"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.
TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!
By Paul Wickham Schmidt
United States Immigration Judges (Retired)
In short, families are coming to ports of entry and crossing the border to turn themselves in to be screened for credible fear and apply for asylum under our existing laws. That’s not a “border crisis;” it’s a humanitarian tragedy. It won’t be solved by more law enforcement or harsher measures; we’re actually quite fortunate that folks still believe in the system enough to voluntarily subject themselves to it.
Most don’t present any particular “danger” to the U.S. They are just trying to apply for legal protection under our laws. That’s something that has been denied them abroad because we don’t have a refugee program for the Northern Triangle. This Administration actually eliminated the already inadequate one we had under Obama.
Certainly, we have enough intelligence to know that these flows were coming. They aren’t secret. There was plenty of time to plan.
What could and should have been done is to increase the number of Asylum Officers and POE Inspectors by hiring retired Asylum Officers, Inspectors, adjudicators, and temps from the NGO sector who worked in the refugee field, but no longer have anything to do overseas since this Administration has basically dismantled the overseas refugee program.
A more competent DOJ could also have developed a corps of retired Immigration Judges (and perhaps other types of retired judges who could do bond setting and other functions common to many judicial systems) who already “know the ropes” and could have volunteered to go to the border and other places with overloads.
Also, working closely with and coordinating with the NGOs and the pro bono bar would have helped the credible fear process to go faster, be fairer, the Immigration Courts to function more fairly and efficiently, and would have screened out some of the “non viable” cases.
For some, staying in Mexico is probably a better and safer option, but folks don’t understand. Pro bono counsel can, and do, explain that.
By treating it as a humanitarian tragedy, which it is, rather than a “fake law enforcement crisis,” the Administration could have united the private sector, border states, communities, and Congress in supporting the effort; instead they sowed division, opposition, and unnecessary litigation. I’m actually sure that most of the teams of brilliant “Big Law” lawyers helping “Our Gang of Retired Judges” and other to file amicus briefs pro bono would just as soon be working on helping individuals through the system.
A timely, orderly, and fair system for screening, adjudicating, and recognizing refugee rights under our existing laws would have allowed the Administration to channel arrivals to various ports of entry.
I think that the result of such a system would have been that most families would have passed credible fear and the majority of those would have been granted asylum, withholding, or CAT.
Certainly, others think the result would have been mostly rejections (But, I note even in the “Trump Era” merits approval rates for Northern Triangle countries are in the 18-23% range — by no means an insignificant success rate). But, assuming “the rejectionists” are right, then they have the “timely rejection deterrent” that they so desire without stomping on anyone’s rights. (Although my experience over decades has been that rejections, detention, prosecutions, and harsh rhetoric are ineffective as deterrents).
No matter who is right about the ultimate results of fair asylum adjudication, under my system the Border Patrol could go back to their job of tracking down smugglers, drug traffickers, criminals, and the few suspected terrorists who seek to cross the border. While this might not satisfy anyone’s political agenda, it would be an effective and efficient use of law enforcement resources and sound administration of migrant protection and immigration laws. That’s certainly not what’s happening now.
Lawyers slam ‘Wild West’ atmosphere in Texas immigration court
(CNN)Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.
The administrative complaint, sent to the Justice Department on Wednesday and obtained by CNN, slams a number of allegedly recurring practices at the El Paso Service Processing Center court, which hears cases of immigrants detained at several locations near the border.
“El Paso feels like the Wild West in terms of the immigration system,” said Kathryn Shepherd, national advocacy counsel for the American Immigration Council’s Immigration Justice Campaign and one of the complaint’s authors. “There’s so little oversight. No one is talking about how bad it is.”
The complaint comes at a time of mounting criticism of the Justice Department-run courts that decide whether individual immigrants should be deported. And it comes as officials warn the number of cases those courts are tasked with handling is rapidly increasing with an influx of more undocumented immigrants crossing the border.
Among the allegations:
• Judges at the El Paso Service Processing Center court have “notably high rates of denial,” the complaint says, noting that the court granted less than 4% of asylum applications heard there between fiscal year 2013 and fiscal year 2017. Nationally, 35% of asylum cases in court are granted, according to the latest data from the Transactional Records Access Clearinghouse at Syracuse University.
• The complaint accuses judges in the court of making inappropriate comments that “undermine confidence in their impartiality” and are part of “a culture of hostility and contempt towards immigrants who appear” at the court. While hearing one case, a judge, according to the complaint, described the court as “the bye-bye place,” telling a lawyer, “You know your client is going bye-bye, right?” Another judge allegedly told court observers that “there’s really nothing going on right now in Latin America” that would provide grounds for asylum.
• Rules limiting evidence that can be presented at this court strip away due process, the complaint says. One judge’s standing order, for example, limits the length of exhibits that can be submitted to 100 pages. “This order is particularly harmful for individuals seeking protection whose cases are more complex or where country conditions are at issue,” the complaint says.
The Justice Department’s Executive Office for Immigration Review, which oversees US immigration courts, declined to comment on the allegations. Spokeswoman Kathryn Mattingly confirmed that the office received the complaint letter on Wednesday.
An overwhelmed system
The allegations come amid mounting criticism of US immigration courts.
There are more than 60 immigration courts in the United States, and about 400 judges presiding over them. Immigration judges are hired directly by the attorney general and are employees of the Justice Department. They’re required to be US citizens, to have law degrees, to be active and licensed members of the bar and to have at least seven years of post-bar experience with trials or hearings, among other qualifications.
Both immigrant rights advocates and immigration hard-liners agree the court system is struggling under a crush of cases — but they diverge widely in their proposals for fixing it.
The Trump administration has moved to hire more judges and to pressure them to finish cases more quickly, accusing immigrants and the lawyers who represent them of gaming the system and overloading it with frivolous cases.
Advocates say the existing system denies due process and harms vulnerable people who have legitimate claims to remain in the United States but face an overwhelming number of obstacles to make their case. They’ve argued a major overhaul is necessary, proposing the creation of an independent court system that’s not part of the Justice Department.
In recent congressional testimony, Executive Office for Immigration Review Director James McHenry said his department had increased its number of case completions for the third consecutive year. And he said that every day, the office decides immigration cases “by fairly, expeditiously and uniformly interpreting and administering the nation’s immigration laws.”
‘The worst court in the country’
Lawyers argue the El Paso Service Processing Center facility is both a window into wider problems of the immigration system and a particularly egregious example.
“Immigration courts across the nation are suffering from many of the issues identified here,” the complaint alleges, “including the use of problematic standing orders, reports of inappropriate conduct from (immigration judges), and highly disparate grant rates which suggest that outcomes may turn on which court or judge is deciding the case rather than established principles and rules of law.”
But one reason advocates focused this complaint on this El Paso court, the American Immigration Council’s Shepherd said, was that it had the lowest asylum grant rate in the nation, based on statistics compiled from Justice Department reports over a five-year period.
Those figures, from annual fiscal year reports from 2013-2017, show the percentage of cases granted in the El Paso court has fluctuated in recent years, decreasing slightly from 2014-2016 and increasing slightly from 2016-2017. But for years, the figure has hovered at or under 5% — significantly below the national rate.
“If you look at the numbers, it’s the worst court in the country. But we wanted to understand really why that was the case,” she said. “What about El Paso, and what about how the judges conduct business in the court, makes it so hard to prevail?”
After researching that question and outlining their findings in the complaint, with the help of court observers and lawyers who regularly practice in the court, now Shepherd says they’re calling for the Justice Department to conduct its own investigation into the El Paso Service Processing Center court and other courts with similar problems.
Suggestions for improvement
An administrative complaint is a step in a formal grievance process used to bring issues to officials’ attention, Shepherd said, but does not trigger legal proceedings.
The complaint recommends a series of corrective measures, including providing more training on appropriate conduct for judges and requiring the Executive Office for Immigration Review to post publicly online any standing orders individual judges have issued.
No matter how officials respond, Shepherd said she hopes the complaint will be a jumping-off point for further research into how the court’s practices have affected people who were ordered deported there.
“It’s pretty overwhelming, actually,” she said, “if you think about the thousands of people who have passed through this immigration court and haven’t really had a chance to fight their case in a meaningful way.”
CNN’s Maegan Vazquez and Abby Phillip contributed to this report.
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This isn’t Due Process! This isn’t justice! This is a farce, a fraud, and a parody of justice going on with the active encouragement and incompetent management of a Department of Justice that has abandoned due process and the rule of law in favor of restrictionist “deny ‘em all, deport ‘em all” policies actively promoted by Trump, former Attorney General Jeff Sessions, and adopted by current Attorney General Bill Barr.
This national disgrace and existential threat to our entire justice system and constitutional order will not end until the Immigration Courts are removed from the Department of Justice and reconstituted as an independent, fair, impartial court system dedicated to insuring fairness and due process for all, including the most vulnerable among us.
Establish an inclusive roadmap to citizenship for undocumented individuals and families who do not have a current pathway to legal status, but who live, work, and raise families in communities throughout the United States.
Provide a pathway to citizenship for Dreamers and those under Temporary Protected Status and Deferred Enforced Departure, through the Dream and Promise Act of 2019, and defend DACA and TPS protections during the legislative process.
Revamp the visa system and strengthen family reunification through the Reuniting Families Act, reducing the number of people who are waiting to reunite with their families but are stuck in the bureaucratic backlog.
Terminate the three and ten year bars, which require undocumented individuals—who otherwise qualify for legal status—to leave the United States and their families behind for years before becoming citizens.
Rescind Trump’s discriminatory Muslim and Refugee Ban, other harmful immigration-related executive orders, racial profiling of minority communities, and expanded use of denaturalization as a frequently used course of action through the USCIS Denaturalization Task Force.
Increase refugee admissions, reversing cuts under Trump, and restoring our nation to its historic position as a moral leader providing a safe haven for those fleeing persecution, violence, disaster, and despair. Adapt these programs to account for new global challenges like climate change.
End cooperation agreements under Section 287(g) of the Immigration and Nationality Act and other such agreements between federal immigration enforcement agencies and state and local entities that erode trust between communities and local police.
Allow all deported veterans who honorably served in the armed forces of the United States to return to the United States and end the practice of deporting such veterans.
Strengthen labor protections for skilled and unskilled guest workers and end exploitative practices which hurt residents and guest workers, provide work authorization to spouses of participating individuals, and ensured skilled and unskilled guest workers have a fair opportunity to become residents and citizens through the Agricultural Worker Program Act.
Protect victims of domestic violence, sexual assault, and human trafficking, ensuring these individuals are not subject to detention, deportation, or legal reprisal following their reporting these incidents.
2. Creating a Humane Border Policy
Repeal Section 1325 of Immigration and Nationality Act, which applies a criminal, rather than civil, violation to people apprehended when entering the United States. This provision has allowed for separation of children and families at our border, the large scale detention of tens of thousands of families, and has deterred migrants from turning themselves in to an immigration official within our borders. The widespread detention of these individuals and families at our border has overburdened our justice system, been ineffective at deterring migration, and has cost our government billions of dollars.
Effectively end the use of detention in conducting immigration enforcement, except in serious cases.Utilize cost-effective and more humane alternatives to detention, which draw on the successes of prior efforts like the Family Case Management Program. Ensure all individuals have access to a bond hearing and that vulnerable populations, including children, pregnant women, and members of the LGBTQ community are not placed in civil detention.
Eliminate the for-profit immigration detention and prison industry, which monetizes the detention of migrants and children.
End immigration enforcement raids at or near sensitive locations such as schools, hospitals, churches, and courthouses.
Reconstitute the U.S. Immigration and Custom Enforcement (ICE) by splitting the agency in half and re-assigning enforcement functions within the Enforcement and Removal Operations to other agencies, including the Department of Justice. There must be a thorough investigation of ICE, Customs and Border Protection, and the Department of Justice’s role in family separation policies instituted by the Trump administration.
Reprioritize Customs and Border Protection (CBP) to focus its efforts on border-related activities including drug and human trafficking, rather than law enforcement activities in the interior of the United States. Extend Department of Justice civil rights jurisdiction to CBP, and adopt best practices employed in law enforcement, including body-worn cameras and strong accountability policies.
End wasteful, ineffective and invasive border wall construction and consult with border communities about repairing environmental and other damage already done.
Properly equip our ports of entry, investing in infrastructure, staff, and technology to process claims and prevent human and drug trafficking.
End asylum “metering” and the ‘Remain in Mexico’ policy, ensuring all asylum seekers are able to present their claims to U.S.officials.
Create a well-resourced and independent immigration court system under Article 1 of the Constitution, outside the Department of Justice, to increase the hiring and retention of independent judges to adjudicate immigration claims faster.
Increase access to legal assistance for individuals and families presenting asylum claims, ensuring individuals understand their rights and are able to make an informed and accurate request for asylum. Guarantee counsel for all children in the immigration enforcement system.
Protect victims of domestic and gang violence, by reversing guidance by Attorney General Jeff Sessions that prohibited asylum claims on the basis of credible fear stemming from domestic or gang violence.
3. Establishing a 21st Century ‘Marshall Plan’ for Central America
Prioritize high-level diplomacy with our neighbors in Latin America, a region where challenges in governance and economic development have consequences to migration to the United States, U.S. economic growth, and regional instability.
Ensure higher standards of governance, transparency, rule-of-law, and anti-corruption practice as the heart of U.S. engagement with Central America, rejecting the idea that regional stability requires overlooking authoritarian actions.
Enlist all actors in Central America to be part of the solution by restoring U.S. credibility on corruption and transparency and encouraging private sector, civil society, and local governments to work together – rather than at cross purposes – to build sustainable, equitable societies.
Bolster economic development, superior labor rights, and environmentally sustainable jobs, allowing individuals to build a life in their communities rather than make a dangerous journey leaving their homes.
Ensure regional partners are part of the solution by working with countries in the Western Hemisphere to channel resources to address development challenges in Central America, including through a newly constituted multilateral development fund focused on sustainable and inclusive economic growth in Central America.
Target illicit networks and transnational criminal organizations through law enforcement actions and sanctions mechanisms to eliminate their ability to raise revenue from illegal activities like human and drug trafficking and public corruption.
Re-establish the Central American Minors program, which allows individuals in the United States to petition for their minor children residing in Central America to apply for resettlement in the U.S. while their applications are pending.
Increase funding for bottom-up development and violence prevention programs, including the Inter-American Foundation, to spur initiatives that prevent violence at the local level, support public health and nutrition, and partner with the private sector to create jobs.
Finally a thoughtful, empirically-based, plan that stops wasting money, harming people, and limiting America’s future: Moving us forward rather than “doubling down” on all of the worst failures and most dismal mistakes of the past.
Castro’s plan echoes many of the ideas I have been promoting on immigrationcourtside.com and reflects the “battle plan” of the “New Due Process Army.” Most important, it establishes an independent Article I U.S. Immigration Court, the key to making any reforms effective and bringing back the essential emphasis on fulfilling our Constitutional requirement to “guarantee fairness and Due Process for all.”
While stopping short of recommending “universal representation,” something I would favor, Castro does:
Recognize the importance of increasing, rather than intentionally limiting access to counsel;
Promote “know your rights” presentations that help individuals understand the system, its requirements, their responsibilities, and to make informed decisions about how to proceed; and
Universal representation for children in Immigration Court (thus, finally ending one of the most grotesque “Due Process Farces” in modern U.S. legal history).
So far, Castro remains “below the radar” in the overcrowded race to be the 2020 Democratic standard-bearer. But, even if his presidential campaign fails to “catch fire” his thoughtful, humane, practical, and forward-looking immigration agenda deserves attention and emulation.
Many thanks to Nolan Rappaport for passing this along.
President Trump reiterated a threat to close the U.S.-Mexico border after a meeting at the White House on Tuesday, saying he stands ready to take drastic action if the country doesn’t do more to curb illegal immigration. He also railed against the U.S. immigration system and said he wants to “get rid” of immigration judges who hear migrants’ cases.
“Security is more important to me than trade,” Mr. Trump said when asked about the severe economic impact of closing the border. “We’ll have a strong border or we’ll have a closed border.”
The president spoke after meeting in the Oval Office with Jens Stoltenberg, the secretary general of the North Atlantic Treaty Organization (NATO).
Last week, Mr. Trump tweeted threats to close the border if Mexico doesn’t do more to cooperate with the U.S. and slow the flow of migrants. But the commander-in-chief appeared to shift that timeline Tuesday, saying Mexico is assisting the U.S. more than it was even a few days ago. The president said he’s still “totally prepared” to close the border if necessary.
Along with a list of frustrations over immigration, however, Mr. Trump included immigration judges. U.S. immigration court backlogs are at all-time highs, with not enough judges to adjudicate the cases. That problem was exacerbated by the government shutdown earlier this year.
“We need to get rid of chain migration, we need to get rid of catch and release and visa lottery, and we have to do something about asylum. And to be honest with you, have to get rid of judges,” Mr. Trump said in his laundry list of frustrations with the U.S. immigration system.
Mr. Trump also walked back his insistence that the Republican Party will imminently introduce a new health care plan. Overnight, the president tweeted he would wait to hold a vote on his yet-to-be-envisioned health care plan until after the 2020 election. On Tuesday, the president said he will bring forth a plan “at the appropriate time.”
“We don’t have the House,” Mr. Trump said about the delay, which came after he said the Republican Party will become the “party of health care.”
Republicans failed to repeal and replace Obamacare in the two years they held the House and Senate.
Stoltenberg’s visit came as Mr. Trump tries to decrease the U.S. footprint abroad with his “America First” foreign policy. Mr. Trump has urged other NATO nations to increase their defense spending to agreed-upon levels, a stance many see as positive, but on Tuesday the president said defense spending will need to go higher than 2 percent. Currently NATO members agree to spend at least 2 percent of GDP on defense, but Mr. Trump, in a meeting alongside the secretary general, said that figure “may have to go up.”
Meanwhile, Mr. Trump’s close relationships with North Korean leader Kim Jong Un and Russian President Vladimir Putin while criticizing U.S. allies has made some ally NATO nations distance themselves from the U.S. Last year, for instance, German Chancellor Angela Merkel said Germany can’t rely “on the superpower of the U.S.” any longer to bring order to the world.
Before he became president, Mr. Trump declared NATO “obsolete.” He later revised that statement, saying he no longer believes that to be the case.
When NATO was founded in 1949, there were 12 ally nations. Now there are 29. Last month, Mr. Trump suggested perhaps Brazil could be a part of NATO, though Brazil is largely in the southern hemisphere.
Trump simply doesn’t care about the Constitution or Due Process of law (except where he, his family, and their corrupt cronies are involved). Migrants seeking to apply for legal protections under our laws aren’t a security problem; Trump is! And, the idea that closing the border wouldn’t cause both an economic catastrophe and threaten our security just shows what an absurdist presidency Trump has foisted on the majority of Americans who did not want him in office in the first place.
Trump has better options to stop dangerous flood of asylum-seeking migrants
By Nolan Rappaport
President Donald Trump has not been able to stop a surge in illegal border crossings, which, according to Customs and Border Protection (CBP) Commissioner Kevin K. McAleenan, is at the breaking point. In February, more than 76,000 migrants were detained, the highest number in 12 years. Most of them were asylum-seeking migrants from Central America.
The State Department told CNN on Saturday that the United States is cutting off aid to those countries.
Apparently, Trump thinks he can gain some control over the situation by pressuring the governments of El Salvador, Guatemala, and Honduras (known as the Northern Triangle) into assisting him with his efforts to secure the border.
I think he is mistaken. The amount of the aid he cut off is much smaller than the amount of money migrants from the Northern Triangle are sending home from jobs in America.
In 2017, migrants from the Northern Triangle who work in the United States sent billions of dollars home to their families. These remittancestotaled more than $5 billion for El Salvador, $4 billion for Honduras, and $8.68 billion for Guatemala. This was 20.1 percent of the Gross Domestic Product in El Salvador, 17.4 percent in Honduras, and 11.5 percent in Guatemala.
What is the aid supposed to do?
In 2016, the United States gave $131.2 million in aid to Guatemala, $98.3 million to Honduras, and $67.9 million to El Salvador, and Congress has appropriated about $2.1 billion for the program since then.
I encourage you to go on over to The Hill at the above link to read Nolan’s complete article.
I generally agree with Nolan’s observations, except for the idea of lengthening the time for family detention. Family detention is inhumane, unnecessary, expensive, and ineffective.
Why not just operate the asylum system in a fair and efficient manner? Fairly and efficiently administer the “credible fear” system in the Asylum Office as established by law. Give those who pass fair access to legal counsel and process their cases fairly and efficiently through the Immigration Courts. Remove the lower priority cases from the Immigration Court docket to allow priority processing of new asylum cases without long waits or increasing the backlogs. Give folks fair, impartial, and unbiased adjudications of their claims and let the chips fall where they may.
Most of us who are familiar with the asylum system believe that under a fair, impartial, “depoliticized” system that focused on due process and asylum expertise, many, probably a majority, of the arriving cases would be granted asylum or protection under the Convention Against Torture. While the Administration claims otherwise, we can never know because they keep insisting on “gaming” the system against asylum seekers from the Northern Triangle and using gimmicks to prevent individuals from getting the fair determinations to which they are entitled under law.
Trump’s White Nationalism is driving us towards a self-created international economic disaster. Why, when fair administration of our existing asylum system at the border is within our power and capability? Trump just lacks the will, integrity, and competence to make it happen.
Ted Hesson, Immigration, Pro — Staff mugshots photographed Feb. 20, 2018. (M. Scott Mahaskey/Politico)
Ted Hesson reports for Politico:
The border crisis that President Donald Trump used to justify declaring a national emergency was never real, but a different crisis at the border is now starting to escalate as immigration officials hold hundreds of parents and children in makeshift facilities, including a parking lot.
During a press conference in El Paso, Texas, Customs and Border Protection Commissioner Kevin McAleenan argued Wednesday that a surge of incoming Central American migrants has pushed the U.S. immigration system to a “breaking point” and that all available resources should be devoted to manage it.
But Democrats and advocates contend that the Trump administration’s response is exacerbating the problems.
Rep. Veronica Escobar (D-Texas), a freshman lawmaker who represents El Paso, fumed Thursday over the border situation — which she also described as a crisis — during an interview after leaving the House floor.
“They knew that the numbers would increase,” she said. “Why were they not planning?”
Here’s what’s really happening now at the border:
The president’s frequent claims that unprecedented numbers of undocumented migrants are streaming into the country remain untrue. (Twice as many came during the 1990s and early 2000s.) And President Trump’s caricature of border-crossers as violent criminals is still belied by study after study showing that immigrants in general, and undocumented immigrants in particular, commit fewer crimes than the native-born.
“We have a capacity crisis, if you want to think of it that way,” Rep. David Schweikert (R-Ariz.) told POLITICO. “We don’t have capacity to deal with the populations that they’re getting at the border right now.”
Border Patrol anticipates that it will apprehend more than 55,000 family members in March, by far the highest monthly total since such record-keeping began in fiscal year 2012. The warmer spring and summer months ahead will likely bring even higher numbers.
The adult men from Mexico who a decade ago constituted most border migrants were able to be returned more swiftly, often simply by walking them across the border. While they were detained, the men required comparatively little in the way of social or medical services.
Furthermore, a 2008 federal law and related bilateral agreement allowed the U.S. to repatriate Mexican unaccompanied minors rapidly. The law, called the Trafficking Victims Protection Reauthorization Act, does not similarly authorize quick deportation for children from Central America.
By contrast, the greater volume of children among the new Central American migrants imposes on immigration agencies a need for more psychologists, nutritionists, educators and a host of others. Border officials contend that with the rise in families and children, more migrants have health issues than in the past.
“We are doing everything we can to simply avoid a tragedy,” McAleenan said at the border Wednesday. “But with these numbers, with the types of illnesses we’re seeing at the border, I fear that it’s just a matter of time.”
Federal court orders in recent years have limited to 20 days the time children can be kept in detention, which means border agents often must release families into the interior. Such releases speed up processing, but demoralize agents and may encourage more migration, McAleenan argued.
The current migratory flow is also different because of the greater proportion of asylum applications at the border in recent years. Central American families arriving at the border frequently seek such refuge, which puts them into an immigration process that can take years to resolve.
The Trump administration argues that the asylum claims largely lack merit, but immigration court statistics don’t back that up. Roughly 25 percent of defensive asylum applications were approved by an immigration judge in fiscal year 2017, with 41 percent denied and 34 percent resolved in another manner, such as a withdrawn application.
Still, immigration hard-liners contend that lax asylum laws have been a magnet for Central Americans.
Mark Krikorian, director of the restrictionist Center for Immigration Studies, compared the current influx at the border to Europe’s migratory surge in 2015.
“We are seeing an Angela Merkel-style disaster on the border caused by loopholes in our laws that the Democrats refuse to even consider changing,” he said.
Democrats and advocates argue that the Trump administration’s response has exacerbated problems at the border.
Administration officials have known for months — arguably years — that more migrant families could trek to the United States, yet they appear to have been caught flat-footed.
During McAleenan’s press conference in El Paso Wednesday, reporters observed hundreds of parents and children held in a parking lot converted into a makeshift detention center.
“That’s their solution? That’s not a solution,” Escobar said. “In my community when these families are released, the community … scrambles and works hard to create hospitality centers, to feed these people, to help get them to their final destination. If we can do it with a fraction of the resources and power of the federal government, surely DHS can find a better solution.”
Escobar said DHS hasn’t taken adequate steps to deal with a long-term trend of more family and child arrivals. Border Patrol often uses small concrete cells that were better suited to the earlier populations of single men, many of whom would be sent back to Mexico in a day’s time, she said.
“They’ve been acting and responding in the same way over the last five years despite the change in the migration pattern,” she said.
The spending package approved by Congress in February included $192 million to construct a large processing center for migrant families in El Paso. The facility will house multiple agencies that deal with families in one building, but will take six months to a year to become functional, according to Escobar.
In the meantime, the Texas Democrat argues that if Trump truly deems immigration a national emergency, he should work harder to house and care for incoming migrants, perhaps with Federal Emergency Management Agency trailers or Red Cross assistance.
Under a January 2017 Trump executive order, federal immigration officials remain tasked with arresting and detaining as many migrants as possible, without a system of prioritization. Advocates contend the enforcement push has sapped resources that could be used to address the care and custody of newly arrived migrant families.
“They just detain any grandpa or mom that they find in the interior and they don’t prioritize who they should be putting in detention,” said Kerri Talbot, a director with the Washington, D.C.-based Immigration Hub. “They don’t need any more money, they need a new strategy.”
Under its “zero tolerance” strategy, the Trump administration sought to prosecute all suspect border crossers for illegal entry. Children couldn’t travel with their parents to criminal detention facilities, so they were reclassified as “unaccompanied” and transferred to the custody of the Health and Human Services Department. Thousands of families were split apart from April until June, only to see Trump reverse the policy and a federal judge order families reunited.
The administration also has sought to keep asylum-seeking migrants in Mexico for longer periods of time.
Using a practice known as “metering,” border officials have forced families to wait in Mexico, only accepting a certain number of asylum applicants at ports of entry each day.
A September report by the DHS inspector general’s office found evidence that forcing migrants to wait at ports actually encouraged more people to cross illegally. The report cited a Border Patrol supervisor and accounts of several migrants who said they attempted to enter illegally after being turned away at a port.
“They’re afraid of waiting in Mexico until they can get in at the port,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center. “They’re balancing that against their desire to do it legally. And I definitely think its emboldening the smugglers to go to those who are waiting.”
McAleenan acknowledged during a December Senate committee hearing that metering could lead to an increase in the number of people attempting to cross the border illegally, saying it’s “certainly a concern.”
Still, the Trump administration has moved forward with a separate policy to keep asylum seekers in Mexico for extended periods of time.
The administration’s “remain in Mexico” policy — announced in late December and now implemented in several areas along the border — forces certain non-Mexican asylum seekers to wait in Mexico during the duration of an asylum case.
At the same time, the administration has moved slowly to disperse funding to address root causes of migration in El Salvador, Guatemala and Honduras.
POLITICO reported this week that hundreds of millions in aid dollars remain stalled at the White House budget office as aides wonder how seriously to take Trump’s threats to cut the funding.
“Mexico is doing NOTHING to help stop the flow of illegal immigrants to our Country. They are all talk and no action,“ Trump tweeted Thursday. “Likewise, Honduras, Guatemala and El Salvador have taken our money for years, and do Nothing. The Dems don’t care, such BAD laws. May close the Southern Border!“
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Trump’s unwise threat to “close” the Southern Border could turn a humanitarian situation into a self-created international crisis. And, Trump continues to be the “best friend” of smugglers, cartels, and gangs.
There is a clear and present threat to our national security. It’s not desperate refugees (mostly women, children, and families) seeking to exercise their legal rights; unfortunately, it’s our President.
(CNN)On your 18th birthday, immigration officials will come for you, a lawyer explained. You will be shackled, you will be placed in an orange jumpsuit, and you will be taken to jail. “But I need you to know you are not a criminal.”
This is how Allison Norris, toll litigation staff attorney at Americans for Immigrant Justice, prepares her teenage clients in federal migrant detention shelters who are nearing age 18 without the prospects of a suitable sponsor to whom they can be released.
One of these clients is Veronica, whose name has been changed to protect her identity for fear of retribution. At age 17, she arrived in the United States alone, fleeing sexual predators in El Salvador.
Between the time Veronica arrived and when she turned 18, just over four months, Norris says, she attempted to find a sponsor. But none of the family friends who applied met the extensive list of requirements of the Office of Refugee Resettlement in order for her to be released from the shelter for migrant children in South Florida where she was detained.
On her 18th birthday, she woke up scared, wondering what would happen to her, Veronica said. Norris’ detailed warnings had not exactly calmed her down.
At 8 a.m. on her birthday, immigration officials arrived at the shelter. She was placed in ankle shackles and put in a “very cold room” for hours before being taken into adult detention, Veronica said.
In the months that followed, Veronica describes feeling depressed, crying every day and losing hope. Because she wasn’t serving a specific sentence, she had no idea how long she’d spend in detention.
With hours to fill in a cell she shared with three older women, she relived in her mind the attacks she suffered in El Salvador.
“I didn’t know what was worse: to have died in El Salvador or to be locked up,” she said.
Veronica is part of a group of kids known as ORR age-outs. When unaccompanied minors arrive in the United States, they are placed in the custody of the Office of Refugee Resettlement, part of the US Department of Health and Human Services, a humanitarian agency in nature.
Once they turn 18, teens are moved into the custody of the Department of Homeland Security — more specifically, US Immigration and Customs Enforcement, a law enforcement agency known as ICE. Migrant youth cannot, by law, stay in the shelters that housed them before they turned 18.
“I have interviewed the children right before they turn 18 and they go into these facilities,” said Yenis Castillo, a forensic psychologist with the nonprofit advocacy group Physicians for Human Rights. “All the kids I interview are terrified.”
In the weeks leading up to their 18th birthdays, Castillo said, she has seen teens act out, develop chronic headaches or high blood pressure, become depressed and even become suicidal.
“When people undergo trauma, they live in a constant state of alert, and on top of that, then we are sending them to prison,” she said.
Neha Desai, director for immigration at the National Center for Youth Law, has toured immigrant child detention centers across the country. “Everywhere I go, the kids that are in most extreme and visible distress are the ones that are approaching age-out. There’s so much anxiety in that period of time,” she said.
The Trafficking Victims Protection Reauthorization Act, passed in 2000 and reauthorized in 2008 and 2013, states that when unaccompanied immigrant children in the custody of the Office of Refugee Resettlement turn 18, ICE “shall consider placement in the least restrictive setting available after taking into account the [individual’s] danger to self, danger to the community, and risk of flight.”
“What we’ve seen is that they very rarely do,” said Xiaorong Jajah Wu, immigration attorney and deputy program director at the Young Center for Immigrant Children’s Rights. Wu oversees offices in Houston and Chicago, where she says it is the child’s attorney or child advocates who put forth alternatives to adult detention, “basically begging ICE not to take these kids on their 18th birthday.”
Wu said her team has not seen what they’d consider “any level of thought” being put into the decision of whether to take a migrant youth into adult detention.
In California, Lindsay Toczylowski, an immigration attorney and founder and executive director of the immigrant Defenders Law Center, says the move into adult detention has become the norm rather than the exception for teens over the past two years.
“What we’ve seen is a lack of discussion for ICE when deciding whether or not they are going to take a kid into custody,” she said. Toczylowski also worries about the way in which this is done, which she describes as “overkill,” considering that these are typically petite teens from rural communities in Central America who have committed no crimes.
Kate Melloy Goettel, senior litigation attorney at the National Immigrant Justice Center, noted that “Congress really understood that these kids are vulnerable. And now we are just trying to get ICE to understand that they have obligations under the law to really try to find options other than detention.”
These options, Goettel explains, includes placement with family members, non-family sponsors, shelters, group homes and institutional placement.
Jennifer Elzea, press secretary for ICE, wrote in an email that “custody determination is made by ICE on a case-by-case basis, taking into account the totality of the individual’s circumstance, to include flight risk, threat to the public and threat to themselves.” Elzea acknowledged understanding the requirement that the agency consider the least restrictive setting available and to consider alternatives to detention.
Goettel is part of the team of attorneys at the National Immigrant Justice Center who, in March 2018, sued Homeland Security and ICE on behalf of two migrant teens who were placed in adult prisons when they turned 18. The lawsuit alleges that ICE “failed to consider them for placement in ‘the least restrictive setting available’ and to provide them with meaningful alternatives to detention, as required by amendments to the Trafficking Victims Protection Reauthorization Act.”
According to documents obtained from the Office of Refugee Resettlement as part of the class-action lawsuit, 528 children aged out of custody in 2015. The number doubled to 1,044 in 2016, remained about the same at 1,091 in 2017 and, in the first half of 2018 alone, included 1,240 kids.
In November, Health and Human Services confirmed that there were a record 14,000 unaccompanied children in Office of Refugee Resettlement custody.
Since the lawsuit was filed, a judge required ICE to reassess the custody of the two original teens and place them in the “least restrictive setting possible.” In August, the court granted a motion for class action certification, meaning the lawsuit against Homeland Security is now on behalf of all unaccompanied migrant children in custody of the Office of Refugee Resettlement who “age out” when they turn 18.
When asked about the lawsuit, Elzea said, “ICE does not comment on pending litigation”
As for Veronica, she spent just over two months in adult detention. Norris, her attorney, says that a family friend with lawful status was able to get all required documents quickly, and Homeland Security released Veronica to live with her.
But, Norris says, the process can take much longer for other teens, many of whom lose hope while in detention and ask to be sent back to their home countries.
“They fought all this way to come here, raised all this money to go on this very dangerous journey to escape horrific violence, and all of a sudden they’ve been in detention for three months, and they’re like ‘just send me back. I can’t take it anymore,’ ” she said.
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The obvious solution: protect the kids; resist the Trump Kakistocracy. That’s what the New Due Process Army does!
Trump’s threats are backfiring and bringing more desperate migrants to the border
Families overwhelm facilities and end up behind concertina wire under a bridge in El Paso.
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EL PASO, Texas — Hundreds of migrants have spent days sleeping outside under the bridge connecting El Paso, Texas and Juarez, Mexico, wrapped in foil blankets to keep them warm during 50-degree nights. Some say they’ve been there up to five days, despite claims by immigration officials that they are being released in a day or two.
This is the new crisis at the border, one that the Trump administration seems eager to expose with immigration officials uncharacteristically open to allowing TV crews film the makeshift shelter.
On Friday, Democratic presidential candidate Beto O’Rourke showed up and asked border agents if the purpose if the shelter itself is a stunt. “Are we trying to send the message by having people in the open air, behind concertina wire and barbed wire and fencing with reporters allowed to go up and transmit these images,” he told VICE News. “It invites the question: are we trying to send a message by the way that we’re warehousing people at their most desperate moment?”
The president has championed hard-line immigration policies under the theory that they will deter Central American migrants from coming to the U.S. But instead of deterring migrants, Trump’s tough rhetoric may be doing the opposite: triggering a rush to the border by fueling a sense of “now or never” that has contributed to the highest number of undocumented migrants entering the U.S. in more than a decade.
“The more attention Central American migration gets, the more people start to panic and feel the door to the U.S. is going to close, and they should go now while they still have the chance,” said Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas at Austin.
The cycle is in overdrive.
More than 100,000 undocumented migrants are expected to cross the Southern border this month, according to U.S. Customs and Border Protection, driven by an unprecedented number of parents coming with their children. Overwhelmed, the agency has diverted 750 agents from the major points of entry to the border itself to help with the surge, while acknowledging that the immigration system is at a “breaking point.”
On Thursday, Homeland Security Secretary Kirjsten Nielsen sent a letter to Congress asking for more funding for detention facilities along the border. She also said she would seek legislation that would make it easier to deport unaccompanied minors back to their home country and “allow” Central American migrants to apply for asylum in the U.S. from their home country.
On Friday, President Trump threatened on Twitter to “close the Southern Border” next week if Mexico “doesn’t immediately stop ALL illegal immigration coming into the United States.”
Even assuming Trump could “close the Southern Border” — billions of dollars of cross-border trade are at stake — and any attempt would likely end up in the courts and drag on for months. Meanwhile, Trump may be inadvertently spurring yet another mass wave of migrants, and in particular families.
Catch and release
Already, the initial wave of asylum seekers has snowballed. Because so many migrant families are arriving to the border at once, there is not enough space in detention facilities to hold them. As a result, most spend a few days in detention and are released. They are given a notice to appear at a future court hearing, but in the meantime they can start working and enroll their kids in school.
From their new homes around the U.S., these asylum seekers are relaying the news to friends back home: reaching the U.S. wasn’t so hard — especially if you come with kids, Leutert said.
“The larger the numbers the easier it feels”
“The larger the numbers the easier it feels. Because when you arrive in a large group of people you are processed very quickly. It’s become a selling point for smugglers. That if you show up with your whole family, you will be held for a couple of days and released to start your life.”
The message is being heard across Central America, including El Salvador where it reached the ears of Julio Hernández Ausencio, a farmer who was struggling to survive after a drought devastated his crops and made it impossible to support his family.
“I knew if I came alone they wouldn’t give me the opportunity to stay in the United States. But if they saw me enter with my little girl, they would give us the chance to start a new life,” said Hernandez.
Hernandez paid $7,000 for a smuggler to take him and his 11-year-old daughter to the U.S. He said it usually costs $7,500 per person, but because they wanted to turn themselves in to U.S. immigration officials instead of sneaking across the border they got a better price.
As officials struggle to cope with the crush of asylum seekers, Customs and Border Protection began this week releasing asylum-seekers instead of turning them over to Immigration and Customs Enforcement — returning to a practice Trump derisively called “catch and release” when he was a candidate and promised to end. Also, many asylum seekers are being released without ankle bracelets to monitor their whereabouts because there simply aren’t enough.
How crackdowns help smugglers
Andrew Selee, director of the Migration Policy Institute in Washington, D.C. said that at every turn Trump’s crackdown on migrants has turned into a selling point to smugglers, starting with the now-abandoned family separation policy.
“It created a new cycle of migration around the fact that the U.S. government could not separate families and children. The smugglers take news that people have already heard and sell it as truth,” he said.
Trump’s fixation on the migrant caravan in the fall may also play a role in the current spike of asylum seekers. The caravan was tiny compared to the overall number of migrants entering the U.S. Around 6,000 Central Americans travelled with the caravan; this week, federal agents apprehended 4,000 migrants crossing the border on a single day.
But the attention that Trump gave the caravan – including sending troops to the U.S. border to stop it – elevated its profile and highlighted a new way for Central Americans to reach the U.S. without paying smugglers.
Selee thinks smugglers responded by cutting prices and finding new ways of delivering families to the border, including via express buses that take a week or less. That’s contributed to the large groups of 100 or more migrants that have been turning themselves over to Border Patrol agents.
“Among some people in Central America there is this sense that if they are going to migrate, they better do it now because at some point the U.S. government will really succeed in stopping them,” Selee said.
But Guadalupe Correa-Cabrera, a professor at George Mason University who studies human smuggling and migration, disputed the idea that Trump’s policies have backfired. She said Trump’s goal is getting a wall built along the border – whether or not the wall stops Central American migrants.
“These new caravans have helped Trump make a point and support the further militarization at the border,” she said. As for the spike in migrants seeking asylum: “This is perfect for Trump. It’s helping him get his wall built. That’s the bottom line.”
It’s all about “the wall,” a wasteful project with little real law enforcement value but lots of White Nationalist hate symbolism. Meanwhile, human lives and the humane values that were supposed to be embodied in our refugee and asylum laws are being trashed.
The shame is that with a real President and a better Administration the time, money, and effort being wasted on the wall and “built to fail” enforcement gimmicks could be re-channeled into actually addressing the problems driving forced migration, improving the asylum adjudication system, and harnessing they many positives that occur when forced migrants are treated fairly, respectfully, and welcomed into receiving countries.
Thompson claimed that when it comes to border security, the Trump administration is misleading the American people. Maybe, but I watched a video of the hearing and it seemed to me that the Democrats are the ones who are misleading the American people.
According to the testimony of the hearing’s only witness, DHS Secretary Kirstjen Nielsen, the country is facing a very real humanitarian and security crisis. Uncontrolled illegal migration is posing a serious and growing risk to public safety, national security, and the rule of law.
She is not the first DHS Secretary to make that claim. Every DHS Secretarysince the Department’s inception has sounded the alarm about our unsecured border.
Nielsen testified that DHS expects to apprehend more migrants crossing the border illegally in the first half of fiscal 2019 than it did in the entirety of fiscal 2017, and the numbers are rising. This, however, is not the only problem.
There also has been a change in who is making the illegal crossings.
Historically, illegal crossers were predominantly single adult males from Mexico who generally could be removed within 48 hours if they had no legal right to stay. Now, more than 60 percent of them are family units and unaccompanied alien children.
The detention facilities were intended to be short-term processing centers that would hold adult men for 72 hours or less. They are not suitable for lengthy detentions of women and children.
The Trump Administration has manipulated both the asylum legal system and asylum statistics in an attempt to prove their false narrative about widespread fraud and abuse. Indeed, it’s notable that even with all these political machinations and roadblocks to fair asylum adjudication, approximately 20% from the Northern Triangle succeed — certainly a significant number. Moreover, many of those who fail actually face danger if returned — they just can’t fit it within our somewhat arcane asylum system. Failing to be granted asylum is not an indication of fraud and has little or nothing to do with our obligation to provide fair and unbiased asylum adjudications consistent with Due Process. https://immigrationcourtside.com/2019/02/15/heidi-altman-heartland-alliance-how-eoir-other-trump-toadies-lie-distort-statistics-to-support-a-white-nationalist-immigration-agenda/
Something that jumps out: those who are represented succeed at a significantly higher rate, understand the system better, and are highly likely to appear. Therefore, the single most cost efficient and obvious measure to take would be providing funding for universal representation of asylum seekers. It’s much cheaper than cruel, expensive, and unnecessary “civil” detention and walls that will have no effect on the current rule flow of asylum seekers. And, as more cases are granted the less necessary it becomes for DHS to waste court time by contesting every case and the more the “problem of removals” diminishes. Those granted asylum don’t have to be removed or monitored — they can actually go to work and begin contributing to our society.
Addressing the causes of the human rights debacle in the Northern Triangle would also be more helpful, logical, and cost effective in the long run than more gimmicks and futile attempts to solve a refugee situation unilaterally at the “receiving” end by “designed to fail” enforcement efforts, while ignoring or intentionally aggravating the causes of the refugee flow.
Sonia C. Gomez is a historian of gender and immigration in the 20th century United States, and is currently a postdoctoral fellow at the Mahindra Humanities Center at Harvard University.
March 22
On Feb. 22, a young Honduran migrant woman went into premature labor and gave birth to a stillborn baby boy at the Port Isabel Detention Center in South Texas, four daysafter being detained by Immigration and Customs Enforcement.
The incident raises new questions about the detention of pregnant migrant women, and concerns that border control officials are infringing on the reproductive rights of migrant women and undermining their health and that of their babies. And there’s reason to worry: Such actions have historically been frequent and quite intentional. Nativist movements have long feared the reproductive capacity of migrant women and its potential for changing the demographic contours of the United States. This incident, and others like it, remind us once again how deeply intertwined women’s rights are with questions of immigration today.
In 1901, a Japanese teenager named Kaoru Yamataya arrived in Seattle visibly pregnant. Her pregnancy made Yamataya a target of a zealous immigration inspector named Thomas Fisher. Fisher claimed that Yamataya was “likely to become a public charge,” grounds for deportation under the dominant immigration law, and took her into U.S. custody. Two months after her arrival, Yamataya gave birth to a baby boy. Two months later, the infant died of pneumonia while he and his mother were still in the custody of the U.S. government.
This death created hardly a ripple in the press, a sign of shifting winds in U.S. immigration policy. Targeting women, particularly of Asian descent, as “public charges” was already commonplace. Its roots were in the Page Law of 1875, which barred contract laborers and prostitutes from “any Oriental country” from entering the United States. The Page Law created a system of immigration control that targeted women’s sexual practices.
But Yamataya’s case was at the leading edge of this desire to control immigrant women’s bodies extending to include greater focus on their reproductive capabilities. By 1924, Sen. James D. Phelan (Calif.) openly pleaded with Congress to pass legislation to exclude all Japanese women because, as he falsely claimed, they accounted for 33 percent of all births in California. Phelan’s fear was that “every child born is an American citizen under our very generous Constitution, intended to encourage population by European immigration of an earlier date when Asia was a closed book. What a Pandora’s box we opened when Admiral Perry went there and opened the gates of Japan!”
While Fisher said nothing so explicit in adjudicating Yamataya’s case, he pushed forward with the deportation process despite the death of her son. The inspector charged Yamataya with entering the United States under “surreptitiously clandestine” intentions, code for prostitution. Throughout the hearing in 1903, Yamataya denied the charge. She claimed to have immigrated to the United States for educational purposes, a claim backed by family members on both sides of the Pacific. Still, Fisher was unrelenting, and the law was on his side, giving him discretionary power to interpret and execute the law as he wished.
But Yamataya refused to give up the fight. She retained legal counsel, who argued that the 1891 Immigration Act was unconstitutional because it had deprived her of due process of law. Her attorney argued that Fisher whose “inspection” of Yamataya and subsequent investigation was “garbled, incomplete, misleading, and in many respects untrue” detained her unlawfully. During Fisher’s proceeding, Yamataya did not have adequate counsel nor did she receive an opportunity to present evidence to counter Fisher’s claims against her. Finally, she was not given the opportunity to consult with a language interpreter, made all the worse by the fact that Yamataya did not speak any English. At the time of Fisher’s initial investigation Yamataya had not even realized she was under investigation.
Yamataya’s case went to the Supreme Court, and on April 6, 1903, the court upheld the constitutionality of Immigration Act of 1891, as well as Yamataya’s deportation. However, it also established an immigrant’s right to a deportation hearing. Unfortunately for Yamataya, the court ruled that the ad hoc hearing conducted by Fisher and his colleagues constituted a legitimate hearing, and she returned to Japan in 1906.
Cases like Yamataya’s or that of the Honduran woman have become a major flash point over the past two decades, as a new nativist movement focuses on the threat that migrant mothers, especially those visibly pregnant, pose to their conceptions of America. The key is, as Phelan lamented nearly a century ago, the birthright citizenship enshrined in the 14th Amendment. This provision guarantees citizenship to all who are born in the United States, including the children of immigrant parents.
In 1994, fears that migrants taking advantage of this provision could dramatically alter the racial and ethnic composition of America spurred the passage of California Proposition 187, dubbed the Save our State initiative, which sought to bar undocumented immigrants from accessing education, welfare and health-care services. This measure targeted migrant women and children, particularly those of Mexican and Central American origins.
In the 21st century, such fears drove the rise of a new term: anchor babies. The Harvard political scientist Samuel Huntington popularized this phrase in the early 2000s to pejoratively refer to the American-born children of undocumented immigrants, and it stuck, giving nativists a new language to express their fears.
But this new language should not obscure the reality: Suspicions about migrant women’s reproduction have historically shaped immigration policy and practice. Given this history, we need to understand the current immigration crisis from a different perspective. At stake are not just migrant rights, but women’s rights as well.
Activism to safeguard women’s reproductive rights must extend to migrant women. Women’s rights groups should be demanding answers to an array of questions surrounding the 24-year-old Honduran women who gave birth to a stillborn while in ICE custody: What were the circumstances surrounding her premature labor? Was she given proper medical attention and care? Did she suffer additional abuse because of her visible pregnancy?
Migrant mothers, whether carrying a child in their wombs or in their arms, have faced the brunt of anti-immigration fervor, and they need allies to publicize such abuses and to mobilize to change the law that has failed women for over a century.
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Fear, loathing, bias, contempt, and total disrespect for the humane intent behind asylum laws and the true desperate situation of female refugees fleeing from the Northern Triangle radiates from Sessions’s decision in Matter of A-B-. How such a biased and unqualified individual would be in a position to make such a “quasi-judicial” decision is another question. That’s why we need an independent Article I U.S. Immigration Court now!
I met with G, an asylum seeker from Honduras, in a large open space at the South Texas Family Residential Center in Dilley, Texas, last month. As a volunteer attorney working with immigrants detained by Immigration and Customs Enforcement, it was my job to help her prepare for her initial asylum interview. First, though, I needed to hear her story.
The setting was not ideal, since anyone in the room could overhear what she said, including her two daughters, ages 10 and 12. She began hesitantly, describing how she had been raped by her father when she was 12. Her mother and six siblings, rather than being supportive, blamed G, whose full name I am not using because of her pending asylum claim, and her mother began beating her regularly. When she was 14, her father committed suicide, and the family held her responsible for his death.
In her neighborhood, everyone knew of her abuse history, G told me, and she was considered damaged goods, available to any man who wanted her at any time. She soon met an older man who said he loved her, and for two years she stuck with him. He was abusive, though, and she learned he was married.
As she sat across from me crying, recalling events she’d rather forget, I learned she was now 25 and had four children. As best as I could tell given the timeline, the two daughters sitting nearby had been fathered by her father. Since the girls had never heard these stories, G was ashamed and tried to minimize what she had been through. It took two hours of patient questioning to pull the full story out of her, and as she spoke, her daughters cried.
In the end, it hadn’t been her own troubles that made G flee Honduras. That decision was made in December of last year, she said, when local gang members told her that if she did not make her daughters sexually available to them, all her children would be killed.
I spent 10 days in February interviewing women like G in Dilley. I realize that many Americans suspect that Central American families come to the United States simply because it’s a better place to live, and that their asylum claims are fraudulent. But I wish they could meet the women I spoke with and hear their stories of fleeing to protect their children from imminent danger back home. I believe it would change even the most skeptical minds.
Nearly all of those I met with were, like G, applying for asylum, a process that begins with an interview to establish whether an applicant has a credible fear of returning home. Former Atty. Gen. Jeff Sessions attempted last year to disallow asylum claims based on fear of gang violence or domestic abuse, but in December a federal judge in Washington blocked the administration from categorically banning such claims. An appeal by the government is pending.
The women I talked to all knew the difficulties they faced, but felt they had no alternative but to try to stay in the United States for their children’s safety.
Two days after our initial meeting, G had her credible fear hearing, in a windowless trailer 50 feet from the detention center. The stakes were high. If she did not persuade the asylum officer she had a justifiable fear her children would be harmed in Honduras, they would all be sent back.
Although I have practiced law for many decades, I’ve never felt as terrified and helpless entering a legal proceeding. I had no idea whether G would be able to tell the hearing officer what she had told me, and I could do nothing to help her. In a regular courtroom, I could ask questions, object and make statements on behalf of my client. Here I was not allowed to speak. I hoped I my presence would provide at least a modicum of emotional support.
The asylum officer explained at the outset that attorneys who urged their clients to tell false stories would be prosecuted, and asked G if I had told her what to say. She said no. Then, hesitantly, she told her story.
G passed her credible fear interview, but there is no knowing what will happen ultimately to her or her children when their case is heard in immigration court. What I do know is that they and thousands of other women and children are at high risk of being returned to dangerous situations. Most have little education and don’t understand English, yet they must navigate a complicated legal labyrinth to avoid being sent back to their torturers.
Asylum laws exist to provide refuge to people like G. The United States should not abandon its responsibility to assist them.
Martin Garbus, a trial attorney, is the author of the forthcoming book “North of Havana.”
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Yup. Thank goodness for pro bono at tourneys like Martin Garbus who can make the difference between life and death in a system that could work in a fair and humane way, but consciously chooses not to.
Deprived of reasonable access to legal counsel and held in intentionally degrading and coercive conditions, many individuals with valid claims for protection don’t even have the faintest idea what standards they have to meet and what proof is expected from them. These are basic requirements of Due Process that our Government ignores and mocks on a daily basis.
San Diego (CNN)Twelve asylum seekers required to stay in Mexico for the duration of their immigration hearings presented themselves one by one before an immigration judge over nearly four hours Wednesday. Each case appeared to raise a similar set of questions about the new policy for Judge Jonathen Scott Simpson, and the hearing culminated in a dose of skepticism from the judge.
“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.
The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.
The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.
The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.
The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.
In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.
“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”
“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”
All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.
In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.
Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.
“Immigration officers need four hours,” said Robert Wities, an ICE attorney.
“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.
In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.
In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.
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Can you imagine what would happen if the ICE Assistant Chief Counsel Robert Wities told a U.S. District Judge when he or she could or couldn’t schedule hearings? What if a private attorney said he or she would only appear in the afternoon? What kind of “court system” doesn’t give its own judges flexibility to set their own court schedules in the manner they believe will be most fair, effective, and efficient? Why has the statutory contempt of court authority that Congress conferred on U.S. Immigration Judges more than two decades ago never been implemented by the DOJ?
A real court would examine both the legality and the procedures that the DHS unilaterally, and apparently incompetently, put in place for their “Stay in Mexico” program. Deputy AG Rod Rosenstein’s rewriting of the oath of office notwithstanding, U.S. Immigration Judges, like other Federal employees, swear an oath to uphold our Constitution (e.g., Due Process) not an oath of loyalty to the Attorney General, the President, or the DOJ.
JUSTICE PREVAILS AGAIN INIMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-
Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!
Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.
Go to this link for a redacted copy of Judge Trujillo’s decision:
U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.
It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.
It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.
That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”
Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASEThe Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court’s active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.
Recent family arrivals now represent just 4 percent of the current court’s backlog. Since September 2018 when tracking of family units began, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by DHS as “family unit” cases. The actual number of families involved were less than half this since each parent and each child are counted as separate “court cases” even though many are likely to be heard together and resolved as one consolidated family unit.
There has been no systematic accounting of how many cases involving families arriving at the border will involve Immigration Court proceedings in their resolution. Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Thus far, the number of families apprehended by the Border Patrol or detained at ports of entry dwarf the actual number of these cases that have made their way to Immigration Court.
In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through February 2019. For an index to the full list of TRAC’s immigration tools go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse
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Remember, folks, the next time you hear the Administration’s “professional liars” like Kirstjen Nielsen engage in bogus “hand wringing” and call for crackdowns on asylum applicants, their lawyers, and drastic changes to asylum law — she is covering up and shifting the blame for grossly incompetent management of the asylum program and the Immigration Courts by this Administration. “Victim blaming and shaming” — a staple of the Trump Kakistocracy — is about as low as it goes.
While laws can always be improved — for example an Article I U.S. Immigration Court, adding gender-based asylum to the “refugee” definition, supporting legal representation for arriving asylum seekers, and increasing the number and initial jurisdiction to grant asylum of the Asylum Officers should be “bipartisan no brainers” — the real problem here is not the law!
No, it’s the unwillingness of this Administration to follow laws protecting refugees, allow for robust “out of country processing” of refugees from Central America, and eliminate anti-asylum, anti-Latino, and anti-female bias from our asylum adjudication system that has created a “self-constructed crisis.”
Insist that this Administration take responsibility for their “designed to fail,” White Nationalist, restrictionist policies, improve performance, and administer refugee and asylum laws fairly, impartially, and in accordance with Due Process under our Constitution.
Under no circumstances should the already far too limited rights of asylum seekers and migrants to receive fair, honest, and humane treatment in accordance with constitutional Due Process be reduced as this Administration is always disingenuously seeking. And the money being illegally diverted and wasted on a semi-nonsensical “Wall” could and should much better be spent on improving our current asylum system and making it work — without any more illegal “gimmicks” such as attempting to rewrite the statutes by regulation, the bogus and ill-conceived “Migrant Protection Protocols,” and “slow walking” the applications of those who line up patiently to apply for asylum at legal ports of entry.