"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.
WaPo: In addition to its immigration provisions, the package — which McConnell could move to advance as early as Tuesday, although a Thursday vote appears more likely — would reopen all parts of the government that are closed. It also would provide emergency funding for U.S. areas hit by hurricanes, floods and other natural disasters.
TRAC: Since the beginning of the federal government shutdown, most Immigration Court hearings have been cancelled. As of January 11, the estimated number of cancellations reached 42,726. Each week the shutdown continues, cancelled hearings will likely grow by another 20,000. As many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January. See also: These states’ immigration courts are most impacted by the government shutdown.
USAToday: Of the 60,000 employees at Customs and Border Patrol, nine of 10 must report to work, checking passports and manning pieces of the border wall that have already been built. But they’re not being paid.
Vox: Refugee admissions have plummeted, while rejections of asylum applications have increased. Arrests of immigrants without criminal records have returned to the levels of the first term of the Obama administration, while Trump works to make hundreds of thousands more immigrants vulnerable to deportation, by stripping them of protections under the Deferred Action for Childhood Arrivals program or Temporary Protected Status. And the travel ban quietly churns on.
CMS: The US undocumented population from Mexico fell by almost 400,000 in 2017. In 2017, for the first time, the population from Mexico constituted less than one half of the total undocumented population.
WaPo: Speaking Sunday on CBS’s “Face the Nation,” the vice president quoted from King’s “I Have a Dream” speech as he defended Trump’s latest pitch to secure funding for a barrier along the United States’ southern border.
WaPo: Richard Kessler, an immigration lawyer in Grand Rapids, Mich., said he was surprised when a woman he had worked with called to tell him that her son, a 27-year-old Marine veteran with mental-health issues, was being held in an immigration facility, apparently awaiting a possible deportation.
CNN: With Sen. Kirsten Gillibrand entering the 2020 presidential race on Tuesday, her dramatic shift on the issue of immigration over the past decade will likely be one of the central questions about her candidacy as she seeks to take on President Donald Trump.
DailyNews: In what could be its biggest campaign, the New York Immigration Coalition, the state’s largest immigration advocacy group, plans to spend at least $1 million on TV, radio and targeted social and digital media ads as well as billboards.
CBS: When U.S. consumers are calling about a hotel reservation or an airline flight, there’s a good chance a deportee in El Salvador is on the other end of the line.
NBC: Trump administration officials weighed speeding up the deportation of migrant children by denying them their legal right to asylum hearings after separating them from their parents, according to comments on a late 2017 draft of what became the administration’s family separation policy obtained by NBC News. The draft also shows officials wanted to specifically target parents in migrant families for increased prosecutions, contradicting the administration’s previous statements.
WaPo: The report issued by the inspector general for the Department of Health and Human Services says no one systematically kept count of separated children until a lawsuit last spring triggered by the Trump administration’s “zero tolerance” policy, under which the government tried to criminally prosecute all parents who crossed the border illegally, taking their children from them in the process. See also As One ‘Tent City’ for Immigrant Children Closes in Texas, Another Opens in Florida.
Al Jazeera: Last year, around 2,297 migrants died or went missing in the Mediterranean while 116,959 people reached Europe by sea. According to the IOM, sea arrivals to Europe in the first 16 days of 2019 totalled 4,216, compared with 2,365 in the same period of 2018.
NPR: U.S. District Judge Jesse Furman ordered the administration to stop its plans to include the controversial question on forms for the upcoming national head count “without curing the legal defects” the judge identified in his 277-page opinion released on Tuesday.
USCIS: Generally, conditional permanent residents who file a Form I-751 must appear for an interview. However, USCIS officers may consider waiving an interview.
EOIR released guidance on Grace v. Whitaker, stating that for all credible fear review hearings conducted on or after 12/19/18, IJs may not rely on several aspects of Matter of A-B- as a basis for affirming a negative credible fear determination. Guidance obtained from CGRS and ACLU.
USCIS issued policy guidance in the USCIS Policy Manual to address the policies and procedures related to secure documents, including how USCIS delivers and tracks these documents and how requestors should request a replacement or reissuance. Comments are due by 1/30/19. Policy is effective 1/16/19.
CBP Liaison Minutes: If a permanent resident, who has a pending application for naturalization in which a Notice of Intent to Deny was issued challenging whether the individual had been eligible for adjustment of status at the time that application was filed, travels abroad and presents his green card upon his return, will he be admitted as a permanent resident? Are such cases flagged in some way? If there has only been a NOID and no action has been taken on the N-400, the individual will be admitted as an LPR. If the N-400 was denied and the individual was issued an NTA under Section 237 (but has not been served), CBP will re-issue the NTA under Section 212. If an NTA was issued and served under Section 237, the individual will be admitted as an LPR in proceedings.
2019 National Day of Action: On Thursday, April 11, 2019, AILA members and their clients are invited to meet with their legislators on Capitol Hill to discuss immigration policy changes and the impact it has on their state and district.
Upwardly Global’s mission is to eliminate employment barriers for skilled immigrants and refugees, and integrate this population into the professional U.S. workforce.
Trump offers to limit his border wall to strategic locations
BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 01/20/19 07:00 AM EST 945
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
House Speaker Nancy Pelosi (D-Calif.) should give serious consideration to the settlement proposal that President Donald Trump made in his televised address from the White House.
Her objection all along has been to building a wall across the entire length of the Mexican border, and Trump no longer intends to erect “a concrete structure from sea to sea.”
He has acknowledged that much of the border is already protected by natural barriers, such as mountains and water. He wants the $5.7 billion he has requested for a strategic deployment of steel barriers at high priority locations.
The border already has many miles of barriers, including 115 miles that are being built or are under contract. He just plans to add another 230 miles this year at locations where they are most urgently needed.
These barriers would not make illegal crossings impossible, but they would make illegal crossings more difficult and make it easier for the Border Patrol to apprehend crossers.
His request includes $800 million for humanitarian assistance; $805 million for drug detection technology; 2,750 more border agents and law enforcement officers; and 75 more immigration judges.
In what he describes as an effort to build trust and goodwill, the legislation he is offering to implement his proposal also would extend the status of 700,000 DACA participants for three years.
This is just a temporary measure, but the outcome of the litigation over the DACA program is uncertain, and the participants will be extremely vulnerable if the program is terminated. DACA participation is sufficient in itself to establish deportability, and they can’t apply for asylum. There is a one-year time limit on filing asylum applications and they all have been here for more than a year.
The legislation also would extend the status of 300,000 current Temporary Protected Status recipients for three years.
Senate Majority Leader Mitch McConnell (R-Ky.) has promised Trump that his bill will be brought to the floor of the Senate this week.
Trump also mentions the immigration court backlog crisis in his address. He says that it is not possible to provide an asylum hearing for every illegal crosser who sets one foot on American soil.
The asylum provisions state that aliens who are physically present in the United States may apply for asylum irrespective of their immigration status, unless one of the stated exceptions applies.
In my opinion, the sheer number of illegal crossers is the real border crisis. It has overwhelmed our immigration courts, making it virtually impossible to enforce immigration laws..
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Read Nolan’s complete article over on TheHill at the link.
At the time Nolan released this, he didn’t have the complete Trump proposal. I initially thought like Nolan that there might be the seeds for agreement in there.
But, Trump misrepresented what he was offering. In reality, it was yet another bogus 1000 page anti-asylum travesty drafted by White Nationalist in Residence Stephen Miller. Clearly intended to be a non-starter. Actually, it’s much like the dishonest tactics Trump used during the “Dreamer Debacle” that he engineered for no particular reason I can think of. And, that was when the GOP actually was in control.
Also, Nolan didn’t have the benefit of the Supreme Court action leaving DACA in effect for the indefinite future.
I’ve posted lots recently on what real border security and humanitarian assistance might look like. And, the Dems appear to be at work on something along those lines; a robust $5.7 billion but more constructive border security package that provides more resources for the Asylum Office, EOIR, technology, and inspections, but doesn’t undermine fundamental asylum law, negate Wilberforce protections for unaccompanied minors, or trash our international protection obligations.
Ultimately, once the Government reopens, that approach, plus permanent status for the Dreamers, with some wall or other physical barriers for Trump still seems to be the most likely way of ”getting to yes.” Then again, there might be no way of getting to yes with Trump.
Court Backlog May Prove Bigger Barrier for Migrants Than Any Wall
Every day, dozens of migrants arrive at the southern border hoping to seek asylum and stay in the United States. President Trump champions a wall as the one thing that could keep them from starting a life in the country. Right now, the big hurdle for many migrants comes not at the border but on the other side.
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I highly recommend the complete article, with some spectacular graphics, at the link.
The article says the Immigration Courts are “in crisis.” I say they are “in shambles!”
While this disaster has been unfolding since 2000, there is no doubt that the Trump Kakistocracy, featuring totally unqualified, biased, and managerially incompetent White Nationalist Attorney General Jeff “Gonzo Apocalypto” Sessions bears the major responsibility for this mockery of justice and trashing of Constitutional norms. A 50% increase in backlog created by “malicious incompetence” is beyond outrageous and a shocking example of fraud, waste, and abuse by a cabinet officer with no accountability from a GOP Congress that has long abandoned its responsibility to govern in the public interest.
Not only do the self-generated backlog and Sessions’s distortions of law form a barrier for migrants, but also a barrier to legitimate immigration enforcement, another casualty of the Trump Kakistocracy. Under Trump, DHS has become so arbitrary, capricious, and unprofessional that its “Gonzo” policies have actually spawned an “Abolish ICE” movement as well as made DHS an anathema to serious law enforcement efforts of all types across the country.
FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
I’m tired of hearing all the “fake news” about “shared responsibility” for the “Trump shutdown:” The totally insane and unnecessary shutdown that he promised to inflict and that Mitch McConnell and the GOP enablers delivered against the American people.
The shutdown is 100% a GOP responsibility, just as Trump originally threatened. The wall is at best an ineffective and overpriced method of addressing border security, particularly standing alone. And, it has absolutely nothing to do with current border security because it would take years, if not decades, to build. There is no way that it justifies shutting down the Government.
Trump’s latest offer clearly was made in bad faith. While he and Pence disingenuously presented a distortedly simple version to the public, the actual 1,000-page screed was filled with White Nationalist attacks on asylum, kids, and migrants drafted by neo-Nazi Stephen Miller as a “sharp stick in the eye” to Dems, Hispanics, refugees, and all Americans who believe in our Constitution and humane values. In other words, typical Trump/Miller/McConnell nonsense. Trump is actually offering “Dreamers” less than the Supremes have effectively guaranteed them. So, how is that a reasonable proposal or a good faith “starting point” for negotiations?
The GOP can and should join Dems in reopening Government now, no strings attached and with a much-needed pay raise for Feds, by a “veto-proof” margin. Forget Trump, his anti-American rants and schemes, and his diminishing White Nationalist “fan club.”
Then, the “Non-Bakuninist Branch” of the GOP needs to join the Dems in governing America, which Trump has proved beyond a reasonable doubt he has neither the ability nor the desire to do. Immigration should be part of that discussion; but, not the White Nationalist agenda on immigration that Trump and Miller keep pushing.
We need a realistic discussion that would strengthen protections for asylum seekers, use more smart technology, improved intelligence, Immigration Inspectors, Anti-Smuggling Officers, undercover agents, Asylum Officers, and Immigration Judges to deal with the border situation, and significantly expand legal immigration. The latter is a long overdue common-sense move to serve our country’s future needs (most reliable studies show that we need more, not less immigration), diminish the size and allure of the “extra-legal” system that arises when the law is out of whack with market realities (as ours is now), and allow DHS enforcement to focus on the “real bad guys” rather than artificially combining “bad guys” with folks coming to help us out (and help themselves and their families in the process).
Reform of the U.S. Immigration Courts which Trump and Sessions have utterly and cynically destroyed should also be on the agenda. There is only one answer: get those courts out of the politicized and incompetent U.S. Department of Justice and into an independent judicial structure where apolitical judges and professional court administrators can start fixing the absolutely disgraceful and dysfunctional mess that Sessions and his predecessors have made out of what could have been an effective and efficient provider of Due Process. Too late now! Just stop the hemorrhaging and start building something of which America can actually be proud rather than the current national embarrassment, which serves neither the individuals whose rights it was intended to protect nor legitimate DHS enforcement objectives. That’s the very definition of failure.
The Post and other mainstream media keep pushing a “false equivalency” in blaming “both sides” for the shutdown. That’s not true; the shutdown was engineered solely by Trump and the GOP BEFORE the Dems even took over the House, just as Trump had publicly and petulantly threatened.
While the Dems should look for ways to be part of the solution, the problem is Trump, the GOP, and those enablers who continue to support a fundamentally anti-American agenda that attacks our own governing institutions and the dedicated public servants who keep them running for all of us.
Every day must be a great day for Vladimir Putin with Trump and the GOP destroying America! It’s time for Dems and whatever responsible GOP legislators might remain to take the reins and save America from Trump and his Putin-serving policies before it’s too late! “Time’s a wasting” while Trump and the GOP are fiddling with our country’s security and future well-being. Unacceptable!
SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.
Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.” who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.
For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).
Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.
Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.
I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.
Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.
Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.
Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system. I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!
This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”
The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!
President Trump and his allies have spent days talking up the idea that his new proposal to reopen the government constitutes a “compromise.” Senate Majority Leader Mitch McConnell (R-Ky.) has vowed to bring the proposal to a vote this week, arguing that it’s a “compromise” that includes “priorities” that “both sides” want. Vice President Pence insisted that it’s a “compromise” that has been offered in “good faith.”
But on Monday night, Senate Republicans released the bill text of this supposed “compromise.” Surprise: It has been so loaded up with poison pills that it looks as if it was deliberately constructed to make it impossible for Democrats to support.
If so, that would be perfectly in keeping with the M.O. that we’ve already seen from top adviser Stephen Miller, who appears devoted to scuttling any and all policies that could actually prompt compromises but which don’t endeavor to reduce the total number of immigrants in the United States to as low a figure as possible.
Trump’s proposal, as presented in his speech the other day, would reopen the government, provided that Democrats agree to $5.7 billion in spending on his border wall. It would also include hundreds of thousands of dollars in humanitarian provisions, which is good (though the administration itself wants those funds).
What concessions would Democrats get? As Trump noted, the proposal would include legislative relief for 700,000 young immigrants brought here illegally as children — a.k.a. “dreamers” — and for people whose temporary protected status is set to expire. Trump also said Central American migrant children would get a “new system” to “apply for asylum in their home countries.”
Trump argued that the plan is “straightforward, fair, reasonable and common sense, with lots of compromise.”
This is utter nonsense on just about every level. And the bill itself now proves it.
The proposal on the dreamers was whittled down to the point where it only undoes the disaster Trump himself is orchestrating. The New York Times recently reported that Miller privately “intervened” to ensure that the bill dramatically downsizes the number of dreamers who would get protections. He cut that number from 1.8 million to 700,000 (the number Trump referenced).
The bill text confirms this and illustrates how it was done. It grants three years of protected lawful status plus work authorization only to those who are currently on the Deferred Action for Childhood Arrivals program, not to all of those who are eligible for it, a much larger pool. It cannot be renewed.
This is a badly truncated version of the Bridge Act, a measure championed by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) that would have granted this status to the larger pool of those who are DACA-eligible. Thus, Trump’s proposal would only restore temporary protections that were already granted and that Trump has tried to take away (his effort to cancel DACA is tied up in court). The press release accompanying the new bill misleadingly calls the new measure “the Bridge Act,” inadvertently preserving the taint of bad faith pervading this particular provision.
The new proposal is much worse on asylum seekers than advertised. The bill text explains what Trump really meant when he claimed his proposal would create a “new” way for Central American migrant children to apply for asylum. The proposal actually declares that the only way any of them will be eligible for asylum going forward is if they apply for it outside the United States at soon-to-be-created application centers in Central America, according to several legal experts I spoke with about this.
Those experts point out that this would in effect close off the main avenue for these minors to apply — that is, the right to apply when they enter the United States and are apprehended. To be clear, creating an out-of-country way to apply is not itself a bad thing, and the proposal appears ostensibly to be in keeping with an aim that appears understandable on its face — the desire to discourage the journey.
But that belies the deeper significance of this change. According to Philip Wolgin, the managing director for immigration policy at the Center for American Progress, by foreclosing the option of applying in the United States, it would gut the basic values at the core of our asylum program — values in keeping with international human rights norms holding that if people who had good reason to flee horrible civil conditions at home present themselves at borders and appeal for refuge, they have the right to have their claims heard.
Plus, the program actually caps the total who can be annually granted asylum at 15,000. In the last fiscal year, some 50,000 unaccompanied minor migrants were apprehended, and while we can’t be sure how many would ultimately qualify for asylum, the cap itself creates an arbitrary maximum unrelated to the strength of their actual claims, Wolgin notes. And as immigration policy analyst Aaron Reichlin-Melnick points out, once the Department of Homeland Security nixes asylum, under the new proposal it would not be subject to judicial review.
“They’re trying to radically reshape asylum law,” Wolgin told me.
This is nothing remotely like a compromise offer
There is no way this offer represents a compromise, if we conventionally understand a “compromise” to be an agreement in which both sides secure meaningful concessions. Actual concessions by Trump on the dreamers might entail extending these protections well beyond what he’s currently trying to cancel, such as applying them to far more people or, better, granting a path to citizenship for dreamers or otherwise making their protections permanent.
What’s more, given how radical these proposed changes to asylum law are, it’s precisely the opposite of the spirit of compromise that Trump and McConnell are trying to jam them through under duress — with the gun of a government shutdown pointed at the country, to jam Democratic lawmakers — rather than through a legitimate, good-faith congressional process that would include hearings, fact-finding and deliberation.
Which gets to the biggest sham of all at the core of this whole affair. If the offer by Trump and McConnell really represented something that actually did involve meaningful concessions to both sides, and thus actually could provide the basis for real compromise discussions, then why would they need to keep the government closed while those talks unfolded?
The answer is simple: They know their only hope of getting the concessions they’re demanding from Democrats is to keep the gun pointed at the hostage.
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Refugees would die under this bogus “proposal” which bears all the marks of having been drafted by racist, xenophobe, neo-Nazi, “Putinite” Trump advisor and former Sessions acolyte Stephen Miller. It’s obviously a non-starter with the Dems and a totally outrageous “kick in the teeth” to dedicated out of work U.S. Government employees. It’s also an insult to all Americans who were not told the totally outrageous details of this “bogus non-proposal” when Trump and Pence dishonestly presented it as a “good faith compromise.”
Vladimir must be having one of the best days of his life! Destroying America and adopting “Soviet values.” And, it isn’t costing Vladimir anything. But, Trump and his GOP stooges are costing us — Big Time!
Half or a quarter of the way through this interesting experiment with an incessantly splenetic presidency, much of the nation has become accustomed to daily mortifications. Or has lost its capacity for embarrassment, which is even worse.
If the country’s condition is calibrated simply by economic data — if, that is, the United States is nothing but an economy — then the state of the union is good. Except that after two years of unified government under the party that formerly claimed to care about fiscal facts and rectitude, the nation faces a $1 trillion deficit during brisk growth and full employment. Unless the president has forever banished business cycles — if he has, his modesty would not have prevented him from mentioning it — the next recession will begin with gargantuan deficits, which will be instructive.
The president has kept his promise not to address the unsustainable trajectory of the entitlement state (about the coming unpleasant reckoning, he said: “Yeah, but I won’t be here”), and his party’s congressional caucuses have elevated subservience to him into a political philosophy. The Republican-controlled Senate — the world’s most overrated deliberative body — will not deliberate about, much less pass, legislation the president does not favor. The evident theory is that it would be lèse-majesté for the Senate to express independent judgments.
And that senatorial dignity is too brittle to survive the disapproval of a president not famous for familiarity with actual policies. Congressional Republicans have their ears to the ground — never mind Winston Churchill’s observation that it is difficult to look up to anyone in that position.
The president’s most consequential exercise of power has been the abandonment of the Trans-Pacific Partnership, opening the way for China to fill the void of U.S. involvement. His protectionism — government telling Americans what they can consume, in what quantities and at what prices — completes his extinguishing of the limited-government pretenses of the GOP, which needs an entirely new vocabulary. Pending that, the party is resorting to crybaby conservatism: We are being victimized by “elites,” markets, Wall Street, foreigners, etc.
After 30 years of U.S. diplomatic futility regarding North Korea’s nuclear weapons program, the artist of the deal spent a few hours in Singapore with Kim Jong Un, then tweeted: “There is no longer a nuclear threat from North Korea.” What price will the president pay — easing sanctions? ending joint military exercises with South Korea? — in attempts to make his tweet seem less dotty?
Opinion | Trump owns the Republican Party, and there’s no going back
President Trump has irreversibly changed the Republican Party. The upheaval might seem unusual, but political transformations crop up throughout U.S. history.(Adriana Usero, Danielle Kunitz, Robert Gebelhoff/The Washington Post)
By his comportment, the president benefits his media detractors with serial vindications of their disparagements. They, however, have sunk to his level of insufferable self-satisfaction by preening about their superiority to someone they consider morally horrifying and intellectually cretinous. For most Americans, President Trump’s expostulations are audible wallpaper, always there but not really noticed. Still, the ubiquity of his outpourings in the media’s outpourings gives American life its current claustrophobic feel. This results from many journalists considering him an excuse for a four-year sabbatical from thinking about anything other than the shiny thing that mesmerizes them by dangling himself in front of them.
Dislike of him should be tempered by this consideration: He is an almost inexpressibly sad specimen. It must be misery to awaken to another day of being Donald Trump. He seems to have as many friends as his pluperfect self-centeredness allows, and as he has earned in an entirely transactional life. His historical ignorance deprives him of the satisfaction of working in a house where much magnificent history has been made. His childlike ignorance — preserved by a lifetime of single-minded self-promotion — concerning governance and economics guarantees that whenever he must interact with experienced and accomplished people, he is as bewildered as a kindergartener at a seminar on string theory.
Which is why this fountain of self-refuting boasts (“I have a very good brain”) lies so much. He does so less to deceive anyone than to reassure himself. And as balm for his base, which remains oblivious to his likely contempt for them as sheep who can be effortlessly gulled by preposterous fictions. The tungsten strength of his supporters’ loyalty is as impressive as his indifference to expanding their numbers.
Either the electorate, bored with a menu of faintly variant servings of boorishness, or the 22nd Amendment will end this, our shabbiest but not our first shabby presidency. As Mark Twain and fellow novelist William Dean Howells stepped outside together one morning, a downpour began and Howells asked, “Do you think it will stop?” Twain replied, “It always has.”
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Stripped of its detracting “jabs at the opposition” and the “obligatory swat” at the essential safety net that actually keeps America functioning, even in tough political times like these, Will largely has Trump “pegged.” As others and I have said, the Trump Administration is “Kakistocracy in action.”
But, what took you so long, George, to “get religion?”For years, the GOP has been pushing a “soulless,” intentionally divisive, program of “beggar thy neighbor” and promoting the “worst in America.”
It’s not like equally sad and unfit GOP politicos such as Steve King, Tom Trancedo, Roy Moore, Jeff Sessions, Steve Bannon, Kris Kobach, Corey Stewart, and Stephen Miller just “hatched” during the Trump regime. Trump is the logical outcome of a “valueless conservatism” that has embraced some of the vilest individuals and ideas in modern American political history in a (somewhat successful) minority attempt to seize power from the majority of Americans and to govern against the overall public interest.
No surprise that a party bankrupt of both constructive conservative ideas and morality should end up installing a sad an unqualified character like Trump as its “Supreme Leader.” Trumpism is deeply rooted in modern American conservatism, not the “compassionate” kind of Bush I (which unfortunately was “DOA” within the party) but the vile brand that glosses over its racial and class overtones and its erroneous conception that the rich have every right to loot America and leave the crumbs to everyone else.
Yes, I think that America needs and deserves a credible “conservative movement” to engage in an honest governing dialogue with the Democrats. What might that conservative movement look like:
Constructive concern about runaway deficits and borrowing from the PRC;
Recognition of the threat that Russia and the PRC are to America’s future;
Commitment to secular governing principles (perhaps embodying, but not improperly favoring, some religious values) and support of the rights of all covered by our Constitution regardless of status;
Encouraging and enabling all qualified Americans to vote;
Congress retaking the authority to declare war and pass budgets and restricting Executive overreach (by both parties) in these areas;
Prudence in entering into future “foreign military adventures;”
A robust, effective, and efficient national defense that is held accountable for expenditures, strategies, and results;
Maintenance, funding, improvements, and accountability mechanisms for adequate safety net programs including social security, Medicare, Medicaid, and Obamacare;
An end to unnecessary tax breaks for the rich that strip the U.S. Treasury of necessary revenues without advancing any national agenda;
An end to “Government shutdown” forever and a pledge to respect the contributions of “America’s Crown Jewel:” our nonpartisan, professional, honest Civil Service;
Return of some authority to states, not as a device for “bogus” budget savings and to screw the poor and minorities, but to recognize and take advantage of areas where states are committed to actually funding and carrying out programs that produce better (not just cheaper) results than the Feds can;
Much more robust legal immigration and refugee acceptance programs;
A sharp reduction in wasteful funding for Federal detention of all kinds (including immigration detention) and the mandated use of alternatives that will work and benefit society;
Encouraging educational and economic development initiatives by the private sector in economically depressed areas (such as the Midwest and Appalachia) ;
Encouraging a robust trade agenda that provides mutual benefits to both the U.S. and our trading partners.
That would involve not only ditching Trump, but also abandoning the racially charged, fiscally wasteful, White Nationalist agendas that drive both him and his base and committing to governing in the public interest — in and of itself a key conservative principle.
We need an end to the “Clown Kakistocracy.” And, that will require some honest conservative support by a “new conservative” movement. I doubt that it can be headed by Trump sycophant, xenophobic enabler, and far right religious bigot Veep Mike Pence. Perhaps, however, folks like George have a constructive role to play in fashioning, inspiring, and leading it!
The greatest contrast between the time King led the struggle for America’s legal and social transformation and now is a White House occupied by Donald Trump.
The federal government, once a powerful legal and moral force to make real the promise of democracy, is in the hands of adversaries who seek to restore a hierarchy in which the interests of the bigoted, the xenophobic, the sexist and the defender of white male privilege always come out on top.
There is a long list of ways in which backtracking on civil and human rights has occurred since the election of a president who lost the popular vote by nearly 3 million votes. It ranges from discriminatory travel bans against Muslims to turning a federal blind eye to intentionally racially discriminatory state voter-suppression schemes, to opposing protections for transgender people, to inhumanely separating children from families seeking to enter the country.
Sadly, that’s not all that stands out.
Once the federal locus of the nation’s quest for racial reconciliation, today’s White House is a source of racial divisiveness and a beacon to the prejudice-warped fringes of American society. It’s no surprise that the FBI found hate crimes in America rose 17 percent in 2017, the third consecutive year that such crimes increased. In King’s day, racially loaded, hateful rhetoric could be heard across the length and breadth of the Deep South. Now, mean, disgusting and inflammatory words come out of the mouth of the president of the United States.
How far have we traveled?
From the promise of guaranteed rights to a return to the insecurity of injustice. A pluralistic America is being cynically drawn along racial lines by a president who is as far from the civility of his predecessors Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, the Bushes, Clinton and Obama as the charter of the Confederacy was from the Constitution.
King, and the movement he led, would be outraged. The rest of us should be, too.
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Read the full op-ed at the above link.
Very powerful! King speaks truth, reason, and humanity — in the spirit of Dr. King. Contrast that with the vile slurs, bogus race-baiting narratives, and non-policies spewing from the mouth of our racist (and incompetent) Liar/Grifter-in-Chief!
Two of my favorite MLK quotes (from the Letter from the Birmingham Jail — with acknowledgment to the Legal Aid and Justice Center from their poster hanging in my “office”)):
Injustice anywhere is a threat to justice everywhere.
Whatever affects one directly, affects all indirectly.
Thanks to those many courageous and dedicated individuals tirelessly serving America in the New Due Process Army by resisting Trump’s illegal and anti-American policies! You, indeed, are the 21st Century continuation of Dr. King’s legacy to our country and the world! Dr. King would be proud of you! Due Process Forever!
Despite controversies over border walls, separated families and the Muslim travel ban, immigrants are still striving for American citizenship. WE ARE WITNESSES: BECOMING AN AMERICAN tells their stories and the stories of those trying to help and hinder them.
I’m proud to have been a part of this project. Many thanks to Isabel Castro, Ruth Baldwin, and all of the other great folks over at The Marshall Project for making this happen!
A panel of Republican leaders voted unanimously Monday to keep veteran Iowa lawmaker Steve King off House committees, a firm rebuke to an influential opponent of illegal immigration who sparked outrage last week after openly questioning whether the term “white supremacist” was offensive.
House Minority Leader Kevin McCarthy (R-Calif.) said the decision by the Republican Steering Committee, which seats lawmakers on House committees, followed his own recommendation and was meant to send a message about the GOP at large.
“That is not the party of Lincoln,” he said of King’s comments. “It is definitely not American. All people are created equal in America, and we want to take a very strong stance about that.”
One is tempted to ask: Why only now? The decision was made after Democrats threatened to bring a motion of censure, and more egregiously, after years of King’s blatantly racist comments. This is a man who met with an Austrian far-right politician who had been active in neo-Nazi circles in his youth and declared that he’d be a Republican if he were an American.
Democrats still might press for further action against King. (“[House Speaker Nancy] Pelosi on Monday left open the possibility that there could be votes on multiple sanctions for King, ranging from disapproval to censure.”) Whether Democrats proceed or not, the party of Lincoln has an elephant-size problem that dwarfs King.
If King’s defense of “white nationalism” is not acceptable, why do Republicans tolerate and extol a president who declared there to be some “fine people” among neo-Nazis, called African and Caribbean nations “shithole countries,” equated Mexican immigrants with rapists, repeatedly questioned African American critics’ IQ, asserted a federal court judge of Mexican descent to be unable to perform his job, created a conspiracy to delegitimize the first African American president, started a running battle with African American athletes who kneel to protest police brutality and fails to employ any high-level African American staffer? Why do they tolerate a president who recently declared, “If Elizabeth Warren, often referred to by me as Pocahontas, did this commercial from Bighorn or Wounded Knee instead of her kitchen, with her husband dressed in full Indian garb, it would have been a smash”?
Moreover, Republicans have spent three-plus years telling us that words don’t really matter, that tweets don’t matter. If we now agree that the words of an Iowa congressman matter a great deal, they’re going to have a hard time sticking to the view that the words of the president of the United States shouldn’t be held against him.
King is a minor-league racist, a buffoon; but President Trump leads their party. Ever since he made birtherism his signature issue and rode down the gold escalator to disparage Mexicans, Republicans have rationalized or ignored his blatant racism (and we haven’t even gotten to the nonstop misogyny).
When Senate Majority Leader Mitch McConnell (R-Ky.) says of King, “I have no tolerance for such positions, and those who espouse these views are not supporters of American ideals and freedoms,” one has to ask why he tolerates Trump and undoubtedly will support his reelection. If Sen. Mitt Romney (R-Utah) agrees that King should resign, surely he should say the same of Trump, whose words carry far more weight and who defines Romney’s party.
Republicans should have disowned Trump long ago. The good news: There is still time. No elected Republican should support Trump’s reelection for the very same reason that they belatedly took action against King. A major political party should not stand by racists.
Republicans have to decide once and for all whether they want to be the party of white grievance and racist dog-whistles and bullhorns. So long as they stand with Trump and accept the support of racists, they cannot seriously claim to be the party of Lincoln. And if it’s not the party of Lincoln, why exactly do we need a Republican Party?
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King has the public persona of a dead eel, and represents a politically insignificant rural district. By contrast, Donald Trump is a media megastar and holds the office of President. Otherwise, there is little difference between them as racist provocateurs.
Trump basically took King’s message, effectively changed “Make America White Again” to “Make America Great Again,” and mass marketed it to a racially motivated base in locations strategically calculated to enable him to achieve electoral success with a minority of the votes.
So, why did the GOP act now? Well, one reason could be the harsh criticism that African-American GOP Senator Tim Scott of South Carolina directed at King. Scott is a rarity in today’s GOP: a person of color who matters. Unlike King, Scott is politically critical to the GOP with a narrow 53-47 majority in the Senate. Indeed, Scott recently teamed up with the Dems and several of his more moderate GOP colleagues to defeat one of Trump’s most blatantly racist judicial candidates. So, he’s not someone GOP Congressional leadership wants to mess with (particularly since Scott is otherwise willing to mindlessly line up with Trump on measures that disproportionately harm minorities in addition to being bad for the majority of Americans).
Also, King’s “foot in mouth” style keeps reminding Americans of the seamy side of Trump’s political support at inopportune times. While the GOP these days is always happy to play the “race card” when convenient and necessary, they would much prefer that it be played by Trump to rev up his base and get out the vote than by a minor and politically unappealing figure like King.
King’s demise is long overdue good news for America. But, I would neither give the GOP much credit nor expect them to take any action against the chief purveyor of lies, false narratives, and racial hatred in their party — Trump. Rubin said it simply and eloquently: “A major political party should not stand by racists.” Is anybody out there in the GOP listening?
Most people have consistently underestimated Donald Trump. When he came down the escalator at Trump Tower to announce his candidacy by attacking and demonizing non-white immigrants, people should have understood that Trump would likely win the Republican nomination and possibly the election.
Why? Because Donald Trump appeals to the worst of America. His promotion of fear, division, hate, racism, xenophobia, rallying of white nationalism, mistreatment of women, purposeful denial of truth, and consummate love of money, power, and fame are, of course, nothing new in America. Neither are his desire to destroy democracy, love for authoritarian rulers or desire to be one. Indeed, there is nothing new about Donald Trump, but he almost perfectly exemplifies the worst of America — the ugliest things in our history and the greatest dangers to our future.
Now let’s move from the political and moral to the theological and spiritual: These traits and actions also represent the worst of humanity. To seek money and power over all else, to consistently put yourself over all others, to make private self-interest the only the goal of life and overturn any sense of the common good, to create conflict to win and make all others into losers, to constantly lie and try to kill the truth, to make exploitation and abuse the definition of sexuality, to be as violent in word and deed as you can get away with, to never answer to God or seek forgiveness — there are examples of these sins throughout the Bible and human history. They are also, unfortunately, what our country’s leader seems to stand for, what he promotes in our culture, and what he models for our children.
Given all of this, we are in great danger. Strongmen are rising all over the world, and Donald Trump supports them — and even wants to be one of them. Trump started out the New Year tweeting the country’s support to Jair Bolsonaro, Brazil’s new right-wing nationalist leader. Just this week, he articulated an ahistorical understanding of the 1979 Soviet invasion of Afghanistan that seemed to condone or even endorse the Soviet action. His version of that chapter in world history is one that sounds much closer to what Moscow propaganda might say rather than what an American president or relatively neutral historians would describe. Among the current global strongmen, Trump is certainly not the most intelligent, but he may be the most dangerous because of his political position.
Strongmen, autocrats, and dictators don’t all do the same things. They do whatever they can to maximize their own wealth, power, and fame. The only thing that prevents them from going as far as they can is the resiliency of a society’s institutions and social sectors — like the media, the judiciary, political parties, law enforcement, civil society, and places of vocational or historical moral authority like faith communities.
So how are we faring on those fronts?
Press: In our current political situation, a new generation of young reporters are showing great resiliency in the new Trump era, revealing the facts that undermine official lies and offering analysis that seeks to hold power accountable.
Judiciary: Trump appointments at the Supreme Court and Circuit Court levels are gradually politicizing the judiciary to rule in favor of his interests, white interests, and corporate interests.
Political Parties: After winning the midterm elections, the Democratic Party has retaken the House of Representatives. For the first time, we have 100 women in the Congress and the most diverse House in our history. With Speaker Nancy Pelosi retaking the gavel, we will now see what kind of checks and balances to the executive branch that can provide. But the Republican Party has been taken over by the president’s base and retained a Senate majority that has been unwilling to oppose him — or ever vote to remove him from office, which only the Senate can do with a 2/3 majority vote, even if the House were to impeach him.
Law Enforcement: Trump has continued to attack the Justice Department and relentlessly seeks to undermine the Special Counsel’s investigation into his campaign’s involvement with Russia. Trump’s behavior in response to the investigation of him and his campaign puts the rule of law into jeopardy, depending on how his administration reacts to the results and reports of the Robert Mueller-led investigation.
Civil Society: Will the civil society seek to hold the government responsible for civility in the way that it governs? So far, nonprofit organizations focused on good government, exposing corruption, and protecting the vulnerable have done important work in galvanizing massive protests at key moments of danger or significance, as well as leading or joining key court cases that have sought to rein in some of the worst travesties of the administration, like the monstrous policy of family separation at the border.
Faith Communities: On the religion side, white evangelicals have been the most supportive of Trump as their Religious Right has entered a transactional, Faustian bargain with his administration, agreeing to look away from Trump’s immoral behavior and brutal treatment of those Jesus called “the least of these” in exchange for the judicial appointments and conservative economic policies they support. Others, like the Reclaiming Jesus movement, with Sojourners involvement, have proclaimed that the gospel itself is at stake in the faith community’s response to Trump. This year will be “an hour of decision,” to use Billy Graham’s old language, for the faith community’s testimony in the face of Donald Trump’s corrupt and cruel practices and policies, which are antithetical to the teachings of Jesus.
In 2019, I believe things are going to get worse in America before they get better. We now face grave dangers to democracy itself, and to societal moral decency. But that danger also provides us an opportunity: to go deeper into our faith and into our relationships to each other, especially across racial lines, and into relationship with the most vulnerable people in our society — a practice our faith says will change us. If we do go deeper, this moment could become a movement for all the things that many of us have consistently lived and fought for all our lives. If we don’t go deeper, but just continue to react or ultimately retreat into frustration and cynicism, we will indeed be in great danger.
Many of us faith leaders believe a constitutional crisis is coming in 2019, which will also create a crisis of faith to which we will be called to respond. A dangerous overreach of presidential power could come in response to the ultimate results of the Special Counsel’s report and potential further indictments of Trump’s associates, potentially his family members, or even himself for criminal behavior. Attempts to cover up or obscure the results could be a serious obstruction of justice that undermines the very rule of law in this country. We could also see other executive overreaches like choosing to shut down the government over vanity projects, the prosecution of dangerous wars, the censorship of the press, attacks on opponents, more assaults on migrants and the most vulnerable, and, most frighteningly, the threat or use of nuclear weapons.
If we start to see that executive overreach as distraction, there must be a moral response. And the response of faith communities could be a game changer. I believe it is time to prepare for that response from the followers of Jesus. Stay tuned and prayerfully get ready.
Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.
Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.
That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.
But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.
Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”
This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.
The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.
Justice constraints are harmful, irrational
But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.
There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?
Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.
But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.
Women would still prove need for asylum
What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?
Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.
The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.
Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.
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Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.
Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.
And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.
The study finds that the engine that fueled ICE’s peak effectiveness—the intersection of federal immigration enforcement with state and local criminal justice systems—is being throttled by state and local policies that limit cooperation with ICE. Nearly 70 percent of ICE arrests in the early Trump months originated with local jails and state prisons, a sizeable share that is nonetheless down from more than 85 percent in fiscal 2008-11.
Beyond sanctuary policies, the report finds growing resistance at other levels. Some cities are changing policing practices to reduce noncitizen arrests, such as decriminalizing driving without a license. Immigrant advocates are conducting more “know-your-rights” trainings, teaching people they do not have to open their doors to ICE. And others are mobilizing to monitor ICE operations in the field, or increasing funding for legal representation for those facing removal hearings.
ICE report contradicts notion that Trump is using immigration law to ‘keep America white’
BY NOLAN RAPPAPORT, OPINION CONTRIBUTOR — 12/21/18 10:00 AM EST 150
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
Excerpt:
In fiscal 2018, ICE arrested 105,140 immigration violators who had criminal convictions and 32,977 immigration violators who had pending criminal charges.
Only 20,464 (12.9 percent) did not have convictions or pending criminal charges. A recent Yale study estimates that there are more than 22 million undocumented aliens in the United States, which indicates that the likelihood of deportation is quite low for undocumented aliens who do not become involved in criminal activity.
Moreover, according to MPI’s study, ICE relies heavily on help from state and local law enforcement agencies to identify and arrest removable aliens. In jurisdictions that cooperate with ICE, the police screen aliens when they are arrested and booked into custody and notify ICE if any of them appear to have unlawful status.
Sanctuary cities do not provide this cooperation, which leaves ICE with little choice but to carry out its enforcement activities in neighborhoods and at other community locations, even though this is not an efficient use of its resources. This has resulted in an increase in the arrests of noncriminal aliens and numerous complaints.
Communities in Crisis: Interior Removals and Their Human Consequences
Kino Border Initiative
Center for Migration Studies of New York
Office of Justice and Ecology, Jesuit Conference of Canada and the United States
Excerpt:
The Criminalization of Deportation
The Trump administration has regularly portrayed undocumented residents, migrants seeking to request asylum at the US-Mexico border, and deportees as criminals and security threats. Most survey respondents either had not been convicted of a crime or had committed an immigration or traffic offense prior to their deportation. Nevertheless, study participants described a deportation system that treated them as criminals and instilled fear in their communities.
Nearly one-half of respondents said they had not been convicted of a crime prior to their deportation.
Of the 37 respondents (51.4 percent) who reported having been convicted of a crime,[6] more than one-third (35.1 percent) had been convicted of a traffic or immigration offense, 21.6 percent of a drug-related crime (including possession), and another 21.6 percent of a violent crime.[7]
A high percent of respondents (65.2) reported that their deportation began with a police arrest, 30.3 percent reported having been arrested by Immigration and Customs Enforcement (ICE), and less than 1 percent by Customs and Border Protection (CBP).
The majority of apprehensions took place while respondents were driving (36.1 percent), at home (26.3 percent), or at work (6 percent).
Survey respondents spent an average of 96 days in immigrant detention. Most were detained for 30 days or less, and 17 percent were detained for 180 days or more.
Only 28 percent were able to secure legal counsel.
Roughly one-fourth of survey respondents reported spending no time in criminal custody and 22.6 percent spent a week or less prior to their deportation. However, 17.3 percent spent more than one year.
More bogus, anti-immigrant, anti-Due Process certification decisions from AG
Pereira mess in scheduling
Cancellation mess; hundreds of thousands eligible for relief; no plans for adjudication
Dockets will continue to be screwed up by failure of responsible enforcement policies by DHS, failure of prosecutorial discretion exercised by virtually all other law enforcement authorities, and mindless, inappropriate “re-docketing” of previously Administratively Closed cases for no particular reason except White Nationalist inspired meanness
Massive returns of asylum and other improperly decided cases to Immigration Courts by Article IIIs
More deaths, illness, abuses resulting from Trump’s cruel, ill-conceived detention and border policies
Mexico and Article IIIs will,”push back” against Administration’s ill-conceived plans to “dump” legitimate asylum seekers over Mexican border
Public Charge Controversy
TPS Termination & Litigation
One of Trump’s dumbest, most unnecessary, & disruptive moves will wreak havoc on the economy and the legal system
Lots of fraud, waste, and abuse at DOJ and DHS will be exposed by House Committees
Will new AG prove to be “Button Down Version of Jeff Sessions?”
Here’s part of the conclusion of Karen’s article “EL SALVADOR–A PEACE WORSE THAN WAR: VIOLENCE, GENDER AND A FAILED LEGAL RESPONSE” published at 30 Yale Journal of Law & Feminism 3 (2018):
Historical and contemporary factors have given rise to the extremely high levels of violence that persist in El Salvador today. Many of the Salvadorans interviewed for this article referred to a “culture of violence” going back to the brutal Spanish Conquest and continuing into more recent history, including the 1932 Matanza and the atrocities of the country’s 12-year civil war. Gender violence exists within this broader context. However, as almost every Salvadoran source noted, violence against women is even more deeply rooted than other expressions of societal violence as the result of patriarchal norms that tolerate and affirm the most extreme forms of domination and abuse of women.
. . . .
Levels of violence, including the killings of women, have continued to rise, while impunity has remained a constant. Criticism of the persistent impunity for gender violence resulted in El Salvador’s most recent legal development: the enactment of Decree 286, which created specialized courts. However, the exclusion of the most commonly committed gender crimes–intrafamilial violence and sexual violence–from the specialized courts’ jurisdiction, and the courts’ hybrid structure, which requires that cases still be initiated in the peace courts, do not inspire optimism for positive outcomes.
Notwithstanding these considerable obstacles, the Salvadorans interviewed for this article, who have long struggled for access to justice and gender equality, maintain the hope and the belief that change is possible. In the course of multiple interviews over a six-year period (2010 to 2016), Salvadoran sources have expressed deep frustration and disappointment but have not articulated resignation or defeat.
. . . .
The Salvadorans who I interviewed for this article have provided information, insights, and perspectives that are simply not available in written reports or studies. Although they come from a range of backgrounds–governmental and non-governmental; legal professionals as well as grassroots activists–they all acknowledge the complex causes of societal violence. As discussed throughout this article, they also have specific critiques and prescriptions for what must be done in order to see any real progress. Discussions of the country’s crisis, as well as of the international community’s response, must start by listening to the voices of the Salvadorans who, despite the seemingly intractable situation of violence and impunity in which they live, have refused to abandon the struggle for justice and equality. They are inspiring in their courage and resilience. By quoting extensively from these sources, this article has sought to amplify their voices.
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Read Karen’s complete article at the above link.
Compare real scholarship and honest reflection of the experiences of women in El Salvador affected by this seemingly unending wave of persecution with the intentionally bogus picture painted by Jeff Sessions in Matter of A-B-. Hopefully, advocates will be able to use the research and expertise of Karen and others like her to enlighten fair-minded Asylum Officers and Immigration Judges, support their efforts to grant women the protection they merit as contemplated by the Refugee Act and the Convention Against Torture, and force the Article III Courts and eventually Congress to consign Sessions’s intentionally perverted reasoning to the dustbin of “Jim Crow Misogynist History” where it belongs.
Many thanks to my good friend and colleague in “Our Gang,” Judge Jeffrey Chase, for passing this link to Karen’s important scholarship along.
How Far Reaching is the Impact of Grace v. Whitaker?
Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker. The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-. Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.
In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.” In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.” Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world. However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid. The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis. And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1
If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2 A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others. Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case. Such Sisyphean approach seems ill suited to the current million-case backlog.
However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard. When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.” Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.
How far reaching is the Grace decision? We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews. But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?
USCIS of course is part of the Department of Homeland Security. Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice. Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal. However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan. The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.
Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR. An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.” The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard. But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge. The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard. The USCIS memo reversed this, directing asylum officers to categorically deny such claims. But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.
When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing. Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings. Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that. Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.
But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)? And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?
Many immigration judges are presently struggling to understand Matter of A-B-. The decision was issued on the afternoon of the first day of the IJ’s annual training conference. This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators. But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon. Needless to say, the training was not very useful in examining the nuances of the decision. As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.
Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification. However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4 I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process. My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision. Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.
A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.
Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.
There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by screwing the most vulnerable among us!