"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Just because Attorney General Jeff Sessions announced that every illegal immigrant crossing the border would be prosecuted (resulting in parents being separated from their children), that doesn’t mean it’s morally defensible.
President Trump’s attempt to blame Democrats for separating migrant families at the border is renewing a political uproar over immigration, an issue that has challenged Trump throughout his presidency and threatens to grow more heated as he imposes more restrictions to stem the flow of illegal immigration.
In one of several misleading tweets during the holiday weekend, Trump pushed Democrats to change a “horrible law” that the president said mandated separating children from parents who enter the country illegally. But there is no law specifically requiring the government to take such action, and it’s also the policies of his own administration that have caused the family separation that advocacy groups and Democrats say is a crisis.
In April, more than 50,000 migrants were apprehended or otherwise deemed “inadmissible,” and administration officials have made clear that children will be separated from parents who enter the country illegally and are detained. The surge in illegal border crossings is expected to continue as the economy improves and warmer weather arrives.
“I keep imagining somebody taking my kids from me. My kids are 2 and 4 years old, and that’s the age of some of the children that have been separated from their parents at the border,” said Rep. Joaquin Castro (D-Tex.), who is helping to organize a Thursday rally in San Antonio to highlight the issue. “When a lot of people hear the story, they get a similar reaction. They can’t imagine why this would be a standard government practice.”
Trump’s deflection offers a familiar playbook, critics of the administration’s policies say. In their view, Trump’s most recent comments are strategically similar to tactics he used when he ended the Obama-era Deferred Action for Childhood Arrivals program and then insisted on hard-line measures in a bill to permanently protect “dreamers.”
“He used DACA kids as a bargaining chip, and it didn’t work,” said Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies, a nonpartisan think tank. “So now he’s using vulnerable Central American families for his nativist agenda. It’s shameless.”
. . . .
“The law does not require this inhumane and immoral action – DHS could stop it today. We do not need a law. This is a punt. They literally just ran this bad-faith play with DACA,” Sen. Brian Schatz (D-Hawaii) tweeted Sunday. “They are going to use the suffering of children as political leverage for the wall, and we must refuse to participate, because if this kind of hostage taking is ever successful it will never stop.”
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Read the complete article at the link.
No, protections for refugees and children aren’t “loopholes!” They are important protections for those who have a right to seek a fair determination of their applications for refuge in the United States under our laws!
The statement that families can be “deported together” is simply more proof that Trump, Nielsen, and Sessions have already prejudged these cases. Although many are in fact denied, many more would be granted, possibly a majority, if individuals were given fair access to counsel, as the law contemplates, and the Government were actually required to correctly apply asylum and protection laws. Instead, for years the government has been getting away with politically influenced, unduly restrictive legal constructions and also coercing individuals with detention, entering bogus “in absentia orders” against them, or otherwise hustling them through the system without Due Process. Most of these tactics are directed specifically against those seeking protection from the Northern Triangle of Central America — one of the most dangerous regions in the world.
Join the New Due Process Army and stand up against the dishonest scofflaw public officials administering Trump’s sick immigration policies.
In response to a whistleblower’s letter from within EOIR, ranking Senate Democrats have requested an investigation into improper political influence in EOIR’s hiring criteria for immigration judges and members of the Board of Immigration Appeals. https://democrats-judiciary.house.gov/news/press-releases/top-dems-request-inspector-general-investigation-allegations-illegal-hiring. Following up on an April 17 letter to Attorney General Sessions, the Democratic leaders on May 8 stated that in subsequent weeks, more whistleblowers have come forward to corroborate the delaying or withdrawal of IJ appointments to candidates whose political views are not believed to align with those of the present administration.
There seems to be little if any doubt among EOIR employees that this is in fact happening. The resulting slowdown in IJ hiring is further exacerbating the huge backlog of cases plaguing the immigration courts. There are presently no judges sitting in the Louisville, Kentucky immigration court; other courts are simply understaffed. In what my friend and fellow blogger Hon. Paul W. Schmidt has termed “ADR” (Aimless Docket Reshuffling), sitting IJs are being detailed to hear cases in courts with vacancies, forcing the continuance of cases on their own dockets, some of which have been waiting two or more years for their day in court.
It was just under 10 years ago that a 140 page report of the Department of Justice’s Office of the Inspector General found similar wrongdoing in the hiring of IJs under the Bush administration. https://oig.justice.gov/special/s0807/final.pdf That report noted at p.135 that “both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.” That investigation found that such policy and law had been violated, and included recommendations to prevent a future recurrence of such improper conduct. Then as now, the slowdown in IJ hiring caused by the improper political screening of candidates compromised EOIR’s mission (in the words of the agency’s Director at the time, at p.96), and contributed to the growing case backlog.
In another employment-related development that has drawn little public notice, the Department of Justice on May 17 posted a hiring ad for 38 vacant staff attorney positions at the BIA. The twist is that for the first time, the positions were advertised as being entry level grade positions with no potential for promotion.
EOIR Director James McHenry had hinted since his appointment that he believed BIA attorney positions should be downgraded. There is something disingenuous about such statement. I can think of at least three immigration judges who were appointed to the bench directly from their positions as non-supervisory BIA staff attorneys. Two of the four temporary BIA Board Members at present are long-term BIA staff attorneys. The present BIA chairperson, David Neal, previously served as a Board staff attorney for 5 years, a position that apparently qualified him to directly become chief counsel to the Senate Immigration Subcommittee. Nearly all of the BIA’s decisions, including those that are published as precedent binding on the agency and DHS, are drafted by its staff attorneys. Some of those attorneys have accumulated significant expertise in complex areas of immigration law. A number of Board staff attorneys have participated as speakers at the immigration judge training conferences.
The question thus becomes: how are experienced attorneys who are deemed qualified to move directly into immigration judge and BIA Board Member positions, to craft precedent decisions and to train immigration judges only deemed to be entry level, non-career path employees?
There has been much attention paid to the nearly 700,000 cases pending before the nation’s immigration courts. As the agency moves to hire more judges and limit continuances, and recently had its power to administrative close cases revoked by the AG, the number and pace of cases appealed to the BIA will speed up significantly. It would seem like a good time for the BIA to be staffed with knowledgeable and experienced staff attorneys. Instead, the agency’s move essentially turns new BIA attorney hires into short-term law clerks. New attorneys undergo a full year of legal training to bring them up to speed to handle the high volume and variety of complex legal issues arising on appeal. However, attorneys are unlikely to remain in such positions for much more than a year without the possibility of promotion.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
As an Attorney-Manager and Government Senior Executive, I always had high expectations for the professionals working for me, which they achieved in the vast, vast majority of cases. My experience told me that everyone had their strengths and weaknesses and that it was the job of a good manager to find ways for everyone to succeed whenever possible.
If I do say so myself, I believe that I was good at finding the right “sweet spots” for folks to “be the best that they can be.” And, I’ll freely acknowledge getting some of my ideas from watching the late “Legacy INS” General Counsel Mike Inman operate. Whatever else one might think or say about “Iron Mike,” he did have an “eye for talent.” He also could take people who seemed to be “bouncing along” in their careers and position them to be outsized contributors and “superstars,” in his lingo.
At the same time, I saw the importance of insuring that folks working for me had the maximum number of career advancement opportunities and a fair chance to be recognized and move up the “career ladder.” Indeed, former EOIR Director Anthony “Tony” Moscato and I finished the work begun by my predecessor as BIA Chair, the late Judge David Milhollan and his then “Chief Attorney Advisor” now retired BIA Appellate Immigration Judge David B. Holmes in creating a career ladder where all qualified BIA Attorney Advisers could eventually reach the full DOJ career level for attorneys of GS-15.
Additionally, with the support of Tony and then Attorney General Janet Reno, I created various supervisory and leadership positions for senior Attorney Advisors that allowed them to assist in the management of the BIA staff while preparing themselves for other senior-level careers both at EOIR and elsewhere. Indeed a significant number of todays Appellate Immigration Judges, Immigration Judges, and senior EOIR managers, and managers in other divisions of the DOJ got their start in management at the BIA.
Disappointingly, under Sessions, EOIR appears to have joined the fight against the career civil service by “dumbing down” in various ways both the Immigration Judge and BIA Attorney Advisor position by making them less attractive to those seeking a career in public service.
I recently was discussing the politicized hiring process with a retired colleague who had worked elsewhere in the DOJ but had knowledge of both the past and current problems at EOIR. She said “It’s happening again, Paul. Just wait till it all comes out — ‘you ain’t seen nothin’ yet!'”
It’s time for EOIR to be removed from the DOJ and its politicized policies and practices! In this instance, “past performance predicts future results!” And, that’s not a good thing!
The Trump Presidency is an age of unanswerable questions and lose-lose propositions. How is one to maintain sanity, decency, and a measure of moral courage? In a pair of thoughtful essays in Slate, Dahlia Lithwick tackles the problems of dealing with the everyday nature of our current political disaster and of deciding on the best way to try to save the country from Donald Trump: by staying close to him, or by walking away. The latter is a question for members of the Administration and for congressional Republicans. “This is the time,” Lithwick writes, to “think about what combination of exit and voice can make a meaningful difference if a real crisis were to happen. Or rather, when the real crisis happens—if we are not there already.”
This is not a new question. Many people will continue posing it to themselves and others with ever more frustrating results, because it cannot be answered. Is the possibility of moderating the damage done by this Administration worth sacrificing one’s moral principles? Should one protect one’s individual integrity by sacrificing the chance to moderate damage done by this Administration? We can’t possibly know. We don’t have the information necessary to evaluate these options in the short term. Did H. R. McMaster, during his tenure as Trump’s national-security adviser, prevent an unknown number of disasters? If he did, was it worth whatever psychic and intellectual price he paid? It’s likely that he himself doesn’t know. For those who have so far decided to stay, whether in the Administration or in the Republican Party, small daily sacrifices of personal integrity become part of their sunk cost in the project of staying in; these people inevitably grow more committed and less critical. The landscape keeps shifting, the stakes keep changing, and the crises keep mounting.
The overstimulation of the age of Trump, meanwhile, makes us lose track of time and whatever small sense humans normally have of themselves in history. We forget what happened a month ago. If we look away for a day, we miss news that seems momentous to others—only to be forgotten, too, in a week. Living in a shared reality with our fellow-citizens is an endless triathlon of reading, talking, and panicking. It creates the worst possible frame of mind for answering vexing moral questions, especially ones that require a choice between two desperately unsatisfying options.
Thinking morally about the Trump era requires a different temporal frame. It requires a look at the present through the prism of the future. There will come a time after Trump, and we need to consider how we will enter it. What are we going to take with us into that time—what kind of politics, language, and culture? How will we recover from years of policy (if you can call it that) being made by tweet? How will we reclaim simple and essential words? Most important, how will we restart a political conversation? Political discourse was in crisis before Trump—no wonder Americans of all stripes have become accustomed to using the words “politics” and “political” to denote substance-free transactions in the electoral arena. But, under Trump, it is nearing complete destruction.
Consider the last month’s worth of conversation about Trump and North Korea. Forgetting the President’s “little rocket man” remarks and building on months of denial that Trump had brought the world as close to the brink of nuclear annihilation as it has ever been, politicians, bureaucrats, policy wonks, and journalists have been speaking as though Trump were engaged in actual negotiations with Kim Jong Un. Some deliriously joined him in contemplating the prospect of a Nobel Peace Prize. The voices of a few experts who dared say that nothing had been accomplished yet and expressed doubt that the summit would actually occur were quickly drowned out. The ritual of analysis and anticipation that normally accrues to diplomacy was accruing instead to Trump’s flailing gestures, in the same way that the normal rituals of punditry have accrued to Trump’s tweets, harangues, and inconsistencies, all of which are the opposite of politics. On Friday, the Times’ morning podcast, “The Daily,” offered up a thoughtful analysis of Trump’s summit-cancelling missive, which was written in the language of a sulking, lovelorn seventh grader. But no sooner was the podcast posted than Trump told the media that he might hold the summit after all.
We are losing the habit, and perhaps the capability, of distinguishing reality from vacuum. This is disorienting in the present and disastrous for the future—it is the one factor that will make post-Trumpian recovery, when it comes, so difficult. We must pose a bigger question than whether Administration members or congressional Republicans should stay or go, for it’s not only Trump’s appointees or fellow party members who are implicated in the daily insults and damage to our perceptions. We should be asking what each one of us can do to assert a fact-based reality at any given time. The great French thinker and activist Simone Weil had a prescription that she wrote down in her journal in 1933: “Never react to an evil in such a way as to augment it.” A few days later, she added, “Refuse to be an accomplice. Don’t lie—don’t keep your eyes shut.”
Throughout the twentieth century, writers and thinkers who faced reality-destroying regimes kept producing similar recipes. “Live not by lies,” the Russian dissident novelist Aleksandr Solzhenitsyn wrote. The Czech dissident playwright and future President Václav Havel pondered the predicament of living, unquestioningly, “inside the lie”—and the uncanny power of stepping outside of it. In our case, stepping outside the lie means refusing—stubbornly, consistently, incrementally—to lend credence to the opposite of politics, the opposite of diplomacy, and the opposite of sanity. That would require thinking, reading, and speaking critically: not treating an outburst as though it were politics, a tantrum as though it were diplomacy, and a delusion as though it were aspiration. The good news is that this is not an entirely impossible task.
‘I have presided over a process that destroys families’
Judge can’t reconcile values and the law
Crackdown on illegal immigration takes its toll on a federal judge with an unparalleled sentencing record.
By Lauren Villagran
LAS CRUCES, N.M. — Day in, day out, immigrants shuffle into Judge Robert Brack’s courtroom, shackled at the wrist and ankle, to be sentenced for the crime of crossing the border.
The judge hands down sentences with a heavy heart. Since he joined the federal bench in 2003, Brack has sentenced some 15,000 defendants, the vast majority of them immigrants with little or no criminal record.
“See, I have presided over a process that destroys families for a long time, and I am weary of it,” said Brack one day in his chambers in Las Cruces. “And I think we as a country are better than this.”
Brack’s court in rural southern New Mexico is swollen with immigration cases, the migrants brought to his courtroom by the dozen. They exchange guilty pleas for “time served” sentences, usually not more than two months on the first or second offense. They leave his court as felons.
For years, federal authorities in this area along the New Mexico border have taken a distinctively hard-line approach to enforcing immigration law, pursuing criminal charges rather than handling cases administratively.
Essentially, authorities here have already been carrying out the “zero tolerance” policy Atty. Gen. Jeff Sessions unveiled in April, when he announced that all immigrants who cross the border will be charged with a crime.
Together, the Border Patrol and U.S. attorney’s office in New Mexico bring charges against nearly every eligible adult migrant apprehended at the state’s border, according to U.S. Customs and Border Protection. That amounted to 4,190 prosecutions last fiscal year.
Vigorous enforcement in New Mexico is a result of ample bed space in the state’s border county jails and a fast-track system that prosecutes nonviolent migrants quickly. The state also doesn’t face the volume of illegal crossings that south Texas does, for example.
“It is an efficient process,” says U.S. Atty. John Anderson of the District of New Mexico. “That is one of the key features that allows us to implement 100% prosecutions.”
For Judge Brack, it’s a punishing routine. And it has been building for a long time. Back in 2010, the judge had been on the federal bench for seven years, his docket overloaded with immigration cases, when “at some point I just snapped,” he said.
He sat down to compose a letter to President Obama to call for a more compassionate approach to immigration, one that would keep families together and acknowledge that the demands of the labor market drive immigration:
I write today because my experience of the immigration issue, in some 8,500 cases, is consistently at odds with what the media reports and, therefore, what many believe.
I have learned why people come, how and when they come, and what their expectations are. The people that I see are, for the most part, hardworking, gentle, uneducated and completely lacking in criminal history. Just simple people looking for work.
He didn’t get a reply.
No other federal criminal court judge comes near Brack’s sentencing record.
In the five years through 2017, Brack ranked first among 680 judges nationwide for his caseload, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks court data. He sentenced 6,858 offenders — 5,823 of them for felony immigration violations.
It’s a dubious honor for a man who is a devout Catholic and makes plain his moral dilemma in public hearings. He takes seriously his oath to uphold the laws of the United States. But he is a cog in a system he believes is unjust.
Johana Bencomo, director of organizing with the Las Cruces immigrant advocacy group Comunidades en Acción y Fe — Communities in Action and Faith — calls criminal prosecution of migrants “dehumanizing.”
“We’re just this rural community with some of the highest prosecution rates,” she said. “That is Brack’s legacy, no matter how you spin it.”
Advocates of stronger immigration enforcement counter that prosecutions are a crucial element of border security and have contributed to today’s historically low rates of illegal immigration.
“Criminal charges turn out to be one of the most effective tools for dissuading people from trying [to cross] again,” said Jessica Vaughan, director of policy studies at the Washington, D.C.-based Center for Immigration Studies, which advocates for tougher border enforcement.
The effects of this enforcement play out at the five-story, copper-colored federal building in Las Cruces, about 47 miles from the U.S.-Mexico border. Brack’s chambers are on the top floor.
In windowless cellblocks on the bottom floor, migrants from Mexico, Central America and Brazil wait to make their initial appearance in a federal magistrate courtroom.
The same scene repeats again and again: The immigrants crowd five broad benches, the juror’s box and the swivel chairs meant for attorneys. They wear the jumpsuits of the four county jails where they are being held: a sea of orange, navy, dark green, fluorescent yellow.
They hear their rights and the charges against them. They eventually plead guilty, to benefit from New Mexico’s fast-track process. Within a month or so, they will find themselves in Brack’s court for sentencing and within days they’ll be deported.
The border used to be wide open, but now it is closed, Brack tells each migrant at sentencing. There are more Border Patrol agents than you can count. Immigration used to be handled as a civil offense, but now it is criminal: a misdemeanor on the first attempt, a felony on the second.
“Everyone gets caught and what’s worse, everyone goes to jail,” he told one migrant, a Mexican woman named Elizabeth Jimenez Rios. “That is not how it has always been, but that is how it is now.”
Their fate is sealed, but Brack still asks the public defenders to tell each migrant’s story.
Elías Beltran, an oil field worker from Mexico, with no criminal history, tried to return to his wife and two kids, U.S. citizens in eastern New Mexico. He lived there for 15 years before he was deported.
Andres Badolla Juarez, a farmworker from Mexico, wanted to pick strawberries in California to support his wife, toddler and new baby — all U.S. citizens — in Arizona. He lived in the U.S. for 16 years and got deported after an aggravated DUI. It was his fourth failed attempt to cross the border.
Rosario Bencomo Marquez, a 52-year-old maid from Mexico, with no criminal history, hoped to return to her daughter and grandchildren in Santa Fe. She lived in the U.S. for 19 years before she was deported.
Brack also sees migrants charged with drug offenses or long criminal records and is unsparing in their punishment. But they are a minority, he said.
“I get asked the question, ‘How do you continue to do this all day every day?’ I recognize the possibility that you could get hard-edged, you could get calloused, doing what I do,” he said. “I don’t. Every day it’s fresh. I can’t look a father and a husband in the eye and not feel empathy.”
Brack, 65, is the son of a railroad-worker father and homemaker mother and earned a law degree at the University of New Mexico. He served as a state judge before being named to the federal bench by President George W. Bush.
In his chambers, above a shelf stacked with books on jurisprudence, Bible study and basketball, hang framed pictures of his forefathers: men who immigrated to the U.S. from England and Prussia. Brack grew up in rural New Mexico, where immigrants — whatever their status — were viewed as “valuable co-workers,” not a threat, he said.
After that first letter to Obama in 2010, he wrote another. And another. As the nation periodically heaved toward the possibility of immigration reform, only to leave the issues — and lives of millions — unresolved, Brack continued to write letters to the White House.
He told more heart-wrenching stories about families divided. He kept it up for four years. He pleaded for a civil debate: “See what I see, hear what I hear. Be wary of the loudest, angriest voices.”
He signed each letter with prayer: “May God continue to bless all those who serve our great nation.”
He never got a response. He stopped writing.
And now, after so many grueling years and thousands more immigration cases, Brack has decided enough is enough. He takes “senior status” in July, effectively stepping aside to serve part time. President Trump will name his replacement.
Villagran writes for Searchlight New Mexico.
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Imagine what the stress levels are like for U.S. Immigration Judges! They often have pending dockets in excess of 2500 cases; are expected to “grind out” so-called “oral decisions” in “life or death” cases without time to reflect or the assistance of judicial law clerks; lack the job tenure, independence, and status of an Article III judge; operate in an out of control court system largely without rules; have been stripped of effective control of their dockets; and are constantly subjected to disingenuous attacks, “production quotas” and a “bogus blame game” by their so-called “boss” Attorney General Jeff “Gonzo Apocalypto” Sessions — who has a well-earned reputation for lacking any moral sensitivity or responsibility for his statements and actions, having a biased and one-sided view of the law, and being totally unqualified and incompetent to administer a major court system that is supposed to be providing Due Process for migrants.
CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION
Washington, D.C. – Today, U.S. Senator Cortez (D-Nev) Masto joined Senators Kamala D. Harris (D-Calif) and Dianne Feinstein (D-Calif) and other Senate Democrats in sending a letter to Attorney General Jeff Sessions urging that the Justice Department uphold a ruling by the Board of Immigration Appeals (BIA) that provides protections for LGBTQ asylum seekers who are fleeing persecution. In the letter, the senators highlight the increasing threat of violence LGBTQ individuals face in many parts of the world.
“LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world,” said the senators. “As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals.”
The senators continued, “Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest.”
In addition to Cortez Masto, Harris and Feinstein, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Patty Murray (D-WA), Amy Klobuchar (D-MN), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Bob Casey (D-PA), Chris Coons (D-DE), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Bob Menendez (D-NJ).
We write to express our concerns about your pending review of the Board of Immigration Appeals (“BIA”) decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) and the adverse impact such a decision could have on vulnerable populations fleeing persecution and violence. We urge you to uphold the BIA’s decision, which reflects a well-settled matter of law that provides critical protections for vulnerable populations, including LGBTQ individuals subject to private persecution that foreign governments are unwilling or unable to control.
LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world. As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals. As just two alarming examples of state sponsored anti-LGBTQ actions this past year, Russian authorities in Chechnya undertook an anti-gay purge that involved the alleged torture of dozens of men, and Egyptian authorities engaged in a campaign to target and incarcerate individuals solely based on their sexual orientation.
Your referral order for the Matter of A-B- – in which you aim to address, “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal” –has great import for the majority of LGBTQ asylum seekers who arrive in the United States fleeing persecution by private individuals. In the decades since this country first recognized LGBTQ status as a protected particular social group, it has been well established that LGBTQ individuals face grave risks in reporting private persecution or seeking governmental protection from such persecution abroad. Any change to this body of law would be a mistake.
In countries where government authorities engage in serious physical and sexual assaults of LGBTQ individuals, it is effectively impossible for them to seek protection from those same authorities when faced with private persecution. In some countries, simply asking for protection from state authorities can result in government-sponsored persecution. Even where state authorities are not active perpetrators of violence against LGBTQ individuals, they frequently turn a blind eye, emboldening private actors to engage in hate-motivated violence. U.S. State Department research highlights that foreign government retribution towards and lack of assistance for LGBTQ individuals who face private threats of persecution is commonplace, even when the population is not expressly criminalized. This chills the ability of LGBTQ individuals to report such persecution in their home countries.
Societal and familial considerations also often prevent LGBTQ victims of private persecution from coming forward to foreign authorities. They may be threatened with reprisals from their persecutors or coming forward would reveal their LGBTQ status and increase other persecution. In many countries, the act of reporting violence can have deadly consequences.
Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest. As such, we strongly urge you to leave undisturbed the BIA’s decision in Matter of A-B-.
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The effort is likely to be futile. It’s hard to believe that Sessions, given his xenophobic record and anti-asylum rhetoric, certified the case to himself (actually over the objection of both the DHS and the Respondent) just to uphold and strengthen refugee protections for abused women and LGBTQ individuals. Indeed, Sessions has a clear record of anti-LGBTQ views and actions to go along with his anti-asylum bias.
But, the law favoring asylum protections for victims of DV and LGBTQ individuals who suffer harm at the hands of non-state-actors that governments are unwilling or unable to control is now well established. Therefore, Sessions’s likely “scofflaw” attempt to undo it and deny protections to such vulnerable refugees is likely to “muck up the system” and artificially increase the backlogs in the short run, while failing in the long run to achieve the perversion of justice and denial of Due Process for asylum seekers that he seeks to impose.
Surprisingly, the Article III (“real”) courts don’t allow the disgruntled prosecutor to “certify” results that he doesn’t like to himself and rewrite the law in his own favor! That’s why the facade of “courts” operating within the USDOJ must come to an end, sooner or later!
SPLC STATEMENT ON SESSIONS’ DECISION TO CURTAIL ‘ADMINISTRATIVE CLOSINGS’ OF IMMIGRATION COURT CASES
By Dan Werner, Senior Supervising Attorney
Attorney General Jeff Sessions’ ideologically driven decision today to bypass the immigration courts and decide himself to remove another avenue of relief for immigrants undermines due process and the rule of law.
It will add thousands more cases back into the huge backlog of the immigration courts, and will result in the imprisonment and deportation of immigrants who now have a clear path toward legal immigration status.
This decision is just further evidence of Sessions’ anti-immigrant agenda, which separates families, creates fear in communities, and punishes vulnerable people who may be fleeing violence and persecution in their home countries. Though President Trump may call them “animals” to justify his administration’s inhumane policies, these immigrants are friends, neighbors, and members of our families and communities.
With every new hate-driven policy emerging from this administration, we must rededicate ourselves to speaking out and taking action to preserve our nation’s fundamental values.
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How Trump’s nativist tweets overlap with anti-Muslim and anti-Latino hate crimes
Words matter. Heated political rhetoric, especially derogatory language toward groups of people, can create all kinds of unintended consequences, including sometimes physical violence.
When individuals of influence, including political candidates and heads of state use such words, the consequence can be especially pronounced.
In the run-up to, and since his election as President of the United States, Donald Trump’s words have attracted a lot of attention. Many commentators and activists have charged that Trump’s rhetoric has fueled hate crimes in the United States against minorities. Until recently, many individuals voicing such concerns pointed to high-profile individual cases, rather than systematic data. Now that’s changing as new research is emerging.
Hatewatch spoke with Karsten Muller and Carlo Schwarz, two researchers at the University of Warwick in the United Kingdom who have been studying the impact of hate speech on social media and how that translates to hate crimes in the real world. Muller and Schwarz discuss their latest study, “Making America Hate Again? Twitter and Hate Crime Under Trump”
Their study used Twitter and FBI hate crimes data to come to a stark conclusion: hate crimes against Muslims and Latinos occurred shortly after Trump made disparaging tweets about Muslims and Latinos. Moreover these anti-Muslim and anti-Latino hate crimes were physically concentrated in parts of the country where there is high Twitter usage.
Karsten and Carlo, can you give us an overview of your research interests and your recent study on President Trump’s tweets and Muslim hate crimes?
Carlo: We are economists working in slightly different areas, but we both have an interest in what people usually call political economy. What we try to do is to apply modern quantitative methods to study political outcomes and the role of social media. In our most recent study, we find that the number of anti-Muslim hate crimes in the U.S. has increased quite markedly under Trump. We show that this increase started with the beginning of Trump’s presidential campaign and is predominately driven by U.S. counties where a large fraction of the population uses Twitter. The data also show that this increase cannot be easily explained by differences in demographics, votes for Republicans, crime rates, media consumption or other factors.
Karsten: The second thing we do in the paper is to look at the correlation between Trump’s tweets about Islam-related topics and hate crimes that target Muslims. And what we find is that this correlation is very strong after Trump had started his campaign, but basically zero before. We also find that when Trump tweets about Muslims, hate crimes increases disproportionately in those areas where many people use Twitter. It is also important to note that hate crimes against Muslims were not systematically higher in those areas during previous presidencies, so it seems unlikely we are simply capturing the fact that people in some areas dislike Muslims more than in others.
Are you claiming Trump’s tweets have caused hate crimes?
Karsten: We are very careful not to make that claim in the paper because I think it is extremely hard to tell based on our data. After all, we are not looking at a controlled laboratory experiment so there is always room for other drivers. But if you look at the results, some point in that direction, for example that Trump’s tweets are particularly correlated with future hate crimes in counties where many people use Twitter.
Carlo: A simple thing to do here is to think about what alternative stories could explain our findings. For example, one could imagine that people who Trump himself follows (such as Fox & Friends or Alex Jones) are the real driving factor. Or that people have recently become more radicalized in rural areas, or where the majority votes Republican. But a careful look at the data reveals that Twitter usage is in fact lower in counties where people tend to vote Republican and in rural areas, and we use some survey data to show that Twitter users generally prefer CNN or MSNBC over Fox News. These factors also cannot easily explain why the increase in anti-Muslim hate crimes should occur precisely with Trump’s campaign start and not before or after.
Karsten: So overall, we take our findings as suggestive of a potential connection between social media and hate crimes. But at the end of the day, readers have to make up their own minds.
What were some of the other key findings that stood out with regard to Muslims?
Karsten: What really stands out to me is just how strong the correlation of Trump’s tweets is with future anti-Muslim hate crimes. So, for example, one might be worried that Trump simply tweets about Muslims when people are generally very interested in everything related to Islam. But what we find is that Trump’s tweets are correlated with hate crimes even if we first even if we control for the effect of general attention to Islam-related topics (as measured by Google Searches). Although there are other explanations, I also found it striking that you see a spike in hate crimes against Muslims in the week of the Presidential election, but only in areas where many people use Twitter.
Carlo: Another thing I found quite interesting is that Trump’s tweets about Muslims are not correlated with other types of hate crimes. The reason this is important is because one could easily imagine that people just happen to be particularly angry at minorities in some weeks compared to others, and that Trump is just part of that. But if this was true, we would also expect there to be more hate crimes against Latinos, or LGBTQ people or African Americans, which does not seem to be the case at all. We also do not find any evidence that other types of hate crimes increased in areas with many Twitter users around Trump’s campaign start — except a small shift for anti-Latino crimes.
Your study also noticed a statistically significant association between anti-Latino tweets and hate crimes. Why do you think there has been a similar, but less robust set of results?
Karsten: When we started our study, we only had data on hate crimes until the end of 2015 — after Trump’s campaign started in June 2015, but before his election. And what you see in the data is a very strong correlation between Trump’s tweets about Latinos and subsequent anti-ethnic hate crimes starting with the beginning of his campaign until December 2015, while there is virtually no correlation before. After the 2016 data were released, we found that the effect becomes substantially weaker from around mid-2016 onwards.
Carlo: When we looked at that more closely — and we think that is consistent with the media coverage during that time as well — Trump toned down his anti-Latino rhetoric quite a lot in the run-up to the campaign. There was, for example, his tweet with a taco bowl on Cinco de Mayo 2016. If you go through Trump’s Twitter feed in the pre-election period, you will see only a handful tweets about Latinos at all during that time. And while hate crimes against Latinos remained slightly elevated in areas with many Twitter users during that time, that means the correlation with the timing of Trump’s tweets became weaker. A potential interpretation is that it is not that the results are so much weaker than those for anti-Muslim hate crime, it’s just that Trump essentially stopped tweeting negative things about Latinos.
How does this study compare and contrast with your earlier investigationinto the online activities of the far-right and nativist political party Alternative for Germany (AfD)?
Carlo: In our study on Germany, we found a very similar correlation between posts about refugees on the AfD’s Facebook page and crimes targeting refugees. We look at these two studies as complementary, even though they use somewhat different methodologies. In the German setting, we have very granular data on internet and Facebook outages that we can use as “quasi-experiments” to get at the causal effect of social media. And what we found there is that, even if you compare neighboring cities, refugees are more likely to be victims of violent attacks where many people use social media, particularly when tensions are high. Importantly, these are relative effects.
What is different for the U.S. is that we find this link between Trump’s campaign start and the increase in the absolute number of hate crimes against precisely those minorities in his verbal crosshairs (e.g. Muslims and Latinos), making the link by using Trump’s tweets. and FBI hate crimes dataset. By using the FBI hate crimes statistics, it also allow us to compare the recent change in hate crimes to those under presidents since 1990s.
For civically conscious users of the internet, what are the most important takeaways and implications from your research?
Carlo: On one hand, our goal is to suggest that politicians should not ignore social media, because the correlation with real-life hate crimes seems to be pretty strong. We think that this discussion should be taken seriously. On the other hand, we want to caution against any attempts at censorship. Some countries have an outright ban on certain social media platforms, and these states are usually not known for their open political discourse and freedom of speech. The challenge is to come up with solutions that can help protect citizens from violent extremists without imposing drastic limits on freedom of expression. In the end, the people who actually commit hate crimes are the ones we have to hold accountable.
Karsten: I want to give a somewhat different perspective here. Many people talk about a potential “dark side” of social media, but the number of studies that have actually looked at this issue with data is surprisingly small. One of the most important takeaways for me is that as a society we should be spending more time and resources to support researchers working on this area. It is clearly something that many people care about, and it matters tremendously for policymakers as well.
What do you plan to do next in your research?
Karsten: We think a big open question is to come up with more concrete ways of measuring whether “echo chambers” on social media really exist, and how they differ from echo chambers in other domains. If social media is indeed different, the question is what can be done to get people to consider information from outside of their bubble. Our data for Germany in particular will hopefully also allow us to show how exactly online hate on Facebook is transmitted in practice.
Illustration credit: zixia/Alamy Photo
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Trump is certainly the wrong man for the job at this point in our history.
President Trump issued three executive orders Friday aimed at overhauling the federal bureaucracy by making it easier to fire poor performers, sharply curtailing the amount of time federal employees can be paid for union work and directing agencies to negotiate tougher union contracts.
The orders could result in the biggest changes in a generation to civil service protections long enjoyed by federal workers.
White House officials said the goal of the executive orders is to make the workforce of two million federal employees more efficient and responsive to the public and to improve morale.
In a briefing with reporters, Andrew Bremberg, the White House’s director of the domestic policy, said that a survey of federal employees has found that many do not believe their agencies adequately address poor performers.
“These executive orders make it easier for agencies to remove poor performing employees and ensure that taxpayer dollars are more efficiently used,” he said.
One of the executive orders, which allows employees accused of misconduct to be fired more easily, expands on legislation that Congress passed last year to bring more accountability at the Department of Veterans Affairs.
“President Trump is attempting to silence the voice of veterans, law enforcement officers, and other frontline federal workers through a series of executive orders intended to strip federal employees of their decades-old right to representation at the worksite,” the American Federation of Government Employees, the largest federal employee union, said in a statement.
Joe Davidson contributed to this report.
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An honest, apolitical, expert career Civil Service has been the main difference between America and many of the dictatorships, one-party states, and failed states from which we once distinguished ourselves. Once destroyed, it won’t easily be rebuilt. That could well spell the end of America as an economic superpower and world leader.
Can the “Trump Kakistocracy” and his co-opted “Party of GOP Grifters” be stopped before it’s too late? Only time will tell. But, the clock is ticking!
Most of the ICE folks that I met during my career (including with the “Legacy INS”) were hard-working, dedicated civil servants performing a very difficult and often thankless job. In particular, the attorneys in the Office of ICE Chief Counsel in Arlington were not only talented lawyers but had strong senses of justice that often went beyond the most narrow constructions of the law.
They also had strong senses of being part of the larger “justice system team” working cooperatively with both the Immigration Judges and the private bar to keep the dockets moving while dispensing justice with humanity that reflected legal knowledge, the willingness to exercise their discretion, and the courage to do what was necessary to make a broken system function in something approaching a fundamentally fair manner.
For those of us involved the creation of the forerunner of the “Modern Chief Counsel System” at INS in the 1980’s, it’s exactly what we had in mind. According to my sources, that important attitude and the values upon which it was based (which, admittedly, might never have existed in some ICE offices) has now largely disappeared in light of the Trump Administration’s mismanagement and “gonzo” enforcement policies.
I don’t see how I could have done my job as a judge without the thoughtful assistance and professionalism of the ICE Office of Chief Counsel in Arlington. Working with them, our private bar, and our dedicated court support team as a group was a daily pleasure and probably extended my career by a number of years.
The main problem with ICE these days appears to stem from extraordinarily poor leadership from the top down, starting, but by no means ending, with Trump himself. As a result, ICE is now well on its way to becoming the most hated and least trusted law enforcement agency in America. While it might not require abolition of ICE, it will require fundamental changes to ICE structure, culture, and policies in the future under more talented, practical, and humane leaders.
Unfortunately, and not necessarily thorough the fault of individual employees at the “working” level, today’s ICE is a national disgrace and an embarrassment — for American justice, the Constitution, and our national values.
Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes
By Lauren Fox and Tal Kopan, CNN
Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.
At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.
On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.
According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.
Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.
Trump calls for sweeping changes to US immigration legal process
By: Allie Malloy and Tal Kopan, CNN
President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.
“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.
“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.
Trump also questioned the process of immigrants going through the court system at all.
“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.
The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.
Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.
“I guess he has no belief in due process and the Constitution,” Lofgren said.
Comments run counter to Justice policies
At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.
To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!
In President Trump’s many vocal pronouncements about stopping illegal immigration, one solution he promoted during the campaign has been conspicuously missing — a requirement that employers check whether workers are legal.
Eight states require nearly all employers to use the federal government’s online E-Verify tool for new hires, but efforts to expand the mandate to all states have stalled, despite polls showing widespread support and studies showing that it reduces unauthorized workers.
The campaign for a national mandate has withered amid what appears to be a more pressing problem — a historic labor shortage that has businesses across the country desperate for workers at restaurants, on farms and in other low-wage jobs.
The urgency around that shortage was clear at a congressional hearing last week when senators pressed Homeland Security Secretary Kirstjen Nielsen on additional visas for seasonal foreign workers.
“There’s not one manufacturing plant in Wisconsin, not one dairy farm, not one resort that can hire enough people,” said Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee.
With the unemployment rate at a 17-year low and the Trump administration cracking down on foreign workers, lawmakers are reluctant to champion a measure that could exacerbate the labor shortage and hurt business constituents — even one that is popular among a broad swath of Americans.
Despite his administration’s “Hire American” stance, Trump and the GOP leadership have gone quiet on mandating E-Verify, draining momentum from a top policy goal of grass-roots Republicans.
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Two problems that I can see:
The Trump/GOP bogus position that we don’t need more immigrant labor, which would point toward a program both a) legalizing undocumented workers already here; and 2) expanding (not contracting) future legal immigration opportunities;
“E-Verify” depends heavily on timely action by USCIS to grant extensions of stay and renew work authorizations. But, under Trump, Cissna, Nielsen, and Sessions, USCIS has eliminated customer service to both migrants and U.S. employers from their mission and joined the “mindless enforcement bureaucracy.”
When immigration policy decisions are based on bias and prejudice rather than facts, bad things are going to happen. Whatever might be done to fix our broken immigration system is highly unlikely to happen under the Trump White Nationalists.
A Montana woman said she plans to take legal action after a Border Patrol agent detained and questioned her and a friend — both U.S. citizens — when he overheard them speaking Spanish at a gas station.
The incident occurred early Wednesday morning at a convenience store in Havre, Mont., a town in the northern part of the state, near the border with Canada.
Ana Suda said she and her friend, Mimi Hernandez, were making a midnight run to the store to pick up eggs and milk. Both are Mexican American and speak fluent Spanish, and they had exchanged some words in Spanish while waiting in line to pay when a uniformed Border Patrol agent interrupted them, Suda said.
“We were just talking, and then I was going to pay,” Suda told The Washington Post. “I looked up [and saw the agent], and then after that, he just requested my ID. I looked at him like, ‘Are you serious?’ He’s like, ‘Yeah, very serious.’ ”
Suda said she felt uncomfortable and began recording the encounter with her cellphone after they had moved into the parking lot. In the video Suda recorded, she asks the agent why he is detaining them, and he says it is specifically because he heard them speaking Spanish.
“Ma’am, the reason I asked you for your ID is because I came in here, and I saw that you guys are speaking Spanish, which is very unheard of up here,” the agent can be heard saying in the video.
Suda asks whether they are being racially profiled; the agent says no.
“It has nothing to do with that,” the agent tells her. “It’s the fact that it has to do with you guys speaking Spanish in the store, in a state where it’s predominantly English-speaking.”
Suda, 37, was born in El Paso and raised across the border in Ciudad Juarez, Mexico, but has spent much of her adult life moving around the United States with her husband and young daughter. Hernandez is originally from central California, Suda said.
Despite explaining this to the agent and showing him their IDs, Suda said, he kept them in the parking lot for 35 to 40 minutes. Though no one raised their voices in the video, Suda said she and Hernandez were left shaken and upset by the encounter, which ended around 1 a.m.
“I was so embarrassed … being outside in the gas station, and everybody’s looking at you like you’re doing something wrong. I don’t think speaking Spanish is something criminal, you know?” Suda said. “My friend, she started crying. She didn’t stop crying in the truck. And I told her, we are not doing anything wrong.”
When she got home, Suda posted on Facebook about what had taken place at the gas station. She said her shock began to give way to sadness in the following days, after some local news outlets reported the incident, and her 7-year-old daughter asked whether the video meant they should no longer speak Spanish in public.
“She speaks Spanish, and she speaks English,” Suda said. “When she saw the video, she was like, ‘Mom, we can’t speak Spanish anymore?’ I said ‘No. You be proud. You are smart. You speak two languages.’ This is more for her.”
A representative from U.S. Customs and Border Protection told The Post the agency is reviewing the incident to ensure all appropriate policies were followed. Border Patrol agents are trained to decide to question individuals based on a variety of factors, the agency added.
“U.S. Customs and Border Protection agents and officers are committed to treating everyone with professionalism, dignity and respect while enforcing the laws of the United States,” the agency said. “Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.”
Havre is a rural town with a population of about 10,000, about 35 miles south of the U.S.-Canada border. Border Patrol agents have broad authority to operate within 100 miles of any U.S. border, though they cannot initiate stops without reasonable suspicion of an immigration violation or crime.
Suda said she is used to seeing Border Patrol agents in Havre because it’s so close to Canada, especially at gas stations, but had never been stopped before.
“It’s a nice town. I don’t think it’s a confrontational [population] here,” Suda said. “But now I feel like if I speak Spanish, somebody is going to say something to me. It’s different after something like this because you start thinking and thinking.”
Suda said she plans to contact the American Civil Liberties Union to seek legal guidance. ACLU representatives did not immediately respond to a request for comment Sunday.
“I just don’t want this to happen anymore,” Suda said. “I want people to know they have the right to speak whatever language they want. I think that’s the most important part, to help somebody else.”
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Nobody’s rights are safe in the Age of Trump, Sessions, & Nielsen. Harm to one is harm to all! Join the New Due Process Army and fight to protect the Due Process and other Constitutional rights of everyone in America!
Just recently, a Washington lawmaker asked me a question over breakfast that has stayed with me ever since. The national legislator is a Christian, but genuinely was having a hard time understanding the message and motivation of the evangelical “advisers” to President Donald Trump. He posed the sincere query, “What about Jesus?” It is exactly the right question and I have thought about it since our conversation: “What about Jesus?”
What do these evangelicals do with that question as they listen and talk with and for Donald Trump? Would Jesus talk this way about immigrants, act this way toward women, use such divisive language of racial fear and resentment, show such a blatant disregard for truth, prefer strong-man to servant leadership, and really say that one country should be “first?” What do we do with Jesus? That is always the right question, including when it comes to politics, and especially if we say we are followers of Jesus Christ.
I ask you to watch this short four-minute video in which several Christian elders from across many traditions and racial lines ask that vital question in their message of Reclaiming Jesus in a Time of Crisis. Listen to their voices and the core teachings of Jesus they are raising.
Of course the “Biblical Jesus” would “just say no” to the rhetoric, philosophy, and corrupt actions of the Trump Administration. Stomping on the poor to aid the rich? “Suffer the children to come unto me” so that I can can separate them from their mothers and put their mothers in prison? Denying protection to the vulnerable stranger? Adultery? Sexual humiliation and abuse of women? Lies? Elevating the material over the spiritual? Putting one’s own “cult of personality” and financial interests ahead of God’s? Self aggrandizement as opposed to self-sacrifice? No Way!
If Jesus were among us, He certainly would be one of the members of the “Migrant Caravans” waiting with the vulnerable to see how we will judge Him and whether He and those around him will receive mercy and justice. There is no way He would be “hanging out” with the Trump Administration and their vile dehumanizing actions and false narratives!
In recent years, the United States has been something of a beacon of hope for women fleeing violence and persecution in their home countries. In 2014, in a giant step forward, immigration courts explicitly determined that a person fleeing severe domestic violence may be granted asylum here if the violence rises to the level of persecution, if the government in the victim’s home country cannot or will not punish her abuser and if various other criteria are met. It’s a high bar but one that, sadly, women from many countries can clear. Now their last chance at protection may be under threat.
The case that established that certain victims of domestic violence are eligible for asylum was decided in a landmark ruling by the Board of Immigration Appeals, the highest court in our immigration judicial system.
The survivor in the case, a Guatemalan named Aminta Cifuentes, was a victim of severe physical and sexual abuse. Ms. Cifuentes had endured 10 years of unrelenting violence at the hands of her spouse, who burned her with acid, beat and kicked her, broke her nose and punched her in the stomach with such force when she was eight months pregnant that the baby was born prematurely and with bruises. Her husband told her it would be pointless to call the police, because “even the police and judges beat their wives.”
The ruling that granted her protection was a transformative one, not just for Ms. Cifuentes but for our country, too. At last, the United States stood firmly in opposition to violence against women and recognized that we can and should offer hope to survivors.
In March, however, Attorney General Jeff Sessions, in an unusual move, suddenly and inexplicably stepped into this seemingly settled matter to assign a similar petition for asylum, known as the Matter of A-B–, to himself for reconsideration.
The facts in the Matter of A-B- are similar to those in the 2014 case. Ms. A-B-, a Salvadoran, was brutalized by her husband for 15 years. He beat and kicked her, including while she was pregnant; bashed her head against a wall; threatened her with death while holding a knife to her throat and while brandishing a gun; and threatened to hang her. Ms. A-B- attempted to secure state protection to no avail.
When she went to the police after her husband attacked her with a knife, their response was that if she had any “dignity,” she would leave him. When Ms. A-B- did attempt to leave her husband, he tracked her down, raped her and threatened to kill her. When she finally got a divorce, her ex-husband told her that if she thought the divorce freed her from him, she was wrong. She fled the country after he told her that he and his friends were going to kill her and dump her body in a river.
When Ms. A-B- came to the United States seeking asylum, her case was heard by an immigration judge in Charlotte, N.C., named V. Stuart Couch, who is notorious for his high denial rate. Judge Couch denied her asylum; Ms. A-B- appealed, and the decision was overruled by the Board of Immigration Appeals, the same board that had ruled favorably in the 2014 case.
The board sent the case back to Judge Couch for security checks to be completed and asylum to be granted. Without any explanation, Judge Couch held on to the case and refused to grant asylum as directed. And then, deviating from normal procedures, Mr. Sessions took jurisdiction.
The attorney general does have the power to reconsider any decision by the Board of Immigration Appeals. However, the procedural irregularities, paired with the possibility that Mr. Sessions may be using his authority to upend the precedent set in the Cifuentes case, are troubling. Mr. Sessions has given himself the power not only to decide Ms. A-B-’s fate but also ultimately to try to rule on how our country handles claims for all survivors of domestic violence looking for asylum.
To be clear, we do not yet know what Mr. Sessions will decide. But in the context of the Trump administration’s antipathy toward asylum seekers, and Mr. Sessions’s statements and actions with regard to immigrant women, his decision to assign himself jurisdiction does not bode well. Asylum seekers who have arrived at the American border seeking protection have been vilified by this administration.
The government has targeted women in ways that would have been unthinkable under prior administrations, including separating mothers who arrive at the border from their children and detaining pregnant women. Mr. Sessions himself has expressed his deep skepticism about asylum claims based on gender-related persecution.
At a time when violence against women and girls is a global crisis, a decision to deny protection to women who flee gender violence, including domestic violence, would be a grave mistake. This is a moment of truth of our country. Will we remain a beacon of hope for women worldwide whose lives are on the line because of domestic violence, and whose governments cannot or will not protect them? The answer, it seems, is in the attorney general’s hands.
Matter of A-B-, was a straight-forward application by the BIA of its existing precedents on asylum for victims of domestic violence.
The Immigration Judge who wrongfully denied the original asylum application appeared to disregard the BIA’s mandate to check fingerprints and grant on remand, and instead delayed the case without any apparent valid reason for doing so.
Sessions “certified” this case to himself either though neither party had requested his intervention and, remarkably, the DHS requested that the certification be dissolved to allow the BIA to resolve any issues under its existing framework of asylum precedents.
Sessions has made a number of inflammatory, anti-asylum statements including several made in a speech to EOIR adjudicators.
Is this “Justice In America?” Or, is it a “Parody of Justice In America” taking place in a “captive court system” dedicated to one-sided enforcement rather than fairness and Due Process.
Join the “New Due Process Army” and fight against Sessions’s perversion of the U.S. Immigration Court system to fit his “enforcement only” viewpoint.
On January 4, 2018, I directed the Board of Immigration Appeals (“Board”) to refer for my review its decision in this matter, see 8 C.F.R. § 1003.1(h)(1)(i), and I invited the parties and any interested amici to submit briefs addressing questions relevant to that certification. Matter of Castro- Tum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons set forth in the accompanying opinion, I affirm the Board’s order and remand for further proceedings. I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. I overrule Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W- Y-U-, 27 I&N Dec. 17 (BIA 2017), and any other Board precedent, to the extent those decisions are inconsistent with this opinion.
Matter of Castro-Tum
In recent years, immigration judges and the Board have increasingly ordered administrative closure to remove a large number of cases from their dockets. The Board has described the practice as “a docket management tool that is used to temporarily pause removal proceedings,” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017), and “remove a case from an Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012).
Although described as a temporary suspension, administrative closure is effectively permanent in most instances. Unless a party “move[s] to recalendar [an administratively closed case] before the Immigration Court . . . or to reinstate the appeal before the Board,” id., the case remains indefinitely
suspended without a final resolution. Statistics supplied by the Executive Office for Immigration Review (“EOIR”) demonstrate that effect.
Since 1980, immigration judges have recalendared less than a third of administratively closed cases. Because the case comes off the active docket, the immigration judge no longer tracks it, and EOIR does not count the case as active in assessing backlogs in immigration proceedings. See, e.g.,Memorandum for All Immigration Judges, from Brian M. O’Leary, Chief Immigration Judge, EOIR, Re: Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure at 2–3 (Mar. 7, 2013) (“OPPM 13-01”). Administratively closed cases are also difficult to recalendar. The Department of Homeland Security (“DHS”) may not know when the reason for the suspension (such as the pendency of a collateral proceeding) has been resolved. Even where DHS moves to recalendar, the Board has imposed the burden of persuasion on the movant.W-Y-U-, 27 I&N Dec. at 18 & n.4. And the alien respondent in most cases has few incentives to seek to recalendar because “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).
The practice of administrative closure has grown dramatically as the Board has made administrative closure easier to obtain. Statistics maintained by EOIR reveal that over three decades, from EOIR Fiscal Year 1980 to Fiscal Year 2011, 283,366 cases were administratively closed. But in a mere six years, from October 1, 2011 through September 30, 2017, immigration judges and the Board ordered administrative closure in 215,285 additional cases, nearly doubling the total number of cases subjected to administrative closure.
This sharp increase tracks changes in Board precedent. For decades, the immigration judge would grant administrative closure only if both parties agreed. In its 2012 Avetisyan decision, however, the Board discarded that principle and authorized administrative closure even over a party’s objection. 25 I&N Dec. at 694, 696. After the Avetisyan test proved unwieldy, the Board recently “clarif[ied]” that the deciding factor should be “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” W-Y-U-, 27 I&N Dec. at 20 (emphasis added).
This certified case illustrates but one example of how administrative closure encumbers the fair and efficient administration of immigration cases. The respondent entered this country illegally in 2014 and was immediately detained. As an unaccompanied minor, he was served with a Notice to Appear and released to a relative after providing the address where they would reside. Despite several efforts to notify the respondent of his hearing dates, he repeatedly failed to appear. The Immigration Judge nonetheless
continued this case four times and finally ordered the case administratively closed on the ground that DHS had not shown it had a sufficiently reliable address to provide adequate notice.
On appeal, the Board vacated the Immigration Judge’s administrative closure order and remanded. DHS represents that this certified case is one of nearly 200 decisions between April 2017 and December 2017 in which an immigration judge either ordered administrative closure or refused to recalendar an administratively closed case over DHS’s objection. Brief for DHS at 10–11, Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).
For the reasons stated below, I affirm the Board’s November 27, 2017 order and hold that there is no general authority for administrative closure. Immigration judges exercise only the authority provided by statute or delegated by the Attorney General. Congress has never authorized administrative closures in a statute, and Department of Justice regulations only permit administrative closure in specific categories of cases. The Attorney General has never delegated the general authority, and I decline to do so now. Cases that have been administratively closed absent a specific authorizing regulatory provision or judicially approved settlement shall be recalendared upon motion of either party. I overrule all Board precedents inconsistent with this opinion and remand for further proceedings.
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Contrary to Sessions’s usual bogus narrative and distorted statistics, almost all Administrative Closings were either 1) on the DHS’s motion; or 2) on joint motion of the parties. Only minutenumbers of cases were closed by IJs over the objection of the DHS under Matter of Avestan.
Indeed, even after this Administration established a basic “no Administrative closing” policy, DHS could only come up with 200 cases closed by IJs over their objection in a period of seven months! That works out to fewer than 400 per year! In other words, citing Avetisyan as a significant factor in the closing of 215,000 cases over the past six years is as absurd as it is intentionally intellectually dishonest.
And, the idea that the DHS is “unfairly burdened” by having to track the Administratively Closed cases is equally absurd. Most cases were closed either because 1) there was relief pending with USCIS, or 2) they were, quite properly, low enforcement priorities for ICE. The idea that it’s unfair to expect DHS to keep track of the cases closed for reasons relating almost exclusively to their own adjudication system and ever-changing enforcement priorities is nonsensical.
The statistic that fewer than one-third of the Administratively Closed cases were ever re-calendared basically supports the idea that they probably shouldn’t have been on the docket in the first place. Obviously, if the USCIS applications were denied, the individuals were picked up for violations, or the cases became ICE enforcement priorities, ICE would have moved to re-calendar. I almost never denied motions to re-calendar by either party, nor am I aware that any of my colleagues did so on a widespread basis. And, denial of such a motion was appealable to the BIA. There has been no showing that many appeals about failures to re-calendar have been filed by any party.
Sessions’s decision also “sweeps under the table” the real major cause of delays and backlogs: “Aimless Docket Reshuffling” instituted by the DHS or EOIR for enforcement or administrative purposes without the input and in many cases over the wishes of private parties.Almost all private immigration practitioners have seen their “ready for trial” cases “shuffled off to the end of the docket” — sometimes 3-5 years away — without their consent to accommodate the latest “IJ details” or the ICE/EOIR “priority of the day.” This often means that the entire case must be prepared again — country conditions change, witnesses die or otherwise become unavailable, memories fade, and most paying clients balk at paying additional fees for circumstances over which they had no control.
Contrary to the “myth” promoted by Sessions and the restrictionists, most individuals in immigration proceedings seek not indefinite delay — which keeps their lives on hold — but a fair, informed, reasoned decision one way or the other within a reasonable period of time.
Sessions and most of the other arrogant bureaucrats driving this absurd parody of a court system have never been in the private practice of immigration law. I have been. While most of my work was not in Immigration Court, I dealt with enough clients to know that neither the lawyer (who has to “babysit” case and prepare it numerous times for the same fee or for free) nor the clients (who also want some certainty in their lives and those of their families) had much interest in lengthy delays.
This case is just further proof of the pressing need for an Article I U.S. Immigration Court and a truly independent immigration judiciary.
Meanwhile, the immigration bar has predictably reacted with outrage to the latest Sessions abuse of power and “dissing” of Due Process.
Below (courtesy of Laura Lynch at AILA) are links to a few statements that were issued earlier this evening by a few NGOs:
