"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Nearly 300 pages into Bob Woodward’s new book, Fear: Trump in the White House, a West Wing aide named Zach Fuentes cautions fellow staffers. With depressingly familiar words, Fuentes informs his colleagues, “He’s not a detail guy. Never put more than one page in front of him. Even if he’ll glance at it, he’s not going to read the whole thing. Make sure you underline or put in bold the main points … you’ll have 30 seconds to talk to him. If you haven’t grabbed his attention, he won’t focus.” Some subjects, such as the military, do engage him, but the overwhelming picture is worrying and dire. Still, one could finish this passage and feel at least slightly relieved that people like Fuentes are aware of the reigning deficiencies in the White House, and doing their best to mitigate them.
Fuentes is merely an assistant to John Kelly, the White House chief of staff, but Kelly and James Mattis, the secretary of defense, are presented throughout Woodward’s book as being cognizant of the president’s extreme limitations and authoritarian instincts, and rather boldly willing to push back against their boss. This is why it’s probably worth mentioning that Fuentes wasn’t talking about Donald Trump; no, he was talking about John Kelly. And Woodward’s book—which arrived at around the same time as the already infamous, still-currently anonymous New York Times op-edabout the men and women in the executive branch supposedly working to protect America from Donald Trump—is as much a portrait of the craven, ineffective, and counterproductive group of “adults” surrounding Trump as it is a more predictable look into the president’s shortcomings. It’s not entirely clear how aware Woodward is of what he has revealed about the people he’s quoting at length. (Sources tend to come off well in his books.) But intentionally or not, Fear will make plain to the last optimist that, just as Republicans in Congress are unlikely to save us, neither are the relative grown-ups in the Trump administration.
Is Woodward the last optimist? He quite obviously believes that Trump is unfit to be president, but a reader can’t quite shake the sense that he somehow thinks maybe, just maybe, things could be different with the right coaching or incentives. Fear is a book full of stories about Trump being contained; his instincts being thwarted; his worst qualities being slightly minimized by people who claim to be afraid of what would happen if they weren’t there. “It’s not what we did for the country,” former Trump economic adviser Gary Cohn says early on. “It’s what we saved him from doing.” Quotes like this aim to settle the ethical debate—which has been going on from the start of the Trump presidency—over whether anyone should be working for a bigoted and corrupt president with no respect for democracy, even if they are planning to, in that most tiresome phrase, contain his worst impulses. But that conversation has obscured the more pressing question of what those supposedly well-intentioned individuals can actually accomplish from the inside. Even allowing for the self-serving nature of the accounts that Woodward offers here, the answer appears to be: not much.
Indeed, the near-misses Woodward writes about feel particularly insubstantial, in part because very few of these aides and appointees seem to really grasp the nature of the man they are serving (no matter how much they talk about his stupidity and recklessness), and in part because Trump himself is so clueless and aimless that he rarely seems to follow through on his worst ideas anyway. (The terrible things he has followed through on, such as various immigration policies, are not really discussed at length, and on these matters a good chunk of his staff appear to agree with him.) Moreover, many of these aides are tasked with—or see their roles as—not preventing policy decisions, but instead as putting the nicest, non-Trumpy face on Trumpism; the ethics of this deserves its own debate.
Fear will make plain to the last optimist that, just as Republicans in Congress are unlikely to save us, neither are the relative grown-ups in the Trump administration.
Perhaps the biggest non-hinge moment in the book occurs in July 2017, six months after Trump has taken office and two years since he emerged as a presidential candidate by offering his thoughts on Mexican rapists. “Mattis and Gary Cohn had several quiet conversations about The Big Problem: The president did not understand the importance of allies overseas, the value of diplomacy or the relationship between the military, the economy, and intelligence partnerships with foreign governments.” The two men decide to meet to “develop an action plan,” which consists of getting the president in the Tank, “the Pentagon’s secure meeting room for the Joint Chiefs of Staff,” because it might “focus him.” But when they do, and succeed in telling him about the value of allies and diplomacy, Trump ignores them and proceeds to rant and rave on a variety of subjects. The meeting wraps up after accomplishing precisely nothing. (This is the event that caused Rex Tillerson to call Trump a “fucking moron.”)
What remains astonishing about the meeting is not that Trump is an idiot. It’s that Mattis and Cohn seemed to have hopes for their plan, believing they could use the sit-down to really turn a corner. The book is so full of scenes like this because the people around Trump seem to have less feel for the president than a politically astute person who spends 20 minutes a day reading the newspaper. It’s not that hard to grasp that Trump’s authoritarian leanings condition him to distrust democratic allies; nor is it a secret that he has utter contempt for America’s intelligence agencies. An earlier passage in the book has Mattis telling a NATO-skeptical Trump that, “If you didn’t have NATO, you’d have to invent it” and “there’s no way Russia could win a war if they took on NATO,” which left me wondering if Mattis could have chosen an argument that would be less likely to appeal to the president, and why anyone who has paid even glancing attention to Trump’s behavior toward Russia would think it would be effective.
Woodward conveys all this in his typically matter-of-fact style, with dialogue heavy-scenes, and with his sources sounding reasonable and frustrated. He rarely tips his hand or offers critiques of those who talked to him, but his narrative does allow for them to come across as ill-equipped. Take former national security adviser H.R. McMaster, who Woodward presents as a thoughtful enough guy simply unwilling or unable to contain his pedantic lecturing style, even though it is clearly irking the president. This leads McMaster to get involved in stupid, inevitably doomed spats stemming from Trump’s childishness, including one over precisely where the president and the Indian prime minister will dine that is too dreary to recount. Of course, McMaster doesn’t last long, in large part because of this type of nonsense; meanwhile, he can’t get along with Mattis or Tillerson, two other guys who apparently pride(d) themselves on being the last line of defense. And yet, they do everything they possibly can to undermine McMaster, and make his job more difficult. “McMaster considered Mattis and Tillerson ‘the team of two’ and found himself outside their orbit, which was exactly the way they wanted it,” Woodward writes. Now the national security adviser is John Bolton. Good job, everyone.
The story in the book about Mattis that has gotten the most attention concerns his decision to quietly counter Trump on Syria after the president reportedly screamed “let’s fucking kill him” over the phone about Bashar al-Assad. According to Woodward, Mattis hung up and stated to an aide, “We’re not going to do any of that. We’re going to be much more measured.” A victory for common sense, you might say. A couple pages later, we read that “Trump had stepped back from his initial desire to kill Assad.” But did he step back or just forget? Immediately afterward, Trump asks McMaster for some Syria hypotheticals, which McMaster can’t answer because he is being ignored by Mattis and Tillerson. Thankfully, Woodward concludes, “Trump soon forgot his questions.” It’s certainly possible that Mattis or Tillerson or McMaster stopped Trump from doing something truly terrible or illegal over the past nearly 20 months, but if so we are not told what it was. Despite all the self-aggrandizing quotes from the so-called moderating influences in the White House, the upshot of Woodward’s own reporting is that if we end up riding out this term free of a foreign policy catastrophe, it is more likely to be the result of Trump’s incuriosity and short attention span than a bold act of bravery by one of the grown-ups.
The possible exception is Cohn’s already famous decision to steal a paper from Trump’s desk that would have removed the United States from a trade deal with South Korea, and thus possibly impacted national security by undermining the Washington-Seoul alliance. This at least counts as a staff member taking strong action, although, as Woodward acknowledges, it’s “an administrative coup d’etat,” and neither Woodward nor Cohn (quoted as saying, “got to protect the country”) convincingly show that the stakes were high enough to warrant such a step. Tellingly, and predictably, Trump keeps bringing the pact up but can’t seem to remember that he was just about to pull out of the deal, which makes you wonder if he was really on the verge of doing so.
Photo illustration by Slate. Photo by Michael Kovac/Getty Images for Vanity Fair.
Nevertheless, there is a strong argument to be made that someone like Mattis should stay in his job, and the person who wants to see him resign in protest is braver than I am. But the case to keep working in the Trump administration is much weaker if your job isn’t a matter of life and death, and some of the examples in the book meant to highlight the good deeds of the people around Trump are extremely thin. After Trump’s disgraceful response to Charlottesville, staff secretary Rob Porter apparently cajoled the president into giving a less grotesque speech about what occurred. Porter, who appears to be Woodward’s biggest source and therefore comes across relatively well—his resignation after allegations of domestic abuse is afforded less than a page—“felt it was a moment of victory, of actually doing some good for the country. He had served the president well. This made the endless hours of nonstop work worth it.” Naturally, within a day, Trump had backtracked and surprised precisely no one by making clear that he doesn’t actually have a problem with Nazis, leaving Porter feeling that “Charlottesville was the breaking point” and wondering “if trying to repair [racial divisions] after Charlottesville was almost a lost cause.”
Unless Woodward is winking at readers with that “lost cause” reference, he doesn’t betray any acknowledgement of how absurd Porter’s musings seem, coming as they did years or months after birtherism, blatant bigotry, and a ban on certain Muslims from being allowed to enter the country. Nor does it ever seem to occur to Porter—or Gary Cohn, whose supposedly tortured post-Charlottesville dilemma is afforded considerable space—that Trump is a racist; that he will continue putting into effect racist policies; and that focusing, as the people around Trump do, on ensuring that the words of his speeches are inoffensive is really just a way of helping Trump politically so he can carry out his policies with less opposition.
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Read the rest of Chotiner’s article at the above link.
It’s painfully clear that the white (almost all) men surrounding Trump don’t have much real problem with his overt bigotry, racism, immorality, misogyny, and lawlessness except when revealing it gets in the way of their policies.
After all, it’s important to the country that we have more tax breaks for the rich, less health care for the general populace, dirtier air, polluted rivers and lakes, fewer National monuments, more black lung, reduced worker protections, fewer voters of color, almost no refugees, only white immigrants, more abused children, a generation of young people who are barred from reaching their full potential, dumber schools, religious bigotry and hate speech, homophobia, a subservient, non-professional Civil Service and Foreign Service composed of political hacks, more racial and religious resentment, less free press, etc.
These dudes don’t really want to change the toxic agenda that is destroying our democracy. No, they just want to make sure that Trump’s stunning incompetence and unsuitability for office is mitigated enough that they can carry out their nasty anti-democratic policies without his interference. That’s what passes for “courage” and “true patriotism” in today’s GOP.
The only way to save our republic is to throw every Republican out of office and force the party to either ditch its White Nationalist base or split into two parties — a legitimate conservative opposition party and a far right White Nationalist party.
Trump is the end product of a GOP that just doesn’t believe in 21st Century America as a diverse, multi-racial, multi-cultural nation of immigrants and the strength and power that gives all of us. We need regime change. This November is the time to start that process at the ballot box! Don’t wait until it’s too late!
Sessions to immigration judges: Immigrants’ attorneys like ‘water seeping’ around law
By Tal Kopan, CNN
Attorney General Jeff Sessions told a new group of immigration judges Monday that it is their job to “restore the rule of law” to the immigration system over the contrary efforts of the lawyers who represent immigrants.
The remarks at the training of the largest-ever class of new immigration judges implied that the judges were on the same team as the Trump administration, and that immigrants and their attorneys were trying to undermine their efforts.
“Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests,” Sessions said, adding the same happens in criminal courts. “And we understand that. Their duty, however, is not uphold the integrity of the act. That’s our duty.”
Sessions noted that “of course” the system “must always respect the rights of aliens” in the courts. But he also warned the judges of “fake claims.”
“Just as we defend immigrant legal rights, we reject unjustified and sometimes fake claims,” Sessions said. “The law is never serviced when deceit is rewarded so that the fundamental principles of the law are defeated.”
The comments came in the context of Sessions’ repeated moves to exert his unique authority over the immigration courts, a separate legal system for immigrants that is entirely run by the Justice Department.
Sessions approves every judge hired and can instruct them on how to interpret law, and thus decide cases, as well as how to manage cases. He has used that authority multiple times in the past year, including issuing a sweeping ruling that will substantially narrow the types of cases that qualify for asylum protections in the US. Those decisions overrode the evolution of years of immigration judges’ and the immigration appellate board’s decisions.
Sessions reminded the new judges of that authority and those decisions in his remarks, saying he believes they are “correct” and “prudent” interpretations of the law that “restores” them to the original intent.
Another totally inappropriate and unethical effort by Sessions to insure that migrants, particularly asylum seekers, receive neither fair consideration nor Due Process from U.S. Immigration Judges in connection with their, in many instances, very compelling cases for protection.
Let’s shine a little light of truth on the Sessions’s dark myth-spinning:
As recently as 2012, the majority of asylum applicants who received decisions on the merits of their claims in Immigration Court were granted protection;
Conditions in most “sending countries” — particularly those in the Northern Triangle — have gotten worse rather than better;
There is no reasonable explanation for the large drop in approvals in recent years other than bias against asylum seekers;
Even after Sessions took over, 30% of those who get merits determinations won their cases;
The success rate is higher for those released from detention and given fair access to counsel;
Most detained migrants, particularly those intentionally detained in substandard conditions in obscure locations, do not have reasonable access to counsel;
Most attorneys representing detained asylum seekers serve pro bono or for minimal compensation (particularly in relation to the amount of time and effort required to prepare and present an asylum case in detention);
Detention of asylum seekers simply to deter them from coming is illegal;
Separation of families is a deterrent is also illegal;
Neither detention nor “zero tolerance” prosecutions have been shown to have a material impact on the flow of refugees to our Southern Border;
Sessions has provided no evidence of any widespread fraud in asylum applications by refugees from the Northern Triangle;
The UN High Commissioner for Refugees (“UNHCR”), the leading interpreter of refugee and asylum protections, has consistently criticized the US’s overly restrictive approach to asylum adjudication;
Article III U.S. Courts continue to be critical of both the unlawful policies being promoted by Sessions and the fundamental errors still being made by the BIA and some Immigration Judges in analyzing asylum cases and claims under the Convention Against Torture;
According to the US Supreme Court, a chance of harm as low as 10% can satisfy the generous legal standard for asylum;
According to the UNHCR, asylum applicants should be given the “benefit of the doubt;”
Most of those who fail to get asylum, like the abused woman denied protection by Sessions in Matter of A-B-, face life threatening situations in their home countries — we have merely made a conscious choice not to offer them asylum or some alternative form of life-saving protection.
As Sessions sees that his time as Attorney General will likely come to an end before the end of this year, he is doubling down on his White Nationalist, xenophobic, racist, restrictionist, lawless agenda. He wants to inflict as much damage on migrants, refugees, women, and people of color as he can before being relegated to his former role as a rightist wing-nut. He also seeks to convince the Immigration Judges that they are not independent juridical officials but mere highly paid enforcement agents with an obligation to deport as many folks as possible in support of the President’s agenda.
I do agree with Sessions, however, that the newly-minted Immigration Judges have a tremendously difficult job. If they adopt his philosophy, they are likely to violate their oaths to uphold the Constitution and laws of the US and to wrongly return individuals to death-threatening situations. On the other hand, if they carefully and fairly follow the law and give full consideration to the facts, they will be compelled to grant protection in many cases, thus potentially putting them on EOIR’s “hit list.” (Basically, new US Immigration Judges, even those with many years of civil service, can be “fired at will” by EOIR during their first two years of “probation” as judges.)
The only solution is an independent Article I Immigration Court that will guarantee that someone as totally unqualified as Sessions can never again impose his personal will and bigoted, anti-Due-Process views on what is supposed to be a fair and impartial court system.
Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.
Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.
The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.
This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.
Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.
“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.
Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”
Here are the biggest ways Sessions is attacking the immigration courts:
It’s now much more difficult to apply for asylum
In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.
Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.
In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, toldMother Jones when the decision was first announced.
A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.
Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”
Judges have less control over their case loads …
This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.
Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.
The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.
… and will have to move through them more quickly
In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.
The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.
“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”
It’s harder for them to reschedule cases
On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.
Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.
And as more judges retire, Sessions gets to staff up
Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”
Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.
What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”
Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.
Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.
Under Sessions, he says, the immigration court “has become a deportation railway.”
Sent from my iPad
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Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.
For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.
Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.
Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.
He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.
That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.
Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.
Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!
Dan De Luce and Julia Edwards Ainsley report for NBC News:
WASHINGTON — The Trump administration has consistently sought to exaggerate the potential security threat posed by refugees and dismissed an intelligence assessment last year that showed refugeesdid not present a significant threat to the U.S., three former senior officials told NBC News.
Hard-liners in the administration then issued their own report this year that several former officials and rights groups say misstates the evidence and inflates the threat posed by people born outside the U.S.
At a meeting in September 2017 with senior officials discussing refugee admissions, a representative from the National Counterterrorism Center came ready to present a report that analyzed the possible risks presented by refugees entering the country.
But before he could discuss the report, Associate Attorney General Rachel Brand dismissed the report, saying her boss, Attorney General Jeff Sessions, would not be guided by its findings.
“We read that. The attorney general doesn’t agree with the conclusions of that report,” she said, according to two officials familiar with the meeting, including one who was in the room at the time.
Brand’s blunt veto of the intelligence assessment shocked career civil servants at the interagency meeting, which seemed to expose a bid to supplant facts and expertise with an ideological agenda. Her response also amounted to a rejection of her own department’s view, as the FBI, part of the Justice Department, had contributed to the assessment.
“She just dismissed them,” said the former official who attended the meeting.
The intelligence assessment was “inappropriately discredited as a result of that exchange,” said the ex-official. The episode made clear that “you weren’t able to have an honest conversation about the risk.”
A current DHS official defended the administration’s response to the intelligence assessment, saying immigration policy in the Trump administration does not rely solely on “historical data about terrorism trends,” but rather “is an all-of-the-above approach that looks at every single pathway that we think it is possible for a terrorist to come into the United States.”
A spokeswoman for DHS said, “If we only look at what terrorists have done in the past, we will never be able to prevent future attacks … We cannot let dangerous individuals slip through the cracks and exploit our refugee program, which is why we have implemented security enhancements that would prevent such violent individuals from reaching our shores, while still upholding our humanitarian ideals.”
The Justice Department did not respond to a request for comment in time for publication.
Following the dismissal of the assessment, anti-immigration hard-liners in the administration clashed with civil servants about how to portray the possible threat from refugees in documents drafted for inter-agency discussions, former officials said. In the end, the president’s decision last year to lower the ceiling for refugee admissions to 45,000 did not refer to security threats, but cited staffing shortages at DHS as the rationale. But once the decision was issued, the White House released a public statement that suggested the president’s decision was driven mainly by security concerns and said “some refugees” admitted into the country had posed a threat to public safety.
An Afghan refugee sleeps on the ground while another looks out a window in an abandoned warehouse where they and other migrants took refuge in Belgrade, Serbia, on Feb. 1, 2017.Muhammed Muheisen / AP file
“President Donald J. Trump is taking the responsible approach to promote the safety of the American people,” said the Sept. 29 statement.
Political appointees in the Trump administration then wrote a new report a few months later that seemed to contradict the view of the country’s spy agencies.
In a press release at the time, DHS Secretary Kirstjen Nielsen said the report showed the need for tougher screening of travelers entering the country and served as “a clear reminder of why we cannot continue to rely on immigration policy based on pre-9/11 thinking that leaves us woefully vulnerable to foreign-born terrorists.”
But the report is being challenged in court by several former officials and rights groups who say it inflates the threat posed by people born outside the U.S. Two lawsuits filed in Massachusetts and California allege the report improperly excludes incidents committed by domestic terrorists, like white supremacists, and wrongfully includes a significant number of naturalized U.S. citizens and foreigners who committed crimes overseas and were brought to the United States for the purpose of standing trial.
Associate Attorney General Rachel Brand speaks during the opening of the summit on Efforts to Combat Human Trafficking at Department of Justice in Washington, on Feb. 2, 2018.Jose Luis Magana / AP file
Mary McCord, former assistant attorney general of the Justice Department’s National Security Division, which prosecutes terrorism charges, said the January 2018 report is “unfortunately both over-inclusive and under-inclusive.”
“The result is a report that presents an inaccurate picture of the threat of terrorism in the United States,” McCord said.
When the report was released in January 2018, Trump tweeted that it showed the need to move away from “random chain migration and lottery system, to one that is merit based” because it showed that “the nearly 3 in 4 individuals convicted of terrorism-related charges are foreign-born.”
But the report only focuses on international terrorism, which is defined as a crime committed on behalf of a foreign terrorist organization. The document excludes domestic terrorism committed by groups such as white supremacists or anti-government militias, which are more likely to be supported by those born in the U.S.
Because of the way the terrorism statute is written, those who support domestic organizations like anti-government or white supremacists groups cannot be charged with terrorism, even if the groups they support have committed crimes. Only supporters of foreign terrorist organizations designated by the State Department can be charged with “material support” of terrorism.
Still, Trump has repeatedly stated that the overwhelming majority of terrorists in the United States came from overseas, even before the 2018 report.
In his first speech to Congress in February 2017, Trump said that the “vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our own country.”
Benjamin Wittes, a senior fellow at the Brookings Institution, MSNBC legal analyst and editor-in-chief of the Lawfare blog, took issue with that statement and sued the Justice Department to provide documents that backed up the president’s claim. But the Department was unable to locate any records.
“There are a lot of domestic terrorism cases, and they are generally not committed by people born abroad. To the extent that those cases were excluded — white supremacist violence, anti-abortion terrorism and militia violence — the inquiry is grossly biased,” Wittes wrote on Lawfare.
Wittes said that almost 100, or about a quarter, of the 402 individuals listed as foreign-born terrorists committed their crimes overseas and were brought to the U.S. to face trial.
White House senior adviser Stephen Miller at roundtable discussion on California immigration policy at the White House on May 16.Evan Vucci / AP file
During her time in government as the chief of the Refugee Affairs Division at U.S. Citizenship and Immigration Services, Barbara Strack said her staff worked diligently to thoroughly vet refugees for any possible terrorist links. But she said there was no information she came across that indicated refugees posed a significant security threat.
“I did not see evidence that refugees presented an elevated national security risk compared to other categories of travelers to the United States,” she told NBC News.
The administration must decide by the end of the month how many refugees to allow in the country in the next fiscal year. Trump’s senior adviser, Stephen Miller, known for his hawkish stance on immigration, has been pushing for a drastic reduction in the ceiling.
The cap was set at 45,000 last year, but the number of refugees allowed in the country has fallen far below that ceiling, with only about 20,000 resettled in the United States since October 2017. Rights advocates and former officials accuse the White House of intentionally slowing down the bureaucratic process to keep the numbers down, overloading the FBI and other government agencies with duplicative procedures.
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This level of total intellectual dishonesty, overt racism, and policy driven solely by a White Nationalist philosophy and political agenda by an Attorney General is unprecedented in my experience at the DOJ.
If you remember, Brand escaped to a “soft landing” in the private sector earlier this year. One of my theories is that she was trying to protect herself and her reputation for a future Federal Judgeship. If and when that happens, I hope that those serving on the Senate Judiciary Committee will remember her completely sleazy role in carrying Sessions’s racist-polluted water on this one. Someone with no respect for facts, the law, humanity, or professional expertise definitely does not deserve to be on the Federal Bench!
And for Pete’s sake don’t credit Sessions with any integrity whatsoever in not resigning under pressure from our “Mussolini Wannabe.” He’s not “protecting” the Mueller investigation or anything else worthy in the DOJ. In fact, he has wholly politicized the DOJ and taken it down into the gutter. The reason he “hangs on” is not because he respects the Constitution or rule of law. Clearly, he doesn’t! No, it’s because he wants to do as much damage to civil rights and people of color as he can during his toxic tenure.
Make no mistake, that damage he has done, as has been reported elsewhere, is very substantial. It has set the goals that Dr. Martin Luther King and others fought for and even gave their lives for back by decades. Despicable!
Sessions’s White-Nationalist driven lies and false narratives about refugees are described above. For the truth about refugees and immigrants and all of the great things they have done and continue to do for our country, see my recent post at https://wp.me/p8eeJm-313.
Trump admin seeks to keep immigrant families in detention indefinitely
By Tal Kopan, CNN
The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.
The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.
The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.
One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.
The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.
“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”
Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.
I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.
These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).
Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!
By now, I assume everyone has read the explosive “Anonymous NY Times Op-Ed” (linked above) that confirmed 1) what everyone already knew about Trump’s total incompetence for office, and 2) the widely rumored but heretofore not previously confirmed existence of an organized “resistance” to Trump within his own senior staff. While many will take heart from the latter, count me out.
What a bad dream! So, now, as a result of the gutless GOP and their supporters, we have the unelected, self-proclaimed “real conservatives” unilaterally deciding which Trump programs are “worthy” — like tax breaks for the rich or eliminating environmental protections — and which are “unworthy” — like, presumably starting a gratuitous nuclear war or handing the country over to Putin.
Is this really an acceptable solution to this GOP/White Nationalist created problem?
What about taking our country back at the ballot box from the anti-American Trump base? What about “outing” these self-proclaimed “saviors” and confronting the GOP with the need to initiate some “removal proceedings” against Trump?
What these “internal resisters” really are doing is putting their own egos over the good of the country. They need to resign, tell what they know, and demand action to remove Trump immediately.
Time to vote every Republican out of office.
Yes, Trump’s removal would result in the ascension of
“Mike the Terrible” Pence to the office of President. Under normal circumstances that would be an unparalleled national disaster in its own right. But, obviously, these aren’t normal times.
Some actually are speculating that “Mikie” is the “Deep Bloat” here. Seems unlikely given his record of sycophancy; on the other hand, he’s the one guy Trump can’t fire. And, stranger things have happened — like Trump being inflicted on us in the first place.
In the meantime, join the New Due Process Army and fight Trumpist White Nationalism in all of its insidious forms.
Quiroz Parada v. Sessions, 9th Cir., 08-29-18, Published
COURT STAFF SUMMARY:
The panel granted Moris Alfredo Quiroz Parada’s petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.
The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother’s assassination, the murder of his neighbor as a result of Quiroz Parada’s own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.
Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family’s government and military service. The panel noted that it was immaterial that the
FMLN’s attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.
The panel held that substantial evidence did not support the agency’s determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN’s rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.
The panel concluded that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief because it ignored pertinent evidence in the record and erred by construing the “government acquiescence” standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.
The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada’s removal.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,* District Judge.
* The Honorable Timothy J. Savage, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION BY: Judge Paez
KEY QUOTES FROM OPINION:
Quiroz Parada applied for asylum5 and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s “leftist wing” form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if “they murder people, or behave badly.”6
5 Because Quiroz Parada applied for asylum prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the one-year bar for asylum applications does not apply.See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).
6 Regrettably, as with many critical pieces of his testimony, Quiroz Parada’s explanation for why he does not believe in the Salvadoran government’s ability or willingness to prosecute former FMLN members who murder or otherwise attack their former enemies is transcribed as “[indiscernible] and [indiscernible].”
Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.
The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.
Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the “police do[] not help, and they even get killed,” and warned that if he were to come back to the country, “history would repeat itself.” Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she “snitched on the barrio” and warned her that if she failed to leave the area by a particular date, her “daughters will suffer the consequences.” His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s home region, and how the rampant violence has forced many families to flee.
The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada’s asylum claim “may be a lost cause.” Nonetheless, despite the IJ’s significant skepticism, he allowed Quiroz Parada’s attorney to present Quiroz Parada’s case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada’s requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.7 The IJ then determined that Quiroz Parada had not shown past persecution, but further concluded that even if he had, DHS had rebutted the presumption with evidence of changed country conditions. The IJ also found that Quiroz Parada had not shown an independent well-founded fear of future persecution. Because the IJ determined that Quiroz Parada had not established eligibility for asylum through either past persecution or a well-founded fear of future persecution, Quiroz Parada necessarily failed to meet the higher bar required to obtain withholding of removal. The IJ also rejected Quiroz Parada’s claim for CAT relief.
7 Although the REAL ID Act governs Quiroz Parada’s claim for cancellation of removal, it does not govern his claims currently on appeal, which were filed prior to May 11, 2005. See Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010).
Quiroz Parada appealed the IJ’s decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ’s determinations on Quiroz Parada’s asylum, withholding, and CAT claims, including the IJ’s alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.
. . . .
As an initial matter, we reject the government’s contention that we lack jurisdiction to consider Quiroz Parada’s CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we have jurisdiction to review the claim.
The agency’s first error was its failure to consider all relevant evidence. CAT’s implementing regulations require the agency to consider “all evidence relevant to the possibility of future torture,” and we have repeatedly reversed where the agency has failed to do so.See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase [that the agency has considered all of the evidence] does not suffice, and the decision cannot stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to consider [relevant evidence] constitutes reversible error.”). Relevant evidence includes the petitioner’s testimony and country conditions evidence. See Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible testimony “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).
Here, the relevant evidence included Quiroz Parada’s credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada’s CAT claim, stating:
Based on the respondent’s testimony and the evidence in the record, the Court finds that the respondent has not shown that he is “more likely than not” to be tortured if he is removed to El Salvador. In addition, to be eligible for CAT relief, the respondent must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306, 1311 (BIA 2000), disagreed with on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003). “Article 3 of the Convention Against Torture does not
extend protection to persons fearing entities that a government is unable to control.” Id.at 1312. The respondent has not alleged that he fears torture inflicted by any governmental entities in El Salvador, nor by any other entity with the acquiescence of any government official. Thus, he has not established eligibility for CAT relief.
This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government “acquiescence[d]” in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis—as the IJ himself found in a section of his decision summarizing the country conditions evidence:
[P]rotection of human rights was undermined by widespread violent crime, rampant judicial and police corruption, intimidation by the ubiquitous violent street gangs, and violence against witnesses. Criminal gangs are a serious, widespread, and pervasive socio-economic challenge to the security, stability, and welfare of El Salvador. Indeed, gangs are blamed for the bulk of crimes and murders in El Salvador. While the government’s fight against the gangs has met with some success in areas, El Salvador remains an exceptionally violent country because of the pervasive gang violence.
Although arbitrary arrest, prolonged detention, and torture are prohibited in El Salvador, Salvadoran security forces apparently continue to participate in such practices on a regular basis. Conditions in detention are degrading and extremely dangerous. Many officials throughout all levels of government engage in corruption with impunity despite a recent increased emphasis on enforcement.
Thus, while the IJ did “consider” the country conditions reports, the significant and material disconnect between the IJ’s quoted observations and his conclusions regarding Quiroz Parada’s CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him.See Cole, 659 F.3d at 771–72 (explaining that indications of the agency’s failure to properly consider all of the relevant evidence “include misstating the record and failing to mention highly probative or potentially dispositive evidence”).
The agency’s second error was its overly narrow construction of the “acquiescence” standard. In a similar case, we reversed and remanded where the agency “erred by construing ‘government acquiescence’ too narrowly,” noting that “acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003)). In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA’s determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.
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The BIA’s and IJ’s fundamental errors included:
Failing to follow their regulations requiring them to consider all the evidence;
Incorrectly finding no “past persecution;”
Incorrectly applying the regulatory presumption of future persecution;
Incorrectly denying asylum and withholding of removal;
Applying an incorrect standard for CAT protection;
Incorrectly analyzing country conditions for CAT.
Wow, what did the BIA and the IJ get right here other than the name and “A#?”
Contrary to the “Sessions myth” about “dirty attorneys” and respondents “gaming the system,” this case presents the perhaps extreme, but certainly not atypical, example where “the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so.”
The respondent, “by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims.”
Moreover, once the hearing finally took place, it was fairly obvious from the IJ’s negative pre-hearing comments that he had already “prejudged’ the case against the respondent.
The court also notes how the phenomenon I call “Aimless Docket Reshuffling” (“ADR”) by the Government, which Sessions has shoved into overdrive, fuels “our previously-expressed concern that ‘constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a “Zeno’s Paradox” where final resolution of the case would never be reached.’”Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration omitted).”
The grossly under-studied phenomenon of “ADR” by the DHS and EOIR/DOJ also requires the respondent and his or her often pro bono attorney to constantly update the record and the evidence to deal with changing conditions, while the DHS often takes the lackadaisical approach they did here, apparently counting on the IJ or the BIA to “fill in the gaps” necessary to “get to a denial of the facially grantable claim.”
Here’s the court’s accurate statement of both the CAT standard for acquiescence and the current conditions in El Salvador:
“In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771″
Compare the above with Sessions’s completely disingenuous description of both the standard for “unwilling or unable to protect” — certainly “acquiescence” would meet or exceed “unwilling or unable to protect” — and the beyond deplorable country conditions in El Salvador in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
This case also illustrates how in the “haste makes waste” world of EOIR, transcripts are often missing or garble testimony critical to the respondent’s case.
Unfortunately, this case is but an example of the deep, ugly hidden truth about our Immigration Courts. Even before Session’s White Nationalist restrictionist moves against asylum seekers, the Immigration Courts were mistreating too many asylum seekers, particularly those from the Northern Triangle fleeing life-threatening violence. Well prepared claims were often shunted to the end of the docket by ADR at both the courts and the DHS Asylum offices. They are often replaced by “prioritized” claims in detention settings or in other unnecessarily rushed situations where individuals have not had adequate time to obtain competent counsel and to prepare the necessary documentation to win a claim.
That’s compounded by the fact that even in the past, statements of politicos within Administrations of both parties and the generally negative tenor of BIA precedents on asylum for the Northern Triangle have encouraged some willing Immigration Judges to either prejudge the cases or give them “short shrift” to discourage such claims in the future and to act as a “deterrent,” as well as to jack up the number of “case completions” by cutting corners. This was happening in some Immigration Courts and on some BIA panels even before Sessions took over.
Certainly, the message from Sessions has been overtly anti-asylum, anti-Hispanic, anti-female, anti-family, anti-Due-Process, anti-scholarship, and anti-deliberation. In essence: “Just rubber stamp ’em, deny ’em, and move ’em out as fast as you can if you want to keep your job. And, don’t forget that your job involves ‘partnership’ with the DHS prosecutors.”
Obviously, our Immigration Court systems had some deep-seated Due Process problems with anti-asylum, anti-Northern Triangle attitudes, as well as fundamentally incorrect views of the asylum law and regulations, by some Immigration Judges and BIA Appellate Immigration judges even prior to Sessions’s advent. That’s one of the key reasons why gross discrepancies in approval-denial rates in similar cases among Immigration Judges and among BIA “panels” (which often can be nothing more than a single Appellate Judge) had no reasonable explanation even during the Obama Administration.
Sessions has made all of this immeasurably worse! Rather than fostering an attitude of judicial independence, courtesy, fairness, respect for both parties, Due Process, and the generous consideration of asylum claims mandated by the Supremes in Cardoza-Fonseca and at least mouthed by the BIA in Matter of Mogharrabi, Sessions has come up with ways of forcing the already broken Immigration Court system to take on even more cases, cut even more corners, and spew forth even more incorrect and unfair decisions, particularly in the area of asylum.
He has shown a simply horrible, outright hostility to working cooperatively with the individual Immigration Judges, the NAIJ, the private bar, the pro bono community, the NGO’s, and the academic community, along with the DHS, to develop methods of improving Due Process, fairness, and timeliness in the asylum adjudication system. Perhaps even worse, by reducing the status of judges to “denial officers,” and upping the stress levels to incredible heights, he’s also made the U.S. Immigration Judge and the BIA Appellate Immigration Judge jobs far less appealing to well-qualified individuals who would fairly, efficiently, correctly, and professionally adjudicate asylum claims. Such individuals also likely would have some of the “creative, yet practical” “think outside the box” approaches necessary to deal with the backlog in a timely manner without compromising Due Process. It’s painfully obvious that the Sessions and the other politicos now futilely trying to micromanage the Immigration Court system are devoid of any such insights.
Frankly, this is the type of case that probably could have been granted back in 1994 when it was first filed. Even by the time it finally got to Immigration Court, it appears to be the type of well-documented, clearly grantable case that could have been set for a “short block hearing” with the understanding that if certain aspects of the respondent’s background and experiences were verified under oath, the DHS would not oppose a grant of asylum.
Instead, this case has been “hanging around” the system for more than 24 years, and still hasn’t been finally resolved! More seriously, after taking five years on the docket to get to the merits hearing, both the IJ and the BIA clearly got it wrong!
The mess that currently exists in the Immigration Court and asylum systems is primarily the product of years of such abuse and mismanagement by a politically-driven adjudication system, aided and abetted by Congressional inaction and failure to provide adequate funding. Cutting more corners, pushing overwhelmed judges to turn out more cases in less time, and punishing asylum applicants by taking away their children, detaining them in substandard conditions, denying them reasonable access to counsel, denying them fairness, Due Process, and the life-saving protection to which many of them are entitled clearly isn’t the answer.
We need regime change (along with an attitude and culture change among some Immigration Judges and among some BIA panels)!
If we learned anything at all from John McCain’s funeral over the weekend it’s this: The more buffeted we are by the hourly insanity that emanates from the Trump White House, the more likely we are to get bleary-eyed drunk on episodes of public sobriety, dignity, and seriousness. As Michelle Goldberg aptly noted, “For many who detest Donald Trump, the spectacle of the country’s former leaders championing embattled American principles—principles once shared by even the bitterest political enemies—was fiercely moving.” Moving, yes, but at what cost?
The more corruption, incompetence, and recklessness we witness spewing out of the White House, the more inclined we are to cling tightly to the blanket of institutional integrity, normalcy, and civility. It’s not just that it’s nuts out there. It’s almost as if the nuttier it gets, the more we need to pretend that wherever it is we’re sitting at the moment is a safe place in which the norms of dignity, respect, and goodwill are still in force. And if John McCain’s funeral was a symbol of that, so too is all the talk of “decorum” and “civility” in the U.S. Senate.
And so, Republicans spent the first day of Brett Kavanaugh’s confirmation hearings telling us that nothing that’s happening in here has anything to do with the fact that Donald Trump is the president. None of the concern around this Supreme Court seat has anything to do with the fact that the president himself is under investigation for corruption and campaign finance violations, or that his personal lawyer swore under oath that Trump instructed him to commit crimes, or that a foreign power is currently interfering with our election systems. All of that is about a different thing. This hearing is about something stable and immutable and good. And anyone who implies that anything is abnormal is a hysteric or an opportunist or an attention-seeker.
Jeff Flake and Ben Sasse can go so far as to express mild concern about Trump’s assaults on the rule of law and his own attorney general because none of that has anything to do with Brett Kavanaugh. And Lindsey Graham can splutter about Hillary Clinton because that also has nothing to do with Kavanaugh. And Chuck Grassley can snarl that this is akin to attacking the president because it has nothing whatsoever to do with the president.
We take so much visceral succor in public performances of bipartisanship and decency that we can blinker ourselves to genuineinjustice.
If you followed Tuesday’s events on a split screen, you’d know that in addition to issuing threats to his own attorney general and making claims that Republicans running for office deserve different legal treatment than Democrats, Trump was also the subject of jaw-dropping leaks in Bob Woodward’s new book, leaks suggesting his own aides must take documents off his desk in order to keep the United States safe from his rampant incompetence. But inside the cocoon of the Senate Judiciary Committee, none of that matters at all. Moreover, for legal luminaries like Ted Cruz, this hearing is an extraordinary opportunity to celebrate the greatness of Trump’s nominees to the Supreme Court and the lower federal courts. This is still a safe space, of civility and decorum, and the Democrats who squawk about documents being withheld have descended into “mob rule” and incivility.
The White House (the White House!) was tweeting indignantly about interruptions. By the end of the day Trump himself was tweeting that all Senate Democrats were “mean, angry, and despicable.” But even with the president forcing himself into the Senate’s aperture yet again, by no means should anyone who works there take any steps to rein him in. That would be weird. And while most of the senators had the good graces on Tuesday to pretend that Trump was not really the president, some evinced a kind of nagging low-level worry that someone somewhere should really address the problem of a chief executive who doesn’t believe in law or courts or justice. But who? Who could possibly do it?Flake described “concern” about Donald Trump’s attacks on the rule of law. And Sasse deplored the do-nothing Congress. And Chuck Grassley (yes, this Chuck Grassley) bemoaned the fact that Senate Democrats were taking advantage of his “decency and integrity.” But everyone on the Republican side of the aisle felt confident that it was Democrats who were breaking the Senate on Tuesday.
On the Democratic side, Dick Durbin decried the fact that a Republican lawyer was vetting all of the Kavanaugh documents, and Amy Klobuchar expressed the sentiment that nothing about this hearing was regular. “This is not normal,” she said. “You have a nominee with excellent credentials, with his family behind him. You have the cameras there. You have the senators questioning. But this isn’t normal.” Mazie Hirono made the same point: “These are not normal times.”
Indeed, for a brief time on Tuesday morning as the Democrats demanded postponement and adjournment, it appeared they might walk out of the chamber altogether. But ultimately, the need for regularity and normalcy overmastered even them, and so while their opening statements grew longer and more irate, the decision to stick around and litigate this thing on the merits proved too tempting. It was left to the protesters, one after another in unprecedented numbers and with unprecedented ferocity, to voice their disgust and dismay. The more furious the calls for “decorum” and “rules” and “politeness,” the more enraged the protesters became. The opposite of civility isn’t always civil disagreement.
In the furious national quest for decency and normalcy, the day ended as a parody of itself—with Kavanaugh feted by a “liberal feminist” lawyer for his legal greatness that transcends all politics and ideology, and the judge himself offering his girls’ basketball coaching as an argument about human decency in a cruel and frightening world.
If the McCain funeral proved anything, it’s that we take so much visceral succor in public performances of bipartisanship and decency that we can blinker ourselves to genuine injustice, injustice we don’t see because it happens outside our scope of vision. We need balanced, functioning institutions so desperately that we gorge ourselves on performances of friendship and family and civility.
We must be extra cautious, now more than ever, about institutions that substitute talk of norms and civility for actual justice. Senate Republicans are rushing the Kavanaugh hearing, and blocking access to his record, precisely because they would rather prey on the national need for normalcy and dignity than do anything to reaffirm the rule of law as it applies to this presidency. Yet again the crumbling of democratic safeguards is someone else’s problem. Sometimes calls for institutional decency and civility mask institutional cowardice and opportunism. The first day of Kavanaugh’s confirmation hearings was one of those times.
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Basically, the Democrats need to win elections, not count on the civility, honesty, commitment to “norms,” or for that matter commitment to the rule of law of the GOP. Failure to win elections is why we have Justice Neil Gorsuch rather than Justice Merrick Garland and why we soon will have Justice BKavs.
Those who believe in the Constitution and the continuation of our republic need to get to the polls this fall, get others of like mind out too, and begin the difficult but essential process of taking back our country from Trump and his GOP.
Over the Labor Day weekend, official Washington staged a celebration of itself through the funeral of John McCain. The insularity on display somewhat understandably enrages critics on the left and right alike. In their treatment of President Trump as a boorish outlier, and a unique personal threat to the health of the Republic, the elites either revealed their implicit conspiracy against the president (according to populists of the right) or their own insularity (according to the populists of the left).
It is certainly true that the bipartisan resistance centered around McCain has registered more self-satisfaction than actual resistance. Still, on the same weekend official Washington was treating Trump as an outcast, Trump was demonstrating what he has done to earn this status. In a revealing weekend tweet, he castigated his attorney general, Jeff Sessions, for allowing the Justice Department to indict a pair of House Republicans.
Trump’s latest declaration of corrupt intent puts a fine point on the question both groups of skeptics have tended to avoid. Right-wing Trump allies have defended his assault on the Department of Justice by picking apart the FBI’s counterintelligence investigation, adopting (for the narrow purposes of defending Trump) a radically pro-civil-libertarian view of FISA warrants, or demanding to know why Trump’s subordinates are being charged with crimes other than collusion with Russia. On the left, some critics have mocked the idea that there is anything worthwhile in the bipartisan defense of democratic norms against Trump.
But Trump’s intention to politicize the Department of Justice frames in sharp detail the question they have largely elided. However one feels about the general merits of the Washington Establishment, here is a threat to a specific governing norm whose value is beyond dispute. Trump objects to the indictments of two House Republicans who have been caught in blatant illegality. Representative Chris Collins, the first House Republican to endorse him, was overheard boasting about making colleagues rich with his inside information. Representative Duncan Hunter not only systematically misappropriated public funds but was recorded in a series of damning emails. These are not marginal cases. Trump’s entire rationale for opposing the prosecutions is that they hurt his party.
And Trump has been repeatedly clear about his objective. He regularly demands that his attorney general protect his personal interests and open investigations into figures he dislikes. Trump tried to sell Sessions on the prospect that he would become a “hero” to the Republican base by locking up Hillary Clinton, and then berated him when he failed to do so. Trump’s lawyers have written a memo defending his prerogative to do so. “The President not only has unfettered statutory and Constitutional authority to terminate the FBI Director,” they argued, “he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction.”
Regardless of the law, there is nobody actually willing to defend such an arrangement on normative grounds. A system in which a president can order up investigations of the opposing party and quash investigations of his own would hand incumbents a weapon so powerful it would make democracy a sham. Vladimir Putin has not needed to cancel elections in order to cement his authority. His most important tool has been selective law enforcement, which has allowed him to court allies with the promise of riches and legal impunity, and to intimidate his critics with with ruinous threats to their reputation, fortunes and freedoms.
A Wall Street Journaleditorial earlier this year sneered, “we’re pleased to report that there hasn’t been a fascist coup in Washington.” It hasn’t been for lack of trying, or for lack of support from institutional Republican organs like the Journal. Indeed, despite a handful of criticisms, Republicans in Congress have largely refused to criticize Trump’s demands to control the DOJ.
Neither the law nor the Constitution can do much to stop Trump from fully corrupting the Justice Department. The only thing standing between American democracy and Trump’s vision of a Putin-like regime that terrorizes the opposition while nourishing an oligarchy of regime supporters is that much-mocked word: a norm. It is on this specific question, not some generalized cultural assessment of the Washington elite, that the struggle to defend democracy rests.
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The first step top getting our “Mussolini Wannabe” out of office, reestablishing “norms,” and recreating a functioning two-party system is to get to the polls and remove the GOP enablers, fellow travelers, cowards, and out ands out White Nationalists from office this fall, at all levels of Government. The grifters must go!
In all these cases, the administration has pointed to a national security or economic justification: Trump says the travel ban targeted countries the Obama administration deemed security risks, that instead of helping refugees the US should help native-born Americans, and that immigrants bring crime. If you buy into this view, the fact that all these moves have led to the prosecuting, deporting, and banning of non-white people is just a side effect of putting America first. But it’s increasingly obvious that for some in charge of making and selling these policies, those justifications are just a fig leaf for an aggressive attempt to make America white again.
This week, The Atlantic uncovered emails from Department of Homeland official Ian M. Smith showing that he was friendly with white nationalists in DC. Smith subsequently resigned, but the Washington Post reported that as an immigration policy analyst he had worked on some of the administration’s most high-profile and controversial initiatives, including refugees and penalizing immigrants who used public assistance. This follows the resignation of a Trump speechwriter who attended a conference with white nationalist and news that Trump’s top economic adviser, Larry Kudlow, had the publisher of a white nationalist website as a guest at his birthday party. Last month, the chairperson of the Republican Party of Spokane, Washington, resigned after inviting a white nationalist to speak at a gathering. Pro-Confederacy candidate Corey Stewart won a GOP Senate primary in Virginia.
Racist is such a powerful word that the press routinely tiptoes around it—”White anxiety finds a home at Fox News” was a euphemistic headline atop an August CNN piece about Carlson and Ingraham. The argument against deploying the word is that it seems to peer into a person’s heart. Can we definitively say that another person’s words were motivated by raw prejudice and not economic anxiety, or whatever? The charge of racism is always met by blanket denials, no matter how contradictory those denials seem. After former Ku Klux Klan leader David Duke praised Ingraham, the host said that her monologue “had nothing to do with race or ethnicity, but rather a shared goal of keeping America safe and her citizens safe and prosperous.”
Avoiding the R-word is often a form of political correctness, a way for people who disagree strongly on issues like immigration to have a conversation without descending into mutual recrimination and name-calling. It’s often unproductive to accuse people of racism—if a voter is genuinely worried that immigrants will take his job, people who favor more immigration have more to gain by trying to convince him he’s mistaken than by calling him out as a deplorable. And as a rule of thumb we should assume the opposition is acting in good faith, that the other side is not concealing some awful ulterior motive. Surely many people who support Trump’s policies are not outright racists.
But it’s not a coincidence that a significant chunk of anti-immigrant sentiment is undeniably racist, or that administration officials continually find themselves rubbing elbows with white nationalists, or that Trump is simultaneously pushing policies that target immigrants and saying things that you wouldn’t hesitate to call racist if you heard them at a bar. Trump’s aides would no doubt bristle at the suggestion that they are white nationalists. I’m sure the vast majority are not on email chains that contain jokes about dinner parties being “judenfrei,” as Smith was. But it’s impossible to deny that they aren’t allied with white nationalists on a very basic level.
President Trump’s bigoted hatred of Latino immigrants has been clear from the beginning. Now his administration is aggressively persecuting Latino citizens as well.
It is hard to be shocked anymore, given the daily outrages committed by Trump and his minions, but a report Thursday by The Post was jaw-dropping: In the borderlands of southern Texas, the State Department is denying passports to hundreds and perhaps thousands of men and women who have official birth certificates demonstrating they were born in the United States.
In some cases, valid passports have been confiscated and revoked, their holders stranded in Mexico, unable to come home. In other cases, people have been arrested, sent to detention centers and slated for deportation. Imagine how they and their American families must feel — and how their distress must make Trump and his fellow xenophobes feel warm inside.
Denial of passports effectively renders the victims stateless — meaning they cannot travel outside the country, because they would not be readmitted — and potentially vulnerable to being deported. Again, these are people who have government-issued birth certificates, long accepted as gold-standard proof of citizenship. The Trump administration simply doesn’t see Latinos as full-fledged Americans.
The Post quoted a 40-year-old man named Juan — he didn’t want his last name used for fear of being targeted — who has a birth certificate stating he was born in the Texas border city of Brownsville. He served his country for three years in the U.S. Army, then was a cadet in the Border Patrol, and now works as a Texas state prison guard. But when he applied to renew his passport this year, the State Department responded with a letter saying it didn’t believe he was a citizen.
It is important to understand that for Americans who live along the border, a passport is a necessity. People flow back and forth across the Rio Grande all the time to work, make business deals, see family or perhaps just try out a trendy new restaurant. The border is not like the Berlin Wall, though evidently Trump would like it to be.
There is a backstory: In the 1990s, some Texas midwives admitted accepting bribes to falsely claim that some Mexican infants were born in the United States. These same midwives, however, also delivered many more Latino babies, at least thousands, who were legitimately born in the United States. From official records, it is impossible to tell the difference.
The Trump administration appears to be denying passports simply because the applicant is Latino, was born in southern Texas and was delivered by a midwife — something the federal government explicitly promised not to do in a 2009 court settlement with the American Civil Liberties Union.
The administration claims there has been no change in policy. But The Post quoted immigration lawyers who say there has been a dramatic surge in passport denials.
In Juan’s case, the State Department demanded he produce documents including proof of his mother’s prenatal care in the United States, his baptismal certificate and rental agreements from when he was an infant. He managed to find some of this obscure material — and yet his passport application was denied a second time.
A military veteran who served his country was told that it isn’t his country after all.
Think how you would feel if this nightmare were happening to you. Like everyone else, you have no memory of the details of your birth. You know only what your parents have told you and what the official records say, all of which is almost surely true. Suddenly, because of your Latino heritage, your core identity is challenged and your right to live in the United States is threatened.
If the government had specific evidence that an individual’s birth certificate was falsified, then we could have a debate about the right thing to do. But this administration is assuming that a person of a certain ethnicity, recorded as being born in a certain part of the country and meeting other unspecified criteria, is de facto not a citizen — and has the burden of proving otherwise.
At this point, the Trump administration has the burden of proving this is anything other than vile, unadulterated racism.
Trump launched his presidential campaign by calling Mexican immigrants rapists and drug dealers. His administration cruelly separated nearly 3,000 migrant children from their families and seeks to make their parents ineligible for asylum. His clear message to would-be Latino immigrants is: No admission.
And now, an equally blunt message for lifelong Latino citizens: Go away.
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We have a racist, White Nationalist regime. What does that say about those who continue to support its toxic policies and the Liar-in-Chief?
GET OUT THE VOTE IN NOVEMBER! TAKE OUR COUNTRY BACK FROM THE WHITE NATIONALISTS AND THEIR ENABLERS! START HOLDING TRUMP, SESSIONS, AND THE OTHER REGIME AUTOCRATS RESPONSIBLE FOR THEIR UNLAWFUL, IMMORAL, AND DIVISIVE POLICIES!
The U.S. government expects children as young as 18 months to represent themselves in immigration court. Lawyers in Miami made a coloring book to help kids understand what they’re facing.
The U.S. government expects children, as young as 18 months and unable to speak, to represent themselves in immigration court to fight against their deportation. Lawyers in Miami made a coloring book to help kids understand what they’re facing.Image by Alfredo De Lara
Media coverage of the border crisis has heavily focused on separated parents and children. But migrant children’s nightmares are just beginning once they set foot here, as documented in the video above. Every child that crosses the border without permission has an immigration court case to fight, but there is no right to free counsel in that court.
So children, who sometimes speak only an indigenous language, are going up alone against government lawyers to fight to stay in the United States. If that sounds absurd, that’s because it is. Congress has the power to change this.
After President Trump’s “zero tolerance” policy went into effect, we at Americans for Immigrant Justice began to see an increase in young children needing legal representation. We thought: How do we get toddlers to understand the gravity of their situation?
We created a coloring book to explain to these children their rights. It explains concepts such as what a country is, who is an immigrant and what a judge does. We read the book to separated and unaccompanied children as part of our “know your rights” presentations and have them act out scenarios from the story.
The kids in this video op-ed are the lucky ones. They were released from a children’s shelter run by the Office of Refugee Resettlement to family members in Miami. We are representing them in court free. But for many children we engage with at the shelters, the coloring book is the only legal advice they receive.
The stakes are high: Over half of all children in immigration court are unrepresented. Nine out of 10 of them will be ordered deported. If we as a country are truly invested in protecting children, the bare minimum that we can do is ensure access to a lawyer for immigrant children who cannot afford one.
Jennifer Anzardo Valdes is the director of the Children’s Legal Program at Americans for Immigrant Justice, a nonprofit law firm based in Miami.
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Click the above link and watch the video by Leah Varjacques.
Under Jeff Sessions, intentional child abuse has become a norm and the operation of the Immigration Courts with little or no regard for Due Process, common sense, and human decency is a national disgrace. When will it end? How many will suffer needlessly and be abused to feed Sessions’s White Nationalist myth? Where is justice?
Join the New Due Process Army and fight to hold Jeff Sessions accountable for all of his illegal and immoral actions!
(JTA) — A delegation of Jewish leaders from 17 organizations is visiting detention and migrant facilities on the U.S.-Mexico border.
The 27-person delegation visited detention centers in San Diego on Tuesday and is traveling to asylum-seeker shelters in Tijuana, Mexico, on Wednesday.
The trip, which is being organized by the Anti-Defamation League and the Jewish refugee aid group HIAS, includes meetings with American and Mexican government officials, immigration attorneys and humanitarian workers. Among the participants are representatives from three Jewish movements — Reform, Reconstructionist and Conservative — as well as groups such as the American Jewish World Service, the Jewish Council on Public Affairs and J Street. Mark Hetfield, CEO of HIAS, described the visits to detention centers and courthouses where migrants are being tried on charges that they entered the country illegally.
“It’s heartbreaking to see the way the United States is treating immigrants. It’s not treating them like human beings,” he told JTA in a phone interview from Tijuana.
Hetfield, a former immigration lawyer, said members of the delegation witnessed migrants being tried in a court as a group and that some who pleaded guilty to criminal charges lacked proper understanding of the consequences.
“It’s really troubling in terms of the lack of due process and the lack of understanding that people have as they’re going through and pleading guilty to these criminal proceedings,” he said.Nancy Kaufman, CEO of the National Council of Jewish Women, said visiting a detention center for unaccompanied minors, which held children as young as 6 years old, was “eye opening.”
Though she described the shelter as “clean and decent” and the staff as “very caring,” she had concerns about the conditions.
“I asked if they go to school. They have school there, but I don’t know how you have meaningful educational programs for that kind of range of kids,” she said.
Kaufman referenced the Holocaust in speaking about the importance of the trip.
“As Jewish leaders, we need to bear witness. We all committed after the Holocaust to ‘Never again’ — we meant it,” she said. “I think we all live our lives with the belief that every person is made in the image of God, ‘b’tzelem Elohim,’ and should be treated with dignity and respect.”
Jonathan Greenblatt, CEO of ADL, called the trip “a moral imperative” in a statement to JTA.
“In the face of continued harsh policies by the Administration targeting immigrants and asylum seekers, we’re here to learn more about the crisis at the border, listen to the experiences of migrants and asylum seekers escaping violent conditions, and recommit to our advocacy for humane and compassionate immigration policies,” he said.Many Jewish groups have joined progressives and some conservatives in criticizing President Donald Trump’s immigration policies, including his executive orders banning citizens from some Muslim-majority countries from entering the United States and the since-rescinded policy of separating migrant families at the border.
Last week, HIAS organized a letter to Trump urging him to raise the cap on refugees admitted into the country to at least 75,000. The letter was signed by leaders of 36 Jewish groups. Trump set the cap for 2018 at 45,000, a historic low, and is considering a further decrease, The New York Times reported earlier this month.
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Under Trump, Sessions, Miller, and the White Nationalist cabal running immigration policy in the name of our Government, 1939 is indeed upon us. The stain of how we are treating the vulnerable humans who seek only a fair shot at the legal protections we claim to offer might never be washed away.
Many thanks to my good friend and long time colleague, retired Judge Joan Churchill for sending this item my way.
A federal judge late Friday dealt a victory to federal employees and the unions that represent them, invalidating overnight key provisions of a series of Trump administration executive orders aimed at making it easier to fire employees and weaken the unions.
The overnight ruling by U.S. District Judge Ketanji Brown Jackson in Washington was a setback to the White House’s efforts to rein in the power of federal unions. Though federal employees’ pay is set by Congress, their unions have retained significant power even as private-sector unions have been in decline.
The three executive orders, issued just before Memorial Day, had sought to severely restrict the use of “official time” — on-duty time that union officials can spend representing their members in grievances and on other issues. The rules also limited issues that could be bargained over in union negotiations. And it rolled back the rights of workers deemed to be poor performers to appeal disciplinary action against them.
Jackson took issue with key elements of each order and enjoined the administration from enacting them.
The White House did not immediately respond to a request for comment Saturday.
The American Federation of Government Employees, the largest of the dozen unions to sue the administration over the executive orders, applauded the ruling. It called it a victory for public-sector unions and the protections Congress gave federal employees in 1978 when it guaranteed civil servants the right to bargain collectively over working conditions in the government.
“President Trump’s illegal action was a direct assault on the legal rights and protections that Congress specifically guaranteed to the public-sector employees across this country who keep our federal government running every single day,” AFGE’s national president, J. David Cox Sr., said in a statement.
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Lawless actions directed at its perceived “enemies” under the guise of some bogus legal theory are a staple of the Trump/Sessions regime. As the ever disingenuous Sessions has proved recently, every time a Federal Judge quite properly calls him out for his lawless acts, he whines about interference with Executive authority and his authority as the chief legal official of the US. Here’s a guy that apparently got through law school and admitted to the bar without knowing or understanding what Chief Justice Marshall said and meant in probably the single most famous case in US history: Marbury v. Madison. No, Gonzo, you don’t get the final say on what the law is — that only appears to happen in the never-never land of the Immigration Courts!
The NAIJ, representing our nation’s Immigration Judges (I am a retired member), continues to fight not only for the civil service rights of the judges but for the fair and impartial judicial independence that benefits everyone in America. All of these have been under constant attack by Jeff Sessions and the Trump Administration.
C. Ryan Barber reports for the National Law Journal:
Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation
U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.
A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.
U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.
In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.
“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.
At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”
U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.
After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.
“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”
Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.
“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.
“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.
Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.
Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”
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When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.
No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”
Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!
(Full Disclosure: I am a former partner at Jones Day. I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!)