"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.
“Spirit! are they yours?” Scrooge could say no more.
“They are Man’s,” said the Spirit, looking down upon them. “And they cling to me, appealing from their fathers. This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy, for on his brow I see that written which is Doom, unless the writing be erased.”
—A Christmas Carol, Stave III
The Ghost of Grifters Not Yet Past was everywhere over the weekend. In the New York Times, we read about how the Ghost had arranged for a meeting of the political Chronic Ward in the White House. In the Washington Post, we read about how the Ghost had visited his feral children, Ignorance and Want, upon the land by giving them national political leaders who couldn’t pour piss out of a boot if the instructions were on the heel, and, worse, had no desire to learn how, even in the midst of the greatest public health crisis in a century.
While the Times’ account of the Mad Hatter’s seditious tea party is the flashier story, it is the Post’s deep spelunking into the administration*’s brutal (and quite deliberate) mishandling of the pandemic that is more likely to resound in historical memory as the most criminal dereliction of duty in the history of the American presidency. By comparison, Herbert Hoover at the onset of the Great Depression and James Buchanan as the nation slid toward the Civil War were positive pikers in their disregard for the office they held and the country they were chosen to lead.
. . . .
And then there’s the Dauphin Prince, who apparently had some power and almost no respect, possibly because he was marginally less of a fck-up than everyone else was.
. . . .
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Read Charlie’s complete article at the link.
The Moron-in-Chief, the Party of Putin, and their rabidly anti-American followers and fellow travelers must have exceeded Vladimir’s wildest expectations.
And, at what a bargain price: no need for huge investments in the military, expensive weapons of mass destruction, complicated spy networks, or even major payment of bribes. Just find enough greedy, selfish, delusional, resentful, racist, dim-witted folks willing to betray our nation. Then, invest modest amounts in misinformation, flattery, fanning White Supremacy, and cyber espionage, and “puff” you’re inside the U.S. security, intelligence, and essential infrastructure system with your traitors and dupes installed throughout government and society. Heck, you own a major political party and didn’t even have to contribute billions to do it!
30 days and counting till the end of the kakistocracy and the return of hope, sanity, and competence to our national government. Let’s just hope that it’s not too late for those of us who still believe in America and for our world that is hurting for rational, far-sighted, values-based leadership!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseDumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseHon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
“Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the ‘white replacement’ or ‘white genocide’ theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.”
In 2016, after a legal career of 30 years in refugee and asylum protection, including eight years as a federal refugee officer and seven years as an immigration judge, I accepted a position in the Arlington, Virginia asylum office as a Supervisory Asylum Officer. I had tremendous respect for the U.S. asylum program and I knew from experience that most asylum officers choose the job as a humanitarian calling; their ranks include many attorneys and individuals with graduate degrees, with experience in the Peace Corps and other humanitarian backgrounds. And I can affirm that Asylum Officers have the hardest job of any immigration officers in USCIS-United States Citizenship and Immigration Services, due to the complex and ever-changing asylum law, and the nature of the intensive interviews.
The law enforcement side of our immigration system is exercised by ICE — Immigration and Customs Enforcement, a sub-agency of DHS that was created, along with Department of Homeland Security, in 2003 after the tragedy of 9/11. ICE officers are hired from a completely different profile of applicants and receive much less training in the humanitarian aspect of immigration law. The equivalent at the border is CBP — Customs and Border Protection.
The Netflix Series Immigrant Nation, airing in August 2020, exposes how, soon after Trump’s ascendancy to the presidency, he and his nativist cronies put into place a series of executive measures designed to practically eliminate refugee admissions; to curtail and eventually eliminate access to our asylum system; and even to severely reduce lawful migration to the United States. Virtually all of these executive measures are unlawful, in conflict with our nation’s immigration statute and in violation of our international treaty obligations, and even demonstrably harmful to the economic well-being of the U.S. They have all been challenged in court and practically every such executive measure has been deemed unlawful by federal district and appellate courts, yet the anti-immigrant juggernaut sails on. Recently the GAO — Government Accounting Office, an independent body, declared that, according to the Federal Vacancies Reform Act the current Acting Directors of both DHS, Chad Wolf, and USCIS, Ken Cuccinelli, were unlawfully appointed, and presumably every edict that they have issued since their appointments this past year will also be deemed unlawful.
One of the first ignoble acts of the administration’s new appointee to head U.S. Citizen and Immigration Services, Director Lee Cissna, was the removal of this truism from the agency’s mission statement: “America is a Nation of Immigrants.” Why would the head of the agency that receives all applications for visas, both temporary and permanent, and for asylum and refugee protection choose to redact such seemingly innocuous and self-evident verbiage from the agency’s mission statement?
In the same time frame the Department of Housing and Urban Development, headed by Trump’s appointee Ben Carson, removed the words “inclusion” and “free from discrimination” from its mission statement. We’ve seen in history how totalitarian regimes try to control the dialogue within their populace by changing and sanitizing language, including the use of language within federal institutions.
When this White House requested a study to map the net costs of refugees, conducted by the Department of Health and Human Services, and the results showed a net benefit to the economy over a period of ten years of $63 billion, the White House buried the study. https://www.nytimes.com/2017/09/18/us/politics/refugees-revenue-cost-report-trump.htm
Simultaneously the administration was implementing the so-called Muslim ban against citizens and residents of seven mostly-Muslim countries out of supposedly national security reasons. No one has ever explained why Saudi Arabia, the home of 15 of the 19 9/11 bombers, was not included in the list. (Saudi Arabia is also the home of the Al Qaeda sympathizer who shot up the Naval Air Station at Pensacola,Florida Air Base in December, 2019, killing three sailors and wounding eight.)
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
In the final months of 2016, I traveled with a group of asylum and refugee officers to San Salvador where we interviewed and vetted minors who were requesting refugee protection because of threats to themselves and their families by the ruthless MS-13 and 18th Street gangs. The children we spoke with or their parents had all received such threats as, “Either you work for us or you and your parents will be dead next week,” or “Give me your daughter or you have two days to leave the country.” And they all knew neighbors or close relatives who had died when such threats were ignored. We felt gratified knowing that we were granting these kids a lifeline of resettlement to the U.S.. I would only hope that any American father or mother, if ever faced with such a choice by a credible threat, would have the courage and means to flee across borders in order to protect their children, just as those parents joining the caravans with their children have chosen to do.
The new administration ordered a halt to such in-country interviews and even the resettlement of the cases we had already approved for travel. Its spokesmen have continuously and falsely characterized such asylum applicants as fraudsters who are gaming the system. The administration’s first morally challenged Attorney General, Jeff Sessions, claimed there was a conspiracy of corrupt attorneys who are manufacturing all of their stories. Believe me, they are not manufactured. All credible international reporters, including our own State Department, rebut the claim that such migrants are merely seeking jobs in the U.S. International reports affirm that some gangs in El Salvador are able to maintain such power and territorial control that they exercise the functioning equivalent of State authority, making it impossible for potential victims to resist their demands.
Sessions even admonished the assembled group of immigration judges at a conference, telling them they must not let their humanitarian impulses interfere with some fictitious mandate to deport as many applicants as possible. (Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the “white replacement” or “white genocide” theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.)
Jeff Sessions also chose to meddle in the administration of the immigration courts, in such a bungling manner that his mandated reforms achieved the opposite of his goal to reduce backlogs. By restricting the ways in which immigration judges can control their own docket, such as eliminating a judge’s ability to place a case on hold or “administratively close” a case while collateral legal action is ongoing in the migrant’s case, and by taking away ICE trial attorneys’ discretion to agree to grants of compelling cases, backlogs blossomed by the tens of thousands — within the two and a half years of this administration from approximately 500,000 to currently one and a half million.
The Netflix film crew obtained unprecedented access to ICE and CBP operations in the making of their series. I have trained asylum officers at the Federal Law Enforcement Training Center at Glencoe, Georgia, featured in the first episode of the Netflix series, and I have supervised asylum officers at the ICE family detention centers in Texas featured in the first episode. And I experienced, along with my colleagues, the devastating effects of the administration’s continuing attempts to deter refugees from coming to our southern border through abuse and cruelty, the so-called family separation policy. It is telling to see how many ICE and CBP officers and supervisors conceded, on camera, that the deterrence of ripping children from their parents’ arms upon arrival at the border is cruel and inhumane and un-American, but they felt compelled to follow the orders because “it’s the law.”
The so-called Zero Tolerance policy that was advanced by retired Marine General Kelly, first DHS Secretary and later White House Chief of Staff, and AG Sessions was a sham from the get-go. An impossible task, launched for public consumption and to create the impression that only by locking up all unlawful border crossers could any order be returned to the enforcement of our laws. The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court). In my career I observed how the U.S. Attorney’s Offices in Washington, D.C., and in San Diego, would, within their discretion, “no-paper” cases they considered too minor or insignificant to prosecute, saving their powder for bigger game. This was also the policy that the Obama Administration, under guidance of then DHS Secretary Janet Napolitano, established as ICE policy, when ICE agents and prosecuting attorneys were advised to let the low-hanging fruit go, such as hard-working but undocumented laborers, and concentrate instead on serious felons for apprehension and removal. The admitted consequences of this administration’s Zero Tolerance policy was to require all migrants be detained and prosecuted. Since children cannot be detained in an adult facility, they were to be separated from their parents, in order to achieve the maximum of trauma and pain upon the children and their parents. The trauma itself was to be a deterrent to future unlawful crossers, by “sending a message” not to come to the U.S. The notorious photos of kids in cages have tarnished our international reputation and provided talking points for terrorists.
Netflix film crews accompanied agents on raids in multiple locations, when the Zero Tolerance policy initially led to mass inland roundups. The cameras recorded agents blatantly lying to targets about who they are and their authority to enter private dwellings and arrest suspects without criminal arrest warrants, clear violations of the Fourth Amendment. We see numerous ICE veterans, and even FODs-Field Office Directors — lamenting the new ‘catch everyone’ policy, knowing from experience that such tactics are inhumane and bound to fail in the long run.
We see a gung-ho ICE public affairs officer trying to convince the Field Office Director of the Charlotte, North Carolina office to lie in a press briefing and indicate that 90% of the migrants detained in a community-wide sweep have criminal records; the FOD twice corrects him that the correct figure is 30–35%, meaning the remaining 70% are harmless field workers, hotel employees, construction workers or single mothers with U.S. citizen children.
Even though political appointees such as DHS Secretary Kirsjten Nielsen and AG Sessions were willing to blatantly lie to Congress about the motivation and consequences of such cruel policies, they were still tossed out by the president when the reality on the ground impaired their ability to achieve deportation numbers sufficient to satisfy the Nativist in Chief. Ultimately it took an even more barbaric policy, the Migrant Protection Protocol (MPP), another unlawful executive order, to force legitimate asylum seekers to remain on the Mexican side of the border while their cases were piling up in the bureaucracy. MPP is Orwellian double-speak, because the migrants, rather than being protected, are being sent into circumstances where they are easy prey for cartels targeting them and are notoriously subject to kidnappings, rapes, robberies and murders. No migrant being forced to wait for months in tents or temporary shelters along the border is safe.
Most disappointing to me as a Supervisory Asylum Officer was how management at the Arlington Asylum office, as soon as the MPP operating instructions came down in early 2019, was so willing to coerce asylum officers into violating their oaths to uphold the Constitution and the laws of the U.S. At an internal meeting with management and the asylum officers, supposedly to hash out the ground rules of this new MPP program, one of my officers complained that he felt both ethically and morally conflicted for the first time in his career, knowing that forcing asylum seekers to wait in Ciudad Juarez, one of the most dangerous cities in the world, was a violation of his oath and his training to offer protection to asylum seekers.
I wondered how our managers could justify to themselves the cruel and unlawful policies they were insisting that their subordinates carry out. Were they hoping that the federal courts would soon overturn the blatantly illegal policy and they would thus be off the hook? Were they thinking that at least they, as a federal officer with some limited power, were better than whoever might replace them if they were to resign? I’m sure that is how many attorneys and jurists, working within totalitarian regimes, justify their collaboration and acceptance of policies that are dehumanizing and deadly. When they were asked by their subordinates for justification they threw up a disingenuous wall of semantics, and when asked what procedures Customs and Border Protection were following in the context of MPP, they were told, “We believe CBP knows how to do their jobs.” Basically, just shut up and do what we tell you to do.
I was one of the first supervisors sent to oversee our officers conducting the new MPP screening interviews at the San Ysidro border crossing south of San Diego. Under the new guidelines the migrant must demonstrate to the asylum officer that it is “more likely than not” that they would meet serious harm if forced to wait for many months in Mexico until returning for an audience in front of an immigration judge, in order to be exempted from the requirement of waiting in Mexico. One of my very conscientious officers decided to refer for protection a young Guatemalan woman who had been held captive in an apartment in Tijuana by her domestic partner and brutalized and assaulted, and then viciously stalked when she fled from the dwelling. She should be allowed to remain in the U.S. pending her court date because it was clearly too dangerous for her to return to where her tormentor could easily locate her. I reviewed the interview notes and consulted with my officer and I agreed that it was a good case for protection. We informed CBP and our chain of command of the decision. The next day I received a call from the Deputy Director of the Arlington Asylum office., Jennifer Rellis. I was told that we had to be very careful with our assessments of the MPP cases because the “front office” had eyes on these cases. I was instructed to overturn our decision and to deny the young woman protection. And I was instructed that, going forward, any time I was inclined to approve any of my officers’ decisions to grant protection, I must first have one of my managers also review and sign off on it. There was no such requirement if we decided to deny protection to an applicant. Thus a presumption was created that we should deny protection in our MPP adjudications, a reversal of all of our training as asylum and refugee officers, and a blatant violation of our own statute and of U.N. refugee guidelines. In the following months this presumption against protection has continued to be enforced.
I wondered how Ms. Rellis could live with herself in so callously stripping me of my discretion to afford protection to legitimate refugees, given her training as a humanitarian lawyer. I’m sure if asked, she would argue we have no choice but to comply, and we can still protect asylum seekers within the limits of this new program. But there was no articulable reason why she would order me to enact an unlawful presumption of ‘not qualified’ where none exists in our asylum statute, regulation, case law, or international refugee law. The fact that such managers, whom we had always believed were motivated by their own humanitarian commitments, would so enthusiastically fall in line with a blatantly unlawful program caused great distress among the ranks of asylum officers. Many of my colleagues sought reassignment to other divisions within USCIS or even left the agency altogether. When I received that phone call I also began making arrangements to leave what had become a compromised agency.
Only months after I departed in June, the much-beloved Director of the Asylum Division was reassigned by the unlawfully appointed Acting USCIS Director Ken Cuccinelli to a management position in an uncontroversial department of USCIS. It was conceded that he had lamented to his asylum officers in an internal e-mail that it was unfortunate that the troops were being asked to adjust to these new policies with no forewarning or opportunity to adequately train.
It is remarkable that American Federation of Government Employees Union Local 1924, the union that represents asylum officers, has submitted “friend-of-the-court” briefs in numerous lawsuits against the administration’s attempts to implement the MPP program and otherwise curtail and dismantle the asylum program; and that Union Local 1924 President Michael Knowles has testified before Congress in opposition to such policies.
Jeff Session’s replacement AG William Barr has shown himself willing to continue the dismantling of our asylum program. He issued an edict that immigration judges would no longer have the discretion to grant bonds to asylum seekers in custody — clearly another attempt to discourage applicants from seeking shelter in the U.S. through the use of cruelty. This is an issue that is especially dear to my heart, as it has always been my principle that no asylum applicant should remain detained a day longer than necessary for routine administrative procedures. In fact, I testified before the Senate Judiciary Committee in 2013, at a time that comprehensive immigration reform was optimistically expected to be passed, in favor of granting immigration judges additional authority to issue bonds. My proposal wound up in the Senate’s draft legislation, which regretfully was never even taken up by the House. (In a meeting with Senator Marco Rubio’s immigration staffer I was assured that “the Senator is behind your proposals 100%.” During his subsequent presidential campaign in 2016 Rubio claimed he had never been in favor of comprehensive immigration reform). Again, several weeks after Barr’s edict against bond, a federal court blocked Barr’s draconian and heartless ban on conditional release from custody of asylum seekers from taking effect.
From the earliest campaign rallies in 2016, Trump has used fear and hatred of others to divide Americans and energize his base. The forefathers of most European Americans gained entry to the U.S. in exactly the same fashion as all those “illegal aliens” at our southern border; by showing up and asking for admission, at Ellis Island, at a time when there were no immigration controls in place other than routine screening for communicable diseases. Today the vast majority of Americans would not qualify for admission if measured against the standards this administration is trying to implement.
I was a refugee officer in the field at the time of the current President’s election. My colleagues and I were already conducting “extreme vetting” on Syrian, Iraqi, Somali, and numerous other populations, in conjunction with security resources of the CIA, FBI, Defense Intelligence Agency and Pentagon, years before this President decided to use fear as a means of control. My last assignment at the Refugee Affairs Division in 2015, before transferring to the asylum program, was to assist in the heightened vetting of all Syrian applicants at headquarters. Ironically, it is demonstrable that, on average, Syrian and Iraqi migrants to the U.S. are among the highest educated migrants in sciences and technology.
Refugee Admissions Decimated
During the last year of the Obama administration, in the context of the worst international refugee crisis since the end of the 2nd World War, the Obama administration asked that the Refugee Affairs Division increase refugee admissions from the already admirable number of 90,000 in fiscal year 2016 to 110,000 for 2017. However, on the heels of the Muslim ban came the new administration’s pronouncement that rather than 110,000, in fiscal year 2017 the program would be suspended for the rest of the year, thus grounding all refugee officers. . In 2018 the admissions was capped at 45,000 refugees, and it was determined that a ceiling of 30,000 admissions would be set for 2019. At a time when the U.S. should have been manning the bulwarks of refugee protection (Germany received a million refugees in 2015, comparable to the U.S. taking in 4 million) the U.S. effectively withdrew from the field, sending the signal that the U.S. no longer considers itself a leader in the world for refugee protection. A ceiling of 18,000 was set for fiscal year 2020, and this amount was only agreed to after push back from the Pentagon in reference to promises we had made to allies and interpreters working with our troops in the field in Irag, Afghanistan and Syria.
In 2018 Director Cissna also made the shocking announcement that USCIS would close all of its overseas offices, passing numerous tasks onto the State Department and domestic offices. The offices, established over a period of decades in such countries as Kenya, Ghana, South Africa, China, South Korea, Thailand, Mexico and Peru, primarily function as facilitators for family unity and refugee operations. Perhaps the first time that a federal bureaucracy has voluntarily given up turf, but in line with the administration’s seeming loathing for family unity.
The Myth of Skilled Migration
When then Chief of Staff General Kelly, formally DHS Secretary, disparagingly pronounced that most Central American migrants are “rural” migrants, as though of less value than presumably better educated “urban” migrants from white European countries, I took personal offense. My grandfather Grussendorf migrated with his family from a rural village in Lower Saxony, Germany at the end of the 19th Century at a time when there were no immigration controls at Ellis Island. He settled in the farming community of Grand Rapids, Minnesota, where he ran a farm and begat five children, one of whom became a high school math teacher; one became a state judge, one opened a nursery in Duluth, and one, my father, became a highly decorated Marine colonel, former company commander at the WWII landings at Saipan, Iwo Jima, and Okinawa. (I was born at Camp Pendleton). The state judge’s children included Cousin Benny Grussendorf who became Speaker of the House in the Alaskan Legislature. My father’s children included a Navy Captain and minister, a Navy enlisted man and transportation professional; a political activist, and an immigration judge. My brother the Navy Captain’s children include an Air Force flight surgeon and base hospital director; a veterinary, and a multi-lingual translator with her own business in France. All of these offspring were imbued with strong “rural” family values. That’s how migration works.
The idea of skilled-based migration, to be administered by a point system involving education, employment background, and language skills, isn’t all that bad in and of itself. Our close alleys Canada, the U.K., Australia and New Zealand all administer a version of this skills-based migration. The problem is the suggestion to eliminate family-based migration, when clearly the vast majority of our nation’s people, including the President’s own family, have benefited from it. The better idea is to double the current admissions level of permanent residents, half to be drawn from a skills-based system. It is the unnaturally low numbers of annual permanent resident admissions that is partly responsible for the log-jam of our immigration system, in today’s world where there is such an interest in immigration to the U.S., and given that our otherwise native-born population is in decline.
We must recognize that the recent surge at our southern border is not some kind of existential challenge to the nation’s existence, as seen in a vacuum, but rather only one component of the world-wide refugee crisis, a symptom of wars and world-wide insecurity. The long-term solution to any refugee crisis is always peace and prosperity in the country/region that is generating the refugees. Only peace and stability in Syria and northern Africa can allay the human waves of refugees into Europe. Only a Marshal-type program for the northern triangle countries, coupled with short term humanitarian protection for those fleeing eminent death, can resolve the crisis at our southern border.
And finally, regarding the present state of the U.S. Immigration Court system under this white nationalist administration, I’d like to quote my friend and colleague, Judge Paul Schmidt:
Once upon a time, there was a court system with a vision: Through teamwork and innovation, one of the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. (…)
Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.
It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.
As Paul points out, beyond all of the regime’s racism, illegality, and immorality that has already been exposed in the media, the deep corruption, cowardice, and cruelty of those carrying out the program is simply stunning! It’s precisely how authoritarian, anti-democracy, illiberal regimes of the past like Nazi Germany, Soviet Russia, and Mao’s China operated.
Inflicting “trauma for deterrence” on vulnerable humans is a “war crime” and a “crime against humanity,” plain and simple — regardless of the unlikelihood that regime’s many “perps” will be brought to justice within their lifetimes.
To those who doubt it, when the pandemic subsides, take a tour of the Holocaust Museum. The disgraceful conduct of the German judiciary and civil service is eerily similar to what Paul describes at DHS and EOIR.
We also must remember that despite being well-aware of the Trump/Miller racist-motivated immigration agenda, and the patent falseness of the legal and factual pretexts cooked up by the regime and its ethically challenged lawyers to provide “thin cover” for illegality and inhumanity, a Supremes’ majority improperly intervened to overrule lower Federal Courts and “greenlight” gratuitous cruelty and abuses of humanity! This process, known as “Dred Scottification” (“dehumanization of the other”) has carried over into the Supremes’ majority’s disgraceful mistreatment of African Americans, Hispanic Americans, and other minorities in our society. It’s one of the key reasons why we have actually moved further away from racial equality and racial harmony in our society since the advent of the far-right judiciary.
Paul also exposes one of the biggest “shams” advanced by the racist right and their congressional supporters: That we must build an Immigration Court capable of deporting everyone in the U.S. without authorization. To state the obvious, this would be a practical impossibility, as well as an economic and social disaster — destabilizing industries and communities throughout the U.S., at a high cost, with no overall benefit.
It’s insane to charge the Immigration Courts with deporting everyone! That inevitably leads to mindlessly and exponentially increasing the number of judges without thinking about the training, support, technology, and wise policies necessary for them to operate successfully, fairly, and efficiently. Moreover, at some point, aimlessly increasing the number of judges without fixing the disgraceful deficiencies in the current system merely adds to the chaos, disorder, and the gross inconsistencies for which the system has become notorious.
Obviously, the system must be fixed before a rational decision can be made on whether or not to expand it. Fixing the current system also lays the important groundwork for the necessary creation of an independent Article I Immigration Court.
No, the answer is to invest in fixing the current system to get it operating, as it originally was intended, as a high quality, modern, efficient court system that guarantees fairness and due process for all.
With approximately 500 Immigration Judges already on board (not, of course, all the best qualified judges to carry out the mission — but that’s a problem for later), the reasonable annual capacity of the system is around 250,000 (500 judges x 500 cases/year) to 300,000. That means that more than one million of the current “deadwood” cases currently being warehoused on the EOIR docket by politicos at EOIR and DHS with no practical plan in place for ever completing them, must be removed and returned to DHS.
That’s actually a job for a new, non-racist, professional DHS. But, given past spotty to downright contemptuous performance by DHS field officials, the Immigration Judges must be given strong authority to, where necessary, close and remove cases even in the face of DHS opposition.
This means, of course, reversing “Gonzo Apocalypto” Sessions’s absurdly wrong decision in Castro-Tum. But, return to the prior status-quo is not enough!The BIA and the Immigration Judges must be empowered to take even more aggressive actions to close cases when necessary to do justice and to force the DHS to respect and comply with docket capacities.
Then, as Paul suggests, like all other law enforcement agencies in the U.S., DHS enforcement must be required to develop strategies and prioritize cases in a manner that will not exceed the 250,000 per year capacity of the Immigration Courts. A large scale legalization program for those already here, a much more robust overseas asylum program, particularly in the Northern Triangle, and more “user friendly” legal programs to bring in needed workers, on either a temporary or permanent basis, would be great starting points to “rationalizing” the immigration system.
We thereby could end “Aimless Docket Reshuffling” as it has been practiced and expanded by DOJ & DHS politicos for the past two decades while taking the pressure off the Immigration Courts to do anything other than their only and only mission: through teamwork and best practices, guaranteeing fairness and due process for all who come before these courts.
The key to making this happen: Immediate disempowerment of the deadly ongoing “Clown Show” 🤡☠️⚰️ in EOIR “management” and at the BIA and replacing them with members of the NDPA: experts in asylum law, due process, practical scholarship, problem solving, and best practices. Then, and only then, will we see the restoration and progressive advancement of due process and humanity in the disgracefully broken U.S. Immigraton Courts. Without immediate EOIR reform, there can and will be no “equal justice for all” in the U.S. justice system! And, that’s bad news for all of us!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
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Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Here’s a message Judge Tabaddor sent to all Immigration Judges:
Subject: Update on Agency Action to Decertify NAIJ
THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
November 3, 2020
Dear Colleagues,
Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”
This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.
We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.
Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.
As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.
Ashley Tabaddor
President, NAIJ
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Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court!
Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!
Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases
WASHINGTON, DC — Immigration groups filed a lawsuit today in the United States District Court for the District of Columbia against the Executive Office for Immigration Review (EOIR)—which oversees immigration courts—and the General Services Administration (GSA) requesting information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.
The lawsuit—filed by the American Immigration Council, American Immigration Lawyers Association, the Chicago AILA Chapter, and the National Immigrant Justice Center— seeks the disclosure of records on the obscure procedural rules for immigration adjudication centers. The centers are a new initiative created under the Trump administration where immigration judges adjudicate immigration cases from around the country in remote-only settings that are closed to the public.
Immigration adjudication centers appear to have been created to address immigration court backlogs, but attorneys and immigrants facing deportation have little instruction on the procedures for appearing before these centers. Immigration lawyers and advocates have expressed concerns after public reports indicate the potential expansion of immigration adjudication centers across the country.
The lawsuit challenges EOIR’s failure to disclose information in response to a Freedom of Information Act request submitted in March 2020. EOIR and GSA have failed to disclose critical information about what immigration courts presently exist, immigration court expansion, and contracts governing this expansion.
“Immigration lawyers and advocates have an interest in pressing for more transparency in the immigration courts, helping ensure the due process rights of all who appear in court, and providing guidance to the lawyers representing people before these courts,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council.
“Transparency is essential to a fair day in court. Unfortunately, the secretive creation and expansion of immigration adjudication centers where immigration judges conduct remote-only proceedings in facilities closed to the public demonstrate how opaque an already complex immigration court system has become at the hands of this administration. While the Department of Justice regulations require immigration hearings to generally be open to the public, this administration has imposed significant new barriers to the public’s ability to observe these proceedings and has led to some hearings being conducted in secret, calling into question whether the fundamental elements of due process are being met. We are proud to stand alongside our partners in this effort,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
“Everyone deserves a fair day in court. The lack of transparency in EOIR operations compromises the integrity of our immigration system and undermines public confidence in this system,” said Nell Barker, chair of the American Immigration Lawyers Association’s Chicago Chapter. “The secretive expansion of immigration courts is a blow to due process and adds a layer of unnecessary unpredictability to a system that struggles to inform stakeholders about changing procedures. We are concerned about the increasing inaccessibility of immigration courtrooms to lawyers, clients, and the public.”
“The secretive and inaccessible immigration adjudication centers, where judges determine whether noncitizens will be deported to persecution and torture or permanent family separation, are a disturbing example of the manner in which this administration has developed and expanded numerous policies and procedures intended to expedite the deportation of noncitizens without due process,” said Sarah Thompson, senior litigation attorney at the National Immigrant Justice Center. “EOIR must make public its plan for future adjudication centers and the procedures under which these centers operate.”
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
The National Immigrant Justice Center (NIJC) is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. Visit immigrantjustice.org and follow @NIJC.
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The current system is specifically designed to “break” asylum seekers and their representatives in body and mind.
Will a lawless regime get another four years to finish the job of destroying American democracy and eradicating justice? Or, will there be hope on the horizon for a better future for all Americans!
ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’
The government’s data, however, tell a far different story.”
Check out the op/ed and the take down of President.
A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).
I[ngrid] E[agly]
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Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.
It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.
For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”
We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!
WASHINGTON — President Donald Trump‘s senior adviser Stephen Miller has fleshed out plans to rev up Trump’s restrictive immigration agenda if he wins re-election next week, offering a stark contrast to the platform of Democratic nominee Joe Biden.
In a 30-minute phone interview Thursday with NBC News, Miller outlined four major priorities: limiting asylum grants, punishing and outlawing so-called sanctuary cities, expanding the so-called travel ban with tougher screening for visa applicants and slapping new limits on work visas.
The objective, he said, is “raising and enhancing the standard for entry” to the United States.
Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
AUG. 25, 202005:51Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
“In many cases, fixing these problems and restoring some semblance of sanity to our immigration programs does involve regulatory reform,” Miller said. “Congress has delegated a lot of authority. … And that underscores the depth of the choice facing the American people.”
Miller, who serves in a dual role as an adviser in the White House and to Trump’s re-election campaign, stressed that he was speaking about second-term priorities only in his capacity as campaign adviser.
Immigration has been overshadowed by surging coronavirus case numbers and an economy shattered by a nearly yearlong pandemic, but it was central to Trump’s rise to power in the Republican Party, and Miller has been a driving force for the administration’s often controversial policies to crack down on illegal migration and erect hurdles for aspiring legal immigrants.
Miller has spearheaded an immigration policy that critics describe as cruel, racist and antithetical to American values as a nation of immigrants. He scoffs at those claims, insisting that his only priority is to protect the safety and wages of Americans.
And he said he intends to stay on to see the agenda through in a second term if Trump is re-elected.
In the near term, Miller wouldn’t commit to lifting the freeze on new green cardsand visas that’s set to expire at the end of the year, saying it would be “entirely contingent” on governmental analysis that factors in the state of the job market.
Asked whether he would support reinstating the controversial “zero tolerance” policy that led to families’ being separated, Miller said the Trump administration is “100 percent committed to a policy of family unity,” but he described the policy as one that would keep families together in immigration detention by changing what is known as the Flores settlement agreement.
Over the past year, the administration has sought to amend the Flores agreement, which says children can’t be held over 20 days in Immigration and Customs Enforcement detention. If it succeeds, immigrant families could be detained indefinitely as they await their day in immigration court.
On Trump’s watch, asylum grants have plummeted. Miller wants to keep it that way. He said a second-term Trump administration would seek to expand “burden-sharing” deals with Honduras, Guatemala and El Salvador that cut off pathways to the U.S. for asylum-seekers.
“The president would like to expand that to include the rest of the world,” Miller said. “And so if you create safe third partners in other continents and other countries and regions, then you have the ability to share the burden of asylum-seekers on a global basis.”
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Read the complete report at the link.
Kids in cages, refugees returned to torture and death, ethnic communities terrorized, lives destroyed, an economy and a society (make no mistake about it, immigrants will be essential to America’s recovery, future prosperity, and competitiveness) in tatters, tens of millions wasted on unnecessary and counterproductive Gulags, walls, and cruel enforcement while the Gruppenfuherer and his fellow human rights criminals remain at large and and an existential threat to our nation and our world!
To state the obvious, this has little or nothing to do with protecting American workers. Trump has shown that he couldn’t care less about the health, safety, and welfare of American workers (or frankly anybody except himself) except at election time. Immigration and immigrants create jobs and economic prosperity for America.
Also, even Miller couldn’t possibly believe that the Democratic House will pass any part of this racist manifesto. Truth is, Trump failed to pass any meaningful immigration legislation in four years, even when the GOP controlled all the political branches! In fact, Miller’s nativist legislative game-plan “poisoned the well” and was soundly defeated in both Houses of Congress! So, he intends to use Executive misrule, bureaucratic corruption, and a fascism-enabling, racially tone-deaf GOP Supremes’ majority to rule without Congress (as has been the case for the last four years.)
But make no mistake: the real “Reichsplan” here is directed at further institutionalizing racism, spreading hate, and targeting Americans of color. That’s what the regime’s “Dred Scottification” is really about. Reducing or eliminating YOUR Constitutional rights! Immigrants are the “usual suspects.” But, by no means will they be the only victims of Gruppenfuhrer Miller’s White Nationalist, racist, hate extravaganza.
As reported at the link above, The Biden-Harris campaign immediately and forcefully condemned the Gruppenfuhrer’s plans for “ethnic cleansing:”
“We are going to win this election so that people like Stephen Miller don’t get the chance to write more xenophobic policies that dishonor our American values,” Molina said. “Unlike Trump, Vice President Biden knows that immigrants make America stronger and helped build this country.”
America is immigration! It’s our past, present, and future! When we deny those truths, we deny ourselves and betray our own humanity!
Get out the vote for Joe, Kamala, and the Dems! Top to bottom of the ballot! Our lives and the future of American Democracy depend on it! Don’t let Gruppenfuhrer Miller and his neo-Nazi agenda, the GOP’s dark vision of the future, destroy our democracy! Vote the party of corruption, hate, and neo-fascism out!
Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.
Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.
“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.
Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.
Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.
Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.
Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.
. . . .
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Read Marcia’s full article at the link.
Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”
Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses!But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.
The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!
Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!
It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.
Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.
Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?
Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?
It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!
We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”
It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!
And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!
Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”
“They are so well taken care of. … They’re in facilities that were so clean,” President Donald Trump said during last week’s presidential debate, of the children his administration ordered separated from their parents at the southern border. As my colleague Jeremy Stahl points out, this isn’t the first time that an administration official has argued that because the separated children—over 500 of whom are still being kept from their parents—have (supposedly!) been physically taken care of, they should be “just fine.” But if the life histories of children forced to be parted from parents for years of their childhoods are any indication, these periods of separation will have long-lasting, devastating, and unpredictable effects.
I’ve been reading historian Rebecca Clifford’s new book, Survivors: Children’s Lives After the Holocaust, which is a painful history of Jewish kids who somehow made it through World War II when they were very small, and had to figure out how to forge a life afterward. Combining analysis of survivors’ testimonies recorded over the years, documents from the archives of organizations that came into contact with these children, and oral histories Clifford herself collected, the book shows how many of these survivors struggled with the act of making sense of their lives—even the lucky ones, who didn’t witness violence, and whose material needs were well met during the period of conflict and persecution. Clifford calls the work “fundamentally a book about the history of living after, and living with, a childhood marked by chaos.”
Survivors is, of course, about a group of children whose lives were marked by the Nazi regime, not about children fleeing violence in Central America, who were then separated from their families by Border Patrol agents. But it’s also fundamentally concerned with the human consequences of children’s separations from parents. In the group of survivors in Clifford’s history, there are kids who were sent to live with host families, who hid them until the war was over; kids incarcerated in different labor camps from their parents; kids who wandered the forests alone, tended only by older siblings.
Asking the historical record, and the grown-up survivors she interviewed, how this period of separation had affected the children’s lives in the long term, Clifford found things that she described as “not only unexpected, but shocking.” One such finding was the fact that for many of the kids, the war years were fine; it was liberation that was traumatic. “Children are adept at treating the exceptional as normal, and because they had no other life to compare it with, the years of persecution did not necessarily feel dangerous, fraught, or chaotic to young survivors,” Clifford writes. But after liberation, as well-meaning adults did everything they could to bring the kids back together with their surviving family members, or to find them places in Jewish homes, many of the separated survivors were profoundly destabilized. “My war began in 1945, not in 1940,” one such survivor said.
The German Jewish parents of Felice Z., who was born in October 1939, put their 1½-year-old daughter in the hands of aid workers in early 1941, and the girl spent the war years hidden by farmers in France. Felice Z. remembered in later interviews that she loved her host parents, and in particular her host mother, Madame Patoux: “All they were interested in was taking care of me. She basically saved my life. She was always ready to run. … I took it for granted that she was my mother, I called her meme (nana) and it was really the first close relationship that I had with another human being. I became very attached to them. Very.” At the end of the war, Felice got no joy out of being reunited with her sister, who had become a stranger. Soon after that reunion, she was removed from the family where she had grown up; as she remembered it, nobody bothered to explain why.
“Family reunions could be among the most difficult and distressing experiences that children went through after the war,” Clifford writes. “The youngest children might have no memory of their parents or relatives at all, and were effectively returned to strangers. … Not one child in this study who was returned to his or her family found this process easy or joyful.” The reunions brought up feelings of anger and terror—even if, as Clifford points out, the kids could rationally understand the reasons their parents had put them in safer places for the duration of the war. They had spent years suppressing childish impulses—“they had had to be obedient, quiet, and good to stay safe during the war, whether they were in hiding, in ghettos or in camps”—and often became explosive and “difficult to manage” after the separation was over.
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Read the rest of Rebecca’s article at the link.
So much wanton cruelty; such gross illegality; so little accountability; such glaring lack of integrity in our justice system! What has our country become? How is this “normal” or within the proper scope of “Executive authority.” What is impeachment for if not for “crimes against humanity?”
Vote ‘Em out, vote ‘Em out! Then start re-examining the failed and continuously failing institutions that couldn’t or wouldn’t effectively stand up to Trump, Miller, Sessions, Barr, Wolf, and the rest of their gang of thugs and scofflaws!
That starts, but by no means ends, with the highly politicized Supremes and their systemic failure to uphold our Constitution, the rule of law, and human dignity against an onslaught of White Nationalist, racist-inspired abuses by Trump, Miller, and their GOP cronies. This is a Court that disgracefully has been more interested in carrying out GOP shenanigans overtly intended to suppress votes, remove minority voting rights guaranteed by statute and Constitution, and throw the election to Trump than it has been in enforcing the Constitution and the rule of law to save the lives of refugees and asylum seekers, including women and children!
Better, more courageous, more humane judges for a better America!
PWS
10-29-20
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UPDATE: HOUSE REPORT LAYS BARE “CRIMES AGAINST HUMANITY” COMMITTED BY REGIME OFFICIALS!
Here’s the just-released Report (courtesy of Dan Kowalski @ LexisNexis):
VI. Conclusion
While we may never know the full extent of the damage inflicted by the Trump Administration’s family separation policy, it is evident—as a result of this investigation and public reporting—that it was driven by an Administration that was willfully blind to its cruelty and determined to go to unthinkable extremes to deliver on political promises and stop migrants fleeingviolencefromseekingprotectionintheUnitedStates. Asillustratedinthisreport:
• Within weeks of President Trump’s inauguration, the Administration began formulating a plan to separate parents from their children as a means to deter migration.
• Before a formal policy had even been developed, the Administration was accelerating familyseparations. ByMarch2017,thenumberofseparatedchildrentransferredtoORR custody had increased by nearly 900 percent, as compared to November 2016.
• In July 2017, without warning, the Administration implemented a family separation pilot programintheElPasoBorderPatrolSector. Thepilotprogramlastedfivemonthsand resulted in hundreds of additional children being taken from their parents and placed in ORR custody.
• During the pilot program, the Administration discovered that it was unable to track separated family members in a way that would facilitate eventual reunification.
• Knowing this, and without doing anything to address the tracking systems employed by deferral agencies, the Administration chose to expand the policy nationwide in May 2018.
• To make matters worse, the Administration failed to provide advance notice of the policy to front line agents and officers, which caused unnecessary chaos and inconsistent implementation of the policy across border sectors.
121 Dan Diamond, HHS Reviews Refugee Operations as Trump Calls for Border Crackdown, POLITICO (Oct. 23, 2018), https://www.politico.com/story/2018/10/23/trump-caravan-border-hhs-873152.
122 Email from Scott Lloyd to Evelyn Stauffer, Press Secretary, Dep’t of Health and Human Services (Nov. 19, 2018), at Appendix AY.
21
• When judicial intervention and political pressure eventually resulted in the end of the policy, the lack of interagency cooperation and preparedness was laid bare by the inability of the Administration to quickly reunite separated parents and children.
As a result of this dark chapter in our nation’s history, hundreds of migrant children may never be reunited with their parents.
Despite considerable stonewalling by Administration officials, Judiciary Committee Members and staff have pushed relentlessly to obtain data and conduct much needed oversight of the agencies responsible for the family separation policy. This report details the Committee’s findings thus far. We remain committed to holding the Trump Administration accountable and continuing to shed light on this dark moment in our country’s history.
As my friend, “Immigration Guru” Ira J. Kurzban would say: “Folks, this is NOT NORMAL!”
As we both say: “This is unacceptable conduct for which there must be accountability if we are to remain a nation under law.”
The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk.
KEY QUOTE:
The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated.
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Judge Parker is correct insofar as he cogently states what should be a “win-win-win” under a functioning Government. I wholeheartedly join lead counsel Julie Dona of the Legal Aid Society, NY, in appreciating and recognizing Judge Parker’s understanding of the grim realities of today’s mal-functioning Immigration Courts and the important Constitutional rights being abridged by DHS & EOIR (essentially one and the same under the Trump kakistocracy).
But, that statement of how Government should be functioning glosses over the unfortunate reality of the Trump regime’s lawless, White Nationalist, nativist immigration agenda. The Trump regime doesn’t seek to create “win-win-win” situations! Instead, they seek to make political statements, dehumanize and degrade “the other,” and promote the biases of their “base” over sound public policy that benefits the common good.
The purpose of imprisonment in the Trump Gulag all too often has little or nothing to do with the legal criteria of danger to the community or flight risk. Rather, detention in the Gulag is used by the Trump regime’s DHS, with the connivence of the DOJ and often the courts, to punish individuals who choose to assert their legal rights; make it more difficult for them to obtain effective representation; and to coerce them into abandoning viable claims for relief, appeals, and judicial review. It’s all about punishment and deterrence, not mainly about the public interest, which is ill-served by most of Trump’s biased and counterproductive immigration policies.
DHS detention in the Trump era primarily serves Trump’s political interests and the interests of those running the for-profit prisons comprising much of Trump’s New American Gulag. Any time Trump’s policies match up with a legitimate national interest, it’s purely happenstance, not part of some overall plan to govern in the public interest.
Miller’splans are so explosively ugly, overtly racist, and anti-American that they are being kept under wraps (for now) because of a (quite legitimate) fear that they could drive the small, yet potentially significant, minority of voters of color that Trump needs to have any chance of extending his rule to do something rational and in their self-interest: Vote for Biden-Harris. Look for things like eliminating birthright citizenship, eradicating all refugee and asylum laws, making it difficult or impossible for family members and people of color to immigrate legally, a wave of summary deportations, deporting “Dreamers,” and exterminating every last ounce of compassion and humanity from our laws. If you think that Black Lives don’t matter much to Trump and his cronies, just wait until he turns the Gruppenfuhrer loose! Think the Federal Courts will stop him? Just look at Trump’s “wholly owned and proud to brag about it” Supremes’ majority! And, he’s also “stacked” — effectively “packed” — the lower Federal Courts with loyalist ideologues.
America can no longer afford life-tenured judges who treat Trump as “normal” and are unwilling or incapable of “connecting the dots” among the dehumanization and demonization of migrants, institutionalized racism, and the end of American democracy. Immigrants’ rights are human rights; human rights are Constitutional rights; dehumanization of “the other” dehumanizes us all!
It’s past time that America stopped granting the privilege and responsibilities of life-tenure to those who won’t publicly adhere to those fundamental truths! Not rocket science! Just basic Constitutional law and human decency! Better judges for a better America! It all starts with a better President and a better Senate! That’s why this election might be our final chance to take back our country and preserve our democracy!
Jeffrey Goldberg Interviewing John Kerry Official USG Photo Public RealmDonald J. Trump Famous American Clown (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permissionTrump Regime
In 1973, a United States Air Force officer, Major Harold Hering, asked a question that the Air Force did not want asked. Hering, a decorated Vietnam War veteran, was then in training to become a Minuteman-missile crewman. The question he asked one of his instructors was this: “How can I know that an order I receive to launch my missiles came from a sane president?”
The writer Ron Rosenbaum would later call this the “forbidden question.” Missile officers are allowed to ask certain sorts of questions—about the various fail-safe systems built to prevent the accidental launching of nuclear weapons, for instance. But the Air Force would not answer Hering’s question, and it moved to discharge him after determining that officers responsible for launching nuclear weapons did not “need to know” the answer. “I have to say I feel I do have a need to know because I am a human being,” Hering said in response.
Hering’s question was taboo because the national defense strategy of the United States is built on the unstated assumption that the American people will not allow a lunatic to become president. If that assumption is wrong, then no procedural, legal, or technological mechanisms exist that are able to fully protect the human race from such a lunatic. Hering discovered a catastrophic flaw in U.S. nuclear doctrine, and for this he was driven from the Air Force.
In most matters related to the governance and defense of the United States, the president is constrained by competing branches of government and by an intricate web of laws and customs. Only in one crucial area does the president resemble, in the words of the former missile officer and scholar Bruce Blair, an absolute monarch—his control of nuclear weapons. Richard Nixon, who was president when Major Hering asked his question, was reported to have told members of Congress at a White House dinner party, “I could leave this room and in 25 minutes, 70 million people would be dead.” This was an alarming but accurate statement.
When contemplating their ballots, Americans should ask which candidate in a presidential contest is better equipped to guide the United States through a national-security crisis without triggering a nuclear exchange, and which candidate is better equipped to interpret—within five or seven minutes—the ambiguous, complicated, and contradictory signals that could suggest an imminent nuclear attack. These are certainly not questions that large numbers of voters asked themselves in 2016, when a transparently unqualified candidate for president won the support of 63 million Americans.
At the time, Donald Trump had not yet served in public office, so concerns about his ability to protect the United States from harm were hypothetical, though grounded in his long and terrible record as a human being. As The Atlantic stated in its October 2016 endorsement of his opponent, Hillary Clinton, Trump “traffics in conspiracy theories and racist invective; he is appallingly sexist; he is erratic, secretive, and xenophobic; he expresses admiration for authoritarian rulers, and evinces authoritarian tendencies himself … He is an enemy of fact-based discourse; he is ignorant of, and indifferent to, the Constitution; he appears not to read.”
What we have learned since we published that editorial is that we understated our case. Donald Trump is the worst president this country has seen since Andrew Johnson, or perhaps James Buchanan, or perhaps ever. Trump has brought our country low; he has divided our people; he has pitted race against race; he has corrupted our democracy; he has shown contempt for American ideals; he has made cruelty a sacrament; he has provided comfort to propagators of hate; he has abandoned America’s allies; he has aligned himself with dictators; he has encouraged terrorism and mob violence; he has undermined the agencies and departments of government; he has despoiled the environment; he has opposed free speech; he has lied frenetically and evangelized for conspiracism; he has stolen children from their parents; he has made himself an advocate of a hostile foreign power; and he has failed to protect America from a ravaging virus. Trump is not responsible for all of the 220,000 COVID-19-related deaths in America. But through his avarice and ignorance and negligence and titanic incompetence, he has allowed tens of thousands of Americans to suffer and die, many alone, all needlessly. With each passing day, his presidency reaps more death.
But let us lay all of this aside for the moment. Let us even lay aside the extraordinary fact that Donald Trump has been credibly accused of rape. Compelling evidence suggests that his countless sins and defects are rooted in mental instability, pathological narcissism, and profound moral and cognitive impairment. Which returns us to the subject of Major Hering.
Trump’s opponent, Joe Biden, is in many ways a typically imperfect candidate, but if we judge these men on two questions alone—Who is a more trustworthy steward of America’s nuclear arsenal? Which man poses less of a threat to our collective existence?—the answer is spectacularly obvious.
The Atlantic has endorsed only three candidates in its 163-year history: Abraham Lincoln, Lyndon B. Johnson, and Hillary Clinton. The latter two endorsements had more to do with the qualities of Barry Goldwater and Donald Trump than with those of Johnson and Clinton. The same holds true in the case of Joe Biden. Biden is a man of experience, maturity, and obvious humanity, but had the Republican Party put forward a credible candidate for president, we would have felt no compulsion to state a preference. Donald Trump, however, is a clear and continuing danger to the United States, and it does not seem likely that our country would be able to emerge whole from four more years of his misrule. Two men are running for president. One is a terrible man; the other is a decent man. Vote for the decent man.
— Jeffrey Goldberg, on behalf of the editors of The Atlantic
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Sadly, this is sort of the “Duh” article of the week. It’s not like Courtside (and others) haven’t been sounding the alarm for the past several years. The only questions are 1) why has it taken others so long to figure it out; and 2) why anyone outside Trump’s immediate family would vote for this Anti-American maniac?
Vote like your life depends on it! Because it does!
Kangaroos https://www.flickr.com/photos/rasputin243/ Creative Commons License“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court
October 21, 2020
The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”
The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”
According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”
The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.
As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”
The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”
Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.
“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!
There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOPSenate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.
Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!
WASHINGTON — The Supreme Court on Monday agreed to review two major Trump administration immigration initiatives: a program that has forced at least 60,000 asylum seekers to wait in Mexico while their requests are heard and the diversion of $2.5 billion in Pentagon money to build a barrier on the southwestern border.
Lower courts blocked both measures.But the Supreme Court, in earlier orders, allowed them to remain in effect while appeals moved forward.
The arguments in the two cases will not be heard until after the November election. Should President Trump’s Democratic opponent, Joseph R. Biden Jr., win, his administration could take steps to make the cases moot.
In the case on asylum seekers, an appeals court in February blocked the program, known as Remain in Mexico, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”
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Read the rest of the article at the link.
The losers in these cases have already been determined: the innocent human lives destroyed, the rule of law, the Constitution, human decency, and the Supremes’ reputation. If the Supremes’ majority hadn’t already “pre-judged” these cases in the regime’s favor, then their unwarranted and ethically questionable “early intervention” in the process to allow the abuses of humanity, Congressional authority, and the public fisc to continue would be even more unconscionable.
Indeed, both of these cases are examples of a democracy in danger, a judicial system in decay, and a Supremes who have established themselves as part of the problem, not the solution.
Better Federal Judges for a Better America! It starts at the polls!
