NY TIMES: John Kasich and Jeb Bush Jr. SPEAK OUT IN FAVOR OF SALVADORAN FAMILIES — TRUMP ADMINISTRATION’S DECISION TO TERMINATE TPS “A BAD IDEA!”

https://www.nytimes.com/2018/01/11/opinion/kasich-bush-immigration-salvadorans.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0

Kasich & Bush write in the NY Times:

“Immigration has become one of the most polarizing issues of our day. But it is worth remembering that this century opened with a tale of family and migration that was as contentious as many of the stories that punctuate our current debate: the case of Elián González.

In November 1999, when Elián was 6, he left Cuba in a small boat with his mother, who was seeking a better life in Florida. She and 10 others died when the boat sank in a storm. Elián survived by clinging to an inner tube. Courts eventually ruled that he must return to his father in Cuba rather than stay with relatives in Florida. He remains there to this day.

Regardless of your views of the underlying legal arguments in the case, the image of a small, frightened boy being pulled from the arms of a sheltering adult by a team of heavily armed federal agents remains seared in the minds of many people as a low point in the immigration debate.

Brace yourself for the possibility of seeing this kind of scene again.

As Republicans, whose party has consistently and rightly advanced policies to support the essential role of families in America, we are deeply troubled by the harm that is about to be done to hundreds of thousands of families that have legally called America home for more than two decades.

In the wake of the 2001 earthquake in El Salvador that claimed more than 1,000 lives and destroyed 100,000 homes, the United States allowed hard-hit families to live and work in America. This merciful act was one of many that America took to relieve the suffering of a natural disaster in one of the hemisphere’s most troubled, impoverished nations.

Now, after almost two decades, the nation that showed that kindness is poised to revoke it and force approximately 200,000 Salvadorans to leave the United States, even those whose children are American citizens. (Together, they have about 190,000 American-born children.)

 It is wrong to potentially break up so many families that have for so long made the United States their home — legally and at our invitation.

When prioritizing the immigration problems we face, the case of 200,000 Salvadorans who accepted our invitation to live and work here legally would not even make a top-10 list. The biggest challenge is, of course, securing the border. It must be done. Continued illegal migration across the southern border and the often-related criminal activity involving drugs, human trafficking and undocumented, unregulated labor is unacceptable.

Second, of course, is what to do with the 10 million to 15 million undocumented immigrants who arrived over the past several decades and who have become part of American life — and who, let’s be honest, will not and should not be forcibly removed. Congress and the president can and must act now to resolve these problems.

As our leaders try to devise durable, humane solutions to the most urgent immigration issues, it is a mistake to think the right approach is to look backward, relitigate nearly 20-year-old decisions and break up families. In fact, the action against Salvadoran families is so problematic that it is hard to see how it will not hinder efforts in Washington to find common ground on immigration.

Another of our challenges is how to deal with the 800,000 undocumented immigrants who were brought to the United States with their families when they were children. The uncertain status of these “Dreamers” is not of their own making. Though they were not born here, they know no other home than America. They grew up, studied and work here. They are largely models of the assimilation we seek for all immigrants. Congress can and should move quickly to send President Trump legislation providing a common-sense resolution to their situation so that they can continue to thrive here as part of the American dream.

One of our party’s, and the world’s, greatest leaders, Ronald Reagan, was also a passionate and articulate advocate of strong families. He once said: “The family has always been the cornerstone of American society. Our families nurture, preserve and pass on to each succeeding generation the values we share and cherish, values that are the foundation for our freedoms.”

Singling out Salvadoran families for separation is simply a bad idea that should be dropped. If we believe America is made stronger by families, then let’s do everything we can to strengthen all the families who choose to call America home. At the very least, the federal government should not become the instrument for attacking them.

We must instead take up the actual immigration challenges we face in a humane, responsible way that protects American interests and jobs.

SUCCESS: GW ASYLUM CLINIC SAVES A LIFE AT ARLINGTON IMMIGRATION COURT!

“Friends,

Please join me in congratulating Immigration Clinic student-attorney Gisela Camba, and her clients M-A and K-C, from Honduras.  This afternoon, after a three-hour hearing, Immigration Judge Robert P. Owens granted the clients’ asylum application.

K-C, then fourteen years of age, was accosted and threatened three times by a gang member while walking to school.  The gang member threatened to kidnap her, if she didn’t go with him voluntarily, and then kill her and her family.  After the third threat, her Mom, M-A, fled with her to the USA.  K-C, now sixteen, testified that around that time a girl in her neighborhood had been kidnapped by gang members and never heard from again.

Congratulations also to Sameen Ahmadnia, Dalia Varela, Sarah DeLong, Jonathan Bialosky, and Rachael Petterson, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”
************************************************
Congrats, Professor, to you and your students! You are true members of the New Due Process Army!
PWS😎😎😎
01-11-18

WASHPOST: “Trump attacks protections for immigrants from ‘shithole’ countries in Oval Office meeting”

https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac729add94_story.html

Josh Dawsey reports for the Washington Post:

“President Trump grew frustrated with lawmakers Thursday in the Oval Office when they floated restoring protections for immigrants from Haiti, El Salvador and African countries as part of a bipartisan immigration deal, according to two people briefed on the meeting.

“Why are we having all these people from shithole countries come here?” Trump said, according to these people, referring to African countries and Haiti. He then suggested that the United States should instead bring more people from countries like Norway, whose prime minister he met Wednesday.

The comments left lawmakers taken aback, according to people familiar with their reactions. Sens. Lindsey O. Graham (R-S.C.) and Richard J. Durbin (D-Ill.) proposed cutting the visa lottery program by 50 percent and prioritizing countries already in the system, a White House official said.

A White House spokesman declined to offer an immediate comment on Trump’s remarks.

. . . .

Graham and Durbin thought they would be meeting with Trump alone and were surprised to find immigration hard-liners such as Rep. Bob Goodlatte (R-Va.) and Sen. Tom Cotton (R-Ark.) at the meeting. The meeting was impromptu and came after phone calls Thursday morning, Capitol Hill aides said.”

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

Read The complete article at the link,

So much for the concept of a “Stable Genius” in the White House.

Also, so much for the claim that we don’t have a racist in the White House. Actually, Haitian and African immigrants have contributed far more to the success of America than Trump and his family ever will!

 

PWS

01-11-18

 

 

 

ADMINISTRATION PANICS AS BORDER ARRIVALS (NOT SURPRISINGLY) CONTINUE TO RISE – BUT, CLAIMS OF AN “EMERGENCY” ARE TOTALLY BOGUS! – TAL @ CNN REPORTS!

http://www.cnn.com/2018/01/10/politics/border-crossings-up-trump-effect/index.html

Tal isn’t just following DACA. She “does it all” when it comes to migration. Here’s her latest report:

“Trump admin grapples with rise in border crossing numbers it once touted

By Tal Kopan, CNN

The Trump administration is pointing to a recent uptick in illegal border crossings as evidence that it needs more authority — even as it continues to tout a longer-term decrease as proof of the effectiveness of its policies.

Illegal entries to the US have risen substantially over the past few months.

In a rare statement on its monthly report of apprehensions and rejections at the border, the Department of Homeland Security on Tuesday both praised the numbers and said work remained.

“The final border apprehension numbers of 2017, specifically at the southern border, undeniably prove the effectiveness of President Trump’s commitment to securing our borders,” said DHS spokesman Tyler Houlton, noting the numbers over the last year were 40% below the final year of President Barack Obama’s tenure.

But, Houlton said, the recent increase spelled trouble.

“The significant increase over the last month in the number of family units and unaccompanied children coming across the border illegally highlights the dire need for Congress to immediately adopt responsible pro-American immigration reforms. … The Secretary will require fixes to these loopholes as part of any immigration package negotiated (in a meeting Tuesday) at the White House.”

After a sharp drop in the number of undocumented immigrants attempting to cross the border at the beginning of the Trump administration, the President and his administration frequently cited the low numbers as evidence that Trump’s immigration policy works.

But starting in the summer, crossings began to again approach historic levels. With 40,513 apprehensions and rejections at the southern border in December, the total numbers are behind fiscal years 2016 and 2017, but surpass crossings in fiscal years 2013, 2014 and 2015.

The administration has employed aggressive rhetoric and spoken consistently about securing the border and cracking down on undocumented immigrants in the US. Arrests by Immigration and Customs Enforcement are up — but little has operationally changed at the border and deportations last year lagged behind the last year of Obama’s presidency.

Trump is pushing for aggressive policies as part of a deal to protect the Deferred Action for Childhood Arrivals program, as conservatives argue that allowing undocumented immigrants a path to citizenship will only add incentives for potential illegal crossings in the future.”

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We’re clearly dealing with “Amateur Night at the Bijou” here! Anybody with even passing familiarity with or competency in immigration policy would know better than to do the “victory dance” based on a couple of months of DHS enforcement data. It’s not like DHS is renowned for either the accuracy of its enforcement statistics or the depth and quality of analysis thereof.

First, and foremost, the increased arrivals of families and children from the Northern Triangle presents no real security issue. Most turn themselves in at the border or the nearest Border Patrol Station and seek asylum. Indeed, if anything, the unrelentingly negative rhetoric of the Trumpsters probably leads a few individuals who would otherwise turn themselves in or apply at the port of entry to try to get inland to avoid more or less mandatory detention.

Clearly, the driver here is conditions in the Northern Triangle, which continue to deteriorate, notwithstanding the absurd political determination by Secretary Neilsen that it was” A-OK” to send long term residents from El Salvador back there. The solution is definitely not more militarization of the border or more unnecessary and inhumane detention.

No, its a combination of 1) working to improve conditions that force folks to flee the Northern Triangle; 2) working with the UNHCR other stable countries in the Americas to distribute the flow more evenly among “receiving countries;” and 3) developing either a temporary refuge program or a more realistic, generous, and easily administered program to grant asylum, withholding, and/or relief under the CAT to those many who meet the legal requirements properly interpreted.

At bottom, there really isn’t much difference between these folks and waves of Cuban refugees whom we accepted, processed, and successfully integrated into our society with greatly beneficial results for both the Cubans and America.

Time to be done with the xenophobia and the racially-inspired bias against Central Americans fleeing for their lives.  No, this Administration is unlikely to do that. And, that’s why the problems caused by irregular migration are likely to continue long into the future no matter how much “tough guy” rhetoric Trump or anyone else spews out and how much we spend on unnecessary border militarization.

Yes, there are real security and law enforcement problems at the Southern Border. For sure! But more women and children fleeing conditions in the Northern Triangle aren’t among them. If anything, the Trump Administration’s fixation on those who aren’t a real security problem deflects focus from the real problems of drug and human smuggling and the possible entry of those who would actually be risks to our safety and security.

PWS

01-10-18

 

WASHPOST EDITORIAL: TERMINATION OF SALVADORAN TPS IS GRATUITOUS CRUELTY ON PART OF ADMINISTRATION – All Pain, No Gain (In Fact, A Net Loss For Everyone)!

https://www.washingtonpost.com/opinions/a-new-self-inflicted-wound-from-the-trump-administration/2018/01/09/19db1190-f585-11e7-beb6-c8d48830c54d_story.html?utm_term=.bfcbf9ae8f07

January 9 at 7:46 PM

STRIKING A blow for making America small again — plus petty, callous and self-defeating — the Trump administration on Monday stripped about 200,000 Salvadorans of their work authorizations and protection from deportation, effective 20 months from now.

The move will create tens of thousands of new undocumented immigrants in the United States; aggravate labor shortages in some American cities; saddle one of the hemisphere’s most beleaguered countries with problems it is ill-equipped to manage; and embitter tens of thousands of U.S.-born citizens whose parents are suddenly thrust into a life in the shadows or forced to return to a country where they have no future.

At this point, it’s naive to wonder what has become of America’s humanitarian impulse; in the Age of Trump, it’s null and void. Before the decision Monday by Homeland Security Secretary Kirstjen Nielsen to send packing Salvadorans who have lived in this country since a pair of earthquakes crippled their homeland in 2001, the administration took identical action last year against citizens of the hemisphere’s two poorest countries, Haiti and Nicaragua, who have also lived in this country since natural disasters ravaged their own, and announced its intention to end protections for young undocumented immigrants known as “dreamers” effective beginning in March.

As with the dreamers, the administration has seized on a narrow, legalistic interpretation as a pretext for turning against immigrants who have lived in the United States for years. In the case of the Salvadorans, officials insisted that the humanitarian program that shielded them, known as Temporary Protected Status, should lapse because their country had surmounted the original calamity that triggered TPS in the first place. The argument was the same last year for ending TPS for immigrants from Haiti, knocked senseless by a 2010 earthquake, and those from Nicaragua, leveled by a hurricane in 1998.

The administration insists it is giving meaning to the “temporary” in Temporary Protected Status. That’s fine as theory; as a policy, it fails by ignoring reality. Both the George W. Bush and Obama administrations grasped that it was unwise, not to mention cruel, to impose additional burdens on already desperate neighbors. El Salvador — wracked by brutal gang warfare, one of the world’s highest murder rates and an anemic economy — has gross domestic product per capita one-seventh that of the United States. Deporting tens of thousands of Salvadorans, and, in the process, depriving their country of the remittances they send home, will only deepen that country’s unfolding disaster. How is that in the United States’ interest?

The fact is that the Salvadorans have nearly 200,000 children who are U.S. citizens, born in this country, with no knowledge of their parents’ homeland. Nearly a quarter of those who will lose their status have mortgages, many have businesses, and a large majority have been gainfully employed for many years, paying taxes and contributing to communities.

The costs of the administration’s policy are clear. But what has been gained?”

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

In the end, “Gonzo” enforcement and policy making will cost the United States dearly in many, many ways. But, that’s what happens when folks elect an Administration made up of “unqualifieds” and a Congress controlled by a minority Party that doesn’t take seriously its responsibility to legislate or goven in the overall public interest.

The only real solution here is likely to be a longer term one at the ballot box.

PWS

01-10-18

TAL @ CNN: TRUMP ADMINISTRTATION EXPECTED TO INFLICT MORE UNNECESSARY PAIN & SUFFERING ON LATINO COMMUNITIES NEXT WEEK BY TERMINATING TPS FOR EL SALVADOR!

http://www.cnn.com/2018/01/06/politics/homeland-security-nielsen-temporary-protected-status-el-salvador/index.html

Tal writes:

New DHS secretary faces first immigration litmus test

By Tal Kopan, CNN

New Homeland Security Secretary Kirstjen Nielsen faces her first major test on immigration policy next week with a decision that could force upwards of 250,000 Central Americans to leave the United States or scramble to find a way to stay.

Monday is the deadline for deciding the future of a protected status for nationals of El Salvador, and the Department of Homeland Security is widely expected to announce an end to the program, which has offered work permits and the right to live in the United States.

More than 260,000 Salvadorans are covered by the program, according to US Citizenship and Immigration Services, but some experts estimate roughly 200,000 of them could be left without the protected status, based on previous department estimates. Salvadorans make up the largest share of immigrants protected by the program, and all of them have lived in the United States since at least 2001.

While the Homeland Security Department has not yet announced its decision, its actions this year have signaled a tougher approach to the program, which allows individuals from countries affected by crises like natural disasters, war and epidemics to stay in the US and work without being deported. The “temporary protected status,” as it is known, lasts for about two years before needing to be renewed. El Salvador’s status has been continually renewed since 2001, when it was granted after a series of earthquakes.

The pending deadline marks the first major immigration decision that will fall to Nielsen, who has thus far pledged to carry on the legacy of her predecessor and former boss, John Kelly, who is now White House chief of staff.

This fall, her department ended temporary protected designations for thousands of immigrants, including more than 50,000 from Haiti and thousands more from Nicaragua and Sudan, which critics say needlessly uproots contributing immigrants to send them back to unstable countries.

Acting Secretary Elaine Duke, however, extended protections for more than 80,000 Hondurans for six months because she said she was unable to reach a decision about whether conditions in that country had improved enough to terminate the protected status. That decision prompted heavy pressure from the White House to end the protections, sources said, though Duke later denied accounts that said she felt distressed and disappointed by the interference from Kelly.

Nielsen has the ultimate decision on whether to extend El Salvador’s status, but advocates on the issue from both sides of the aisle anticipate a similar decision to that on Haiti, a struggling country as well, but one the department says has recovered from its devastating earthquake in 2010. If Nielsen opts to end the Salvadorans’ protections, it likely would give them 12 to 18 months to apply for some other visa to stay in the United States or prepare to leave.

When the protections end, recipients revert to the status they have otherwise, which would likely leave a number of Salvadorans undocumented after nearly two decades of legally working and living in the United States.

Groups on the right that advocate for restricting immigration are pressing the Homeland Security Department to end the status for El Salvador, and were concerned during Nielsen’s confirmation that she would be adequately hard-line in implementing President Donald Trump’s immigration agenda.

“(Monday’s decision) is a test of whether she properly reflects the Trump campaign’s commitment to the people on these issues,” said Dan Stein, president of the Federation for American Immigration Reform. “We’d be very disappointed to see TPS extended yet again — with no credible justification.”

“Allowing them to stay longer only undermines the integrity of the program and essentially makes the ‘temporary’ protected status a front operation for backdoor permanent immigration,” added Roy Beck, president of NumbersUSA.

There is one area of agreement between the groups on the right like FAIR and NumbersUSA and advocates on the left who say ending temporary protected status for El Salvador would be an unnecessary and cruel move — Nielsen’s decision will toss a political hot potato to Congress.

In ending the protections for other groups, the Homeland Security Department has urged outraged lawmakers to enact legislation rather than continue to force the secretary to make the decisions.

“It will be couched in nice terms, but it actually will be a dramatic move,” Frank Sharry, executive director of America’s Voice Education Fund, a pro-immigration reform group, said of his expectation that DHS will urge Congress to act. “These are Salvadorans who have been living in the United States with work permission for almost 20 years. These are people who are American in all but their paperwork. And the idea that we’re going to try to drive them back to a country that is engulfed in weak governance and corruption and violence is unthinkable.”

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

How dumb is it to terminate TPS for El Salvador. I ran into a respected local immigration attorney over the Holidays. While she decried the stupidity and wastefulness of the anticipated decision to terminate Salvadoran TPS, she said that it would have little practical effect on most of her Salvadoran TPS clients.

By now, she related, they all have strong prima facie claims for what is known as “Non-Lawful Permanent Resident Cancellation of Removal” based on “exceptional and extremely unusual hardship” to U.S. citizen spouses or children. Once TPS runs out and these cases are placed on the already dysfunctional Immigration Court docket, she will file the Form EOIR-43 Application for Cancellation of Removal and seek work authorization while the cases are pending before the Immigration Courts. She anticipates that given the current and anticipated backlogs in the local U.S. Immigration Courts, those cases will receive “Individual (Merits) Hearings” about five or six years from now.

Some, she thinks most, will succeed. Those that fail will exercise their appellate rights, thus further extending the process. By that time, the already feeble rationale for actually removing them for the U.S. will be even weaker. And, by then, we likely will have a different Administration and Congress that hopefully will take a more realistic, humane, and pro-American approach to the plight of the TPSers.

How dumb is terminating TPS? I’d hazard to guess that Salvadorans with “permits’ — work authorizations granted under TPS — form the backbone of the booming Northern Virginia construction and remodeling industry. If they were removed tomorrow, everyone in the region would suffer an immediate, and not easily reversible, economic downturn.

Similar problems will occur throughout the nation, not to mention the likely destabilization of El Salvador from the return of so many individuals who had long resided in the U.S to a country already in serious turmoil. In  other words, the Trump Administration appears to be in the process of engineering a human rights, foreign policy, and economic disaster on multiple levels.

PWS

01-07-18

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UPDATE:

Nick Miroff at the Washington Post reports that the Secretary of DHS has decided to end Salvadoran TPS, effective September 9, 2019.

https://www.washingtonpost.com/world/national-security/trump-administration-to-end-provisional-residency-for-200000-salvadorans/2018/01/08/badfde90-f481-11e7-beb6-c8d48830c54d_story.html

“The Trump administration will announce Monday that it intends to cancel the provisional residency permits of about 200,000 Salvadorans who have lived in the country since at least 2001, leaving them vulnerable to deportation, according to mulitple people on Capitol Hill who’ve been apprised of the plan.

The administration will notify the Salvadorans they have until Sept. 9, 2019 to leave the United States or find a new way to obtain legal residency, according to a copy of the announcement prepared by the Department of Homeland Security that will be published Monday morning.

The Salvadorans were granted what is known as Temporary Protected Status, or TPS, after a series of earthquakes devastated the country in 2001.

DHS is preparing to announce that Secretary Kirstjen Nielsen has decided the conditions in El Salvador have improved significantly since then, ending the original justification for the Salvadorans’ deportation protection, these people said.”

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

Read Nick’s complete report at the link.

PWS

01-08-18

 

ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!

https://www.huffingtonpost.com/entry/trump-daca-dreamers-dick-durbin_us_5a4fff0ce4b01e1a4b151ad1

Elise writes in HuffPost:

“WASHINGTON  ― President Donald Trump sent senators a lengthy set of demands on Friday that could tank a deal to help Dreamers ― young undocumented immigrants who came to the U.S. as children ― and might risk a government funding agreement in the process.

The document is essentially an immigration restrictionist wish list. It calls for a border wall, more immigration enforcement agents, punishment for so-called “sanctuary cities,” restrictions on citizens and legal residents sponsoring family members’ visas, and policies to make it easier to detain and deport undocumented immigrants. No dollar amounts were included in the list of demands, but The Wall Street Journal reported earlier Friday that Trump is seeking nearly $18 billion to pay for a border wall.

Democrats and immigrant rights activists have said they won’t accept the White House’s demands in a deal to grant legal status to Dreamers, hundreds of thousands of whom are at risk of losing deportation protections because Trump ended the Deferred Action for Childhood Arrivals or DACA program.

The list could be enough to trigger a Democratic revolt on a government funding bill that needs to pass later this month, Senate Minority Whip Dick Durbin (D-Ill.), whose office shared the White House’s list with reporters, said in a statement.

“President Trump has said he may need a good government shutdown to get his wall,” Durbin said. “With this demand, he seems to be heading in that direction. … It’s outrageous that the White House would undercut months of bipartisan efforts by again trying to put its entire wish-list of hardline anti-immigrant bills—plus an additional $18 billion in wall funding—on the backs of these young people.”

Trump ended DACA in September and said Congress should act to give more permanent protections to recipients of the two-year work permits and deportation relief. DACA recipients will begin to lose permits in greater numbers in March, although activists estimate they’re already losing them at a rate of about 122 per day.

In the months since Trump ended the program, the White House has put out long lists of immigration priorities, and Trump has made broad pronouncements in public comments and tweets, largely focused around building a wall, ending the diversity visa lottery and eliminating so-called “chain migration,” immigration restrictionists’ preferred term for family reunification visas.

The list of demands was initially created in October, with Stephen Miller, a Trump policy adviser, listed as the author of the document, according to the properties on the PDF file. But senators didn’t get a copy until Friday.

The White House did not immediately respond to a request for comment on the document.

Democrats have said they are willing to give Trump some of what he wants on border security, such as more infrastructure, technology and funds, in exchange for legal status for Dreamers. But they, and Dreamers themselves, have argued any deal must be proportional — not everything Republicans want in exchange for legal status for one subset of the undocumented population. During comprehensive immigration reform efforts in 2013, for example, Democrats agreed to an overhaul of the legal immigration system, border security measures and enforcement as part of a package that would have also granted a path to legal status and eventual citizenship for much of the undocumented immigrant population.

Democrats, activists and even some Republicans have warned that piling on more immigration issues has the potential to sink a deal — it happened during past reform efforts and could again now.

The document the White House sent to senators on Friday could indicate the administration either thinks it can get Democrats to settle because of their desire to help Dreamers, or that it doesn’t really want a deal at all.

I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it. Greisa Martinez Rosas, advocacy director for United We Dream

The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.

The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.

The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.

The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.

The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.

The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.”

********************************************
Read the rest of Elise’s report at the link.
I think that “Dreamers” are a good place for the Dems to take a stand. And, given the “Bakuninist Wing” of the GOP (who share Trump’s desire to destroy Government, but are dissatisfied with the pace of the destruction), it’s going to be very difficult for Trump to get any type of budget passed without Democratic support.
The DHS needs an additional 10,000 agents like we all need holes in our heads. They don’t have enough legitimate law enforcement functions to perform with the staff they have; that’s why they have time for chasing after kids and stuffing their generally law-abiding parents into an already overwhelmed Immigration Court system for hearings that probably won’t take place until long after this Administration is history. (And, that’s even without Gonzo’s current “plan” which appears to be intentionally “jacking up” the Immigration Court backlog to more than 1,000,000 cases overnight by “recycling” all of the currently “administratively closed” cases!)
The words of Greisa Martinez Rosas, advocacy director for United We Dream,  are worth repeating and keeping in mind:
“I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it.”
PWS
01-06-17

LAW360: BIA REMOVES IMMIGRATION JUDGE FOR ABUSIVE CONDUCT DURING HEARING!

https://www.law360.com/articles/999284/judge-s-hostile-and-bullying-acts-prompt-new-hearing

Kevin Penton reports for Law360:

“Law360, New York (January 5, 2018, 9:27 PM EST) — The Board of Immigration Appeals has vacated an immigration judge’s denials of a Salvadoran native’s bids to secure asylum and to duck deportation, after finding that the judge used “hostile and bullying behavior” toward the individual’s attorney.

The BIA wants a different judge to review the case, essentially from scratch, after finding that the Immigration Judge Quynh V. Bain “screamed” at the lawyer for more than five minutes, mimicked her voice, called her “several disrespectful names,” said she was “unprofessional” and refused to allow a recess…”

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Those with complete Law360 access can read Penton’s full story at the link. Kudos to the BIA for “stepping up” to stop such abuses and protect due process!

Surprisingly, and sadly, Judge Quynh V. Bain is one of my former colleagues at the U.S. Immigration Court in Arlington, Virginia. The Arlington Immigration Court generally has had a well-deserved reputation for fairness, professionalism, respect, teamwork, and unfailing courtesy. In other words, it’s always been a court where lawyers on both sides enjoy practicing. Indeed, it often serves as a “training court” for student attorneys, interns, new Assistant Chief Counsel, and newly appointed U.S. Immigration Judges. So, I’d have to assume that this was an aberration in the context of Arlington.

Nevertheless, given the high stress levels that U.S. Immigration Judges are already working under, the plans of Attorney General Jeff “Gonzo Apocalypto” Sessions to “torque up” the pressure on Immigration Judges to turn our final orders of removal without much, if any regard, for due process, the counter-pressure from the U.S. Courts of Appeals for Immigration Courts to function like “real” courts, the many newly appointed inexperienced Immigration Judges, and the lack of meaningful training for Immigration Judges, I would expect such incidents to increase in the future. Just another reason why it’s past time for an independent Article I U.S. immigration Court!

Changing to the topic of Law360, one of my favorite “immigration beat” reporters, Allissa Wickham (a/k/a the fabulous “AWick”) tells me that she has left Law360 for a “new gig” with HBO, working on a show featuring Wyatt Cenac (formerly of the “Daily Show”). The show is scheduled to air this spring. Allissa says that she will continue to do original reporting, so hopefully at least some immigration topics will find their way into her “portfolio.” Good luck Allissa, and thanks for all of your great immigration reporting, clear writing, and many contributions while at Law360!

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PWS

01-06-18

 

 

 

 

HON. JEFFREY CHASE COMMENTS ON THE DISINGENUOUS ABSURDITY OF THE ATTORNEY GENERAL’S LATEST ATTACK ON CHILDREN IN U.S. IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/12/28/lawyer-files-disciplinary-complaint-against-chief-immigration-judge

 

Dec 28 Lawyer Files Disciplinary Complaint Against Chief Immigration Judge
On December 22, New York attorney Bryan S. Johnson filed a complaint with the Assistant Chief Immigration Judge for Conduct and Professionalism against Chief Immigration Judge MaryBeth Keller. The basis for the complaint was the Chief Judge’s issuance of guidelines to immigration judges on the handling of cases involving juveniles, including unaccompanied children (OPPM 17-03, Dec. 20, 2017). In that directive, Judge Keller instructed immigration judges that in spite of the sympathetic factors involved in children’s cases, “judges must remain neutral and impartial when adjudicating juvenile cases and shall not display any appearance of impropriety when presiding over such cases.” The complaint argues that such directive instructs immigration judges to violate federal statute, specifically the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which requires the Attorney General to train immigration judges to “work with unaccompanied alien children, including identifying children who are victims of severe forms of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate.” 8 U.S.C. § 1232(e).

Instructing judges to “remain neutral and impartial,” while open to interpretation, will be perceived by many as requiring passivity. As one senior judge explained to me when I was new to the bench, judges should consider themselves blank slates and only consider what the parties have chosen to write on that slate. However, exceptions exist. In a precedent decision issued 20 years ago, the BIA held that in asylum cases in which the parties have not presented enough evidence to provide an adequate record, immigration judges should themselves present country condition evidence into the record. The Board cited favorably to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which defines the role of the adjudicator as to “ensure that the applicant presents his case as fully as possible and with all available evidence.” Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997). Decided by a BIA that possessed some brilliant minds and courage, the Board in S-M-J- established that there are times that an immigration judge must not remain neutral when doing so will deny an asylum seeker justice.

Ten years later, the Chief Immigration Judge issued guidance to immigration judges handling juvenile cases to take a proactive approach, due to the vulnerability of the child respondents. It bears noting that the 2007 guidelines were issued under a Republican administration. Obviously, a neutral, passive approach by the judge will not ensure a fair hearing where the two parties involved are the Department of Homeland Security, represented in court by one of its attorneys, and a young (and possibly unrepresented) child. In such circumstances, the judge must to some degree advocate for the child to “ensure that the applicant presents his case as fully as possible and with all available evidence,” to use the language of S-M-J-. In response to this need, EOIR created special juvenile dockets, and provided specialized training to the immigration judges chosen to preside over them. In 2008, Congress passed the TVPRA, the statute relied upon by attorney Johnson in his complaint. In 2013, EOIR created an Assistant Chief Immigration Judge position specifically dedicated to “vulnerable populations.”

EOIR has the additional opportunity to create a more level playing field by assigning counsel to all unrepresented juveniles appearing in immigration court. Yet the agency strongly opposed this solution in a class-action lawsuit filed by advocacy groups (including the ACLU and the Northwest Immigrant Rights Project), J.E.F.M. v. Lynch. The U.S. Court of Appeals for the Ninth Circuit dismissed the case last year, finding that the court lacked jurisdiction to decide the issue. However, the court’s majority opinion emphasized that it was not ruling on the merits of the claim, and in a concurring opinion, two of the three judges on the case’s panel acknowledged that “thousands of children are left to thread their way alone through the labarynthine maze of immigration laws, which, without hyperbole, ‘have been termed second only to the Internal Revenue Code in complexity.’” The judges continued that “given the onslaught of cases involving unaccompanied minors, there is only so much the most dedicated and judicious immigration judges…can do.” The court called on Congress and the Executive branch to take action to provide government-funded counsel to all children appearing in immigration court. The judges concluded that “to give meaning to “Equal Justice Under Law,” the tag line engraved in the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration justice system, and to protect the interests of children who must struggle through that system, the problem demands action now.”

Democratic lawmakers have introduced draft legislation, entitled the Fair Day in Court for Kids Act, that would remedy this situation. Versions of the bill went nowhere in 2016; a 2017 version sponsored by Rep. Zoe Lofgren (D-Cal.) and 31 co-sponsors was introduced on April 6, 2017 and has made no progress since. The website GovTrack.us states that the bill has a 3 percent chance of being enacted. In the meantime, the Chief Immigration Judge’s latest memo signals a move in the opposite direction under the present administration. Last week, the Trump administration confirmed that it is considering a policy of separating children from their parents upon arrival at the U.S. border. While the administration claims that the policy is designed to discourage Central Americans from making the dangerous journey north, it ignores the fact that those making such journey are refugees fleeing the threat of death in what has become one of the most violent and dangerous regions in the world.

The administration has not explained what alternatives exist to parents seeking to save their children from being murdered and raped by violent gangs, including MS-13, whose members Trump himself has referred to as “animals.” As reported by the New York Post, Trump stated during a speech last July in Long Island, NY of MS-13 members: “They kidnap. They extort. They rape and they rob. They prey on children. They stomp on their victims. They beat them with clubs. They slash them with machete. They stab them with knives.” It would therefore seem that the current administration should be seeking to do everything in its power to provide children fleeing the above-described treatment to have their claims for asylum considered as fully and fairly as possible. Restoring the 2007 guidelines, respecting the TVPRA requirements, refusing to separate children from their parents, and providing counsel at government expense to unrepresented children would all be welcome steps towards that goal.

Copyright 2017 Jeffrey S. Chase. All rights reserved.
JEFF CHASE
Dec 8 The Impact of Returning Children on Well-Founded Fear
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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I appreciate Judge Chase’s kind reference to Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997). I was on the en banc BIA that decided S-M-J-. (Yes, unlike now, most precedents were issued en banc, so that each Appellate Judge was required to take a public vote on the outcome. Something known as “transparency and accountability” that has disappeared from today’s BIA.)

Forget all the legal gobbledygook in the “Keller Memorandum.” Here’s what a straightforward policy from an Attorney General actually committed to upholding the Constitution and the “Rule of Law” might look like:

  • The first duty of a Judge is to insure Constitutional Due Process for each individual coming before the court.
  • A Judge should not conduct a merits hearing for any unrepresented child, including any individual the Judge reasonably believes to be a child.
  • The Judge and all court personnel should work cooperatively with nongovernmental organizations, bar associations, legal services groups, and community officials to insure that cases involving children are placed on the docket and scheduled in a manner that insures representation in each case
  • When in doubt, a Judge should always act in a manner that maximizes Due Process protections for each individual coming before the court.

PWS

12-29-17

THE HILL: Nolan Says That Expedited Removal Can “Ease The Burden” Of Immigration Detention; I Don’t Think So!

http://thehill.com/opinion/immigration/365829-expedited-removal-can-solve-concerns-with-immigration-detention

Nolan Rappaport writes at The Hill:

“Earlier this month, the DHS Office of Inspector General (IG) released a report on “Concerns about ICE Detainee Treatment and Care at Detention Facilities.” According to the ACLU, the way to address the violationsdescribed in this “damning new report” is to “release people from immigration detention and prohibit ICE from using dangerous and inhumane jails.”

The IG found problems at four of the five detention centers it inspected, but it is a stretch to call the report “damning” or to claim that ICE is “using dangerous and inhumane jails.” Many of the problems were relatively minor, and, apparently, all of them are going to be corrected.

In addition to federal service centers, ICE uses facilities owned and operated by private companies and state and local government facilities. The contracts of facilities that hold ICE detainees require them to adhere to the 2000 National Detention Standards, the 2008 Performance-Based National Detention Standards (PBNDS), or the 2011 PBNDS.

. . . .

The immigration court backlog is so long that, as of October 2017, the average wait for a hearing was 691 days, and Trump’s backlog reduction plan isn’t going to bring it under control.

ICE cannot release detainees because wait-times are too long. Many of them will not return for their hearings. During FY2015, 23.4 percent of the aliens who were released from custody did not return for their hearings, and releases were limited to cases in which there was reason to expect the aliens to return.

I see only two solutions, reduce the backlog by removing aliens from the immigration court and disposing of their cases in expedited removal proceedings, which do not require a hearing before an immigration judge, or have a large legalization program.

Which alternative do you expect the Republicans to choose?”

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Go on over to The Hill to read Nolan’s complete article.

Why Expedited Removal Isn’t the Answer (Leaving Aside The Substantial Legal and Moral Issues Involved):

  • Under Trump, DHS has already “maxed out” the use of expedited removal at the border. 
  • While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.
  • Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.
  • Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.
  • Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).
  • Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision  by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.
  • Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.

What Does Work:

  • Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g.,  http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf   
  • Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g.https://www.justice.gov/eoir/file/852516/download
    • Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
    • This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.
    • My own experience at the Arlington Immigration court was that individuals 1) represented by counsel , and 2) with applications for relief filed showed up for their hearings nearly 100% of the time. Indeed, beyond criminal record and family ties, those were the two most significant factors for me in setting immigration bonds.

An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative  ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.

PWS

12-23-17

MICA ROSENBERG @ REUTERS ANALYZES GONZO’S LATEST ATTACK ON CHILDREN (OR, IN “GONZOSPEAK” “UNMARRIED INDIVIDUALS UNDER THE AGE OF 18”) IN US IMMIGRATION COURT – No More “Mister Nice Guy” — Show ’em The Ugly Side Of America — These Kids Are Out To Get Us (Even If They Are So Scared, Confused, and Traumatized They Barely Know The Time Of Day)

https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-u-s-memo-weakens-guidelines-for-protecting-immigrant-children-in-court-idUSKBN1EH037

Mica reports:

“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.

An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”

The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.

The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.

‘WOLVES IN SHEEP CLOTHING’

Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.

Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”

The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.

While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.

Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”

Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”

Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”

“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”

In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.

The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.

Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”

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Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”

After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.

The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.

Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.

At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.

I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?

Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.

To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.

So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solution for getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?

But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reforms necessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.

PWS

12-23-17

TAL @ CNN: TRUMP GOP’S WHITE NATIONALIST AGENDA IMPEDES DREAMER NEGOTIATONS! (Plus, Extra Bonus : “Quadruple Header” From Tal!)

http://www.cnn.com/2017/12/18/politics/trump-administration-immigration-hardline/index.html

“Trump fully embraces far right immigration playbook

By: Tal Kopan, CNN

President Donald Trump and his administration have been sending a message in recent weeks: Trump’s campaign rhetoric on immigration was not just talk. In fact, it was just the beginning.

Trump has never shied from his attacks on illegal immigration, which, alongside a US-Mexico border wall, was a core component of his campaign.

But doubts existed about his commitment level, as some of the more aggressive proposals considered by the administration languished in bureaucratic morass and as he said strongly favorable things about recipients of the Deferred Action for Childhood Arrivals program in September as he opted to end it.

RELATED: DACA negotiations reach critical week

Of late, however, Trump and the administration have upped their rhetoric on immigration.

Trump has railed in several instances against “chain migration” and lotteries for green cards. His administration is moving to alter a program for the spouses of high-skilled visa holders. And the White House and Congress remain far apart on how to address DACA.

In mid-September, Trump wrote, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?”

But since then, he has insisted on controversial immigration reduction proposals that would have a hard time passing even among some Republicans, including drastically cutting the overall number of green cards given out annually and transforming the way they are given out, placing a heavy emphasis on only highly skilled, English-speaking immigrants and not low-skilled individuals.

Groups that have long advocated for reducing overall immigration are energized.

“We’re excited about how the administration has held firmly to these issues,” said Dan Stein, president of the Federation for American Immigration Reform. “We’ve put almost $1 million into ads. … This is the moment we’ve been waiting for four decades.”

Stein was especially pleased with Trump’s recent insistence that any deal to save DACA, which protected young undocumented immigrants brought to the US as children, include cuts to family-based immigration, or “chain migration,” and the diversity visa program, which allows up to 50,000 individuals from countries with low levels of immigration to the US to come on visas distributed by lottery.

Chain migration focus

The administration also was quick to point out that two recent terrorist attacks in New York City were committed by individuals with connections to family-based migration and the diversity lottery.

“You think the countries’ giving us their best people?” Trump said Friday in a speech to law enforcement personnel. “No. What kind of system is that? They come in by lottery. They give us their worst people, put them in a bin, but in his hand when he is picking them is really the worst of the worst.”

The theme of the dangers of immigrants — despite no research showing them to be more prone to crime than the native-born population — has been particularly hammered by longtime immigration hardliner Attorney General Jeff Sessions.

“If we accept lawlessness, then we encourage lawlessness. When people break our laws without consequences, we shouldn’t be surprised when they continue breaking our laws,” Sessions said in a speech last week. “We should give priority to those who are likely to thrive here — such as those who speak English or are highly skilled — not someone chosen at random or who happens to be somebody’s relative.”

In reality, individuals in those countries are selected randomly but still must meet the security and eligibility requirements placed on all immigrants to actually get their visas. Diversity recipients specifically must also have at least a high school education or equivalent and job experience. The process includes an in-person interview, and anyone that is found to be a security threat would be inadmissible to the US.

While the diversity lottery only affects about 50,000 of roughly 1 million green cards given out to the US annually, Trump has supported legislation from two GOP senators that would drastically reduce family visa categories, cutting yearly numbers in half.

The administration has also made its own efforts to reduce immigration levels without Congress, including setting a historically low number of refugee admissions for next year, instituting the travel ban and submitting would-be visitors and immigrants to “extreme vetting.”

Late last week, the Department of Homeland Security revealed it intends to do away with work permits for spouses of high-skilled visa holders who are waiting in a years-long green card backlog. The announcement also said the agency intends to set a higher bar for the high-skilled visa itself.

New Homeland Security Secretary Kirstjen Nielsen spent last week establishing her hardline immigration bona fides, touting security at the border and attacking sanctuary cities and immigrant-related crime. Her tour came after weeks of broadsides from Trump-aligned sources like Breitbart, which had pejoratively nicknamed her “Lady DACA.”

Leon Fresco, an immigration attorney and Obama administration alum, said that while there may be some fraud in the immigration system, the Trump agenda goes beyond reasonably trying to resolve it.

“They’re not just fixing the system, they are signaling a belief that regardless of their skills and talent, people from foreign countries are not welcome,” Fresco said. “Many of these reforms that are being implemented are simply out of the wishlist of the anti-immigrant groups and are not serving a legitimate purpose of reforming the immigration system. … The goal is to reduce the total number of foreigners.”

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Right on, Leon!

DHS can use more lawyers, better technology, and some new equipment. The Dems certainly could offer up that.

The U.S. Immigration Court could use more resources. But, with “Gonzo” in charge, it’s probably a case of “throwing good money after bad.”

“The Wall” is overkill and has some bad symbology. But, in human rights terms, it’s not as overtly harmful as the other stuff on the restrictionist’s list.

The rest of the “restrictionist wish list” is pretty toxic. Don’t see how the Dems can vote for a bill that contains any of it.

For any of you who thought Tal was “easing up” on her amazing pace, here are her interesting reports on Puerto Rico:

http://www.cnn.com/2017/12/19/politics/puerto-rico-washington-equal-treatment/index.html

Puerto Rico governor calls out Washington on ‘equal treatment’By Tal Kopan, CNN

http://www.cnn.com/2017/12/19/politics/carson-nielsen-puerto-rico-visit/index.html

Carson: Puerto Rico recovery is ‘better than what I had heard’

By Tal Kopan

and Senator Lindsay Graham:

http://www.cnn.com/2017/12/18/politics/lindsey-graham-donald-trump-immigration-daca/index.html

“Graham had ‘long’ talk with Trump about immigration”

By: Tal Kopan, CNN”

 

Thanks for all you do, Tal!

Hope you will get some rest and relaxation over the holidays!

PWS

12-22-17

 

 

PANIC IN THE WHITE NATIONALIST EMPIRE: As Border Crossings Continue To Rise, Trump’s Neo-Nazis See All Out War On “Families Of Color” Seeking To Assert Statutory & Constitutional Rights As Last, Best, Hope for A “Whiter, Less Hispanic” America!

https://www.washingtonpost.com/world/national-security/to-curb-illegal-border-crossings-trump-administration-weighs-new-measures-targeting-families/2017/12/21/19300dc2-e66c-11e7-9ec2-518810e7d44d_story.html?utm_term=.44b39f31bc4e

 

Nick Miroff reports for the Washington Post:

“The Trump administration is considering measures to halt a surge of Central American families and unaccompanied minors coming across the Mexican border, including a proposal to separate parents from their children, according to officials with knowledge of the plans.

These measures, described on the condition of anonymity because they have not been publicly disclosed, would also crack down on migrants living in the United States illegally who send for their children. That aspect of the effort would use data collected by the Department of Health and Human Services (HHS) to target parents for deportation after they attempt to regain custody of their children from government shelters.

The Department of Homeland Security (DHS) has previously considered some of these proposals, but there is renewed urgency within the administration to address an abrupt reversal of what had been a sharp decline in illegal immigration since Trump took office in January.

In November, U.S. agents took into custody 7,018 families, or “family units,” along the border with Mexico, a 45 percent increase over the previous month, the latest  DHS statistics show. The number of “unaccompanied alien children,” or UAC, was up ­­26 percent.

Children’s shelters operated by HHS are at maximum capacity or “dangerously close to it,” an official from the agency said. Overall, the number of migrants detained last month along the Mexico border, 39,006, was the highest monthly total since Trump became president, according to DHS figures.

5:01
In a small city in Upstate New York, ICE arrests drive migrants into hiding

The proposals, which have been presented for approval to new DHS Secretary Kirstjen Nielsen, were developed by career officials at Immigration and Customs Enforcement (ICE) and other DHS agencies, administration officials said.

Tyler Houlton, a DHS spokesman, confirmed the agency has “reviewed procedural, policy, regulatory and legislative changes” to deter migrants. Without giving further details, he said some of the measures “have been approved,” and DHS is working with other federal agencies “to implement them in the near future.”

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders, and as a result we are continuing to review additional policy options,” Houlton said.

The most contentious ­proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be “well cared for as we deal with their parents.”

Kelly did not move forward with the plan, in part because of the backlash it triggered, administration officials said, and also because illegal migration had plunged to historic lows.

Trump administration officials described the measures as unpalatable but necessarily tough policy options to discourage Central American families from embarking on the long, dangerous journey to the border — or hiring smugglers to bring their children north.

2:21
In southern Texas, a rancher explains why he supports Trump but not the wall.

“People aren’t going to stop coming unless there are consequences to illegal entry,” one DHS official said.

Migrants from El Salvador, Guatemala and Honduras represent the largest share of families and children taken into U.S. custody along the border, with many telling border agents that they fear for their lives if sent back to their home countries. The three nations, known as the “Northern Triangle” of Central America, are crippled by gang violence and homicide rates that are among the world’s highest.

Trump administration officials say Central American migrants and the paid smugglers who bring them to the border shamelessly exploit Americans’ compassion, entering the United States illegally and gaming the asylum process.

If a migrant’s stated fear of being sent home is considered “credible,” they enter an asylum process that may take years to adjudicate, and the flood of such petitions in recent years has worsened the backlog of more than 600,000 cases pending in U.S. immigration courts.

Asylum seekers are typically issued work permits while they wait for the process to play out, and when their rejected appeals are exhausted, they often ignore court orders to leave the United States, choosing to remain in the country illegally.

The Trump administration wants to significantly expand immigration detention capacity, and hire more judges and expedite asylum cases to stop migrants from taking advantage of “loopholes” in the asylum process.

The proposal to separate parents from their children is viewed by the agency as a more immediate tool to halt the latest border surge.

DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids,” said Andrew R. Arthur, a resident fellow at the Center for Immigration Studies, which seeks to reduce immigration. A former U.S. immigration judge and Republican congressional policy staffer, he called it “a reasonable step to take.”

“It might seem heartless, but it’s more heartless to give them the illusion they’re going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real,” Arthur said.

The unaccompanied minors are typically seeking to reunite with a parent already living illegally in the United States. By law, migrants under age 18 who arrived without a parent must be turned over to HHS within 72 hours of being taken into DHS custody. The shelters where they are housed are designed to be more like boarding schools than grim detention centers.

The minors are placed in the care and custody of the Office of Refugee Resettlement at HHS’s Administration for Children and Families (ACF), which seeks to identify an adult sponsor who can take custody of them.

The process takes about six weeks on average, HHS officials say. “It’s a little-known fact that over half of those who enter illegally are placed with a parent already in the United States,” ACF spokesman Kenneth Wolfe said.

The parents, or any other adult seeking to take custody of a child, must submit to an extensive background check that includes information about their immigration status. But administration officials say that information is neither checked against DHS biometric data nor shared with ICE for potential enforcement purposes. The new DHS proposals under consideration would change that.

If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting “devastating” trauma on families fleeing Central America because they feel their lives are at risk.

“These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers,” said Greg Chen, director of government relations of the American Immigration Lawyers Association.

“These are families that have no other choice for their survival,” he said.”

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“Come on, man” clueless claim:

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids.”

The hard truth:

“These are families that have no other choice for their survival.”

The Non-White Nationalist reality:

We could absorb all of the “good guys” fleeing from gang violence in the Northern Triangle without any long-term adverse effects; in fact, it would likely help us prosper as a nation, and would be far more “cost-effective” than the various failing “strategies” we now employ, and have employed in the past, in a vain and counterproductive attempt to prevent the inevitable.

I wouldn’t necessarily give everyone a “Green Card” right off the bat. But, we should have a vastly expanded TPS program for the Northern Triangle, keeping open the possibility of eventually issuing everyone who wants to stay and who has demonstrated payment of taxes (something that even native born GOP rich guys, and most notably the Trumpster himself, hate to do) and no serious crimes to eventually qualify for the Green Card.

PWS

12-21-17

NEW EOIR MEMO ENCOURAGES IMMIGRATION JUDGES TO DUMP ON UNACCOMPANIED CHILDREN (“UACS”) – “When In Doubt, Kick ‘em Out” New Motto Of Gonzo’s “Captive Courts!” — We’ve Come A Long Way From “Guaranteeing Fairness And Due Process For All” In A Short Time!

Responding to several recent “hate speeches” by Attorney General Jeff “Gonzo Apocalypto” Sessions, EOIR issued a new memorandum basically telling U.S. immigration Judges to revise their thinking and look for any way possible to “shaft” unaccompanied minors fleeing for their lives and asserting claims for protection under U.S. laws.

The memorandum from Chief U.S. mmigration Judge Marybeth Keller, dated Dec. 21, 2017, is available in full at this link:

http://www.aila.org/infonet/eoir-releases-memo-with-guidelines-for-immigration?utm_source=AILA+Mailing&utm_campaign=b0fd06181c-AILA8_12_20_2017&utm_medium=email&utm_term=0_3c0e619096-b0fd06181c-291958957

However, because it is drafted in dense bureaucratic doublespeak with a just a touch of “lip service” to the law, I will give you the “high points” as they would appear to most Immigration Judges:

  • The Attorney General hates UACS, and so should you if you want to keep your job.
  • While this Administration works on its announced plans to strip UACS of all statutory and Constitutional rights, you must always look for ways to effectively eliminate such “false rights” administratively in advance of any changes in the law.
  • Always look for ways to find that someone previously determined by DHS or the ORR to be a “UAC” is no longer, or never should have been, entitled to UAC benefits. 
  • The “best interests of the child” should NOT be an important consideration in an Immigration Court proceeding involving a UAC. 
  • Conversely, the “best interests of the Administration” should generally be given conclusive weight. 
  • Never let considerations of human empathy, misplaced kindness, false compassion, common sense, decency, or any other human emotion lead you to give a break or the benefit of the doubt to a UAC.  
  • Is is permissible, however, to create a false sense of informality and friendliness in your courtroom, so long as it doesn’t result in a grant of any type of protection or relief to the UAC. (Indeed, lulling a UAC into a false sense of comfort or security can be an effective strategy for insuring that he or she will not attempt to find a lawyer and will sign away or waive any rights.)
  • Remember that no matter how young, immature, discombobulated, confused, inarticulate, traumatized, or scared a UAC might be, he or she is NEVER entitled to appointed counsel or to any meaningful help from you in stating or supporting a claim for protection.
  • While all DHS requests should generally be treated as “priorities,” the only request from a UAC or his or her representative that should receive “priority” consideration is a request for immediate voluntary departure from the US. (You should never hesitate to grant such a request even if it appears to be the product of duress or against the UAC’s best interests.)
  • A good way to overcome the unfortunate tendency of some reviewing courts to find testimony of UACS “credible”” is to conclude that even if credible and facially sufficient to establish a claim for relief, the UAC’S testimony is “too generalized” or “not sufficiently detailed” (or any other kind of meaningless legal jargon you might come up with) to satisfy the “burden of proof” for protection.
  • Your main responsibility as an Immigration Judge, and the one for which you will be held accountable, is to ferret out and report fraud, not to insure fairness or due process for the UAC.
  • In discharging your duties as an Immigration Judge, you must always give primacy to the enforcement priorities of the Administration (including the overriding objective of deterrence and how it is advanced by REMOVAl orders, not relief) and the DHS over any legal claims advanced by a UAC. 
  • You should presume that all UACS and particularly any with “dirty” attorneys representing them are “fraudsters” unless and until otherwise established beyond a reasonable doubt. 
  • While it is permissible to present yourself to the public, and particularly to any reviewing courts Congressional, or media representatives as a “judge of a full due process court,” for all other purposes, you should always remember that you are a mere subordinate of the Attorney General, sworn to carry out his policies, and never, under any circumstances, should you consider yourself to be a “real judge” exercising independent judgement.
  • If you have any questions about this memorandum, please consult your ACIJ (who is specially trained to help you maximize final removals orders) rather than your conscience.
  • Remember: “When In Doubt, Kick ‘Em Out!”

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There was a time in the (seemingly now distant) past when children and other vulnerable individuals were considered appropriate for “special humanitarian consideration,” and treatment. Now, they are “special targets” for Gonzo and his White Nationalist storm troopers: “Fish in a barrel,” “easy numbers, “low hanging fruit,” “roadkill.”

I was particularly impressed (not necessarily favorably) by the straightforward exhortation for the Immigration Court to establish itself as perhaps the only court in the America where the widely accepted principle of “the best interests of the child” is specifically to be given short shrift.

On the other hand, you should think about the possibility that some day you’ll get the question “What did you do during Trump’s War on America, Mommy (or Daddy)?” Do you really want to say:  “I stood by and watched Gonzo Apocalypto abuse, harm, and in some cases kill, helpless children?” We all have choices to make!

PWS

12-21-17

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this 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.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

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“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of  “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
JUST SAY NO TO GONZO!
PWS
12-21-17