U.S. DISTRICT JUDGE LYNN S. ADELMAN CHANNELS “COURTSIDE” — BLASTS ROBERTS & COMPANY FOR AIDING THE FORCES SEEKING TO DESTROY OUR DEMOCRACY — “Instead of doing what it can to ensure the maintenance of a robust democratic republic, the Court’s decisions ally it with the most anti-democratic currents in American politics,”

https://www.washingtonpost.com/nation/2020/03/11/lynn-adelman-roberts-trump/

Fred Barbash reports for the WashPost:

Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.

Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”

The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.

Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”

As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)

The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.

Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.

His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.

But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.

. . . .

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Read the complete article at the link.

So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”

But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!

I also found this comment telling:

Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”

Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/

And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.

I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).

As one of my esteemed Round Table colleagues said recently: “In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”

Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

So much for the bogus ”passive “umpire” calling balls and strikes.”

Due Process Forever! Complicit Courts Never!

PWS

03-11-20

WHAT DOESN’T HE UNDERSTAND ABOUT “ILLEGAL?” —“Cooch Cooch” Found To Have “Illegally Entered” USCIS Position! — Some Illegal White Nationalist, Anti-Asylum Directives Cancelled!

Judge Randy Moss — Hon. Randy Moss
U.S. District Judge
Washington, DC

Randy Moss
NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)

"Cooch Cooch" — “Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation

L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20

U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers.

KEY QUOTE FROM JUDGE MOSS’S OPINION:

The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.

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Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.

Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.

While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.

Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future!

For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!

PWS

03-01-20

JAMELLE BOUIE @ NYT: Is Trump Bringing Back Jim Crow? — This Time All Persons of Color Are Targets For Dehumanization! — “[W]e might be on a path that ends in something that is familiar from our past — authoritarian government with a democratic facade.”

Jamelle Bouie writes for The NY Times:

https://www.nytimes.com/2020/02/21/opinion/trump-authoritarian-jim-crow.html?referringSource=articleShare

When critics reach for analogies to describe Donald Trump — or look for examples of democratic deterioration — they tend to look abroad. They point to Russia under Vladimir Putin, Hungary under Viktor Orban, or Turkey under Recep Tayyip Erdogan. Trump, in this view, is a type — an authoritarian strongman. But it’s a foreign type, and his corrupt administration is seen as alien to the American experience.

This is a little too generous to the United States. It’s not just that we have had moments of authoritarian government — as well as presidents, like John Adams or Woodrow Wilson, with autocratic impulses — but that an entire region of the country was once governed by an actual authoritarian regime. That regime was Jim Crow, a system defined by a one-party rule and violent repression of racial minorities.

The reason this matters is straightforward. Look beyond America’s borders for possible authoritarian futures and you might miss important points of continuity with our own past. Which is to say that if authoritarian government is in our future, there’s no reason to think it won’t look like something we’ve already built, versus something we’ve imported.

Americans don’t usually think of Jim Crow as a kind of authoritarianism, or of the Jim Crow South as a collection of authoritarian states. To the extent that there is one, the general view is that the Jim Crow South was a democracy, albeit racist and exclusionary. People voted in elections, politicians exchanged power and institutions like the press had a prominent place in public life.

There’s a strong case to be made that this is wrong. “To earn the moniker,” argues the political scientist Robert Mickey in “Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972,” “democracies must feature free and fair elections, the safeguarding of rights necessary to sustain such elections — such as freedoms of assembly, association, and speech — and a state apparatus sufficiently responsive to election winners and autonomous from social and economic forces that these elections are meaningful.”

By that standard, the Jim Crow South was not democratic. But does that make it authoritarian? A look at the creation of Jim Crow can help us answer the question.

JAMELLE BOUIE’S NEWSLETTERDiscover overlooked writing from around the internet, and get exclusive thoughts, photos and reading recommendations from Jamelle. Sign up here.

Jim Crow did not emerge immediately after the Compromise of 1877 — in which Republicans agreed to withdraw federal troops from the South in return for the presidency — and the end of Reconstruction. It arose, instead, as a response to a unique set of political and economic conditions in the 1890s.

By the start of the decade, the historian C. Vann Woodward argued in his influential 1955 book “The Strange Career of Jim Crow,” opposition to “extreme racism” had relaxed to the point of permissiveness. External restraining forces — “Northern liberal opinion in the press, the courts, and the government” — were more concerned with reconciling the nation than securing Southern democracy. And within the South, conservative political and business elites had abandoned restraint in the face of a radical challenge from an agrarian mass movement.

Mickey notes how the Farmers’ Alliance and Populist Party “clashed with state and national Democratic parties on major economic issues, including debt relief for farmers and the regulation of business.” What’s more, “A Colored Farmers’ Alliance grew rapidly as well, and held out the possibility of biracial coalition-building.” This possibility became a reality in states like Alabama, Georgia and North Carolina, where Populists joined with a majority-black southern Republican Party to support common lists of candidates in “fusion” agreements against an explicitly elitist and white supremacist Democratic Party. Populists and Republicans won their greatest victories in that era in North Carolina, where they captured the state legislature and governor’s mansion, as well as local and county offices.

Democrats, among them large landowners and “New South” industrialists, responded with violence. Democratic paramilitary organizations — called “Red Shirts” — attacked Populist and Republican voters, suppressing the vote throughout the state. In Republican-controlled Wilmington, N.C., writes Mickey, “Democratic notables launched a wave of violence and killings of Republicans and their supporters, black and white, to take back the state’s largest city; hundreds fled for good.”

This basic pattern repeated itself throughout the South for the next decade. Working through the Democratic Party, conservative elites “repressed Populists, seized control of the state apparatus, and effectively ended credible partisan competition.” They rewrote state constitutions to end the vote for blacks as well as substantially restrict it for most whites. They gerrymandered states to secure the political power of large landowners, converted local elective offices into appointed positions controlled at the state level, “and further insulated state judiciaries from popular input.” This could have been stopped, but the North was tired of sectional conflict, and the courts had no interest in the rights of blacks or anyone else under the boot of the Democrats.

The southern Democratic Party didn’t just control all offices and effectively staff the state bureaucracy. It was gatekeeper to all political participation. An aspiring politician could not run for office, much less win and participate in government, without having it behind him. “What is the state?” asked one prominent lawyer during Louisiana’s 1898 Jim Crow constitutional convention, aptly capturing the dynamic at work, “It is the Democratic Party.” Statehood was conflated with party, writes Mickey, “and party disloyalty with state treason.”

Southern conservatives beat back Populism and biracial democracy to build a one-party state and ensure cheap labor, low taxes, white supremacy and a starkly unequal distribution of wealth. It took two decades of disruption — the Great Depression, the Great Migration and the Second World War — to even make change possible, and then another decade of fierce struggle to bring democracy back to the South.

It’s not that we can’t learn from the experiences of other countries, but that our past offers an especially powerful point of comparison. Many of the same elements are in play, from the potent influence of a reactionary business elite to a major political party convinced of its singular legitimacy. A party that has already weakened our democracy to protect its power, and which shows every sign of going further should the need arise. A party that stands beside a lawless president, shielding him from accountability while he makes the government an extension of his personal will.

I’m not saying a new Jim Crow is on the near horizon (or the far one, for that matter). But if we look at the actions of the political party and president now in power, if we think of how they would behave with even more control over the levers of the state, then we might be on a path that ends in something that is familiar from our past — authoritarian government with a democratic facade.

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“[T]he courts had no interest in the rights of blacks or anyone else under the boot of the [Jim Crow] Democrats.”

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In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

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Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

—Mark Joseph Stern in Slate.

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda! February 22, 2020

PWS

02-23-20

JUST “OFF BROADWAY,” BUT REACHING THE HEARTS AND MINDS OF AMERICA – Waterwell’s “The Courtroom” & “The Flores Exhibits” Paint a Chilling Picture Of Justice That All Americans Should See! — Retired Immigration Judges & Pro Bono Advocates Join “A-List” Actors In Giving Human Voices To The Dispossessed Struggling For Their Lives In A Badly Broken & Dysfunctional System That All too Often Leaves Humanity Behind As It Mindlessly Grinds Down Lives!

Lee Sunday Evans
Artistic Director
Waterwell

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

Hon. Robert D. Weisel
Retired U.S. Immigration Judge
Member, Round Table of Retired Immigration Judges

Hon. Elizabeth Lamb
Retired U.S. Immigration Judge
Member, Round Table of Retired Immigration Judges

Elora Mukherjee
“American Hero”
Clinical Professor of Law & Director of the Immigrants’ Rights Clinic
Columbia Law School

Here’s a recent anecdote from my good friend, colleague, and leader of our Round Table of Former Immigration Judges, Hon. Jeffrey S. Chase:

More theater news! On Monday, the director of The Courtroom emailed me in Rome to ask if I would perform at a special performance at the Lucille Lortel Theater in NYC on Wednesday night, in which three Tony winners were making guest appearances. Curtain was at 7 pm; our flight was scheduled to land at JFK at 4 pm. Just as we were about to board the flight, a delay was announced due to mechanical problems. We took off an hour and a half late, and were told we would be further slowed by strong headwinds. As I was worrying about making it in time, it occurred to me what a charmed life I am living in which worrying whether I will return from a 10-day vacation in Italy in time to act with three Tony Award winners constitutes a problem.

Landing at almost 6 pm, we cleared customs and jumped in a taxi; we arrived at the theater about 15 minutes into the play. I had emailed my daughter in NY asking her to bring one of her fiancé’s ties and a printed copy of my script (since we write out own remarks) to the theater. I performed my part; my wife and daughter each got to meet their theater idols; and my daughter and I attended the after-party in the West Village. I had been awake since 1 am NYC time, and got home at 11:30 pm.

At the party, I was talking with Arian Moayed (Stewy in “Succession” on HBO) and Kelli O’Hara (Tony Award winner who played the lead on Broadway in both South Pacific and The King and I). Kelli had played the IJ in Act I, and said that she had been in the audience at one of the very early performances, at which our group’s Betty Lamb had performed. Both Kelli and Arian said how powerful and impressive Betty’s performance had been!

I’m hoping others from this group get the opportunity to perform in the future. The Chicago IJs in our group probably know the real-life lawyer in the case, Richard Hanus, and you certainly know the real-life IJ, Craig Zerbe. The ICE attorney was Gregory Guckenberger. Do the last two realize they are being portrayed by actors of such caliber in a play that made the New York Times Best Theater of 2019 list?

Click on the link below to listen to the 37 minute podcast:

https://broadwaypodcastnetwork.com/the-backdrop/episode-2-waterwells-the-courtroom/

Episode 2: Waterwell’s THE COURTROOM

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EPISODE 2: WATERWELL’S THE COURTROOM

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Waterwell Theater Company’s latest play, The Courtroom, has no playwright. Or even a theater. But as Waterwell founder (from HBO’s “Succession” and Tony nominee) Arian Moayed and Artistic Director Lee Sunday Evans tell Kevin, that’s the point. They found their inspiration — and their script — in the actual language of a deportation trial. And as immigrant rights advocate/attorney Elora Mukherjee reveals, they also found themselves pulled to ground zero of today’s drama: all the way to the border.

Resources

The Courtroom returns for monthly performances at civic venues in NYC through November 2020. For information and tickets visit https://waterwell.org/.

View The Flores Exhibits at https://flores-exhibits.org/.

For other resources and to get involved, visit https://www.newsanctuarynyc.org/.

Jeffrey S. Chase, a former immigration judge, was the legal advisor for The Courtroom. Read his article “The Immigration Court: Issues and Solutions” here.

Follow guest Arian Moayed on Twitter at @arianmoayed.

Credits

The Backdrop is hosted by Kevin Bleyer and produced by Nella Vera.

The Backdrop artwork is by Philip Romano.

Follow Kevin Bleyer and Nella Vera on Twitter: @kevinbleyer / @spinstripes

VISIT THIS PODCAST’S PAGE

ABOUT BPN

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Congrats and thanks to all involved. This should be “required theater” at all Federal Judicial Conferences.

PWS

02-15-20

LINDA GREENHOUSE @ NYT: SUPREMELY COMPLICIT: Meanness Has Become A Means To The End Of Our Republic For J.R. & His GOP Judicial Activists On The Supremes! — What If They Had To Walk In The Shoes Of Those Whose Legal Rights & Humanity They Demean By Unleashing Trump’s Illegal & Immoral Cruelty On Migrants?

https://www.nytimes.com/2020/02/13/opinion/supreme-court-immigration-trump.html

The Freudian concept of psychological projection refers to the behavior of people who, unable to acknowledge their own weaknesses, ascribe those same failings to others. President Trump provides a striking example in his multiple post-impeachment rants calling those who sought his removal “vicious” and “mean.” His choice of the word “mean” caught my attention, because I’ve been thinking for some time now that the United States has become a mean country.

There has been meanness, and worse, in the world, of course, long before there was a President Trump. But it doesn’t require suffering from the agitation of Trump derangement syndrome to observe that something toxic has been let loose during these past three years.

Much of it has to do with immigration: the separation of families at the border and the effort to terminate DACA, the program that protects from deportation undocumented young people brought to the United States as children. Removing this protection for hundreds of thousands of productive “Dreamers,” now pursuing higher education or holding jobs (or both), is an obvious lose-lose proposition for the country. It is also simply mean.

And the meanness radiates out from Washington. The mayor of Springfield, Mass., one of the biggest cities in one of the bluest states, has taken the president up on his offer to let local officials veto the resettlement of refugees in their communities. Tennessee enacted a law to cut off state money to cities that declare themselves “sanctuaries” from federal immigration enforcement. (At the same time more than a dozen counties in Tennessee have endorsed a growing “Second Amendment sanctuary” movement for gun rights.)

The meanness spreads to the lowest ranks of the country’s judiciary. USA Today reported two weeks ago that a common pleas judge in Hamilton County, Ohio, has adopted the practice of summoning ICE whenever he has a “hunch” that the defendant standing before him is an undocumented immigrant. “I’m batting a thousand. I haven’t got one wrong yet,” Judge Robert Ruehlman boasted.

In the Arizona desert, where thousands of border-crossing migrants have died from exposure and dehydration in the past decade, Border Patrol agents have been filmed kicking over and emptying bottles of water left for the migrants by volunteers. (This practice evidently preceded the Trump administration; the Border Patrol, in its union’s first-ever presidential endorsement, endorsed Mr. Trump’s candidacy in 2016, deeming him “the only candidate who actually threatens the established powers that have betrayed our country.” )

The United States attorney’s office in Tucson has been prosecuting people who enter the Cabeza Prieta National Wildlife Refuge without a permit to leave lifesaving bottles of water and cans of food along common migratory routes. In 2018, a federal magistrate judge, in a nonjury trial, convicted four people for illegal entry and abandoning property in the desert wilderness. The four are volunteers for No More Deaths/No Más Muertes, a ministry of the Unitarian Universalist Church of Tucson.

In their appeal before a federal district judge, Rosemary Márquez, the four invoked the Religious Freedom Restoration Act, arguing that their actions were driven by their faith and their belief in the “sanctity of human life.” The government responded that the four had simply “recited” religious beliefs “for the purpose of draping religious garb over their political activity.” (I’m not holding my breath for the Trump administration to similarly ridicule the religious claims of employers who say they can’t possibly include the birth-control coverage in their employee health plans, as the Affordable Care Act requires, lest they become complicit in the sin of contraception.)

The administration met its match in Judge Márquez. On Jan. 31, finding that the Religious Freedom Restoration Act barred the prosecution, she overturned the convictions. Her 21-page opinion noted that human remains were regularly found in the area, and she had this to say about that fact:

“The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization. In other words, the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death. This gruesome logic is profoundly disturbing.”

The headline on this column promises some thoughts about the Supreme Court, so I’ll now turn to the court. The country’s attention was focused elsewhere two weeks ago when five justices gave the Trump administration precisely what it needed to put into effect one of the most meanspirited and unjustified of all its recent immigration policies. This was the radical expansion of the “public charge” rule, which bars from admission or permanent residency an immigrant who is “likely at any time to become a public charge.”

The concept of “public charge” in itself is nothing new. It was part of the country’s early efforts to control immigration in the late 19th century, where it was used to exclude those likely to end up in the poor house or its equivalent. That historic definition — “primarily dependent on the government for cash assistance or on long-term institutionalization” — was codified in 1999 “field guidance” issued to federal immigration officers.

Last August, the administration put a new definition in place. Any immigrant who receives the equivalent of 12 months of federal benefits within a three-year period will be deemed a public charge, ineligible for permanent residency or a path to citizenship. The designated benefits include nutrition assistance for a child under the SNAP program; receipt of a Section 8 housing voucher or residence in public housing; and medical treatment under Medicaid. The new rule, titled Inadmissibility on Public Charge Grounds, aggregates the benefits — that is, three of the benefits received in a single month count as three months of the 12.

States, cities, and nonprofit organizations around the country promptly filed lawsuits, with varying preliminary outcomes. The plaintiffs argued that the drastic change in definition was “arbitrary and capricious,” violating the Administrative Procedure Act’s core requirement of “reasoned decision making.”

In October, a federal district judge in New York, George Daniels, ruled in favor of two sets of plaintiffs, one group headed by New York State and the other, a coalition of nonprofit organizations. Judge Daniels noted that the government was “afforded numerous opportunities to articulate a rational basis for equating public charge with receipt of benefits for 12 months within a 36-month period, particularly when this has never been the rule,” but that its lawyers “failed each and every time.” He explained that “where an agency action changes prior policy, the agency need not demonstrate that the reasons for the new policy are better than the reasons for the old one. It must, however, show that there are good reasons for the new policy.”

And Judge Daniels added: “The rule is simply a new agency policy of exclusion in search of a justification. It is repugnant to the American dream of the opportunity for prosperity and success through hard work and upward mobility.” Noting that the policy would immediately cause “significant hardship” to “hundreds of thousands of individuals who were previously eligible for admission and permanent residence in the United States,” he issued a nationwide injunction to block its implementation.

The United States Court of Appeals for the Second Circuit put the government’s appeal on a fast track but refused, in the interim, to grant a stay of the injunction. So, predictably, the administration turned to its friends at the Supreme Court and, equally predictably, got what it wanted. By a vote of 5 to 4, the court granted a stay of the injunction to last through a future Supreme Court appeal.

Granting a stay at this point was a breathtaking display of judicial activism. The Second Circuit will hear the case promptly; briefs are due on Friday. More to the point, the court’s summary action, without full appellate review, changes the lives of untold numbers of people for the worse, people who immigrated legally to the United States and who have followed every rule. Being kicked off the path to citizenship puts them directly on the path to deportation, without any explanation from the highest court in the land of why this should be the case.

Of the five justices in the majority — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — only Justices Gorsuch and Thomas deigned to write anything. In a four-page concurring opinion, they made clear their determination to hold up this case, Department of Homeland Security v. New York, as an example of “the gamesmanship and chaos” that they said was attendant on “the rise of nationwide injunctions.”

I don’t remember such hand-wringing a few years back when anti-immigrant states found a friendly judge in South Texas to issue a nationwide injunction against President Barack Obama’s expansion of the DACA program to include parents of the “Dreamers.” The Supreme Court let that injunction stand.

Do the justices realize how they are being played? I started this column by mentioning psychological projection, a distorted view of others engendered by a distorted view of oneself. That’s Donald Trump, seeing himself the innocent victim of attacks from vicious and mean people. There’s another kind of projection, the image reflected when light strikes a mirror. Who do these five justices see when they look in their mental mirrors? Could it be Donald Trump?

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Eventually, the New Due Process Army will win the war to restore justice, Due Process, and the rule of law to our Republic. And one of the lessons should be: Better Federal Judges driven by fairness, scholarship, practicality, compassion, kindness, respect for all persons, and the courage to speak out for the rights of the people against tyranny and corruption.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

Yes, Linda, I think the Supremes’ Justices and other Article IIIs who aid the “dehumanization” and “Dred Scottification” of migrants, asylum seekers, and “the other” by the regime know full well that they are “being played.” They are willing, sometimes as in the case of the recent totally gratuitous nonsense about targeting nationwide injunctions flowing off the pens of Gorsuch and Thomas actually eager, to “go along to get along” — even when it often means hanging braver lower court colleagues who had the courage to speak truth to power and stand up to tyranny “out to dry.”

Like judges during the Jim Crow era and other disastrous episodes of legal history, they think they can hide out in their ivory towers behind legal gobbledygook that most first-years law students can recognize as the nonsense “cop out” that it is. They also knowingly and intentionally betray the legions of courageous, ethical lawyers, many working pro bono in dangerous and unhealthy conditions, to uphold the rule of law in America and to defend human rights and human decency.

Hopefully, our Republic will survive this dark time, and these folks “working at the retail level,” many “charter members” of the New Due Process Army, will form the core of a future, better judiciary that will put Due Process and humanity first, above party loyalty and bizarre, often nonsensical, right wing theories used to justify lawlessness, injustice, unfairness, and invidious discrimination.

Due Process Forever!

PWS

02-15-20

THE “MAINSTREAM MEDIA” HAS FALLEN FOR BILLY BARR’S LATEST “CON JOB” HOOK, LINE & SINKER — But YOU Shouldn’t — Bess Levin @! Vanity Fair Decodes Billy’s Real Message to His Don: “Let [me] turn the judicial branch into your own personal score-settling operation in peace!“ — Plus, My Bonus “Friday Essay” — “Don’t Believe A Word Billy Barr Says!”

Bess Levin
Politics & Finance Writer
Vanity Fair

https://www.vanityfair.com/news/2020/02/william-barr-trump-doj-tweets

Bess writes:

Even before he was hired as Donald Trump’s attorney general, William Barr made it clear that he would be acting as the president’s lackey first and the chief lawyer for the United States second, having auditioned for the role by sending an unsolicited letter to the Justice Department calling the Russia inquiry “fatally misconceived” and describing Robert Mueller’s actions as “grossly irresponsible.” Since then, Barr has told Congress it’s perfectly okay for the president to instruct aides to lie to investigators, suggested that Mueller’s report fully exonerated Trump, which of course it did not, and attempted to bury the “urgent“ whistle-blower report that became the basis of the House’s impeachment proceedings.

Now, if it were up to Barr, he’d happily carry on doing the president’s dirty work, but for one problem: Trump, with his flapping yap and quick trigger finger, has been making it a little too obvious that the DOJ, in its current form, exists to punish his enemies and spare his friends. The most recent example of this, of course, came this week, when the president tweeted, at 1:48 a.m., that the sentencing recommendation of seven to nine years for his longtime pal Roger Stone was “horrible,” “very unfair,” and a “miscarriage of justice.” Then, after Barr’s DOJ intervened with a new filing calling for a much lighter sentence—which prompted the four prosecutors on the case to withdraw from it—the president tweeted his thanks, congratulating the attorney general on getting involved in matters relevant to his personal interests.

For many people long aware of Barr’s status as a boot-licking hack, this was a bridge too far. The calls for him to resign or be impeached were swift. And they got so bad that on Thursday, the attorney general felt compelled to sit down with ABC News and send the message to the president that if he’d like the DOJ to continue to do his dirty work, he needs to stop tweeting about it. Do criminals tell their social-media followers “Check out this sweet scam I just pulled”? No! Of course, rather than stating directly that the president’s penchant for telling the world about the many ways he’s corrupted the government have made it difficult for that corruption to continue, Barr had to pretend his comments were all about ensuring the DOJ’s independence, which would be a funny, not-at-all-believable thing for him to start caring about now.

“I’m not going to be bullied or influenced by anybody….whether it’s Congress, newspaper editorial boards, or the president,” Bill Barr tells @ABC News.

“I cannot do my job here at the department with a constant background commentary that undercuts me.”

http://

abcn.ws/39yd9bE

“I’m not going to be bullied or influenced by anybody,” Barr insisted to ABC News chief justice correspondent Pierre Thomas. “Whether it’s Congress, a newspaper editorial board, or the president. I’m gonna do what I think is right. And you know…I cannot do my job here at the department with a constant background commentary that undercuts me.” Just in case that extremely obvious hint was lost on its intended audience, Barr added: “I think it’s time to stop the tweeting about Department of Justice criminal cases.”

Maybe it’s not the tweets damaging his integrity but the nakedly partisan and quasi-legal decisions he’s made on the tweeter’s behalf? Just a thought.

AG Bill Barr: “I’m not going to be bullied or influenced by anybody.” He says Trump’s tweets “make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.” via @ABC @PierreTABC @alex_mallin

Asked about the decision to reverse the sentencing recommendation for Stone, Barr insisted that it definitely had nothing to do with the guy being a longtime friend of Trump’s, claiming that he came to the unbiased conclusion on his own that the seven-to-nine-years call was excessive and that he was planning to file an update even before Trump tweeted about it being “horrible and unfair.” (He was not asked about the NBC News report that he additionally removed a U.S. attorney from her post for failing to punish Trump’s enemy Andrew McCabe, or that the Justice Department also intervened to change the sentencing recommendation for convicted criminal and former national security adviser Michael Flynn.)

Barr said Trump’s middle-of-the-night tweet put him in a bad position. He insists he had already discussed with staff that the sentencing recommendation was too long. “Do you go forward with what you think is the right decision or do you pull back because of the tweet? And that just sort of illustrates how disruptive these tweets can be,” he said.

Barr also told ABC he was “a little surprised” that the entire Stone prosecution team had resigned from the case—and one from the DOJ entirely—which presumably has something to do with the fact that after using your department to do the president’s bidding for so long, you sometimes forget that other people will take issue with such behavior.

Asked if he expected Trump to react to his criticism of the tweets, Barr responded: “I hope he will react.”

“And respect it?” Thomas asked.

“Yes,” Barr said. You hear that, Mr. President? Let the man turn the judicial branch into your own personal score-settling operation in peace!

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

DON’T BELIEVE A WORD BILLY BARR SAYS!

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

Feb. 14, 2020

Even smart folks like The NY Times’ David Leonhardt are babbling about, perhaps, giving Billy “the benefit of the doubt.” Come on, man!

As Bess Levin points out, Barr’s faithfully been doing Trump’s “dirty work” for him since even before he set foot inside the DOJ again. It’s not like he’s suddenly had a “moral awakening” or discovered human decency.

No, Trump is the “unitary Executive” that Billy and some of his GOP righty neo-fascists have always salivated over. But, understandably he’d prefer more privacy as he deconstructs the DOJ and undermines fair and impartial justice, including, of course, further trashing the Immigration Courts that, incredible as it might seem in a country that actually has a written Constitution supposedly guaranteeing Due Process to “all persons,” belong exclusively to him.

Remarkably, and quite stunningly to anyone who has actually studied the law, the Article III Courts, all the way up to the feckless Supremes, have gone along with this absurd charade. You get the message: Immigrants, migrants, and asylum seekers aren’t really “persons” at all. They have been dehumanized by the regime and “Dred Scottified” by the Article IIIs.

There is no particular legal rationale or justification for this ongoing miscarriage of justice. It’s just a matter of enough folks in black robes being too cowardly or self-absorbed, or maybe in a few cases too ignorant, to stand up for the Constitutional and human rights of the most vulnerable among us.

To paraphrase an expression from the world of religion: “What would Jesus think about this blindness to human suffering?” Nothing good, I’m sure!

If he’s actually out there among us today, he’s undoubtedly among those suffering in the regime’s “New American Gulag” or waiting in squalor along the Mexican border for a “fixed hearing” that’s probably never going to happen anyway. I know where he isn’t: among the sign waving crazies shouting hateful slogans glorifying human rights abuses at the “hate fests” z/k/a “Trump rallies!”

In Immigration Court, the conflicts of interest and threats to human decency aren’t just “implied” or “apparent.” They are very real, and they are destroying real human lives, even killing innocent folks, every day.

And, unlike U.S. District Judge Amy Berman Jackson, whose life tenure allows her to “ignore the noise and do what she thinks is right” (as Trump’s GOP toadies love to point out), Immigration Judges are “wholly owned commodities” of Billy and the regime: disposable, subservient, and told to “follow orders.” They can’t even schedule their own cases without political interference, let alone apply the law in a way that conflicts with Billy’s unethical precedents or those entered by his “wholly owned appellate body,” the Board of Immigration Appeals!

The latter has recently gone out of its way to show total subservience to the regime’s White Nationalist anti-asylum, anti-due-process, anti-immigrant agenda. Indeed, they have even drawn the ire of at least one conservative GOP-appointed Article III Judge by contemptuously disobeying a direct court order in favor of a footnote in a letter from the Attorney General.

This remarkable, yet entirely predictable, event was first highlighted in “Courtside.” https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

It was also the subject of a highly readable analysis by my good friend and NDPA leader Tess Hellgren, at Innovation Law Lab, certainly no stranger to scofflaw behavior by EOIR and “go along to get along” complicity by Article IIIs. https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

More recently, EOIR’s trashing of judicial norms under Billy Barr has been highlighted in another fine article in CNN by Professor Kimberly Wehle, herself a former DOJ prosecutor.https://www.politico.com/news/magazine/2020/02/12/a-conservative-judge-draws-a-line-in-the-sand-with-trump-administration-114185

“Shocking” as this professional malpractice and contempt for the justice system might be to those journalists and former DOJ employees who haven’t been paying attention, it’s nothing new to those of us involved in immigration. For the last three years, the regime has been actively and unethically “gaming” the unconstitutional Immigration “Court” system against the very migrants and asylum seekers whose legal rights and human dignity they are actually supposed to be protecting! How is this “just OK?”

Feckless Article III Courts have largely “gone along to get along,” although they might be showing less patience now that the scofflaw actions and disrespectful attitudes promoted by Billy and his predecessor “Gonzo Apocalypto” Sessions are directed at them personally rather than just screwing vulnerable migrants and asylum seekers.

While it’s nice that at least some Article III Judges are finally reacting to being “given the finger” by Barr, Trump, and their gang of White Nationalist thugs, outrage at their own disrespectful treatment pales in comparison with the death, torture, rape, extortion, and the other parade of horribles being inflicted daily on vulnerable migrants by the Immigration “Courts” and the human rights criminals in the Trump regime while the Article IIIs fail to step in and save lives.

In the end of the day, as history will eventually show, human lives, which are the key to the “rule of law,” will prove to be more important than “hurt feelings” among the Article III “lifers” or the kind of legal gobbledygook (much of it on “jurisdiction” which often translates into “task avoidance”) that Article IIIs, particularly those from the right wing, like to throw around to obscure their legal tone-deafness and moral failings from their fellow humans.

Due Process Forever; Complicity in the Face of Tyranny Never!

PWS

02-14-20

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations!

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.

The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.

Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.

Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.

Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.

Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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

History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of shallow “go along to get along” jurists! Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

NO EXPERTISE NECESSARY! – At The “New EOIR,” Immigration Judges No Longer Need to Demonstrate Immigration Experience – Just a Willingness To Send Migrants to Potential Death, Danger, or Misery Without Due Process or Fundamental Fairness – When Your Job Is To Impose Arbitrary “Death Sentences,” Maybe It’s Easier If You Don’t Understand What You’re Really Doing!

https://thehill.com/opinion/immigration/481152-us-hiring-immigration-judges-who-dont-have-any-immigration-law-experience

Nolan Rappaport writes in The Hill:

. . . .

Hiring judges without immigration law experience

Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.

In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:

“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”

EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.

None.

That’s a problem for justice.

Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”

The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.

For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.

How many inexperienced immigration judges would know that?

This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.

What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.

. . . .

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

You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”

Here’s an actual anecdote that I received recently from a Courtside reader:

I had a merits hearing . . . with a new IJ with no immigration background at all. It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions. So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved. And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is. [He/She] didn’t say a word; we ran the hearing. The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.

What if it had been a contested hearing?

Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!

I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.

Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.

The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.

To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.

The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.

It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.

With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”

Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not! Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!

Due Process Forever; Complicit Courts Never!

PWS

02-05-20

BIA: ANY OL’ NOTICE IS GOOD ENOUGH FOR ENDANGERED ASYLUM SEEKERS ORBITED TO MEXICO & BEYOND – MATTER OF J.J. RODRIGUEZ — How Judges At All Levels Are Abandoning The Rule Of Law & Enabling Abuse Of the Most Vulnerable!

http://go.usa.gov/xdDRq

Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020)

PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board Members.

OPINION BY: Acting Chairman Malphrus

BIA HEADNOTE:

Where the Department of Homeland Security returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing.

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Let’s put this in context!

This is an unrepresented asylum seeker “orbited” back to dangerous and chaotic conditions in Mexico. We don’t even know if he’s still alive.

He’s a native of Honduras. Obviously, he fled Honduras and sought admission to the United States for a reason. His only chance of not being returned to Honduras would be to show up for his hearing. Therefore, he would have no obvious reason for failing to appear at his hearing if he were able to do so.

In the past, in cases such as this, the DHS would have either: 1) released the respondent on bond to a known address in the United States that they would have recorded and furnished to EOIR; or 2) detained the respondent.

In the former case, the DHS would have been obliged to provide EOIR with a facially valid address to serve notices at the time of filing the Notice to Appear with the court. In the latter case, the DHS would be responsible for producing the respondent for all scheduled hearings.

Instead, in this case, the DHS chose under the mis-named “Migrant Protection Protocols” (“MPP”) (which are actually designed to reject rather than protect migrants) to abdicate its normal duties and send the respondent to an unknown location in Mexico without any reasonable safeguards to insure access to the hearing process or to counsel.

The DHS has no practical idea where they sent the respondent in Mexico and no reasonable method for contacting him or retrieving him.

Incredibly, and apparently with a straight face, the BIA lists the address of the respondent as “Domicilio Conocido, Tijuana, Baja California, Mexico.” That’s roughly the equivalent of “Manhattan, New York City, New York, USA.” Good luck with that!

How would a U.S. lawyer get in touch with the respondent? How would the Immigration Court notify the respondent of the ever-changing times and dates of hearings? How would the DHS serve the respondent with notices of evidence? Obviously, they wouldn’t.

And, if the respondent failed to appear for a non-existent hearing, he undoubtedly would be “in absentia’d” under the BIA’s warped view of what is fair and reasonable. This whole MPP has obviously been constructed by DHS, with EOIR complicity, as an exercise in naked bad faith and intentional and unreasonable inconvenience to the respondents caught up in it.

In formalizing the MPP, the DHS could have worked cooperatively with the Mexican Government and the private bar to guarantee the respondent’s statutory rights to: 1) return to the United States for his removal hearing; and 2) reasonable access to pro bono counsel in the United States. The DHS chose not to do either, thereby leaving these statutory obligations potentially unachievable for this respondent. Through the BIA’s mental gymnastics, the DHS’s intentional indolence becomes the respondent’s problem!

It’s common knowledge that individuals returned to Mexico under the MPP are often forced to live on the streets and are in constant danger of kidnaping, extortion, robbery, rape, assault, starvation, and exploitation while in Mexico awaiting hearings.

There also are credible reports that some individuals returned under the MPP are sent to the interior of Mexico, to the Southern Border of Mexico, or returned to their home countries, thus making it impossible for them to appear for their scheduled hearings. See,e.g., https://www.latimes.com/world-nation/story/2019-10-15/buses-to-nowhere-mexico-transports-migrants-with-u-s-court-dates-to-its-far-south, “Mexico sends asylum seekers south — with no easy way to return for U.S. court dates.”

The DHS makes no effort to ascertain what happens to those sent back to Mexico under the MPP and takes no steps to insure that they are able to return to the U.S. border for their hearings.

The DHS has provided no reason to believe that individuals “relocated” after returning to Mexico either understand what is happening to their hearing rights or have any realistic mechanism for retuning.

Under these circumstances, there is a rebuttable presumption that individuals returned under the MPP who do not appear for immigration hearings have been denied both their statutory right to the hearing process and their statutory right to representation by counsel of their own choosing at no expense to the Government. These statutory rights are integral to insuring due process in the removal hearing process.

The DHS may rebut this presumption by showing either: 1) they made reasonable efforts to locate this respondent in Mexico; or 2) there are reasonable procedures in place with the Mexican Government and with pro bono providers to provide reasonable access to hearings and pro bono counsel that were available to the respondent in this case.

Since the DHS has made no such showing in this case, the Immigration Judge’s decision to terminate the proceedings without an in absentia order is reasonable and proper under the law. Indeed, it is the only lawful outcome.

This is especially true because there doesn’t appear to be any effective way an individual who was inhibited from return to the United States from Mexico for his hearing can seek to reopen an in absentia hearing from Mexico or some other country to which he might have been “orbited” by the Mexican Government.

Indeed, the process followed by the DHS in this case appears to be an intentional derogation of the normal statutory right to a stay of removal from the United States to which an individual challenging an in absentia removal order ordinarily would be legally entitled.

This is, of course, without prejudice to the DHS reinstituting removal proceedings in the future if the respondent is encountered at the border or in the United States.

Sadly, the BIA isn’t the only tribunal to “blow off” their statutory and constitutional responsibilities.

The feckless judges of the Ninth Court of Appeals “took a dive” on their oaths of office by “greenlighting” the illegal (not to mention totally dishonest and immoral) MPP by vacating the District Court’s properly issued preliminary injunction in Innovation Law Lab v. McAleenan.

As a result of the Ninth Circuit’s dereliction of duty, thousands of vulnerable asylum seekers have been irreparably injured.

Eventually, the MPP will go down as not only fraudulent and invidiously racially motivated, but as one of the most horrible, and preventable, failures of justice in modern American jurisprudence. It will rank right up there with Dred Scott., the Fugitive Slave Laws, “separate but equal,” Chinese Exclusion Laws, and Japanese internment of supposedly bygone ages. Dehumanization, exploitation, and abuse of Government authority is a common theme. It will indelibly stain the reputations of every bureaucrat and judge who touched it without “just saying no.”

While it might already be too late for many of the innocent victims of MPP, no amount of legal gobbledygook or “alternative facts” will save those responsible for initiating, carrying out, and enabling the MPP and similar violations of legal, constitutional, and human rights, and well as human morality, from the judgments of history!

Due Process Forever; Complicit Courts Never!

PWS

01-31-20

INSIDE TRUMP’S “NEW AMERICAN GULAG” — This Fox Is Licking Her Lips, Getting Ready To Devour Hens As Regime Pokes Congress In The Eyes With Sharp Sticks!

Julie Kirchner — Julie Kirshner
Anti-Immigrant Activist
DHS Official
“Fox in Hen House”

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-hardliner-detention-ombudsman

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration has named a hardline former leader of an anti-immigration group to help set up a new role created by Congress to oversee complaints of civil rights violations in detention centers and help those affected by misconduct, according to an internal memo obtained by BuzzFeed News.

The Office of the Immigration Detention Ombudsman was created in the most recent appropriations bill to “address issues that arise in DHS detention facilities” and remain independent of Immigration and Customs Enforcement or US Customs and Border Protection. The office will report directly to the secretary of Homeland Security.

Ken Cuccinelli, the controversial second-in-command at the Department of Homeland Security, appointed Julie Kirchner, former leader of FAIR, a group that advocated for policies that restrict immigration, to help set up the office, according to the memo. Cuccinelli also tapped Tracy Short — a former top ICE official who signed memos during the Trump administration to stop the agency from granting reprieves for certain immigrants facing deportation — to also help figure out the plans for the office.

“To spearhead this effort, I have asked Julie Kirchner, outgoing Citizenship and Immigration Services Ombudsman, and Tracy Short, Senior Advisor at Immigration and Customs Enforcement, to work with senior leadership and staff within the Department to lay the proper foundation for the [office],” according to the memo, which was dated Jan. 28.

Congress provided $10 million for the office to address issues of misconduct by DHS officials in detention centers, establish a process to oversee complaints made against immigration officials, inspect facilities, provide recommendations for improvement, and potentially help those whose rights have been violated while in custody.

“In the immediate days and weeks Julie and Tracy will be contacting a variety of individuals across the Department to solicit their input and request information regarding the formation of this new office,” Cuccinelli wrote.

Kirchner was initially picked as the ombudsman at USCIS in 2017, before her departure in the role was announced late last year.

When her appointment was originally announced in 2017, advocacy groups were outraged, due to her background at FAIR, which the Southern Poverty Law Center had labeled a hate group and “America’s most influential anti-immigrant organization.”

“Kirchner’s new position is a very powerful one, which it makes it all the more disturbing considering her past work,” the SPLC said at the time.

The move to appoint Kirchner and Short to help “lay the proper foundation” for the office will likely spur criticism from Congressional officials.

“That’s like letting the fox watch the hens,” said one congressional staffer in a message to BuzzFeed News.

John Sandweg, former acting head of ICE during the Obama administration, said the move was not surprising, but potentially indicative of how the administration sees the role.

“These are the architects of the Trump administration’s immigration enforcement policies,” he said. “It’s not a surprise they would try to build this thing in a way that makes it as less impactful as possible and seems inconsistent with the intent of Congress when they created the office. We have to wait to see what the end product is.”

DHS did not immediately comment.

ICE has expanded the number of people it detains to record levels under President Trump. As of late January, the agency was detaining nearly 41,000 immigrants. The peak came last summer, when around 55,000 immigrants were in custody in local jails and private prisons across the country.

In December, the House Oversight and Reform Committee announced it had opened an investigation into the medical care of immigrant detainees in the wake of a BuzzFeed News story that revealed a series of allegations of substandard care from a whistleblower.

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Totally corrupt!

“Wait and see what the end product is?” John Sandweg, are you really so naive that you think Kirchner will do her job and help detainees to be treated like humans? Come on, man! No way! We already know what’s going too happen. And, it will be the exact opposite of what Congress intended in enacting this legislation. But, it’s not like Congress, or the courts for that matter, hold this regime accountable for scofflaw conduct.

She’s there to insure that cruel and inhuman treatment are the norms, there is no accountability, and that the legion of DHS detention abuses (the “core concept” of the “New American Gulag”) are covered up. In other words, to insure maximum dehumanization, a key part of the regime’s nativist agenda. What in Julie Kirchner’s anti-immigrant zealotry, or Tracy Short’s for that matter, would make you think that there is any “ambiguity” on how this will play out?

Keep those court cases rolling! Notwithstanding their tendency toward complicity, eventually, at least some Federal Judges hopefully can be “shamed” into enforcing laws protecting migrants, recognizing human rights, and requiring human dignity in DHS’s treatment of detainees (most of whom don’t belong in “uncivil” detention in the first place).

PWS

01-30-20

ROUND TABLE OF FORMER IMMIGRATION JUDGES ISSUES STATEMENT CONDEMNING “MIGRANT PROTECTION PROTOCOLS” (A/KA “REMAIN IN MEXICO;” A/K/A “LET ‘EM DIE IN MEXICO”)!

January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system. As former immigration judges, we understand the inherent limitations on due process in an immigration court system that is housed in the Department of Justice, a prosecutorial agency within the Executive Branch of the government. This administration has systematically attacked due process in the immigration court system through new rules, memoranda, and policies. However, the largest assault to due process is the Migrant Protection Protocols (MPP) program. MPP prevents access to the court, to counsel, and to resources refugees need to effectively present their cases. The limitations on due process in MPP are not incidental to the program, they are intentional.

In addition to the elimination of due process in MPP, the government is putting vulnerable refugees in grave danger. Refugees are forced to wait in dangerous border towns in Mexico without any protection or resources. As with the elimination of due process, the state created danger generated by MPP is intentional. It is part of the government’s attempt to eliminate access to asylum.

The Round Table of Former Immigration Judges calls for the elimination of MPP immediately, demands that the administration take efforts to locate the thousands of individuals who were prevented from appearing at their hearings, and that all in absentia removal orders in MPP cases be rescinded sua sponte.

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Thanks to our Round Table colleague Hon. Ilyce Shugall for taking the lead on this effort.

Due Process Forever!

PWS

01-28-20

WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!

yhttps://www.washingtonpost.com/world/the_americas/the-us-is-putting-asylum-seekers-on-planes-to-guatemala–often-without-telling-them-where-theyre-going/2020/01/13/0f89a93a-3576-11ea-a1ff-c48c1d59a4a1_story.html

Kevin Sieff reports from Guatemala for WashPost:

By

Kevin Sieff

Jan. 14, 2020 at 4:21 p.m. EST

GUATEMALA CITY — The chartered U.S. government flights land here every day or two, depositing Honduran and Salvadoran asylum seekers from the U.S. border. Many arrive with the same question: “Where are we?”

For the first time ever, the United States is shipping asylum seekers who arrive at its border to a “safe third country” to seek refuge there. The Trump administration hopes the program will serve as a model for others in the region.

But during its first weeks, asylum seekers and human rights advocates say, migrants have been put on planes without being told where they were headed, and left here without being given basic instruction about what to do next.

When the migrants land in Guatemala City, they receive little information about what it means to apply for asylum in one of the hemisphere’s poorest countries. Those who don’t immediately apply are told that they must leave the country in 72 hours. The form is labeled “Voluntary Return.”

“In the U.S., the agents told us our cases would be transferred, but they didn’t say where. Then they lined us up to get on the plane,” said a woman named Marta, 43, from Honduras. She sat in a migrant shelter here with her 17-year-old son, who nursed a gunshot wound in his left cheek — the work, both say, of a Honduran faction of the MS-13 gang.

“When we looked out the window, we were here,” she said. “We thought, ‘Where are we? What are we supposed to do now?’ ”

After the volcano, indigenous Guatemalans search for safer ground — in Guatemala, or the United States

Human rights organizations in Guatemala say they have recorded dozens of cases of asylum seekers who were misled by U.S. officials into boarding flights, and who were not informed of their asylum rights upon arrival. Of the 143 Hondurans and Salvadorans sent to Guatemala since the program began last month, only five have applied for asylum, according to the country’s migration agency.

“Safe third country” is one of the Trump administration’s most dramatic initiatives to curb migration — an effort to remake the U.S. asylum system. President Trump has called it “terrific for [Guatemala] and terrific for us.”

But an Asylum Cooperation Agreement is bringing migrants to a country that is unable to provide economic and physical security for its own citizens — many of whom are themselves trying to migrate. In fiscal 2019, Guatemala was the largest source of migrants detained at the U.S. border, at more than 264,000. The country has only a skeletal asylum program, with fewer than a dozen asylum officers.

Trump wants border-bound asylum seekers to find refuge in Guatemala instead. Guatemala isn’t ready.

As the deal was negotiated, it drew concerns from the United Nations and human rights organizations. But its implementation, advocates say, has been worse than they feared.

“It’s a total disaster,” said Thelma Shau, who has observed the arrival of asylum seekers at La Aurora International Airport in her role overseeing migration issues for Guatemala’s human rights ombudsman.

“They arrive here without being told that Guatemala is their destination,” she said. “They are asked, ‘Do you want refuge here or do you want to leave?’ And they have literally minutes to decide without knowing anything about what that means.”

President Trump and first lady Melania Trump meet in the Oval Office last month with then-President Jimmy Morales of Guatemala. (Jabin Botsford/The Washington Post)

The Guatemalan government says that it explains asylum options and that migrants are simply choosing to leave voluntarily.

“Central American people are given comprehensive attention when they arrive in the country, and respect for their human rights is a priority,” said Alejandra Mena, a spokeswoman for Guatemala’s migration agency. “The information provided is complete for them to make a decision.”

In Guatemala, lenders that were supported by USAID and the World Bank are now funding illegal migration.

The Department of Homeland Security did not respond to requests for comment. The United States has signed similar “safe third country” agreements with El Salvador and Honduras, but they have not yet been implemented. In recent days, Trump administration officials have said they are considering sending Mexican asylum seekers to Guatemala to seek refuge.

Human rights groups in Guatemala that have observed the process say migrants here are not given key information about their options — such as what asylum in Guatemala entails and where they would stay while their claims are being processed. Many migrants are aware that Guatemala suffers from the same gang violence and extortion that forced them from their home countries.

Migrants from Guatemala disembark from a raft in Ciudad Hidalgo, Mexico, in June. (Rebecca Blackwell/Associated Press)

Paula Arana observed the orientation as child protection liaison for the human rights ombudsman.

“It’s clear that the government is not providing enough information for asylum seekers to make a decision, especially in the three minutes they are given,” she said. “Instead, they are being pushed out of the country.”

The United States had suggested that it would begin implementing the agreement by sending single men to Guatemala. But less than a month after it began, families with young children are arriving on the charter flights. Last week, Arana said, a 2-year-old arrived with flulike symptoms.

On Thursday, a man named Jorge, 35, his wife and two daughters, ages 11 and 15, landed here. A day later, they were clustered together at the Casa del Migrante, a shelter in Guatemala City where government officials took them in a bus. They had been given the papers with 72 hours’ notice to leave Guatemala, and couldn’t figure out what to do.

The family had fled multiple threats from gangs in Honduras, which started with an interpersonal dispute between Jorge’s wife and one of the gang’s leaders. Jorge was certain that going back would mean certain death. Like Marta, Jorge did not want his last name to be published out of fear for his family’s safety.

“We’re thinking about our options. We know we can’t stay here. What would I do? Where would we stay?” he said. “Maybe we need to try to cross to the United States again.”

In western Guatemala, cultivating coffee was once a way out of poverty. As prices fall, growers are abandoning their farms for the United States.

The Office of the U.N. High Commissioner for Refugees is not participating in the program. But officials say they’re aware of problems with its implementation.

“UNHCR has a number of concerns regarding the Asylum Cooperation Agreement and its implementation,” said Sibylla Brodzinsky, UNHCR’s regional spokeswoman for Central America and Mexico. “We have expressed these concerns to the relevant U.S. and Guatemalan authorities.”

Human rights advocates who have interviewed the asylum seekers, known locally as “transferidos,” say many have decided that their best option is to migrate again to the United States. Smugglers often offer their customers three chances to make it across the border.

Migrants at the Casa del Migrante described spending a week in Immigration and Customs Enforcement custody in the United States, where they had intended to make their asylum claims. Many carried binders full of evidence they assumed would bolster their cases. On her phone, Marta saved avideo of her son being tortured by MS-13 gang members.

But in their brief conversations with U.S. immigration officials, they were told they would not be given a chance to apply for asylum in the United States.

“We had all this information to show them,” Marta said, leafing through photos of her son’s scars and Honduran court documents. “They said, ‘That’s not going to help you here.’ ”

This school aims to keep young Guatemalans from migrating. They don’t know it’s funded by the U.S. government.

In interviews with The Washington Post, some migrants said they were told vaguely that their cases were being “transferred.” Others were told they were going to be returned to their countries of origin.

“One agent told me, ‘You’re going back to Honduras,’ ” Marta said. But then they arrived in Guatemala City.

“When we looked out the window, we just assumed it was a stop,” her son said.

Marta thought Guatemala might be even more dangerous. They had no connection to the country and nowhere to stay beyond their first few days. When she left the migrant shelter to buy food Friday morning, she said, she stumbled upon a crime scene with a dead body a few blocks away.

During their nine-day detention at an ICE facility in Texas, she said, the family shared a cell with a Guatemalan family that was fleeing violence perpetrated by a different MS-13 group based here.

Agronomy students, some hooded, block a street outside a Guatemala City hotel before lawmakers voted on the deal that made Guatemala a “safe third country” for migrants seeking asylum in the United States. (Oliver De Ros/Associated Press)

“Why would they send us to a country where the same gangs are operating?” she asked.

In the absence of a thorough explanation of their asylum rights in Guatemala, El Refugio de la Niñez is offering a short tutorial to the asylum seekers. So far, 45 have attended.

“The Guatemalan government is completely absent in this whole process,” said Leonel Dubon, the director of the U.N.-funded center. “It sends a clear message. The government isn’t here to offer shelter, it’s here to push people out as quickly as possible.”

The Trump administration negotiated the “safe third country” agreement last year with lame-duck Guatemalan President Jimmy Morales.

As Guatemala pursues war criminals, a dark secret emerges: Some suspects are living quiet lives in the U.S.

Guatemala’s constitutional court initially blocked the deal. Then Trump threatened tariffs on the country and taxes on remittances sent home by Guatemalans living in the United States. It was eventually signed in July.

The new Guatemalan president, Alejandro Giammattei, was sworn in Tuesday. He has raised concerns about the agreement, saying he hadn’t been briefed on its details.

At the signing ceremony, Trump said it would “provide safety for legitimate asylum seekers, and stop asylum fraud and abuses [of the] system.”

U.S. asylum officers do not vet the cases of migrants before they are sent to Guatemala.

In her brief conversations with U.S. immigration agents, Marta tried to get them to look at her binder full of documents and photos.

“They weren’t interested,” she said. “They just kept saying that your case will be transferred to an institution that can handle it.”

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Kevin writes about a tragically absurd situation that seems to have fallen “below the radar screen” of public outrage or even discourse. This is wrong! Most days I can’t believe that the county that I proudly served for more than 35 years is engaging in this type of abusive behavior that would be below the level of even some Third World dictatorships.

And, it isn’t just “occasional abuse” — it’s systemized, institutionalized abuse and dehumanization on a global and regular basis — all approved or de facto enabled by feckless and spineless Federal Appellate Courts, all the way up to the Supremes! These are folks who should know better and really have no other meaningful function in our “separation of powers” system other than to protect our individual rights. Authoritarian governments and dictators hardly need “courts” to enforce their will, even if some find it useful to “go through the motions” of creating and employing complicit “judges.” As one of my Round Table colleagues succinctly put it “there appears to be no bottom!”

Clearly, the “Safe Third Country” exception was never intended by Congress, nor does the statutory language permit it, to be used to “orbit” asylum applicants to some of the most dangerous refugee sending countries in the world with thoroughly corrupt governments and non-existent asylum systems. So, why does the Trump regime have confidence that it can and will get away with these atrocities? Because they believe, correctly so far, that the Article III Federal Courts, many of them now stacked with Trump’s hand-selected “toady judges,” are afraid to stand up to tyranny and protect the rights of desperate, mostly brown-skinned, asylum seekers.

Obviously, from an institutional standpoint, the Article III Courts are saying:

“Who cares what happens to a bunch of brown-skinned foreigners. Let ‘em die, rot, or be tortured. Human rights, due process, and human dignity simply don’t matter when they don’t affect us personally, financially, or socially. That’s particularly true because the results of our abuses are taking place, thankfully, in foreign nations: out of sight, out of mind. Not our problem.”

Apparently, many Americans agree with this immoral and illegal approach. Otherwise, the “black robed, life tenured ones” would be pariahs in their communities, churches, and social interactions. They wouldn’t be offered those cushy teaching positions at law schools or a chance to expound before public audiences.

But, not speaking out against bad judges and not insisting on integrity and courage in the Article III courts could ultimately prove fatal for all of our individual rights. Judges who use their privileged positions to turn a blind eye to the oppression of others, particularly the most vulnerable humans among us, and the catastrophic failure of the rule of law and Due Process in the U.S. immigration system can hardly be expected to stand up for the individual rights of any of us against Government oppression.

After all, why should an exulted Federal Appellate Judge or a Supreme Court Justice care about what happens to you, unless your blood is about to spatter his or her pristine black robe? Many of those supportive of or complicit in Trump’s tyranny will personally experience the costs of a feckless Federal Judiciary when their “turn in the barrel” comes. And, the Trump regime’s list of those who’s “lives and rights don’t matter” is very, very long and continually expanding.

All I can say now is that some day, the full truth about what happens to those unlawfully and immorally turned away at our borders will “out.” Then, many Articles III judges will try to disingenuously protect their reputations by saying, similar to many judges of the Third Reich, “Gee, who knew,” or “I was powerless,” or “It was a political problem beyond our limited jurisdiction.”

My charge to the New Due Process Army: Don’t let the complicit judges get away with it in the “Court of History.” You see, know, and experience first-hand every day the results of Article III judicial complicity. Don’t ever forget what those judges have done and continue to do to human lives from their protected and “willfully clueless” ivory towers! Ultimately, you aren’t as powerless as the “complicit ones” think you are!

Due Process Forever; Feckless, Complicit, Immoral Federal Judges Never!

PWS

01-14-20

VIRGINIA HEFFERNAN @ LA TIMES: Yes, Trumpism Is a Cult: “To see Trumpism as a cult is not to refuse to engage with its effects, the crimes committed in its name or the way it has awakened and emboldened the cruelest and most destructive beliefs and practices in the American playbook.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=c7eff502-0fc6-4c15-a5a9-4fd8adb62bb5

Trumpism deserves to be called a cult

VIRGINIA HEFFERNAN

The comparisons have come hard and fast, at least since 2015. Trump is like Silvio Berlusconi, like Adolf Hitler, like Boris Johnson. A 2018 film called “The Trump Prophecy” took the evangelical route, comparing Trump to Cyrus the Great, the 6th century BC Persian monarch chosen by God to free Jewish captives in Babylon.

But maybe it’s time to stop searching for the exact analogy for Trump, be he Cyrus or Boris, Adolf or a Silvio. What demands analysis is less the arrogant 73-year-old mediocrity in the Oval Office, but the worshipful attitude so many Americans have toward him.

A lot of nut jobs have peddled lies to Americans before, and even styled themselves as messianic. But at no time in history have so many Americans been drawn to what’s looking increasingly like a cult. I don’t use the term recklessly.

When Steven Hassan, an expert in cults and an ex-Moonie (as in the Unification Church, founded by a Korean businessman, the Rev. Sun Myung Moon), published “The Cult of Trump” last spring, some reviewers objected to his use of the cult framework as incendiary and not all that useful.

Indeed, for Trump critics to call his admirers cult members might be just another salvo in our nasty political warfare. It’s similar to the Trump psychologizing over the years that often doubles as name-calling: He’s a baby, a psychopath, a stone-cold narcissist.

The discourse around cults partakes of some woolly theories. “Mind control” and “brainwashing” are shibboleths from the 1950s, when the coinages were used to describe what Chinese Communists did to convert freethinkers to their cause. The implicit suggestion is that unsavory ideas and ideologies can only win adherents using extreme and witchy measures.

All that put me off the notion of Trumpism as a cult. But then in August, Trump looked heavenward and called himself “the chosen one.”

Suddenly, among evangelicals, it wasn’t enough to make comparisons with Cyrus or even King David. He had to be the savior himself. The far-right radio host Wayne Allyn Root called Trump “the second coming of God.” Then former Energy Secretary Rick Perry straight up affirmed Trump’s craziness, telling him, “You are here in this time because God ordained you.”

As 2019 drew to a close, my doubts about Trumpism as a cult dissolved. And I’m not alone.

Republican lawyer George Conway reportedly described his wife, Trump’s presidential counselor Kellyanne Conway, as a member of a cult. Former GOP strategist John Weaver has used the term. Anthony Scaramucci, Trump’s onetime communications director, concurs. Also news vet Dan Rather, conservative political scientist Norman Ornstein, science journalist Steve Silberman, pastor John Pavlovitz and academic and journalist Jared Yates Sexton.

What the cult diagnosis may lack in scholarly rigor, it makes up for in explanatory power. When polled, far too many Republicans come across as having abandoned their commitment to libertarianism, family values or simple logic in favor of Trump worship. They’re lost to paranoia and factually unmoored talking points, just the way Hassan was lost to Sun Myung Moon.

It can be heartbreaking when loved ones succumb to Trumpism. (It’s a double whammy when your grief is dismissed as liberal tears.) A true believer undergoes a “radical personal change,” as Hassan puts it. The person you once knew seems somehow … not there.

Journalists Luke O’Neil and Edwin Lyngar, as well as Jen Senko in “The Brainwashing of My Dad,” have compiled stories of Americans who have gone over. O’Neil summarized the transformation this way: “A loved one … sat down in front of Fox News, found some kind of deep, addictive comfort in the anger and paranoia, and became a different person.”

Sounds about right.

Hassan — who remembers, during his Moonie days, shouting, “I don’t care if Moon is like Hitler. I’ve chosen to follow him, and I’ll follow him to the end” — broke free, and became an expert on cults and how to leave them. He has spent his career proving it’s possible.

To see Trumpism as a cult is not to refuse to engage with its effects, the crimes committed in its name or the way it has awakened and emboldened the cruelest and most destructive beliefs and practices in the American playbook. Instead, the cult framework should relieve the pressure many of us feel to call Trumpites back to themselves, to keep arguing with them. They are stuck in a bad relationship with a controlling figure.

Understanding Trump is a fool’s errand. He’s sui generis, and far too erratic and finally insubstantial to reward close attention. Trump zealots are another matter. They are part of the tradition of radical converts in American history who elected to forfeit their authentic personalities and principles rather than refine or strengthen them. We need to stay focused on how so many Americans came to this pass and took this destructive course. The Trump cult will define American politics for decades to come, even after its dear leader is gone.

Twitter: @page88

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Heffernan’s analysis leads to the conclusion that it’s naive for Dems to keep wishing, hoping, and thinking that they can just speak truth and advance facts and thereby expect Trump’s followers to wake up, discover decency, and suddenly embrace humanity and rationality again.

No, the way the Democratic majority takes back the White House is by making sure that they get maximum turnout among the majority of Americans not enthralled by Trump and, particularly, that they fight through concerted GOP voter suppression efforts to appeal to, register, and get out the many new and younger voters who don‘t identify with Trump’s dark, White Nationalist view of America and the unfailingly false, cruel, and negative values that he so arrogantly projects to his cult followers.

PWS

01-11-20

FRANK RICH @ NY MAGGIE: TRUMP TOADIES WILL FACE A RECKONING — “With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it . . . .”

http://nymag.com/intelligencer/2020/01/what-will-happen-to-trumps-republican-collaborators.html

What Will Happen to The Trump Toadies? Look to Nixon’s defenders, and the Vichy collaborators, for clues.

By Frank Rich

@frankrichny

Photo: Getty Images

This article was featured in One Great Story, New York’s reading recommendation newsletter. Sign up here to get it nightly.

Irony, declared dead after 9/11, is alive and kicking in Trump’s America. It’s the concepts of truth and shame that are on life support. The definition of “facts” has been so thoroughly vandalized that Americans can no longer agree on what one is, and our president has barreled through so many crimes and misdemeanors with so few consequences that it’s impossible to gainsay his claim that he could shoot someone on Fifth Avenue and get away with it. Donald Trump proves daily that there is no longer any penalty for doing wrong as long as you deny everything, never say you’re sorry, and have co-conspirators stashed in powerful places to put the fix in.

No wonder so many fear that Trump will escape his current predicament scot-free, with a foregone acquittal at his impeachment trial in the GOP-controlled Senate and a pull-from-behind victory in November, buoyed by a booming economy, fractious Democrats, and a stacked Electoral College. The enablers and apologists who have facilitated his triumph over the rule of law happily agree. John Kennedy, the Louisiana senator who parrots Vladimir Putin’s talking points in his supine defense of Trump, acts as if there will never be a reckoning. While he has no relation to the president whose name he incongruously bears, his every craven statement bespeaks a confidence that history will count him among the knights of the buffet table in the gilded Mar-a-Lago renovation of Camelot. He is far from alone.

If we can extricate ourselves even briefly from our fatalistic fog, however, we might give some credence to a wider view. For all the damage inflicted since Inauguration Day 2017, America is still standing, a majority of Americans disapprove of Trump, and the laws of gravity, if not those of the nation, remain in full force. Moral gravity may well reassert its pull, too, with time. Rather than being the end of American history as we know it, the Trump presidency may prove merely a notorious chapter in that history. Heedless lapdogs like Kennedy, Devin Nunes, and Lindsey Graham are acting now as if there is no tomorrow, but tomorrow will come eventually, whatever happens in the near future, and Judgment Day could arrive sooner than they think. That judgment will be rendered by an ever-more demographically diverse America unlikely to be magnanimous toward cynical politicians who prioritized pandering to Trump’s dwindling all-white base over the common good.

All cults come to an end, often abruptly, and Trump’s Republican Party is nothing if not a cult. While cult leaders are generally incapable of remorse — whether they be totalitarian rulers, sexual Svengalis, or the self-declared messiahs of crackpot religions — their followers almost always pay a human and reputational price once the leader is toppled. We don’t know how and when Donald Trump will exit, but under any scenario it won’t be later than January 20, 2025. Even were he to be gone tomorrow, the legacy of his most powerful and servile collaborators is already indelibly bound to his.

Whether these enablers joined his administration in earnest, or aided and abetted it from elite perches in politics, Congress, the media, or the private sector, they will be remembered for cheering on a leader whose record in government (thus far) includes splitting up immigrant families and incarcerating their children in cages; encouraging a spike in racist, xenophobic, and anti-Semitic vigilantes; leveraging American power to promote ethnic cleansing abroad and punish political opponents at home; actively inciting climate change and environmental wreckage; and surrendering America’s national security to an international rogue’s gallery of despots.

That selective short list doesn’t take into account any new White House felonies still to come, any future repercussions here and abroad of Trump’s actions to date, or any previous foul deeds that have so far eluded public exposure. For all the technological quickening of the media pulse in this century, Trump’s collaborators will one day be viewed through the long lens of history like Nixon’s collaborators before them and the various fools, opportunists, and cowards who tried to appease Hitler in America, England, and France before that. Once Trump has vacated the Oval Office, and possibly for decades thereafter, his government, like any other deposed strongman’s, will be subjected to a forensic colonoscopy to root out buried crimes, whether against humanity or the rule of law or both. With time, everything will come out — it always does. With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it — whether they were active participants in the wrongdoing like Jared Kushner, Stephen Miller, Kirstjen Nielsen, Mike Pompeo, and William Barr, or the so-called adults in the room who stood idly by rather than sound public alarms for the good of the Republic (e.g., Gary Cohn, John Kelly, Rex Tillerson), or those elite allies beyond the White House gates who pretended not to notice administration criminality and moral atrocities in exchange for favors like tax cuts and judicial appointments (from Mitch McConnell and Paul Ryan to Franklin Graham and Jerry Falwell Jr.).

. . . .

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

Read the rest of Rich’s article at the link.

“Tomorrow will come, eventually.” Yup!

Just yesterday, the usually reliable “Trump Toadies” Sen. Mike Lee (R-UT) and Rand Paul (R-KY) were whining and sputtering upon learning what toadyism really means after being “treated like Democrats” during an insulting and clownish “after the fact briefing” on Iran. https://www.cnn.com/2020/01/09/politics/impeachment-watch-january-8/index.html .

But, that moment of lucidity and outrage will pass quickly, and they will undoubtedly rejoin their colleagues like Sen. Marco Rubio (R-FL), Sen. Teddy Cruz (R-TX), Sen. John “Vladimir” Kennedy (R-LA), Lindsey “Braindead” Graham (R-SC), and the rest of the “Party of Putin” in groveling before their Clown-in-Chief.

I would include the Article III judges who tanked in the face of tyranny and failed to protect the legal and human rights of the most vulnerable in the list of those whose misdeeds, spinelessness, and complicity in the face of tyranny eventually will be “outed.”

PWS

01-09-20

THE NEW AMERICAN GULAG (“NAG”): UNNECESSARY, UNAMERICAN, UNPOPULAR, UNCONSTITUTIONAL — The Arguments Against It Are Compelling, But Will The Majority Of Us Ever Outwit The Nativist Right Whose Lies & Intentionally False Narratives Have Built & Expanded The NAG? — “But if radical changes come, Hernández writes, ‘it won’t be because the law demands it. It will be because people demand it.’”

Cora Currier
Editor & Writer
The Intercept

https://apple.news/A8Ts1IO58QvqzYcaVwqsQWQ

Cora Currier writes in The Intercept:

IMMIGRATION DETENTION IS PART OF MASS INCARCERATION: THE CASE FOR ABOLISHING ICE AND EVERYTHING ELSE

NOT MANY PEOPLE besides immigration law wonks had probably heard of “Section 1325,” before Julián Castro called for repealing it during the first Democratic presidential primary debate this summer. The law in question makes it a federal crime to enter the U.S. without permission — turning an immigration offense into a criminal one. President Donald Trump used a policy of “zero tolerance” for breaking that law to justify separating families at the border, but under George W. Bush and Barack Obama before him, 1325, along with illegal reentry — coming back after being deported — was already being used to jail and deport more and more immigrants. In fact, immigration-related crimes now make up the majority of all federal criminal prosecutions.

Castro’s proposal to repeal 1325 might have seemed to come out of left field, but it’s the exercise of the law that is historically the outlier: While laws criminalizing entry have existed since 1929, they “were largely ignored for a century,” the lawyer and scholar César Cuauhtémoc García Hernández reminds us in a new book, “Migrating to Prison: America’s Obsession with Locking Up Immigrants.” In 1975, he noted “a mere 575 people” were charged with an immigration crime; in 1993, only 2,487. Contrast that with fiscal year 2018, when prosecutors brought 105,692 federal immigration charges.

T he criminalization of immigration, especially the scale at which it happens now, is a relatively recent trend, Hernández argues. And it ought to be reversed. His book joins a number of recent works that put contemporary immigration politics in the same light that scholars and activists have shone on mass incarceration — showing it to be a phenomenon inextricably linked to the history of land, race, and capitalism in the United States. “The immigration prison is a reminder that human bondage based on racial and economic markers of undesirability can’t be relegated to some distant past,” Hernández writes. “If we’re willing to lock people up, we’ll find a reason. Most of the time the targets will be people of color. We can call this coincidence, but we would be lying to ourselves.”

Hernández lays out in a lucid, linear fashion the evolution of immigration law and its enforcement in the United States, from laws restricting the movement of certain people across state lines — formerly enslaved people, for instance — to the Chinese Exclusion Act of 1882, the first in a series of acts that barred Asian immigrants for decades.

Any history of how the notion of “illegality” in migration took root has to consider the experience of Mexicans. While the first U.S. immigration laws focused with explicit racism on excluding Asians, Mexicans were the ones often physically targeted by Border Patrol — harassed, removed, or allowed to pass to satisfy the desires of powerful Southwest planters. In Hernández’s words, Border Patrol “detained and deported their way to a scared workforce.” Many of those workers, whether unauthorized or sanctioned under the bracero program, which ran from 1942 to 1964, were rendered “illegal” by the 1965 Immigration and Nationality Act, which got rid of national quotas and more or less established the United States’ current immigration regime, wherein countries are allotted a certain number of visas. Though ostensibly a progressive measure doing away with the racist quotas and nationality bans of previous eras, when it came to Mexico, the act, also known as Hart-Celler, ignored the closeness of the nations and subjected Mexicans to a national cap nowhere near high enough to accommodate traditional migration levels. “Perversely, the Hart-Celler Act’s formal equality turned immigration law against Mexican migrants,” Hernández writes. Mexicans became “illegal,” and “illegal aliens” became racially coded as Mexican.

Its focus on detention sets Hernández’s book apart from other recent histories of immigration and the border, including Kelly Lytle Hernández’s history of the Border Patrol; “Undocumented Lives: The Untold Story of Mexican Migration,” by Ana Raquel Minian; and Greg Grandin’s “The End of Myth: From the Frontier to the Border Wall in the Mind of America.” Early immigration prisons were “atrocious” “dockside facilities,” like a two-story wooden shed on the San Francisco wharf run by the Pacific Mail Steamship Company, where Chinese migrants waited to be approved entry by U.S. officials. Ironically, it was to address these terrible conditions in company-run centers that the federal government got involved, creating facilities like Ellis Island in the New York Harbor, which opened in 1892, and Angel Island in the San Francisco Bay. For the first time, Congress required inspection officers “to detain anyone not ‘clearly and beyond doubt entitled to admission,’” César Cuauhtémoc García Hernández writes in “Migrating to Prison.” In 1896, the Supreme Court “emphatically declared that immigration imprisonment was constitutionally permissible.”

Yet it was a relatively brief experiment. By 1954, under Dwight D. Eisenhower, Immigration and Naturalization Service (the precursor to today’s immigration agencies) “had all but abandoned its detention policy.” Ellis Island shut down with little fanfare. Hernández concludes that, “in fact if not in law, the United States came remarkably close to abolishing immigration imprisonment.” While that was, in the words of the attorney general at the time, a step in the direction of “humane administration of the immigration laws,” it was also self-interested, Hernández notes. Immigration prisons were costly, and, as has been the case throughout U.S. history, businesses wanted migrants out of prison so they could be used as cheap labor.

Again, Hernández connects this history to that of incarceration writ large in the U.S. There was a time when, even within Richard Nixon’s Justice Department, the utility of prison was questioned. But the ’70s ushered in a politically orchestrated crime panic, and the war on drugs, which led to mandatory minimum prison terms and sentencing disparities for powder cocaine and crack. A parallel process played out with immigration. Migrants, like black Americans, were linked to drugs, crime, and unrest, and portrayed as leeches on government services.

In the 1980s and ’90s, legislation introduced new levels of criminality for immigrants, which in turn expanded the population of imprisoned people. As Hernández writes, “Congress denied immigration judges the discretion to release anyone convicted of an aggravated felony,” which includes serious offenses like murder but also shoplifting and tax fraud. Detention and deportation, once decided with considerable discretion, became mandatory for all sorts of offenses. The link between mass incarceration and immigrant incarceration is clear in the legislative history: The same 1986 law that created mandatory minimum sentences for crack cocaine created “detainers,” requests to local police to hold someone in jail until they can be picked up by immigration. Liberals were complicit too. As Grandin notes, Bill Clinton played a key role, signing “a number of extremely punitive crime, terrorism, and immigration bills into law, which created the deportation regime that exists today.”

Muslims and other immigrants from majority-Muslim countries suffered the racist expansion of immigration detention after September 11, 2001, as counterterrorism enveloped immigration into the ballooning national security apparatus. And, as with the incarceration of U.S. citizens, black migrants have been disproportionately impacted by the shift to “crimmigration,” as scholars call it — more likely to be detained for a crime, and more likely to be removed.

Considering the recent explosion in immigration detention, Hernández explores federal contracts with local law enforcement and private prison companies. He looks not just at U.S. Immigration and Customs Enforcement but also the U.S. Marshals Service, which holds some 60,000 people a day in pre-trial detention, making deals with state and local jails around the country (the deaths of immigrants in Marshals custody were recently investigated by Seth Freed Wessler for Mother Jones). Again, the degree to which immigration offenses dominate the criminal justice system is stark — in 2013, marshals detained 97,982 people on immigration crimes, compared with 28,323 drug defendants. The Office of Refugee Resettlement, under the Department of Health and Human Services, had 49,000 children in custody in 2018, in “shelters” that range in comforts offered but which are all tightly controlled. Whatever agency officially holds them, Hernández argues, “to the migrants who are under constant surveillance and whose liberty has been denied there is little difference.”

Detention is also used with the idea that it will dissuade people from coming. Although Hernández points out this is legally suspect — detention of asylum-seekers and people accused of other non-criminal immigration offenses is not supposed to be a punishment — multiple administrations have invoked deterrence as a reason to keep people locked up.

Trying to separate immigrants who deserve imprisonment and those who don’t, distinguishing between shelters and detention centers and jails, obscures the workings of the whole system, Hernández says, which is designed to punish people for nothing more than being born in the wrong place. “Migrants are expected to live out the exceptionalism that U.S. citizens imagine in themselves,” he writes. The legal immigration system rewards wealth, education, and family connections, while the immigration enforcement system has no tolerance for human error.

Daniel Denvir’s forthcoming book, “All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It,” complements Hernández’s by focusing on political history. He, too, traces the development of anti-immigrant sentiments and policies alongside anti-black ones, arguing that “resistance to desegregation, a white identity politics of racial grievance, mass incarceration, the war on terror: all were dedicated to a quixotic mission to keep dangerous others from crossing U.S. borders and to restrict the free movement of those inside them.”

Democrats likewise fell into the trap of demonizing “illegal immigrants” and “criminal aliens,” believing that by doing so they could protect legal immigration from hard-right restrictionists and defend themselves from soft-on-crime accusations (just as they’d attempted to do by jumping on the war-on-drugs bandwagon).

T he bipartisan embrace of immigration enforcement, Denvir argues, was the product of the elusive quest for so-called comprehensive immigration reform, which would combine a path to legalization for people already in the country with the liberalization of legal immigration — goals sought by immigrant rights groups and big business alike. In order to get it, Democrats and some Republicans, from Clinton through Bush and Obama, tried to appease nativists with promises of “border security,” miles of fencing, massive increases in the Border Patrol, and surveillance systems befitting a war zone. Each time, however, the nativists were not, in fact, appeased, crying “amnesty” and sabotaging the prospect of reform. “The long-term advantage,” of focusing on enforcement, Denvir writes, “would accrue to the Right, which was better positioned to link the immigrant threat to crime, welfare, black people and terrorism.” Trump’s attempt to demand funding for his pet wall in order to save the Deferred Action for Childhood Arrivals, or DACA, program last year, was a repeat of the same pattern. In the end, Trump plowed ahead with construction (literally, through delicate desert ecosystems), and DACA’s fate remains unsettled.

Over time, the left flank of immigration activism has grown wary of both comprehensive immigration reform (finding those “reforms” incremental) and the attempt to distinguish “good” immigrants from “bad” ones. As Denvir notes, “lots of ‘good’ immigrants were being deported too. And how bad were the bad ones, given the vast number of individuals convicted of crimes in the carceral state?”

Hernández ends his book with the case for abolishing immigration detention, while admitting that few people have a specific vision for how to do it. Denvir ends with an analysis of an electorate that might be willing to try. As he puts it, “record deportations and a radicalizing racist right has triggered a revolt among the Democratic Party’s increasingly young and diverse base,” and Democrats under Trump have become “staunchly pro-immigrant” and “more hostile to enforcement.” Hernández also decides to see Trump’s hostility to immigrants not just as horror but also as opportunity. Has the bipartisan consensus of “immigration is a ‘problem’ that needs fixing” finally broken? Will Trump’s nativist wish list of anti-immigrant, anti-refugee policies permanently shift Democrats away from their position that enforcement is always necessary?

Decriminalization of entry and reentry is a start, as Denvir and Hernández advocate (among the remaining Democratic presidential candidates, Bernie Sanders, Elizabeth Warren, Pete Buttigieg, Cory Booker, and Andrew Yang have said they agree). Denvir also calls for downsizing the Border Patrol, destroying existing physical barriers, breaking up agreements between ICE and local law enforcement, and increasing opportunities for legal immigration, especially from Central America and Mexico. Hernández urges, on a personal and institutional level, divestment from private prison companies. Eliminating cash bail and giving every migrant the right to a lawyer would drastically increase their odds of success, as would case management — offering help with housing and legal assistance.

These types of measures might actually lead to better compliance with immigration law, satisfying the obsession with people migrating “the right way.” But they would not offer concessions to a nativist right that wants any and all nonwhite immigration restricted, and they would have to resist the scare tactics bent on tying immigrants to crime and the rhetoric of scarcity that will inevitably accompany an economic downturn and worsening climate conditions. The court cases challenging the most horrendous aspects of confinement in immigrant detention centers are important. But if radical changes come, Hernández writes, “it won’t be because the law demands it. It will be because people demand it.”

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

This is a study in how a motivated minority can shove bad and fiscally irresponsible policies down the throats of a complicit majority.

The legal, fiscal, and humanitarian arguments against the NAG are out there, but the Dems keep getting “sidetracked” by buying into the bogus concept that “hard line enforcement and a little cruelty” is a necessary “quid pro quo” for rational immigration reform. But, the truth is that no amount of repression, cruelty, and irrational enforcement will ever satisfy the White Nationalists who have taken over the GOP.

Maybe, rather than trying to appease the unappeasable, the Dems’ strategy needs to be getting 100% of Democrats out to vote and registering the large number of new and younger potential voters who don’t favor racially driven policies of unrelenting cruelty and wasteful immigration restrictionism.

PWS

01-02-20

Due Process Forever! Complicit Courts Never!

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