"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Abigail Tracy @ Vanity Fair reports on the latest batch of vile untruths flowing from the top of our vile White Nationalist regime as they try to defend their indefensible policy of official child abuse:
Facing mounting outrage in the media over its new “zero-tolerance” policy at the border, the Trump administration is deliberately misleading Americans about the thousands of migrant children it has forcibly separated from their families. The objective, according to people close to Donald Trump, is twofold: “deterrence,” as Chief of Staff John Kelly explained last month, and political extortion. “The thinking in the building is to force people to the table,” a White House official toldThe Washington Post last week. A second official confirmed that the president is hoping to use the detained children as leverage to force Democrats to cut a deal on immigration: “If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can.”
The images emerging from these detention centers, where traumatized young children are kept in chain-link pens, have drawn comparisons to some of the worst episodes in American history, including the internment of Japanese Americans during WWII. Instead of ending the controversial policy, however, President Trump has promoted a contradictory and confusing message about family separation. At times, he has blamed Democrats for what he has described as their “law” (it is not a law); at others, he has suggested that family separation is indeed his policy, but that Democrats have forced him to take action by not agreeing to new immigration-reform legislation. In a series of tweets Monday morning, he wrote that it is “the Democrats fault for being weak and ineffective with Boarder [sic] Security and Crime” and called on Congress to “change the laws.” He also indicated that the policy is driven by racial or cultural concerns, describing migrant children as Trojan horses for “the worst criminals on earth” and declaring that the U.S. should not repeat Europe’s “big mistake” of “allowing millions of people in who have so strongly and violently changed their culture.”
Over the weekend and into Monday, a number of Trump officials made similar obfuscations about the policy. In every instance, however, the implication was clear: the problem could go away if Democrats will just play ball. “This is up to the Democrats. They could fix this right now. If you close those loopholes, we could do this humanely,” White House Deputy Press Secretary Hogan Gidley said during an interview with Fox & Friends on Monday, before accusing Democrats of bolstering drug cartels and the “child-smuggling industry.” Senior White House adviser Kellyanne Conway similarly put the onus on Congress to address the crisis at the border during an interview with NBC’s Meet the Press on Sunday. After asserting that “nobody likes this policy,” Conway said, “If the Democrats are serious, and if a lot of Republicans are serious, they’ll come together. They won’t just talk about just this week, just the Dreamers, or just the wall, or just catch and release. It’s all of the above,” she said. Even First Lady Melania Trump appeared to lay responsibility for her husband’s policy at Congress’s feet, issuing a rare policy statement saying that she “hates to see children separated from their families,” but “hopes both sides of the aisle can finally come together.”
Secretary of Homeland Security Kirstjen Nielsen, meanwhile, seems unsure whether her agency’s policy exists. “We do not have a policy of separating families at the border. Period,” she tweeted on Sunday, blaming Democrats, journalists, and advocacy groups of “irresponsible and unproductive” reporting on the border. On Monday, however, Nielsen appeared to reverse herself, defending the separation of migrant families as necessary when prosecuting migrants who cross the border illegally. “There are some who would like us to look the other way,” the Homeland Security secretary said at a speech before the National Sheriffs’ Association in New Orleans. “Past administrations may have done so, but we will not. We do not have the luxury of pretending that all individuals coming to this country as a family unit are, in fact, a family. We have to do our job. We will not apologize for doing our job.” Attorney General Jeff Sessions, who addressed the group after Nielsen, said while he doesn’t enjoy separating children from their parents, the situation could be fixed if only Democrats would accede to building Trump’s border wall and passing new laws to crack down on illegal immigration.
The mixed messaging has become a problem for Republicans seeking to defend the Trump policy, but unsure whether they are supposed to be blaming Democrats, defending “law and order,” or pretending the policy doesn’t exist. “The policy is incredibly complicated and it is one we need to do a better job of communicating,” White House Director of Legislative Affairs Marc ShorttoldThe Wall Street Journal. “We’ve not talked about the history of how we got to this point.”
The history of the policy, however, does not support the administration’s narrative. It is true that at the height of the 2014 migrant crisis, when there was a surge in unaccompanied minors crossing the border, the Obama administration placed a large number of families in detention centers. But these families—many of them fleeing violence in Central America—were allowed to remain together while their claims were being processed. Under Trump’s “zero-tolerance” policy, however, all adults caught crossing the border are criminally prosecuted, with no exceptions. As a result, thousands of children have been taken away from their parents and treated as if they had tried to cross the border alone. In some cases, undocumented adults are being deported without their children, who remain detained in federal immigration facilities with no way to contact their parents. Immigration experts worry that some families may be permanently separated.
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” Sessions said last month when announcing the new policy. “If you don’t want your child to be separated, then don’t bring them across the border illegally.” White House senior adviser Stephen Miller, a staunch advocate of the policy, told The New York Times last week, “It was a simple decision by the administration to have a zero-tolerance policy for illegal entry, period. The message is that no one is exempt from immigration law.”
Still, the cruel reality of family separation has become difficult for Trump’s allies to defend. On Sunday, Breitbart News criticized the Associated Press for describing the metal enclosures used to intern children as “cages,” suggesting that they were merely “chain-link partitions.” Fox & Friends host Steve Doocy argued the same point Monday morning.
This appears to be a losing battle for the White House. In a rare op-ed in The Washington Post, former First Lady Laura Bush derided separating families as “cruel” and “immoral.” Reverend Franklin Graham, the son of the late Billy Graham and a frequent defender of Trump, similarly slammed the policy as “disgraceful.” And while Republicans on Capitol Hill have remained largely silent on the issue, G.O.P. Senators Jeff Flake and Susan Collins sent a letter to Nielsen and Health and Human Services Secretary Alex Azardemanding more information on whether the Trump administration was separating families seeking asylum at ports of entry, in addition to those crossing the border illegally.
Administration officials have seized on the distinction between the treatment of asylum claimants caught crossing the border versus those presenting themselves at sanctioned ports of entry to depict the former category as criminals. D.H.S. spokesperson Tyler Houlton recently said, “There is no policy to separate those seeking asylum at a port of entry.” But according to multiple reports, undocumented immigrants who appear at these ports are often turned away or detained. “Contrary to what D.H.S. has indicated as proper procedure, we are currently seeing cases where immigrant families seeking asylum are separated after lawfully presenting themselves at a U.S. port of entry,” Senator Flake said in a statement accompanying his letter. In some cases, it appears that immigrants’ claims are simply rejected—a result, perhaps, of the Trump administration’s institutional skepticism toward asylum claims. Sessions has previously criticized the asylum process, asserting in a speech last October that “dirty immigration lawyers” provide applicants with “the magic words needed to trigger the credible fear process.” On Monday, Nielsen declared, “Our system for asylum is broken.”
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No, asylum law isn’t broken — except that it has been applied far too narrowly, begrudgingly, and often in the absence of common sense, humanity, principles, and due process leading to unnecessary inconsistencies and backlogs in a system that has not been allowed to fully function in a way that fulfills its humanitarian purposes. Instead of designing the asylum system to efficiently screen out the minority of applicants who don’t really qualify as refugees, and grant some type of protection to the majority, the system is now engaged in manipulating and intentionally misconstruing the law and falsifying or distorting facts to disqualify or deny legitimate refugees fleeing for their lives. The idea being pushed by our White Nationalist regime is to create and support a false narrative that the majority of refugees arriving here and applying for asylum aren’t “really refugees.” But, they are.
What is broken is the group of corrupt, dishonest, ignorant, and incompetent political hacks who are administering and intentionally destroying our asylum and refugee systems today. Removing this regime and their enablers from office at the ballot box will a long difficult process. But, until it is accomplished, we will not regain our humanity as a nation and we certainly will not be able to put any fair, workable, legal system of immigration controls that serves our real national interests in place.
Our democratic institutions are dissolving right before our eyes. But, the responsibility for that is clearly and solely upon our Executive and Legislative Branches which are all controlled by the Trump GOP.Don’t let them get away with unloading their responsibility on the rest of us who are resisting tyranny and trying to do the right thing (something that never, ever, occurs to anyone associated with Trump).
This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.
The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.
And second, that she has not established that her husband abused her because he perceived her to be a member of this group.
Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.
The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.
In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.
Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.
Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.
Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.
He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:
Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;
That membership in that group is a central reason for the alleged persecution; and
That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.
The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.
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Read Nolan’s complete article over at The Hill at the above link.
I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.
I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.
Laura Bush is a former first lady of the United States.
On Sunday, a day we as a nation set aside to honor fathers and the bonds of family, I was among the millions of Americans who watched images of children who have been torn from their parents. In the six weeks between April 19 and May 31, the Department of Homeland Security has sent nearly 2,000 children to mass detention centers or foster care. More than 100 of these children are younger than 4 years old. The reason for these separations is a zero-tolerance policy for their parents, who are accused of illegally crossing our borders.
I live in a border state. I appreciate the need to enforce and protect our international boundaries, but this zero-tolerance policy is cruel. It is immoral. And it breaks my heart.
Our government should not be in the business of warehousing children in converted box stores or making plans to place them in tent cities in the desert outside of El Paso. These images are eerily reminiscent of the Japanese American internment camps of World War II, now considered to have been one of the most shameful episodes in U.S. history. We also know that this treatment inflicts trauma; interned Japanese have been two times as likely to suffer cardiovascular disease or die prematurely than those who were not interned.
Americans pride ourselves on being a moral nation, on being the nation that sends humanitarian relief to places devastated by natural disasters or famine or war. We pride ourselves on believing that people should be seen for the content of their character, not the color of their skin. We pride ourselves on acceptance. If we are truly that country, then it is our obligation to reunite these detained children with their parents — and to stop separating parents and children in the first place.
People on all sides agree that our immigration system isn’t working, but the injustice of zero tolerance is not the answer. I moved away from Washington almost a decade ago, but I know there are good people at all levels of government who can do better to fix this.
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Thanks, Mrs. Bush, for speaking up and speaking out against these unconscionable, unnecessary, and illegal policies at such an important time and on such a significant day. Thank you for reminding us that we have forgotten our legal and moral obligations to refugees and the most vulnerable of the world. Selfishness and intentional cruelty are never acceptable policies.
Celebrate World Refugee Day by resisting Trump, Sessions, Nielsen, Miller, and the rest of their White Nationalist scofflaw gang who are making us complicit in their demeaning of humanity.
The greater the truth, the worse the lie; the corruption of the best is the worst of all. People mislead one another all the time about temporary and venial things, which constitutes its own category of error, but rarely — even in the moral wasteland of American politics — do they get around to prevaricating about the eternal and cosmic. Lying about the capital-t, transcendent Truth is a category of error all on its own, whether you spend most of your time fooling others or just yourself.
Attorney General Jeff Sessions and White House press secretary Sarah Huckabee Sanders perhaps indulged in a bit of both Thursday, when asked about the moral reasoning behind separating migrant parents from their children at the U.S. border.
Sessions argued that, as criminals, immigrants have put themselves beyond the protection of God’s care. “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order,” Sessions explained by way of scriptural warrant. He added that “orderly and lawful processes are good in themselves . . . [and protect] the weak and lawful.” Sanders later offered an artful gloss in defense of Sessions: “It is very biblical to enforce the law,” she said.
Here, whether deliberately or unknowingly, Sessions and Sanders radically depart from the Christian religion, inventing a faith that makes order itself the highest good and authorizes secular governments to achieve it. In Christianity as billions of faithful have known it, order and lawful procedures are not “good in themselves” and it is not “very biblical” to “enforce the law” whatever it might be. Rather, there is a natural order inscribed into nature. Human governance can comport with it or contradict it, meaning Christians are sometimes morally obligated to follow civil laws and are sometimes morally obligated not to.
Conservatives seize on this approach when it suits them; this is why they’re so keen on carving out legal protections for matters of religious conscience. Because religious obligations precede and generate civic ones, laws must accommodate religious practice, not the other way around.
As Sessions himself observed quoting James Madison in a lengthy October 2017 memorandum on federal protections concerning religious liberty, “the duty owed to one’s Creator is ‘precedent, both in order of time and in degree of obligation, to the claims of Civil Society.’” Sessions can either believe that or believe what he and Sanders said Thursday, but he can’t believe both. To put a finer point on it: God’s law can’t only precede — and top — civil law when a pharmacist would prefer not to sell the Plan B contraceptive, but not when it would appear a ruler is duty-bound to show compassion to strangers.
But there are worse things than confusion, or even than hypocrisy. One of them is self-deception. When Sessions invoked Romans 13 — a verse infamous for earlier bad-faith invocations to justify slavery — he shifted the subject of the question from himself and his own department to those under his control. He was summoned to defend his choices, his judgment, his own moral reasoning — but instead offered a condemnation of the decisions and morality of migrants. He wanted to talk about what, in his view, the Bible demands of the ruled. But he omitted the more important question: What does it demand of rulers?
Any number of scriptural passages aavailable here, though less useful for Sessions’s purposes. From Deuteronomy 10 : “For the Lord your God . . . loves the strangers, providing them food and clothing. You shall also love the stranger, for you were strangers in the land of Egypt.” Or from Jeremiah 7: “If you really change your ways and your actions and deal with each other justly, if you do not oppress the foreigner, the fatherless or the widow and do not shed innocent blood in this place . . . then I will let you live in this place, in the land I gave your ancestors for ever and ever.” Dealing compassionately with strangers seems to be a minimal requirement for just leadership in the model set forth by God, a theme that carries into the New Testament, where Christ’s followers are taught to view themselves as wanderers on earth, and to treat others with appropriate empathetic mercy.
But some Christians aren’t strangers in the world at all. Some are very much at home here, or believe that they are, and that there is no tension between the desire of God and the desire of man. People can believe any number of things, especially given the right incentives.
If you had all the power in the world, maybe you would also hear a serpent dipping its smooth body down from some shadowy bough to say: God wants you to do whatever you like with your power, and whatever you do with it is good.
“It’s becoming a cultish thing, isn’t it?” Sen. Bob Corker (R-Tenn.) mused this week about his Republican Party under President Trump.
As if to prove Corker’s point, the Trump administration the very next day claimed that it had the divine right to rip children from their parents’ arms at the border.
Officials justified the unique form of barbarism — taking infants from parents and warehousing children in tent cities and an abandoned Walmart — by saying they are doing God’s will.
“I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order,” Attorney General Jeff Sessions said Thursday. “I am not going to apologize for carrying out our laws.”
White House press secretary Sarah Huckabee Sanders, asked about Sessions’s remarks, said: “It is very biblical to enforce the law.”
This isn’t religion. It’s perversion. It is not the creed of a democratic government or political party but of an authoritarian cult.
The attorney general’s tortured reading of Romans is exactly the strained interpretation that others have used before to justify slavery, segregation, apartheid and Nazism. The same interpretation could be used to justify Joseph Stalin, or Kim Jong Un.
Romans 13 does indeed say to “submit to the authorities,” because they “are God’s servants, agents of wrath to bring punishment on the wrongdoer.” But this is in the context of what comes before it(“share with the Lord’s people who are in need. Practice hospitality”) and after (“owe no one anything, except to love each other, for the one who loves another has fulfilled the law”) – and, indeed, admonitions to care for the poor and the oppressed that come from Isaiah, Leviticus, Matthew and many more.
Evangelical leaders who looked the other way when Stormy Daniels and the “Access Hollywood” tape surfaced this time have denounced Trump’s recent “zero-tolerance” policy that, as the National Association of Evangelicals, the Southern Baptist Convention and others wrote to Trump this month, has the “effect of removing even small children from their parents.”
“God has established the family as the fundamental building block of society,” they wrote. The leaders urged Trump to end zero tolerance and use “discretion” as previous administrations did.
But a cult, by definition, is not about mainstream theology. I looked up characteristics of cults in the sociological literature to see how Trump’s stacks up.
□ “Presents a distinct alternative to dominant patterns within the society in fundamental areas of religious life.” Grab ’em by the p—y!
□ “Possessing strong authoritarian and charismatic leadership.” I alone can fix it!
□ “Requiring a high degree of conformity.” See: Flake, Jeff and Sanford, Mark.
□ A tendency “to see itself as legitimated by a long tradition of wisdom or practice.” It is very biblical to enforce the law.
Check, check, check, check and check.
And members of the Cult of Trump, formerly known as the GOP, follow him over the cliff and onto the spaceship. They swallowed their heretofore pro-life, pro-family and pro-faith views to embrace Trump’s travel ban on several Muslim-majority countries (“Such blatant religious discrimination is repugnant,” said the U.S. Conference of Catholic Bishops) and applaud him tossing paper towels at Puerto Ricans as they died by the thousands because they didn’t get adequate hurricane relief.
They’ve joined his efforts to shred food, income and health programs that help the least among us while giving tax cuts to the wealthiest. They’ve accepted his abandonment of human rights abroad. They’ve joined his attempt to end family-based immigration and to threaten deportation of “dreamers,” immigrants brought here as children.
It appeared, briefly, that things might be different this time. House Republicans drafted legislation allowing children to be detained with their parents. But Trump on Friday signaled that he would veto the bill, and, as House Speaker Paul D. Ryan (R-Wis.) said this week, the “last thing I want to do is bring a bill out of here that I know the president won’t support.”
This is the way of the cult.
Will the vivid cruelty of taking babies from parents, coupled with the obscene use of Scripture to justify it, finally lead some Trump supporters to abandon the compound? God knows.
But the rest of us don’t need to drink the Kool-Aid. Give to groups such as the Florence Project, which provides legal aid and social services to immigrant families in Arizona, and Catholic Charities USA, which provides crucial help to immigrant families in the Rio Grande Valley.
You don’t have to be a theologian to see the difference between people who do God’s work on earth and those who pervert God’s word to justify inhumanity.
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Yup! Time for all good people to come to the aid of those who are truly doing “God’s work on earth” by bringing serial child abuser, scofflaw, and false Christian Jeff Sessions to justice! Save the children! Stop Jeff Sessions! Force America to own up to and reject his toxic rhetoric and bigoted actions. His lies and outrageous abuses of his authority are truly “over the top.” The lasting damage he is doing to children will still be with our next generations long after Sessions, Trump, and Miller have gone to their final judgment. Harm to the most vulnerable among us is harm to all. And, harm to our children and God’s children is the worst harm of all!
Join the New Due Process Army! Just say no to Jeff Sessions!
Members of a caravan of migrants from Central America wait to enter the United States border and customs facility, where they are expected to apply for asylum, in Tijuana, Mexico, on April 29.
Edgard Garrido/Reuters
If you’re horrified by news of families being separated at the borders, here’s a bit of news you can use.
First, the policy: It helps to be incredibly clear on what the law is, and what has and has not changed. When Donald Trump and Sarah Huckabee Sanders say that the policy of separating children from their parents upon entry is a law passed by Democrats that Democrats will not fix, they are lying.
There are two different policies in play, and both are new.
First is the new policy that any migrant family entering the U.S. without a border inspection will be prosecuted for this minor misdemeanor. The parents get incarcerated and that leaves children to be warehoused. The parents then typically plead guilty to the misdemeanor and are given a sentence of the few days they served waiting for trial. But then when the parents try to reunite with their children, they are given the runaround—and possibly even deported, alone. The children are left in HHS custody, often without family.
Second is a new and apparently unwritten policy that even when the family presents themselves at a border-entry location, seeking asylum—that is, even when the family is complying in all respects with immigration law—the government is snatching the children away from their parents. Here, the government’s excuse seems to be that they want to keep the parents in jaillike immigration detention for a long time, while their asylum cases are adjudicated. The long-standing civil rights case known as Flores dictates that they aren’t allowed to keep kids in that kind of detention, so the Trump administration says they have to break up the families. They do not have to break up families—it is the government’s new choice to jail people with credible asylum claims who haven’t violated any laws that is leading to the heartbreaking separations you’ve been reading about.
So that is what is happening. Whether or not that is what the Bible demands is the subject of a different column. Good explainers on what is and is not legal detention of immigrants and asylum-seekers can also be found here and here and here
Next: Which groups to support.
• The ACLU is litigating this policy in California.
• If you’re an immigration lawyer, the American Immigration Lawyers Association will be sending around a volunteer list for you to help represent the women and men with their asylum screening, bond hearings, ongoing asylum representation, etc. Please sign up.
• Al Otro Lado is a binational organization that works to offer legal services to deportees and migrants in Tijuana, Mexico, including deportee parents whose children remain in the U.S.
• The Florence Project isan Arizona project offering free legal services to men, women, and unaccompanied children in immigration custody.
• Human Rights First is a national organization with roots in Houston that needs help from lawyers too.
• Kids in Need of Defense works to ensure that kids do not appear in immigration court without representation, and to lobby for policies that advocate for children’s legal interests. Donate here.
• The Legal Aid Justice Center is a Virginia-based center providing unaccompanied minors legal services and representation.
• Pueblo Sin Fronteras is an organization that provides humanitarian aid and shelter to migrants on their way to the U.S.
• RAICES is the largest immigration nonprofit in Texas offering free and low-cost legal services to immigrant children and families. Donate here and sign up as a volunteer here.
• The Texas Civil Rights Project is seeking “volunteers who speak Spanish, Mam, Q’eqchi’ or K’iche’ and have paralegal or legal assistant experience.”
• Together Rising is another Virginia-based organization that’s helping provide legal assistance for 60 migrant children who were separated from their parents and are currently detained in Arizona.
This list isn’t comprehensive, so let us know what else is happening. And please call your elected officials, stay tuned for demonstrations, hug your children, and be grateful if you are not currently dependent on the basic humanity of U.S. policy.
Update, June 17, 2018: Thanks to readers who updated us with more organizations fighting this policy. Other good work is being done by the following:
• The Michigan Immigrant Rights Center represents all of the immigrant kids placed by the government in foster care in Michigan (one of the biggest foster care placement states). About two-thirds are their current clients are separation cases, and they work to find parents and figure out next steps.
• The Northwest Immigrant Rights Project is doing work defending and advancing the rights of immigrants through direct legal services, systemic advocacy, and community education.
• The Women’s Refugee Commission has aggregated five actions everyone can take that go beyond donating funds.
• And finally, the International Refugee Assistance Project (IRAP)—which organizes law students and lawyers to develop and enforce a set of legal and human rights for refugees and displaced persons—just filed suit challenging the cancellation of the Central American Minors program.
One more thing
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Our work is more urgent than ever and is reaching more readers—but online advertising revenues don’t fully cover our costs, and we don’t have print subscribers to help keep us afloat. So we need your help.
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Michael Scherer & Josh Dawsey report for the Washington Post:
President Trump has calculated that he will gain political leverage in congressional negotiations by continuing to enforce a policy he claims to hate — separating immigrant parents from their young children at the southern border, according to White House officials.
On Friday, Trump suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include funding a border wall, tightening the rules for border enforcement and curbing legal entry. He also is intent on pushing members of his party to vote for a compromise measure that would achieve those long-standing priorities.
Trump’s public acknowledgment that he was willing to let the policy continue as he pursued his political goals came as the president once again blamed Democrats for a policy enacted and touted by his own administration.
“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda,” he tweeted. After listing his demands in any immigration bill, he added, “Go for it! WIN!”
The attempt to gain advantage from a practice the American Academy of Pediatrics describes as causing children “irreparable harm” sets up a high-stakes gambit for Trump, whose political career has long benefited from harsh rhetoric on immigration.
Democrats have latched onto the issue and vowed to fight in the court of public opinion, with leaders planning trips to the border to highlight the stories of separated families, already the focus of news media attention. Democratic candidates running for vulnerable Republican seats also have begun to make the harsh treatment of children a centerpiece of their campaigns.
The policy has cracked Trump’s usually united conservative base, with a wide array of religious leaders and groups denouncing it. The U.S. Conference of Catholic Bishops and the Southern Baptist Convention issued statements critical of the practice.
The Rev. Samuel Rodriguez, who delivered a prayer at Trump’s inauguration, signed a letter calling the practice “horrible.” Pastor Franklin Graham of Samaritan’s Purse, a vocal supporter of the president’s who has brushed aside past Trump controversies, called it “terrible” and “disgraceful.”
Besides increasing the odds of a broader immigration bill, senior Trump strategists believe that the child separation policy will deter the flow of migrant families across the border. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security. The figure is the only one released by the goverment.
“The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” a White House official said. “The thinking in the building is to force people to the table.”
Trump reinforced that notion Friday morning at the White House when he suggested Democrats alone had the power to alter the policy.
“I hate the children being taken away,” Trump said.
The president used a similar strategy last year as he sought to gain approval for his immigration demands by using the lure of protection for young immigrants brought to the United States as children. That effort, which ran counter to Trump’s earlier promise to sign a bipartisan bill protecting the young immigrants, foundered in Congress.
. . . .
The current policy resulted from a decision made in April by Attorney General Jeff Sessions to prosecute all migrants who cross the border, including those with young children. Those migrants had avoided detention during the administrations of George W. Bush and Barack Obama. Because of a 1997 court settlement that bars children from being imprisoned with parents, Justice Department officials now say they have no choice but to isolate the children.
Sessions and White House press secretary Sarah Huckabee Sanders have defended the policy as a sound, and biblical, decision to enforce the law.
“The previous administration wouldn’t prosecute illegal aliens who entered the country with children,” Sessions said Thursday in Fort Wayne, Ind., citing biblical advice to follow laws. “It was de facto open borders.”
The biblical underpinnings have been challenged by religious leaders.
“There’s definitely a groundswell of opposition from virtually every corner of the Christian community,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “People are able to understand immediately the drive of parents to protect their child and to understand the horror of splitting up vulnerable children from their parents.”
Yet several key Trump administration officials support the family separation policy, including Chief of Staff John F. Kelly, Homeland Security Secretary Kirstjen Nielsen and senior adviser Stephen Miller, a vocal supporter of stricter immigration laws.
Some senior officials think Democrats will be pressured by the policy to cut an immigration deal.
“If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can,” said a second White House official.
Others have argued that the main benefit of the policy is deterrence. Miller has said internally that the child separations will bring the numbers down at the border, a goal that Trump wants to achieve. Miller and Marc Short, the White House director of legislative affairs, have argued that immigration legislation is unlikely to pass this summer, officials said.
“The side effect of zero tolerance is that fewer people will come up illegally, and fewer minors would be put in danger,” said a third senior administration official. “What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?”
. . . .
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Please read the complete article at the link.
So, the choice is ““What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?” Not really!
The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments.
Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.
Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks rally want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.
My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.
Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.
Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.
The thing we will not be able to do is to halt human migration solely by law enforcement actions taken at “our end” of the chain. That is, unless we wish to establish a “Stalinist type state” that is so grim and repressive that nobody wants to come any more.
Kids as human pawns. Child abuse as policy. Dreamers as hostages. Jesus told us to do it. It’s the Democrats fault. I really hate to let Jeff abuse children, but I have no choice. Refugee women fleeing gang controlled states reduced to human scum who should just accept their beatings and rape and get in the non-existent line for legal immigration that we want to eliminate. That is, if they actually live long enough to get in the non-existent line, which is unlikely. Biased judges cheering the chance to sign death warrants for the most vulnerable among us. Courts clogged with refugees being prosecuted for seeking refuge while being pressured by seizure of their children into giving up rights.
Once again, I’ve been proved right: We are actively diminishing ourselves as a nation every day; but, it isn’t stopping, and won’t in the long run stop, human migration. Sure, there is a natural ebb and flow that responds in some minor ways to our futile attempts to stop it. Sort of like throwing up man-made sand bars to stop beach erosion. Works for a few months or even years, but eventually the inevitable forces of nature win out. It sure seems to me that it would be smarter to work with the flow of the river and turn it to our advantage, rather than trying to make it reverse course — an exercise in futility that only serves to diminish the humanity of each of us.
Criticism is heating up over the Trump administration’s decision to separate children from parents who cross the border into the US illegally. Rallies against it were held yesterday across the country. Attorney General Jeff Sessions and White House press secretary Sarah Sanders tried to use the Bible to justify the policy, but that only seemed to tick people off more. CNN’s Bob Ortega went inside the largest facility where children are being held. It’s in a former Walmart superstore in Brownsville, Texas, and holds almost 1,500 kids. Religious groups have spoken out against the policy, and now medical organizations — like the American Academy of Pediatrics, the American College of Physicians and the American Psychiatric Association — are sounding the alarm as well.
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Wow! What a great, concise, clearly written report! Doug says a lot in five sentences with helpful links to help us understand how evil Sessions actually is. Compare real writing like this with the 30 or so pages of turgid legal prose and gobbledygook that Sessions spewed forth in Matter of A-B- in an attempt to mask his evil intent and unlawful actions!
Time for folks to stand up fight this horrible individual who is abusing his office and power and attacking America’s and the world’s future!
Evil is evil! Call Sessions out, and demand that the Article III Courts and Congress put an end to this disgusting abuse!
DUE PROCESS FOREVER! JEFF SESSIONS NEVER! JOIN THE NEW DUE PROCESS ARMY TODAY AND FIGHT EVIL AND INJUSTICE FROM BORDER TO BORDER, SEA TO SEA, UNTIL IT IS BANISHED FROM OUR LAND FOREVER! END THE KAKISTOCRACY THAT IS RUINING AMERICA!
“Group Leader” Hon. Jeffrey Chase forwards these items:
Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:
Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.
She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.
So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.
And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.
But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)
For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”
“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”
. . . .
A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”
The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.
Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.
“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.
A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.
“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.
Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.
Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.
“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.
Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.
“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.
“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”
. . . .
Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)
Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.
“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”
Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!
Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.
An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.
In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune. Different views are one thing; overt bias and lack of empathy is another.
Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.
A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.
“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”
In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”
Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”
But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.
US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.
Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.
“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”
To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”
That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.
Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges
Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.
The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.
Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.
“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”
Therefore, she adds, they should be structured “like a traditional court.”
Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.
Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.
Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.
“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.
Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.
“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”
Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.
Sessions’ decision will make it even harder.
In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”
The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court. At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.
Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.
According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.
Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”
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Here’s another one from Bea Bischoff at Slate:
How the attorney general is abusing a rarely used provision to rewrite legal precedent.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.
On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.
During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.
Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.
Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.
A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.
During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.
Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.
Sessions trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerablewomen.
After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.
The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.
Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.
Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.
On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.
The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.
In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.
As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.
The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.
While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.
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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.
I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.
A few problems, though:
Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!
There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.
Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training Program
Washington, DC
~
Monday, June 11, 2018
Remarks as prepared for delivery
Thank you, James, for that introduction, and thank you for your years of superb service to the Department as an SAUSA, at Main Justice, and now here at EOIR. James has been doing a fabulous job. He understands these issues, knows exactly what our challenges are, and is working steadfastly every day to meet them.
Thank you also to Katherine Reilly, Kate Sheehy, Chris Santoro, Edward So, David Neal, Chief Judge Keller, Lisa Ward, Jean King, Robin Sutman, and all of the leadership team.
It is good to be with you today.
Each one of you plays an important role in the administration of our immigration laws. Immigration judges are critical to ensuring that the Department of Justice carries out its responsibilities under the INA. You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently. As the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.
This responsibility seeks to ensure that our immigration system operates in a manner that is consistent with the laws enacted by Congress. As you know, the INA was established to ensure a rational system of immigration in the national interest.
Of course there are provisions in the INA, consent decrees, regulations, and court decisions where the commonsense enforceability of the plain intent of the INA has been made more difficult. That’s what you wrestle with frequently.
President Trump is correct: Congress needs to clarify a number of these matters. Without Congressional action, clarity and consistency for us is much more difficult.
Let’s be clear: we have a firm goal, and that is to end the lawlessness that now exists in our immigration system. This Department of Justice is committed to using every available resource to meet that goal. We will act strategically with our colleagues at DHS and across the government, and we will not hesitate to redeploy resources and alter policies to meet new challenges as they arise.
Last month, the Department of Homeland Security announced that it will begin to refer as close to 100 percent of illegal Southwest Border crossers as possible to the Department of Justice for prosecution. The Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross the Southwest border unlawfully, then we will prosecute you. It’s that simple.
If someone is smuggling illegal aliens across our Southwest border, then we will prosecute them. Period.
I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to detention centers near the border. That is about a 50 percent increase in the number of immigration judges who will be handling cases at the border.”
All of us should agree that, by definition, we ought to have zero illegal immigration in this country.
Each of us is a part of the Executive Branch, and it is our duty to “take care that the laws be faithfully executed.”
Ours is a public trust.
And the United States of America is not a vague idea. It is not just a landmass or an economy. Ours is a sovereign nation state with a constitution, laws, elections, and borders.
As you all well know, one of our major difficulties today is the asylum process.
The asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing. This is a large part of what has been accurately called, “catch and release”.
Beginning in 2009, more and more aliens who passed an initial USCIS credible fear review were released from custody into the United States pending a full hearing. Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.
The results are just what one would expect. The number of illegal entrants has surged. Credible fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined.
That’s because the vast majority of the current asylum claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by USCIS as a part of their initial screening.
Further illustrating this point, in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.
Now we all know that many of those crossing our border illegally are leaving difficult and dangerous situations. And we understand all are due proper respect and the proper legal process. But we cannot abandon legal discipline and sound legal concepts.
Under the INA, asylum is available for those who leave their home country because of persecution or fear on account of race, religion, nationality, or membership in a particular social group or political opinion. Asylum was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.
Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.
We have not acted hastily, but carefully. In my judgment, this is a correct interpretation of the law. It advances the original intent and purpose of the INA, and it will be your duty to carry out this ruling.
This decision will provide more clarity for you. It will help you to rule consistently and fairly.
The fact is we have a backlog of about 700,000 immigration cases, and it’s still growing. That’s more than triple what it was in 2009. This is not acceptable. We cannot allow it to continue.
At this time, when our immigration system and our immigration judges are under great stress, I am calling on you to use your best efforts and proper policies to enhance our effectiveness. To end the lawlessness and move to the virtuous cycle, we have to be very productive. Volume is critical. It just is. We ask you to evaluate your processes and disposition rates.
We ask each one of you to complete at least 700 cases a year. It’s about the average. We are all accountable. Setting this expectation is a rational management policy to ensure consistency, accountability, and efficiency in our immigration court system. Thank you for working every day to meet and exceed this goal. You can be sure that this administration and this Department of Justice supports you in this critically important and historic effort.
That’s why we are hiring more than 100 new immigration judges this calendar year. And we are actively working with our partners at DHS to ensure that we can deploy judges electronically and by video-teleconference where needed and to obtain appropriate courtroom facilities.
Let’s be clear. These actions will not end or reduce legal immigration. These actions will be directed at reducing illegal immigration. Only Congress can change legal immigration.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to come here. But they must do so according to law.
When we lose clarity or have decisions that hold out hope where a fair reading of the law gives none, we have cruelly hurt many people. As we resolutely strive to consistently and fairly enforce the law, we will be doing the right thing.
The world will know what our rules are, and great numbers will no longer undertake this dangerous journey. The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them.
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It’s all about numbers — volume over justice! What a total farce!
Sessions also lied about the low asylum grant rate. Of cases in which a merits decisions on asylum is actually rendered by an Immigration Judge after hearing, here are the actual asylum grant rates from the EOIR’s own website
Figure 16
Asylum Grant Rate
Grants
Denials
Grant Rate
FY 12
10,575
8,444
56%
FY 13
9,767
8,777
53%
FY 14
8,672
9,191
49%
FY 15
8,184
8,816
48%
FY 16
8,726
11,643
43%
In other words, for the last five years available, nearly half of the asylum applications actually decided on the merits were granted. And, that doesn’t even include individuals granted other types of protection such as withholding of removal and CAT after a merits hearing.
It’s a far cry from the bogus 20% figure Sessions used. In any event, it’s well established law that denial of an asylum application does not in any way show that it was “fraudulent” or “frivolous” as Sessions implies.
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As usual, the ever-amazing Tal Kopan was one of the first to “hit the net running” with her analysis of the Sessions speech to EOIR.
Jeff Sessions primed to overhaul asylum law
By Tal Kopan, CNN
Attorney General Jeff Sessions will announce a major decision that could impact thousands of asylum seekers from Central America on Monday — his latest move to use his unique authority to single-handedly reshape immigration law.
Sessions made the announcement at an annual training conference for the nation’s hundreds of immigration judges, telling them the decision would be coming and reminding them that they will be obligated to follow his interpretation of the law.
Though Sessions did not explicitly name the decision, it is widely expected to be a case involving asylum protections for domestic violence victims. Sessions referred the case to himself earlier this year and invited interested parties to submit briefs. In his remarks, Sessions implied he would be restricting the use of asylum for victims of crime, which would reverse previous court decisions and overrule a significant 2014 Board of Immigration Appeals decision that ruled Central American domestic violence victims who cannot escape their abusive partners can qualify under asylum law for protection in the US.
“Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world,” Sessions said, reiterating the particular requirements of asylum under the law. “Today I will be exercising the responsibility given to me under the (Immigration and Nationality Act), I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”
The ruling and announcement is the latest evidence of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
Sessions also reminded judges that his decision will be final, unless a federal appellate court were to overturn it on appeal.
In addition to impacting domestic violence victims, the case could also have large-scale implications for victims of other forms of crime and violence — rampant in Central America, where a majority of US asylum seekers at the southern border come from.
Related: Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
“In my judgment, this will be a correct interpretation of the law,” Sessions said. “It advances the original intent and purpose of the INA, and it will be your duty, of course, to carry that out.”
According to Tal, the National Association of Immigration Judges (“NAIJ”) immediately criticized Sessions’s overemphasis on numerical quotas that are actually still supposed to be the subject of “good faith” labor negotiations with the NAIJ before going into effect in the Fall.
Nevertheless, Tal’s longer article (linked above) would lead one to believe that many U.S Immigration Judges look forward their new well-defined role as an “asylum denial workforce” working as part of the law enforcement “team” to send vulnerable individuals, including children, back to death, rape, extortion, or constant beatings, in probable violation of international standards, as part of the DHS enforcement effort headed by Sessions.
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
Denying applications based on “precedents” intentionally misinterpreting the law will definitely make dockets move faster and might even allow some Immigration Judges to earn “gold stars” — and perhaps even recognition from the Chief Enforcer himself at next year’s conference — for exceeding their deportation quotas — at least until those pesky Article III Courts get involved.
We’ll see whether the Administration’s policies of intentional cruelty, criminal prosecution, child abuse, and sending folks back to places where their lives will be endangered without fairly considering their claims of protection works as a “deterrent” (never has in the past) or merely diminishes us as a society and a country.
As I always say, “We can diminish ourselves as a nation (and we are), but that won’t stop human migration.”
It’s a far cry from when the late Attorney General Janet Reno used to appear at Immigration Judge Conferences and urge us to do our duty to provide fairness, Due Process, and “equal justice for all.”
Stay tuned for the release of the AG’s decision and more reaction.
The aim of President Donald Trump’s new policy of splitting kids from their mothers at the border is, in a word, deterrence: The White House wants to discourage more immigrants from trying to enter the United States.
Kirstjen Nielsen, Trump’s secretary of homeland security, is careful not to say this outright — she dodged a direct question on the subject from Sen. Kamala Harris (D-Calif.) at a hearing last month.
JOHN MOORE VIA GETTY IMAGES
Central American immigrants walk after crossing the U.S.-Mexico border to turn themselves in to Border Patrol agents in February near McAllen, Texas. The Trump administration adopted a policy in May of intentionally separating mothers from their children at the border in order to deter migrants from crossing illegally into the U.S.
There’s a reason Nielsen and other administration officials shy away from attaching the word “deterrence” to the new policy: Changing immigrant detention policy as a way to deter undocumented people from coming to the U.S. is illegal, federal courts have repeatedly ruled. So now she and other Trump administration officials find themselves struggling to defend a family separation policy whose clear ambition is deterrence.
A growing number of mothers have crossed into the United States since 2014, often from Central America and often requesting asylum. Other administration officials were blunter in the past when discussing a policy that would split the families up to scare them away from coming.
The Department of Homeland Security was considering separating children from their parents “in order to deter” undocumented immigration, White House chief of staff John Kelly told CNN while serving as Nielsen’s predecessor last year. And Gene Hamilton, a former aide to Attorney General Jeff Sessions, asked participants at a meeting last August on the policy to “generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” according to The New Yorker.
Whether or not the deterrence goal is spelled out, the strategy is likely to backfire. Former President Barack Obama learned that lesson in 2015, when a federal judge in Washington blocked his plans to lock up Central American immigrant mothers and their kids without bond to deter others from trying to cross the border.
U.S. District Judge James Boasberg ruled that the federal government can’t detain immigrants indefinitely for the sake of deterrence alone. Instead, the decision to detain needed to be based on whether the immigrant posed a threat to the community or a flight risk.
The Obama administration was forced to provide bond hearings to the migrants in family detention. A separate ruling that year ordered the Obama administration to start releasing people from family detention after three weeks in order to comply with the Flores settlement, a 1997 deal that bars the government from locking up children in detention centers.
The Trump administration hopes to skirt the rulings that got Obama officials into trouble by prosecuting immigrant parents at the border. The federal government can’t jail children while their mothers await trial, so immigration authorities transfer them to the Office of Refugee Resettlement to find a sponsor or to non-secured facility to hold them, as if they arrived by themselves.
But this legal maneuver stands on the same shaky ground.
“Whether the deterrence to seeking protection is being done by detaining families or separating families doesn’t make a whole lot of difference,” said Michelle Brané, the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission. “They’re both punishing families for seeking protection, and protection to which they have the right under U.S. law.”
The Trump administration is already running into legal trouble over its policy. The American Civil Liberties Union filed a lawsuit in federal court in Southern California to overturn Trump’s family separation policy, asking U.S. District Judge Dana Sabraw for a nationwide injunction to halt the practice. At a hearing on May 4, Sabraw repeatedly asked whether the Trump administration had adopted the family separation policy to deter others.
“If there were a blanket policy to separate for deterrence value, would that be legal?” Sabraw asked, according to a transcript of the hearing. “Would that pass muster under the Fifth Amendment?”
The judge did not receive a straight answer. The government’s lawyer, Sarah Fabian, instead argued that the government wasn’t separating mothers from their kids systematically, and only following existing immigration law to do so.
Attorney General Jeff Sessions undermined her argument three days later, when he announced that the Justice Department’s “zero tolerance” policy for prosecuting border-crossers included mothers who cross with their children.
Lee Gelernt, the lawyer leading the ACLU lawsuit, called the government lawyer’s unwillingness or inability to defend family separation on the merits without resorting to the legally fraught term “deterrence” significant.
“The government still needs a persuasive justification for separating children,” Gelernt wrote in an email. “And the government has not provided one.”
On Wednesday, Sabraw ordered that the case against family separation can move forward, over the Trump administration’s objections. Although he has yet to rule on the case’s merits, his order did not augur well for the federal government.
Implementing a family separation policy to deter other migrants “arbitrarily tears at the sacred bond between parent and child,” Sabraw wrote. “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”
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Ah, the never-ending legal, moral, and intellectual corruption and dishonesty of the Trumpsters!
Take depositions — force them to lie under oath or admit they have been lying publicly. And, as I recently pointed out, most Article III Federal Judges, who actually have contempt of court authority, take a dim view of perjury by Cabinet Officers in their court proceedings.
I also think that even under the Supreme’s restrictive standards, there is an ever increasing possibility of actually imposing monetary damages on Nielsen, Sessions, and others for their intentional denial of Constitutional rights and their dishonest schemes to conceal their true intent. I actually think that when the full truth some day comes out, we will find not only illegal deterrence, but rather clear evidence of racial animus underlying Sessions’s policies. To be honest, Sessions has turned the entire U.S. Immigration Court system into a tool for enforcement deterrence — a huge violation of Due Process, as well as an astounding conflict of interest and violation of ethics.
Also, not surprisingly, the name of Sessions’s restrictionist crony Gene Hamilton has surfaced in connection with this scheme.
MCALLEN, Texas — The words “all rise” were still ringing in the brightly lit South Texas courtroom last week when Peter E. Ormsby slipped unceremoniously into his seat.
“Good morning,” the 62-year-old federal magistrate said as the courtroom filled with the clanking of shackled defendants returning to their wooden benches. “We’re here to take up a number of criminal cases that allege that the defendants violated the immigration laws of the United States.”
Seated in front of Ormsby were 71 disheveled immigrants caught illegally crossing the Rio Grande. The number of defendants has soared amid President Trump’s crackdown on a new surge of border crossers. But the mass hearing was remarkable less for its size than for who it included: parents.
For the first time, federal courtrooms here and across the Southwest are being flooded with distraught mothers and fathers who have been charged with misdemeanor illegal entry and separated from their children — a shift in policy touted by the administration as a way to stop families from trying to reach the United States but decried by critics as traumatizing and inhumane. Last month a Honduran father separated from his wife and 3-year-old son killed himself in a Texas jail cell, The Washington Post reported Saturday.
In McAllen alone, 415 children had been stripped from their parents between May 21 and June 5, according to federal public defenders.
Now, on the morning of June 6, 14 more parents from Central America were facing an agonizing choice with uncertain consequences. They could plead guilty in the hope of speeding up their reunification with their children, but risk damaging their chances of receiving asylum in the United States. Or they could plead innocent and head to trial, a process that could take days or weeks and prolong their separation from their kids.
Seven miles from Mexico and surrounded by brushlands that are home to the border’s busiest smuggling routes, the Bentsen Tower federal courthouse has become one of the anguished epicenters of family separation.
On Wednesday morning, the evidence of that was the tears on the parents’ faces. Many clutched fliers with a phone number they could call to try to get their kids back from the increasingly crowded federal shelters where they are being housed.
. . . .
By day’s end, he would sentence more than 100 people, including 28 parents. Most would receive the lightest punishment possible — time served — before they were handed over to Immigration and Customs Enforcement.
The frenzied pace of the proceedings was no accident. As Moody emerged from court in the afternoon, she and a colleague exchanged a high-five.
“I said I’d get done by 3:20,” the prosecutor said, checking the time to see she was only nine minutes behind schedule.
‘Prosecuting everybody’
Aleman-Bendiks had arrived at the tall, dark glass courthouse shortly after dawn that morning. After preparing for an hour in an office decorated with her diplomas from Rice University and Harvard Law, the 52-year-old federal public defender headed upstairs to the courtroom, where the air smelled like sweat and the 71 immigrants were already seated. She was representing all of them.
“How many of you were traveling with children?” she asked in Spanish. More than a dozen hands shot up.
“How did they separate you?” she said to a Guatemalan woman whose 8-year-old daughter was taken away.
“How long since you saw her?” she asked a Honduran separated from her 6-year-old girl.
“They just took them?” she said to a Salvadoran whose two daughters were gone.
This is what Trump’s zero-tolerance policy looked like to Aleman-Bendiks and scores of other federal public defenders along the border.
. . . .
For Meyers, the challenge is not only logistics but the wrenching stories of families being torn apart. In a conference call with her assistant federal public defenders last month, she said she told them to force judges to confront the issue.
“We think it’s important for the court and everybody to hear what’s happening,” she said.
On May 22, Aleman-Bendiks asked Ormsby in court to pressure the government to provide more information about the fate of families being separated. On May 31, she and her boss, Kyle B. Welch, met with ten officials from ICE, Border Patrol, the Justice Department and the Office of Refugee Resettlement, which cares for the children separated from their parents as well as “unaccompanied minors”who arrived in the United States on their own.
“The idea was to try and give us a sense of what’s happening here,” Aleman-Bendiks said, but the meeting delivered little clear information.
One Border Patrol official did say agents in and around McAllen had a policy of not separating children under 5 from their parents — although that policy does not appear to be in place elsewhere along the border. Children as young as 18 months have been taken from their parents.
On Wednesday, Aleman-Bendiks asked Ormsby to order the government to hand over lists of children separated from their parents so that immigration attorneys could ensure they were reunited.
“My concern is that there are lost children here in the system,” she said. “We are hearing it every day, your honor, and it’s not right.”
Ormsby noted that “children are not within the jurisdiction of this court. These people are here because they have a criminal case here.”
He invited her to prepare a brief on how he could order the government to provide lists. “But on its face,” he added, “it seems questionable to me that the court would have the authority to do that.”
. . . .
But immigration advocates aren’t so sure. “They are now convicted of a crime,” said Leah Chavla of the Women’s Refugee Commission. “Under U.S. law, that could be a bar to them receiving asylum, so they’d have to get a waiver.”
In the end, those complications mattered less to the parents in Ormsby’s courtroom than seeing their kids again. All of them pleaded guilty to illegally crossing the border and were sentenced to time served.
“Obviously, in each of your situations, you committed a crime and so the government was within their rights to pursue that,” the magistrate said. “Whether or not they should exercise their discretion that way is something that is obviously being debated.”
“As someone who has children myself,” he added, “it would be a terrible situation to be separated under those conditions.”
Then the guards put handcuffs back on the parents and led them out of the courtroom, where their future remained as unclear as the location of their children.
********************************************
Read Mike’s complete report at the above link.
As described in Mike Miller’s article, U.S. Magistrate Judge Peter Ormsby appears to preside over a “court” where “justice” for traumatized, obviously bewildered, and coerced migrants is a cross between a sporting event and a bad joke.
The U.S. Supreme Court held that understanding the immigration consequences of a conviction is a critical element in a migrant’s voluntary decision to plead guilty. Many of these migrant defendants obviously wanted to know whether a guilty plea would 1) free them from detention, 2) reunite them with their children, and 3) adversely affect their asylum cases. Neither Judge Ormsby nor anyone else in his courtroom was able to answer accurately. Judge Ormsby had the authority to defer accepting the pleas until the Assistant U.S. Attorney provided the answers. Yet, he did not do so. These guilty pleas appeared to be neither informed nor voluntary. A federal judge therefore should not have accepted them.
No wonder the prosecuting Assistant U.S Attorney “high fived” at the end of this farce. Likewise, the Public Defender’s claim to simultaneously represent 71 non-English-speaking defendants was a remarkable twist on the canons of ethics and professional responsibility.
Would a group of white, middle class, mostly first-time misdemeanor defendants have been treated this way in federal court? I doubt it. Yet, due process applies equally to everyone in the U.S. regardless of status.
