"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
Planned Asylum Overhaul Threatens Migrants’ Due Process
By Suzanne Monyak | June 12, 2020, 9:34 PM EDT
The Trump administration’s proposed overhaul of the U.S. asylum process, calling for more power for immigration judges and asylum officers, could hinder migrants’ access to counsel in an already fast-tracked immigration system.
The proposal, posted in a 161-page rule Wednesday night, aims to speed up procedures and raise the standards for migrants seeking protection in the U.S. at every step, while minimizing the amount of time a migrant has to consult with an attorney before facing key decisions in their case.
“It certainly sets a tone by the government that fairness, just basic day-in-court due process, is no longer valued,” said Shoba Sivaprasad Wadhia, director for the Center for Immigrants’ Rights Clinic at Penn State Law, University Park, Pennsylvania.
The proposed rule, which will publish in the Federal Register on Monday, suggests a slew of changes to the U.S. asylum system that immigrant advocates say would constitute the most sweeping changes to the system yet and cut off access for the majority of applicants.
Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said that it was as if administration officials took every precedential immigration appellate decision, executive order and policy that narrowed asylum eligibility under this administration and “wrapped them all in one huge Frankenstein rule that would effectively gut our asylum system.”
Among a litany of changes, the rule, if finalized, would revise the standards to qualify for asylum and other fear-based relief, including by narrowing what types of social groups individuals can claim membership in, as well as the very definitions of “persecution” and “torture.”
In doing so, the proposal effectively bars all forms of gender-based claims, for example, as well as claims from individuals fleeing domestic violence.
These tighter definitions and higher standards would make it difficult even for asylum-seekers who are represented to win their cases, attorneys said.
“I worry about how a rule like this can cause a chilling effect on private law firms, or even BigLaw, from even engaging with this work on a pro bono level because it’s just so challenging and this rule only puts up those barriers even more,” said Wadhia.
But for migrants without lawyers, the barrier to entry is particularly profound. For instance, the rule permits immigration judges to pretermit asylum applications, or deny an application that the judge determines doesn’t pass muster before the migrant can ever appear before the court.
This could pose real challenges for migrants who may not be familiar with U.S. asylum law or even fluent in English, but who are not guaranteed attorneys in immigration court.
“If you’re unrepresented, give me a break,” said Lenni B. Benson, a professor at New York Law School who founded the Safe Passage Project. “I don’t think my law students understand ‘nexus’ even if they’ve studied it,” she added, referring to the requirement that an individual’s persecution have a “nexus” to, or be motivated by, their participation in a certain social group.
“Giving all judges the authority to end an asylum application with no hearing at all is pretty jaw-dropping,” she said. “Those 90%-denial-rate judges are doing that with the respondent in front of them who’s already testifying about the persecution they’ve suffered or their fear.”
The proposal also allows asylum officers, who are employed by U.S. Citizenship and Immigration Services and are not required to have earned law degrees, to deem affirmative asylum applications frivolous, and to do so based on a broader definition of “frivolous.”
Currently, applicants must knowingly fabricate evidence in an asylum application for it be deemed frivolous. But the proposal would lower that standard, while expanding the definition of “frivolous” to include applications based on foreclosed law or that are considered to lack legal merit.
The penalty for a frivolous application is steep. If an immigration judge agrees that the application is frivolous under the expanded term, the applicant would be ineligible for all forms of immigration benefits in the U.S. for making a weak asylum claim, Collopy said.
“And under the new regulation, everything is a weak application,” she added.
Benson also said that allowing asylum officers to deny applications conflicts with a mandate that those asylum screenings not be adversarial.
When consulting for the U.S. Department of Homeland Security during the Obama administration, Benson had once supported giving asylum officers more authority to grant asylum requests on the spot when migrants present with strong cases from the get-go. But with this proposal, DHS “took that idea,” but then went “the negative way,” she said.
. . . .
“I can’t even think of a single client I have right now that could get around this,” Collopy said.
“It’s a fairly well-crafted rule,” said Yale-Loehr. “They clearly have been working on this for months.”
But it may not be strong enough to ultimately survive a court challenge, he said.
The proposal was met with an onslaught of opposition from immigrant advocates and lawmakers, drawing sharp rebukes from Amnesty International, the American Immigration Council and AILA, as well as from House Democrats.
Rep. Jerrold Nadler, D-N.Y., who chairs the House Judiciary Committee, and Rep. Zoe Lofgren, D-Calif., who leads the committee’s immigration panel, slammed the proposal in a Thursday statement as an attempt “to rewrite our immigration laws in direct contravention of duly enacted statutes and clear congressional intent.”
If the rule is finalized — the timing is tight during an election year — attorneys said it would likely face a constitutional challenge alleging that it doesn’t square with the due process clause by infringing on an individual’s right to access the U.S. asylum system.
And while the administration will consider public feedback before the policy takes effect, attorneys said it could still be vulnerable to a court challenge claiming it violates administrative law.
Benson said the proposed rule fails to explain why its interpretation of federal immigration law should trump federal court precedent.
“They can’t just do it, as much as they might like to, with the wave of a magic wand called notice-and-comment rulemaking,” she said.
Yale-Loehr predicted a court challenge to the policy, if finalized, could go the way of DHS’ public charge rule, which was struck down by multiple lower courts, and recently by a federal court of appeals, but was allowed by the U.S. Supreme Court to take effect while lawsuits continued.
If the policy is in place for any amount of time, it will likely lead to migrants with strong claims for protection being turned away, attorneys said. But Yale-Loehr didn’t believe it would lead to fewer asylum claims.
“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”
–Editing by Kelly Duncan.
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Read Suzanne’s full analysis at the above link.
Although nominally designed to address the current Immigration Court backlog by encouraging or even mandating summary denial without due process of nearly 100% of asylum claims, as observed in the article, the exact opposite is likely to happen with respect to backlog reduction.
As Professor Steve Yale-Loehr points out, finalization of these regulations would undoubtedly provoke a flood of new litigation. True, the Supreme Court to date has failed to take seriously their precedents requiring due process for asylum seekers and other migrants. But, enough lower Federal Courts have been willing to initially step up to the plate that reversals and remands for fair hearings before Immigration Judges will occur on a regular basis in a number of jurisdictions.
This will require time-consuming “redos from scratch” before Immigration Judges that will take precedence on already backlogged dockets. It will also lead to a patchwork system of asylum rules pending the Supreme Court deciding what’s legally snd constitutionally required.
While based on the Court Majority’s lack of concern for due process, statutory integrity, and fundamental fairness for asylum seekers, particularly those of color, shown by the last few major tests of Trump Administration “constitutional statutory, and equal justice eradication” by Executive Order and regulation, one can never be certain what the future will hold.
With four Justices who have fairly consistently voted to uphold or act least not interfere with asylum seekers’ challenges to illegal policies and regulations, a slight change in either the composition of the Court or the philosophy of the majority Justices could produce different results.
As the link between systemic lack of equal justice under the Constitution for African Americans and the attacks on justice for asylum seekers, immigrants, and other people of color becomes clearer, some of the Justices who have enabled the Administration’s xenophobic anti-immigrant, anti-asylum programs might want to rethink their positions. That’s particularly true in light of the lack of a sound factual basis for such programs.
As good advocates continue to document the deadly results and inhumanity, as well as the administrative failures, of the Trump-Miller White nationalist program, even those justices who have to date been blind to what they were enabling might have to take notice and reflect further on both the legal moral obligations we owe to our fellow human beings.
In perhaps the most famous Supreme Court asylum opinion, INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987), Justice Stevens said:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United. States acceded in 1968.
These proposed regulations are the exact opposite: without legislation, essentially repealing the Refugee Act of 1980 and ending U.S. compliance with the international refugee and asylum protection instruments to which we are party. Frankly, today’s Court majority appears, without any reasonable explanation, to have drifted away from Cardoza’s humanity and generous flexibility in favor of endorsing and enabling various immigration restrictionist schemes intended to weaponize asylum laws and processes against asylum seekers. But, are they really going to allow the Administration to overrule (and essentially mock) Cardoza by regulation? Perhaps, but such fecklessness will have much larger consequences for the Court and our nation.
Are baby jails, kids in cages, rape, beating, torture, child abuse, clearly rigged biased adjudications, predetermined results, death sentences without due process, bodies floating in the RioGrande, and in some cases assisting femicide, ethnic cleansing, and religious and political repression really the legacy that the majority of today’s Justices wish to leave behind? Is that how they want to be remembered by future generations?
Scholars and well-respected legal advocates like Professor Shoba Sivaprasad Wadhia, Professor Stephen Yale-Loehr, Professor Lenni Benson, and Dree Collopy have great expertise in immigration and asylum laws and an interest in reducing backlogs and creating functional Immigration Courts consistent with due process and Constitutional rights. Like Professor Benson, they have contributed practical ideas for increasing due process while reducing court backlogs. Instead of turning their good ideas, like “fast track grants and more qualified representation of asylum seekers, on their heads, why not enlist their help in fixing the current broken system?
We need a government that will engage in dialogue with experts to solve problems rather than unilaterally promoting more illegal, unwise, and inhumane attacks on, and gimmicks to avoid, the legal, due process, and human rights of asylum seekers.
As Professor Yale-Loehr presciently says at the end of Suzanne’s article:
“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”
Isn’t it time for our Supreme Court Justices, legislators, andpolicy makers to to recognize the truth of that statement and require our asylum system and our Immigration Courts to operate in the real world of refugees?
The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.
DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization — to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered?
Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.
Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.
The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.
The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.
DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.
If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.
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Kevin R. Johnson is Dean of the University of California, Davis School of Law and Mabie/Apallas Professor of Public Interest Law and Chicanx Studies.
The Administration’s legal arguments for ending DACA have always been bogus and totally disingenuous. Indeed, they do not even remain the same from case to case as they essentially make it up as they go along. It’s all transparently about White Nationalist racism and political pandering to a right-wing minority.
The lower Federal Courts were nearly unanimous in rejecting the DOJ’s various bad faith positions. Yet, instead of unanimously blasting the Administration’s frivolous request for intervention out of hand and sending a clear message reaffirming the lower courts, the Supremes granted an audience to Francisco and the scofflaws.
By failing to send a clear message that political pandering at the expense of human lives won’t be tolerated, the Supremes have encouraged further lawless, insidiously-motivated acts by Trump and have become part of the problem. They have also unconscionably undermined lower Federal Court judges who stood up for the rule of law and removal of racism and dehumanization from government decision-making.
Among other things, the Supremes have helped Trump: eradicate 40 years of asylum protections without legislation; weaponize the public charge provisions without legislation to endanger the health an safety of immigrants and our nation; allowed invidious discrimination against Muslims and refugees; and forced individuals who have established reasonable fear of persecution to be sent to live in life-threatening squalor and danger in Mexico.
The Supremes’ majority has knowingly and intentionally furthered the “Dred-Scottification” of “the other” in society: African-Americans, Latinos, immigrants, asylum seekers, the poor, women, prisoners, workers, etc. Our nation is paying the price.
The solution eventually will require a re-examination of the type of individuals to whom we give the high privilege of serving on the Supremes: their humanity, courage, practical experience, empathy, moral leadership, problem-solving ability, expertise in furthering human rights, and commitment to equal justice for all, rather than narrow “out of the mainstream” political ideologies. The current outrage and unrest over the lack of social justice in the United States can be tied directly to the Supremes’ lack of leadership, courage, humanity, and an overriding commitment to equal justice under law. This version of the Supremes has failed America. Badly!We must do better in the future!
THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!
Starring (in order of appearance):
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)MeJeremy McKinney, Esquire Greensboro, NC AILA 2nd Vice PresidentProfessor Shoba Wadhia Penn State Law
Joint Rule and Presidential Proclamation On Entry and Asylum: What You Need To Know
Updated November 9, 2018
What are these new policies?
On November 9, 2018, the Department of Homeland Security (DHS) and Department of Justice (DOJ) issued an interim final rule and a presidential proclamation affecting individuals seeking entry at the southern border of the United States. These executive actions place restrictions on asylum for certain noncitizens arriving in the United States.
What are these policies intended to do?
The interim final rule governs eligibility for asylum and screening procedures for those subject to a new presidential proclamation. Together, these executive actions suspend entry for noncitizens crossing the southern border and bar such noncitizens from asylum.
What is the scope of the joint interim rule and presidential proclamation?
The rule applies prospectively, so individuals who arrived in the United States before the effective date of November 9, 2018 are not covered. The rule also does not impact two related forms of relief known as withholding of removal and protection under the Convention Against Torture. These forms of relief are narrower and without the same benefits of asylum protection. No later than 90 days from the date of the presidential proclamation, November 9, 2018, the Secretary of State, Attorney General and Secretary of Homeland Security should submit to the President a
recommendation on whether the suspension should be extended or renewed.
What legal authority is the administration relying upon to issue the interim final and
presidential proclamation?
The joint interim rule points to several sections in the immigration statute known as the Immigration and Nationality Act (INA). Some of these sections are summarized below.
● INA § 212(f) states: “Whenever the President finds that the entry of any aliens or of anyclass of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
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● INA § 208(d)(5)(B)● INA §
●
Has the administration used INA § 212(f) before?
Yes. Most recently, INA § 212(f) was used as a basis for three travel bans issued by the President, each of which prohibits the entry of nationals from certain countries. On June 26, 2018, the Supreme Court of the United States issued an opinion in the case of Hawaii v. Trump (Travel Ban 3.0). Writing for the majority, Chief Justice Roberts held that the travel ban does not violate the INA and described INA § 212(f) as a “comprehensive delegation” which “exudes deference to the President in every clause.”
Is the President’s use of INA § 212(f) in the Travel Ban distinguishable?
Yes. In Hawaii v. Trump, the courts did not analyze the suspension clause at INA § 212(f) against the asylum provision at INA § 208(a).
What are the legal concerns with these executive actions?
There is a concern that the executive actions violate the immigration statute and other laws. While the interim final rule and presidential proclamation identify some sections of the immigration statute, these sections cannot be read in isolation to the statute as a whole, nor can it conflict with the U.S. Constitution, statutes and other laws. One concern is that these actions violate the statutory provision that governs asylum law and other laws. INA § 208 states that any person physically present in the United States, regardless of how or where he or she entered is eligible to apply for asylum. The section states in part, “
ated port of arrival.
The goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
states that “[t]he Attorney General may provide by regulation for any
other conditions or limitations on the consideration of an application for asylum not
inconsistent with this Act.”
215(a) states that it is “unlawful . . . for any alien to depart from or enter or attempt
to depart from or enter the United States except under such reasonable rules, regulations,and orders, and subject to such limitations and exceptions as the President may prescribe.”
INA
§
208(b)(2)(C) states that the “Attorney General may by regulation establish
additional limitations and conditions, consistent with this section, under which an alien
shall be ineligible for asylum under paragraph (1).”
Any alien . . . who arrives in the United States (whether or not
at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of such alien’s status,
may apply for asylum . . .” (emphasis added).
Because
the plain language of the INA is clear that
any noncitizen is eligible for asylum regardless of her manner of entry, there is a concern that these policies violate the statute by restricting the availability of asylum seekers only to those who
present at a design
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Why is the administration issuing these policies?
It is the administration’s position that the United States has seen an increase in the number of noncitizens arriving at the United States between ports of entry along the southern border and that
many of the asylum claims brought forth by this population are without merit.
What are some of the countervailing views to the administration’s position taken by some
refugee advocates and scholars?
Many asylum seekers arriving at the southern border are from the Northern Triangle which is comprised of Guatemala, El Salvador and Honduras. The violence and danger in these countries is well documented. Individuals who have suffered or will suffer individual harm for a specific
reason are eligible to apply for asylum under the immigration statute and other laws. Many of the
asylum claims by individuals from the Northern Triangle are with merit.
What is an “Interim Final Rule”?
An Interim Final Rule becomes effective immediately upon publication and is an exception to the general rule that public notice and comment must take place before the effective date of a regulation. DOJ and DHS have concluded that a “good cause” exception exists to publish this asylum regulation as an interim final rule. Written comments can be submitted by the public for a period of sixty days from the date of publication.
What is a presidential proclamation?
A presidential proclamation is one form of presidential power and similar to an executive order. It is an order issued by the President of the United States and may possess the authority of law. See e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
What comes next?
Given the legal concerns of restricting asylum, litigation is expected. Further, under section 4 of the presidential proclamation, if any section of the proclamation is found to be invalid, the remainder of the proclamation shall remain effective.
Where can I find more resources?
See the Penn State Law Center for Immigrants’ Rights Clinic website for updates on this and other immigration policies. Also visit:
● Department of Homeland Security
● American Immigration Lawyers Association
● American Immigration Council
● Human Rights FirstThe goal of this document is to provide general information and is not meant to act as a substitute to legal advice from an attorney.
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It’s critically important to the future of our nation and the world that the actions of Trump and his White Nationalist scofflaws be resisted in the courts and in our political system.
In the meantime, since virtually everything the Administration says on this topic is a false narrative or obfuscation of their real racist agenda, an honest expert analysis like this is a “gold mine.”
We can (and are) diminishing ourselves as a nation, but it won’t stop human migration!
