation?
In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation. The court cited earlier case law stating that “an inference is not a suspicion or a guess.” Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.” Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.
7. Did the IJ permissibly rely on an omission under applicable circuit law?
There is a body of circuit court case law treating omissions differently than discrepancies. For example, several circuits have held that as there is no requirement to list every incident in the I-589, the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility. Look to whether the omission involved an event that wasn’t highly significant to the claim. Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country. Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report. See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.
8. Was the respondent provided the opportunity to explain the discrepancies?
At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies. The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent. See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).
9. Did the “totality of the circumstances” support the credibility finding?
Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.” INA sections 208(b)(1)(B)(ii), 240(c)(4)(C). The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding. For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”
Copyright 2017 Jeffrey S. Chase. All rights reserved.”
REPRINTED WITH PERMISSION
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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.
Great stuff, Jeffrey! I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!
One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.
But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.
Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!
Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.
On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.
This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.
I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.
He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!
So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.
Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.
Remember,”as you did it to one of the least of these my brothers, you did it to me.” Gonzo’s going to have some ‘splainin top do at some point in the future!
Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!
“During a public appearance at the Department of Justice on Thursday, Attorney General Jeff Sessions called on Congress to curb due process for immigrants by making it more difficult for an individual to seek asylum and to increase fast-track deportations.
In his speech, Sessions focused heavily on America’s long-standing system that provides asylum to those seeking safety and protection, claiming it is “subject to rampant abuse and fraud.” He argued that increased claims of “credible fear”—where an individual apprehended at the border expresses fear of persecution if returned to their home country—are an indicator of asylum seekers abusing loopholes in the immigration system.
The fact is that the uptick in protection claims has corresponded with the dramatic increase in violence in Central America during that same period. In particular, in the spring and summer of 2014, when many thousands of women and unaccompanied children from Central America journeyed to the United States seeking asylum, they were fleeing unprecedented violence in Honduras, Guatemala, and El Salvador, then the murder capital of the world.
Thursday’s call for cracking down on children and asylum seekers at the border is illogical given the dramatic drop in border crossings this past year, which Sessions himself admitted at the beginning of his speech.
The Attorney General also focused his attention on the growing backlog of immigration court cases and called for an expansion of expedited removal, initially proposed in President Trump’s January immigration executive orders. Expedited removal is a process by which immigration officers can quickly deport certain noncitizens who are undocumented without bringing them before an immigration judge.
This rapid process, which is currently only applied to individuals apprehended within two weeks of arrival and 100 miles of the Canadian or Mexican border, increases the possibility that people are being erroneously deported from the United States, potentially to imminent harm or death. Expansion of this process would further curtail due process by preventing more individuals from having their day in immigration court.
Since many, but not all, of these changes require legislative action, Sessions urged Congress to pass laws in order to effectuate these changes. Many of these ideas came directly from the White House “principles” released last week.
Thursday’s attack on children and asylum seekers, coupled with calls to curtail due process for those seeking protection, struck a new low. Sessions’ speech was just more of the same from an administration that has continuously shown it is determined to make America a less welcoming nation.“
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In his speech to the EOIR — obviously intended to impede the fair and impartial adjudication of asylum claims by judges who work for him by instilling bias against asylum seekers — Sessions cited a 2015 GAO Report on Asylum Fraud. That report did not cite any increase in Southern Border asylum fraud by individuals fleeing the Northern Triangle of Central America. The anecdotal incidents noted in the report related to Chinese asylum fraud. That fraud was actually detected and successfully prosecuted by DHS.
Additionally, the GAO Report not recommend any changes in the procedures for adjudicatiing asylum claims in Immigration Court. It did recommend improvements in fraud detection techniques by DHS and EOIR.
To my knowledge, Sessions has never adjudicated any asylum claim. I’ve adjudicated lots of Central American asylum claims. Almost all of them involved individuals with credible evidence that they would face harm upon return. Some were able to fit that harm within the protection laws, and others were turned down, many because our laws have been skewed against granting protection to Central Americans. But few, if any, involved apparent fraud.
Gonzo attacked individuals who are merely seeking fair and impartial due process and decent humane treatment (not unjustified detention) with respect to their claims for protection under U.S. and international law. I agree with Bliesblatt that Gonzo “struck a new low” in a career filled with “cheap shots” on the most vulnerable among us.
“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.
On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Securityto quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.
At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.
Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”
But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place.
The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!
Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights.Raising the standards would virtually guarantee rejection of all such asylum seekerswithout any hearing at all.The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.
Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings.Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court
Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.
Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like: more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.
Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased againstsuch claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim” of the type that are much more routinely granted across the board.
Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.
CHAPARRAL, New Mexico — The freckled 22-year-old never wanted to come to the United States. Her mother had made a good life in their village in El Salvador, and though they were poor, they were happy.
“There were just a few houses in the town, really. It was very peaceful. Very quiet,” the young woman, who asked not to be identified for her protection, recalled, speaking through an interpreter.
But in 2014, the US-based gang Mara 18 came to town with demands for protection payments and dark threats against anyone who stood up to them. Within months, Mara 18 had taken control of the town, and the young woman found herself t
CHAPARRAL, New Mexico — The freckled 22-year-old never wanted to come to the United States. Her mother had made a good life in their village in El Salvador, and though they were poor, they were happy.
“There were just a few houses in the town, really. It was very peaceful. Very quiet,” the young woman, who asked not to be identified for her protection, recalled, speaking through an interpreter.
But in 2014, the US-based gang Mara 18 came to town with demands for protection payments and dark threats against anyone who stood up to them. Within months, Mara 18 had taken control of the town, and the young woman found herself the object of the gang leader’s unwanted attention.
“I promise you, I would have never come here. I miss [my family] a lot. But here I am. I couldn’t stay,” she said, rubbing away the tears running down her face.
So she fled north, seeking asylum in the US. But once she arrived, instead of a safe haven she found a skeptical immigration system that rejected her request and deported her back to El Salvador, in part because she couldn’t prove she faced persecution back home — something that would only change after she’d been tortured and raped.
Within months, she had been brutally beaten and raped by the gang leader, who declared her his property. The attack meant she could finally return to the US and prove her asylum case.
“We can’t give them legal protection until they’re raped.”
Almost 10 months after returning, she is free, but only after struggling against immigration laws that weren’t written with victims like her — a target of an international criminal gang — in mind, and that make it nearly impossible for someone who has been deported to ever gain asylum. It took three tries to gain asylum, three times paying smugglers to take her on the dangerous journey across the border; finally in August, a judge blocked her deportation under an international treaty typically used to give criminal snitches sanctuary for their cooperation. But even that didn’t end things: The Trump administration made her wait in jail nearly a month before agreeing to not appeal her case.
Nancy Oretskin, the Salvadoran woman’s attorney and the director of the Southwest Asylum & Migration Institute, says changes to asylum law are needed to eliminate a perverse incentive for persecuted people to wait until they are tortured or raped before coming to the United States. “We can’t give them legal protection until they’re raped,” Oretskin said. “And even then, we deport many of them after they’ve been raped, and they’re killed. How does that happen in a civilized society?”
Change is unlikely under the current administration. A few months after President Trump was sworn in, Attorney General Jeff Sessions issued new guidance to Department of Justice attorneys that emphasized the need to use prosecutions to “further reduce illegality” and that instructed them to pursue more criminal charges against undocumented immigrants.
he object of the gang leader’s unwanted attention.
“I promise you, I would have never come here. I miss [my family] a lot. But here I am. I couldn’t stay,” she said, rubbing away the tears running down her face.
So she fled north, seeking asylum in the US. But once she arrived, instead of a safe haven she found a skeptical immigration system that rejected her request and deported her back to El Salvador, in part because she couldn’t prove she faced persecution back home — something that would only change after she’d been tortured and raped.
Within months, she had been brutally beaten and raped by the gang leader, who declared her his property. The attack meant she could finally return to the US and prove her asylum case.
“We can’t give them legal protection until they’re raped.”
Almost 10 months after returning, she is free, but only after struggling against immigration laws that weren’t written with victims like her — a target of an international criminal gang — in mind, and that make it nearly impossible for someone who has been deported to ever gain asylum. It took three tries to gain asylum, three times paying smugglers to take her on the dangerous journey across the border; finally in August, a judge blocked her deportation under an international treaty typically used to give criminal snitches sanctuary for their cooperation. But even that didn’t end things: The Trump administration made her wait in jail nearly a month before agreeing to not appeal her case.
Nancy Oretskin, the Salvadoran woman’s attorney and the director of the Southwest Asylum & Migration Institute, says changes to asylum law are needed to eliminate a perverse incentive for persecuted people to wait until they are tortured or raped before coming to the United States. “We can’t give them legal protection until they’re raped,” Oretskin said. “And even then, we deport many of them after they’ve been raped, and they’re killed. How does that happen in a civilized society?”
Change is unlikely under the current administration. A few months after President Trump was sworn in, Attorney General Jeff Sessions issued new guidance to Department of Justice attorneys that emphasized the need to use prosecutions to “further reduce illegality” and that instructed them to pursue more criminal charges against undocumented immigrants.“
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Read the complete, compelling but disturbing, report at the above link.
This illustrates the ugly results of immigration policies pushed by Trump, Sessions, Miller, and tone deaf GOP Legislators like Rep. Bob Goodlatte. They are part of the outrageous Trump Immigration ”Deform” Program drafted by Miller. And this unholy and inhumane group seeks to make things even worse for scared asylum applicants like this. They should be held morally accountable for their behavior, even if they can’t be held legally responsible for the gross abuses of human rights they promote. They seek to turn the U.S. legal system into a major human rights violator. And, it’s not that some of these practices didn’t originate during the Obama Administration. Trump and his White Nationalist cronies have just tripled down on pre-existing abuses.
In fact, many of the women being imprisoned in the American Gulag then turned away are either entitled to asylum or would be if the DOJ-controlled BIA had not intentionally distorted asylum law to deny them protection. In any event, almost all of them should be offered protection under the mandatory Convention Against Torture. TPS or some other form of prosecutorial discretion would also be potential solutions.
But, sending young women back to be tortured and raped, the Trump Administration’s “solution,” is not acceptable.
The well-respected Women’s Refugee Commission just issued Prison For Survivors, a stunning indictment of the Trump Administration’s plans for a New American Gulag and “Gonzo” Immigration Enforcement intended to punish asylum seekers for asserting their statutory and Constitutional rights to protection.
“Prison for Survivors
By Katharina Obser, Senior Program Officer at the Women’s Refugee Commission
Earlier this year, a woman named Clara arrived at the United States border seeking protection from gender-based harm she faced in West Africa. She had endured an arduous journey trying to reach the U.S. border, where officials registered her claim for asylum. Rather than release her to pursue her case, however, officials sent Clara into the vast network of immigration detention facilities across the U.S. Since arriving in this country, she has been treated like a criminal, shackled and transferred multiple times between different detention facilities, awaiting a final decision on her request for protection that will determine her fate.
Alarmed at the increase in the detention of women seeking asylum, the Women’s Refugee Commission (WRC) set out to tell the story of what was happening to women like Clara who came to the U.S. seeking protection under our asylum laws. When we began our research, in 2016, the Obama administration had been prioritizing the detention of border crossers — regardless of any humanitarian consideration. Asylum seekers who crossed the border ended up in detention, often with no hope for release unless they could pay increasingly high bonds, find an attorney to represent them, or both. The Trump administration has only made the situation worse for those seeking asylum, adding as enforcement targets countless other immigrants already living in the U.S. A whole disturbing new chapter is beginning in immigration detention, one that exacerbates the inhumanity and ineffectiveness of our current immigration system.
My colleagues and I spoke with approximately 150 women in detention, nearly all of whom were seeking asylum in the U.S. In the seven detention centers we visited, we heard about women who had clearly been traumatized by their experience of coming to the U.S. expecting protection but, instead, found themselves in jail, deprived of their rights and sometimes separated from their children. I heard story after story of vastly deficient conditions and inadequate medical treatment made even more difficult by a fundamental inability to navigate an immigration case because it is all but impossible to do so from detention without an attorney. Imagine being locked up after fleeing for your life and then not being able to communicate your needs because no interpreter is available. Women reported being shackled while in transit, for hours on end without a break. For example, imagine what it was like for Clara, who like other women reported being shackled while in transit when outside the facility, in her case when coming back from a painful medical procedure
Many of the women we spoke with felt — as anyone would — humiliated at having virtually no privacy when using the toilet in front of others in their dorms, being forced to wear used underwear that was often visibly stained, or having insufficient access to sanitary napkins. “I don’t have money to buy pads,” Iliana told us at the Mesa Verde Detention Center in Bakersfield, CA. “I would rather use that money to call my kids.”
The experiences these women shared with my colleagues and me took place against a backdrop of an immigration detention system that continues to be fueled by political motivations and profit-driven decisions and that has seen a dramatic rise in the proportion of women in ICE detention. In 2009, approximately nine percent of those in ICE detention were adult women. In April 2016 that proportion had grown to 14.6 percent (including in U.S. Immigration and Customs Enforcement’s family detention centers). At the same time, the number of women and girls going through an initial asylum screening — likely from detention — nearly quadrupled between 2013 and 2016. The detention system as a whole grew from 34,000 detention beds in early 2016 to over 40,000 detention beds by the end of that year. Now, the Trump Administration is proposing to expand the system to more than 50,000 beds while simultaneously rolling back key detention standards.
As the 150 women who spoke to my colleagues and me make clear, the U.S. immigration detention system is in dire need of fundamental reform. A vital part of that reform needs to include an assurance from the U.S. Department of Homeland Security that immigration detention facility standards are universally strong and that facilities are actually held to account when those standards are not meaningfully implemented.
Yet, the system continues to fail. Just this week, several civil and human rights organizations, including WRC, filed an administrative complaint with DHS on behalf of women who are or were detained by ICE, women who received grossly inadequate medical care and treatment, exacerbating the trauma that many already experience in detention.
Unfortunately, eliminating the indignities of the current system will not fully address the despair that asylum-seeking women experience when facing the unbelievable cards stacked against them because of their detention. “It’s pointless,” said Clara. “It’s just punishment. The U.S. should just say it’s not accepting refugees.”
The Trump administration and Congress face a choice. Continue to feed more money into a broken immigration detention system that criminalizes and demoralizes vulnerable women immigrants and refugees, or direct ICE to make more humane and smarter choices about immigration enforcement that include release or community support for those seeking asylum in the U.S. Only one choice proves to Clara and so many others like her that, ultimately, the U.S. still does respect the right to seek asylum.”
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Sorry, Katharina, but the Trump Administration has no intention of being deterred by the law, Constitution, or human decency from turning the U.S. into a third world country. And so far, most Article III Courts have simply looked the other way rather than taking on these clearly unconstitutional practices (which, I might add were also carried out by the Obama Administration which also had little regard for the lives or rights of women and children seeking protection). After all, it’s not the Article III Judges’ daughters and granddaughters who are being intentionally abused by the U.S. immigration authorities with a green light from a complicit Congress.
“Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants
Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.
As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.
During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government’s claim that indefinite detention of immigrants is constitutional.
Deputy Solicitor General Malcom Stewart began for the United States by “stress[ing] the breadth of Congress’s constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States.” Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents’ claim as seeking “a constitutional right to be released into this country” during the pendency of their removal proceedings.
Justice Ruth Bader Ginsburg quickly took a poke at the government’s case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: “[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?”
Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for “aliens arriving at our shores … , whatever Congress chooses to give is due process.” Sotomayor’s incredulous response was blunt: “[T]hat’s lawlessness.”
Rejecting Stewart’s claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that “there is something in between,” and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.
Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to “triple ax murderers.” Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.
Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border “have no constitutional rights at all.” Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.
After getting Stewart to agree that “detention violates due process, if there is an unreasonable delay in that detention,” Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart’s admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.
A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government’s supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it “sounds close to a concession.”
Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.
Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government’s power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit’s requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.
Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.
Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts’ jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.
Returning to Ginsburg’s earlier question about the 9th Circuit’s requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that “this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months.” Alito pushed back, asking, “Where does it say six months in the Constitution? Why is it six? Why isn’t it seven? Why isn’t it five? Why isn’t it eight?”
Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.
Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.
Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.
As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.
Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.
Recommended Citation: Kevin Johnson, Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants, SCOTUSblog (Oct. 4, 2017, 12:44 PM), http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/”
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We can only hope. As I’ve pointed out before, coercive detention and the building of the “American Gulag” are key parts of the Trump-Sessions-DHS “Gonzo” Immigration Enforcement Plan. I still don’t think the Supremes fully understand just how inhumane and coercive immigration detention is and how it’s used to “squeeze” the life out of a detainee’s due process rights. And, it starts with making it difficult or impossible to get a lawyer of your own choosing. You actually have to see what happens in a DHS Detention Center (many of them private, for profit enterprises, looking to minimize care, maximize profits, and keep the beds filled) to fully grasp what a mockery the detention process and the location of “Detained Courts” in Detention Centers or in far-distant Televideo Courtrooms makes of our system of justice, the U.S. Immigration Courts, and our promise of Constitutional rights.
