"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.
The aim of President Donald Trump’s new policy of splitting kids from their mothers at the border is, in a word, deterrence: The White House wants to discourage more immigrants from trying to enter the United States.
Kirstjen Nielsen, Trump’s secretary of homeland security, is careful not to say this outright — she dodged a direct question on the subject from Sen. Kamala Harris (D-Calif.) at a hearing last month.
JOHN MOORE VIA GETTY IMAGES
Central American immigrants walk after crossing the U.S.-Mexico border to turn themselves in to Border Patrol agents in February near McAllen, Texas. The Trump administration adopted a policy in May of intentionally separating mothers from their children at the border in order to deter migrants from crossing illegally into the U.S.
There’s a reason Nielsen and other administration officials shy away from attaching the word “deterrence” to the new policy: Changing immigrant detention policy as a way to deter undocumented people from coming to the U.S. is illegal, federal courts have repeatedly ruled. So now she and other Trump administration officials find themselves struggling to defend a family separation policy whose clear ambition is deterrence.
A growing number of mothers have crossed into the United States since 2014, often from Central America and often requesting asylum. Other administration officials were blunter in the past when discussing a policy that would split the families up to scare them away from coming.
The Department of Homeland Security was considering separating children from their parents “in order to deter” undocumented immigration, White House chief of staff John Kelly told CNN while serving as Nielsen’s predecessor last year. And Gene Hamilton, a former aide to Attorney General Jeff Sessions, asked participants at a meeting last August on the policy to “generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” according to The New Yorker.
Whether or not the deterrence goal is spelled out, the strategy is likely to backfire. Former President Barack Obama learned that lesson in 2015, when a federal judge in Washington blocked his plans to lock up Central American immigrant mothers and their kids without bond to deter others from trying to cross the border.
U.S. District Judge James Boasberg ruled that the federal government can’t detain immigrants indefinitely for the sake of deterrence alone. Instead, the decision to detain needed to be based on whether the immigrant posed a threat to the community or a flight risk.
The Obama administration was forced to provide bond hearings to the migrants in family detention. A separate ruling that year ordered the Obama administration to start releasing people from family detention after three weeks in order to comply with the Flores settlement, a 1997 deal that bars the government from locking up children in detention centers.
The Trump administration hopes to skirt the rulings that got Obama officials into trouble by prosecuting immigrant parents at the border. The federal government can’t jail children while their mothers await trial, so immigration authorities transfer them to the Office of Refugee Resettlement to find a sponsor or to non-secured facility to hold them, as if they arrived by themselves.
But this legal maneuver stands on the same shaky ground.
“Whether the deterrence to seeking protection is being done by detaining families or separating families doesn’t make a whole lot of difference,” said Michelle Brané, the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission. “They’re both punishing families for seeking protection, and protection to which they have the right under U.S. law.”
The Trump administration is already running into legal trouble over its policy. The American Civil Liberties Union filed a lawsuit in federal court in Southern California to overturn Trump’s family separation policy, asking U.S. District Judge Dana Sabraw for a nationwide injunction to halt the practice. At a hearing on May 4, Sabraw repeatedly asked whether the Trump administration had adopted the family separation policy to deter others.
“If there were a blanket policy to separate for deterrence value, would that be legal?” Sabraw asked, according to a transcript of the hearing. “Would that pass muster under the Fifth Amendment?”
The judge did not receive a straight answer. The government’s lawyer, Sarah Fabian, instead argued that the government wasn’t separating mothers from their kids systematically, and only following existing immigration law to do so.
Attorney General Jeff Sessions undermined her argument three days later, when he announced that the Justice Department’s “zero tolerance” policy for prosecuting border-crossers included mothers who cross with their children.
Lee Gelernt, the lawyer leading the ACLU lawsuit, called the government lawyer’s unwillingness or inability to defend family separation on the merits without resorting to the legally fraught term “deterrence” significant.
“The government still needs a persuasive justification for separating children,” Gelernt wrote in an email. “And the government has not provided one.”
On Wednesday, Sabraw ordered that the case against family separation can move forward, over the Trump administration’s objections. Although he has yet to rule on the case’s merits, his order did not augur well for the federal government.
Implementing a family separation policy to deter other migrants “arbitrarily tears at the sacred bond between parent and child,” Sabraw wrote. “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”
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Ah, the never-ending legal, moral, and intellectual corruption and dishonesty of the Trumpsters!
Take depositions — force them to lie under oath or admit they have been lying publicly. And, as I recently pointed out, most Article III Federal Judges, who actually have contempt of court authority, take a dim view of perjury by Cabinet Officers in their court proceedings.
I also think that even under the Supreme’s restrictive standards, there is an ever increasing possibility of actually imposing monetary damages on Nielsen, Sessions, and others for their intentional denial of Constitutional rights and their dishonest schemes to conceal their true intent. I actually think that when the full truth some day comes out, we will find not only illegal deterrence, but rather clear evidence of racial animus underlying Sessions’s policies. To be honest, Sessions has turned the entire U.S. Immigration Court system into a tool for enforcement deterrence — a huge violation of Due Process, as well as an astounding conflict of interest and violation of ethics.
Also, not surprisingly, the name of Sessions’s restrictionist crony Gene Hamilton has surfaced in connection with this scheme.
Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules
By Tal Kopan, CNN
She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.
The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.
According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”
Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.
But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.
Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.
“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.
Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”
Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.
“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”
For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.
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Judge slaps Sessions, feds over ‘sanctuary cities’
By: Tal Kopan, CNN
A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.
The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.
The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.
Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.
House GOP immigration negotiations continue ahead of key Thursday meeting
By: Tal Kopan and Lauren Fox, CNN
House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.
“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.
Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.
On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.
Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!
Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”
“All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers.”
“We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”
Clinton is not the only Democrat who has spoken out against illegal immigration. The Republicans provide a number of examples in a blog they posted recently: “The Democrat Hard Left Turn on Illegal Immigration.”
In 1993, then-Senator Harry Reid (D-Nev.), said, “When it comes to enforcing laws against illegal immigration, we have a system that will make you recoil in disbelief. … Yet we are doing almost nothing to encourage these people to go home or even to deter them from coming here in the first place.”
In 1994, Senator Dianne Feinstein (D-Calif.) ran a political ad showing illegal immigrants crossing the border and promised to get tough on illegal immigration with more “agents, fencing, lighting, and other equipment.”
In 2006, then-Senator Barack Obama (D-Ill.) said “Better fences and better security along our borders” would “help stem some of the tide of illegal immigration in this country.”
In 2009, during a speech at Georgetown Law, Senator Chuck Schumer(D-N.Y.) said, “When we use phrases like ‘undocumented workers,’ we convey a message to the American people that their government is not serious about combating illegal immigration, which the American people overwhelmingly oppose.”
The blog also provides video clip links, including one that shows Clinton receiving a standing ovation for his remarks about Americans being disturbed by the large numbers of illegal aliens entering the country.
. . . .
A recent report from the Economic Policy Institute (EPI) on the labor laws California has enacted to protect unauthorized immigrant workers indicates that many of the immigrants who have been attracted to California by its sanctuary policies are being exploited by unscrupulous employers.
In fact, the main beneficiaries of California’s sanctuary policies are the employers who exploit undocumented immigrant workers and deportable immigrants in police custody who otherwise would be turned over to ICE when they are released.
California has had to enact seven laws to protect undocumented workers from being exploited by their employers.
EPI found that the ability of U.S. employers to exploit unauthorized workers undercuts the bargaining power of U.S. workers who work side by side with them. When the wages and labor standards of unauthorized immigrants are degraded, it has a negative impact on the wages and labor standards of U.S. workers in similar jobs.
In reality, we could meet all of our immigration needs with legal immigration. We do not need nor ultimately benefit from uncontrolled illegal immigration.
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Go on over to The Hill to read Nolan’s complete article.
I’m all for replacing the uncontrolled flow of undocumented migrants with legal migrants. That’s why I favor a “smart” immigration policy that would:
Legalize the vast majority of those currently here without documentation who are working in needed jobs, law-abiding, and contributing to our society. Legalization would allow them to be screened, brought into the tax system (if they aren’t already), and protected by U.S. labor laws.
Expand legal immigration opportunities, particularly for so-called “non-professional,” manual labor skills and jobs that are badly needed in the U.S. and which now often are filled by undocumented labor. That would allow screening of visa applicants abroad, a controlled entry process, and protections under the labor laws. To the extent that undocumented migration is being driven by unfilled market forces, it would decrease the flow of undocumented individuals, thus saving us from expensive, unneeded, inhumane, and ineffective “enforcement overkill.” Immigration enforcement would be freed to concentrate on those who might actually be a threat to the U.S.
Create more robust, realistic refugee laws that would bring many more refugees through the legal system, particularly from the Northern Triangle. This, along with cooperation with the UNHCR and other nations would reduce the need for individuals to make they way to our borders to apply for asylum. Asylum processing could be improved by allowing the Asylum Office to review and grant “defensive” as well as affirmative applications, thus lessening the burden on the Immigration Courts.
More investment in Wage and Hour, NLRB, and OSHA enforcement to prevent unscrupulous employers from taking advantage of workers of all types.
We have full employment, surplus jobs, a declining birth rate, and we’re losing the “STEM edge” to the PRC, Canada, Mexico, the EU and other nations that are becoming more welcoming and attractive to “high skill” immigrants. We’re going to need all of the legal immigration we can get across the board to remain viable and dynamic in a changing world.
Sessions, Justice Department take lead as public face of Trump’s immigration policy
By: Tal Kopan, CNN
If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.
“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.
“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”
Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”
Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”
The government has offered no substantive legal justification for the Trump administration’s policy of indefinitely separating children from their parents at the border.
On Thursday, Sen. Dianne Feinstein proposed a law that would bar the intentional separation of asylum-seeking parents from their children when they cross the border. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” the California Democrat said in a statement publicizing the move.
Affidavits from a February lawsuit filed by the American Civil Liberties Union show precisely what Feinstein describes. The Congolese asylum-seeker at the center of the case, known as “Ms. L,” described having her 6-year-old daughter taken away by the U.S. government without explanation. “She was taken into another room and then I heard her screaming: Don’t take me away from my mommy!” the woman wrote. In court filings, the government questioned whether Ms. L was in fact her child’s mother. The woman had her child returned only after the suit was filed and the government was made to conduct a DNA test that proved her parentage.
“[T]hese terrible policies call into question whether we are in violation of our own laws and our obligations under international law,” Feinstein said in proposing a law to stop the practice of splitting up families at the border. Feinstein is right: There seems to be no coherent legal justification for separating children from their parents, some of whom—like Ms. L—presented themselves at a port of entry as asylum-seekers and have not been charged with any crimes.
The rationale top Trump administration officials have stated publicly—that such a practice will deter undocumented immigrants from seeking asylum at the border—appears to be so patently unconstitutional that the government’s own lawyers have renounced it in court. If the broad outlines here sound familiar, that’s because the legal fight over the policy is shaping up as a replay of the battle over President Donald Trump’s disastrous first travel ban, which was quickly struck down as a blatant violation of due process rights.
“I did not even have a chance to comfort my son, because the officers slammed the door shut as soon as he was in hisseat.”— affidavit of Mirian, whose 18-month-old was taken at the Texas border
A federal judge in San Diego is set to rule any day on the question of whether the government is lawlessly abducting immigrant children at the border. The ACLU is seeking a classwide preliminary injunction to put a stop to the practice. Based on a close reading of legal filings in the case, the public statements of policymakers, and a transcript from a critical hearing last month, it’s difficult to fathom how the judiciary could possibly rule in favor of the government.
In court proceedings last month, Judge Dana Sabraw indicated that the case, Ms. L v. ICE—filed by the ACLU on behalf of Ms. L and other asylum-seeking parents who have had their children taken away—should hinge on the due process clause of the Fifth Amendment. Under a series of Supreme Court precedents, family integrity has long been considered a “fundamental” due process right. Among other rulings, the ACLU’s lawsuit cited the Supreme Court’s opinion in 2000’s Troxel v. Granville, which stated that there is “a fundamental liberty interest of natural parents in the care, custody, and management of their child.” This precedent mandates both that the government show a compelling government interest in separating a child and parent—preventing child abuse, for instance—and that it is using the least restrictive means to fulfill that interest.
In the ACLU’s case, the government has not shown a lawful basis for its policy of indefinitely separating immigrant children from their parents at the border. In fact, government lawyers have denied the existence of any such policy at all. In response to Sabraw’s question about whether the government “has a practice, or perhaps even a policy, of separation of families as a deterrence mechanism,” Justice Department attorney Sarah B. Fabian asserted, “There is not such a policy.”
This claim directly contradicts the administration’s publicly stated reasoning. When asked by CNN in March 2017 about the possibility of separating children from their parents at the border, then–Secretary of Homeland Security John Kelly said, “I am considering, in order to deter more movement along this terribly dangerous network, I am considering exactly that.”
Per the New York Times, that policy was put on hold at the time because it was deemed too controversial. But in the last several months, as Trump has reportedly put intense pressure on his Cabinet to reverse an uptick in border crossings by undocumented immigrants, such a policy appears to have been put into place. Last month, the Washington Post reported that a pilot version of a program of separating families had occurred “in the Border Patrol’s El Paso sector, which includes New Mexico, between July and November 2017, and [the administration] said the number of families attempting to cross illegally plunged by 64 percent.” And in a pair of speeches last month, Attorney General Jeff Sessions seemed to herald the launch of a formal policy, calling it a “zero-tolerance” immigration measure. “If you don’t want your child separated, then don’t bring them across the border illegally,” Sessions said. “It’s not our fault that somebody does that.” Kelly, now Trump’s chief of staff, stated again last month in an interview with NPR that the purpose of “family separation” is deterrence. “The name of the game to a large degree … a big name of the game is deterrence,” he said.
The current secretary of Homeland Security, Kirstjen Nielsen, did not provide a direct answer when asked by NPR if “family separation at the border … [was] meant to act as a deterrent,” explaining that it’s very common for adults to get separated from their children when they commit crimes. In testimony before Congress in April, Nielsen said, “When we separate, we separate because the law tells us to, and that is in the interest of the child.”
In a memorandum that outlines the proposal and was obtained by The Washington Post, officials say that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings. Most parents now caught crossing the border illegally with their children are quickly released to await civil deportation hearings.
“Such a policy would mean separating parents and children, because the parents would be placed in criminal detention, where children cannot be held,” the Post noted.
In a statement provided to the Post, Homeland Security spokeswoman Katie Waldman said, “DHS does not have a policy of separating families at the border for deterrence purposes.” Waldman did justify the splitting of families, though, by claiming it was necessary to combat child smuggling as well as to “protect” children from their own “nefarious” border-crossing parents. “DHS does … have a legal obligation to protect the best interests of the child whether that be from human smugglings, drug traffickers, or nefarious actors who knowingly break our immigration laws and put minor children at risk,” she said.
While the government denies the existence of a concrete policy, the numbers tell a different story. “Customs and Border Protection informed me that 658 children were taken from 638 parents during a 14-day period in May,” Feinstein reported on Thursday. This is a huge uptick from the six-month period between October and April, when the New York Times reported that “more than 700 children”—roughly 120 per month, as compared to 658 in 14 days—were reportedly separated “from adults claiming to be their parents.”
Let’s imagine that, based on all this evidence, Judge Sabraw—who was appointed by George W. Bush—determines there is in fact a new government policy of separating children and parents at the border. The court would then need to examine the government’s stated rationale for enacting such a rule. For the policy to pass constitutional muster, the government needs some legal justification for the indefinite separation of parents from children, even when the parents and children are undocumented immigrants. The Supreme Court held in 2000’s Zadvydas v. Davis that due process rights apply to undocumented immigrants. This holding suggests the government may not separate asylum-seekers from their children indefinitely and without cause. During last month’s arguments, it sounded like the judge believed the policy justification stated by Kelly—deterrence of illegal immigration—was clearly unconstitutional. “A policy of deterring families from entering the United States by separating them … would [that not be] a clear substantive due process violation?” Judge Sabraw asked of Fabian, the government attorney.
“If it was done without any otherwise authority to cause the separation, I think, we might be closer to that problem,” she acknowledged, claiming the government does have such authority stemming from the Immigration and Nationality Act. When Sabraw responded that the government still hadn’t presented a substantive due process rationale, Fabian said the government has a right to separate parents who are jailed for violating the law from their children while those parents are behind bars. The ACLU, in this lawsuit, is not contesting that fact. What it is contesting is the government’s apparent policy of refusing to return children to parents once they’ve served their time—generally around a month for misdemeanor illegal entry—and of taking children from parents who present themselves at a U.S. port of entry seeking asylum and have not been charged with any crime.
When confronted about the legality of these practices, the government has merely asserted they are legal without providing a substantive justification. “They can’t come up with a justification because the truth is that the only justification that makes sense is their perceived view of the deterrence value,” Lee Gelernt, the ACLU attorney litigating the case, told me.
Having reviewed the transcript from the hearing, and having read the government’s legal filings, Gelernt appears to be correct. At May’s hearing, the judge repeatedly questioned Fabian about whether a substantive due process violation had occurred. Fabian asserted it had not. The judge then made clear that the government had to offer an actual argument. “Simply saying there is detention and … therefore the family integrity gives way doesn’t address specifically what’s happening in this case,” Sabraw said. “Doesn’t there have to be some determination in order to comply with Fifth Amendment rights before separately detaining family members?”
Fabian, at this point, simply stated: “We don’t agree that that has to be made.” She then said that when a minor and parent are separated, the Trafficking Victims Protection Reauthorization Act dictates that the minor be placed with another custodian. But she didn’t explain why the decision to indefinitely separate the minor from the parent would be made in the first place.
The notion that a child is better off without his parent not only flies in the face of logic, it also contradicts governmentpolicies.
Later, the judge specifically addressed those situations in which a person has been convicted of an unlawful entry misdemeanor, had their child lawfully separated from them while they were incarcerated, and then been detained by immigration officials separately from their children while awaiting asylum. “Is there any process that [the Department of Health and Human Services] has or DHS has where after a person has served their time, efforts or a process exists to explore the lawful options of reuniting the parent with the child?” Sabraw asked. “There is not a process that would reunite them at that time because she is in ICE custody and remains unavailable,” Fabian responded. “Shouldn’t there be” some process for reuniting “after a person does their time?” the judge asked. Fabian then argued that it is in the best interests of children to remain separated from their detained parent because such a parent is “not going to be a suitable custodian.”
The notion that a child is better off without his parent not only flies in the face of logic, it also contradicts government policies that allow the detention of some undocumented asylum-seekers with their children. If such parents have historically been considered suitable custodians—and in some cases are still considered suitable custodians—how can other similarly situated parents not be considered suitable custodians?
The government ultimately leaned on the argument that DHS must make decisions in a hurry. “The goal is not to prolong that process but to get folks to the location where they can be housed long-term if that is what is going to happen,” Fabian argued. Again, this argument is illogical: It wouldn’t take any longer to decide to keep parents and children together than it would to decide to separate them. Sabraw also asked if DNA testing might help the government distinguish biological parents from child smugglers, as it had in the case of Ms. L. Fabian said she didn’t know if that was “a feasible option.”
The ACLU has asked the court to allow it to add more plaintiffs to Ms. L v. ICE, which was previously filed with two plaintiffs. One of the motions seeking class certification includes affidavits from several other immigrants who’ve had their children taken away at the border. Those affidavits offer more examples of what it looks like when kids as young as 18 months old are literally ripped away from their parents.
Testimony of Mr. U:
All I can remember is how much my son and I were both crying as they took him away. I do not recall anyone questioning whether I am really his biological father or whether I was a danger to him or abusive in any way. I even had my son’s birth certificate proving I am his father. … It has been six months since I last saw my son.
Testimony of Ms. G:
Shortly after arriving, I was told that I was going to be separated from my daughter. There were no doubts expressed that I was my daughter’s biological mother and I have a birth certificate to show our relationship. They did not say that I was a danger to my daughter or was abusive. … I know that [my children] are having a very hard time detained all by themselves without me. They are only six and four years old in a strange country and they need their parent. I hope I can be with my children very soon. I miss them and am scared for them.
Testimony of Ms. J. I. L.
That day, March 13, a woman came to pick up my kids. I was given only five minutes to say goodbye before J.S.P.L. and D.A.P.L. were torn from me. My babies started crying when they found out we were going to be separated. It breaks my heart to remember my youngest wail, “Why do I have to leave? Mami, I want to stay with you!” … In tears myself, I asked my boys to be brave, and I promised we would be together again soon. I begged the woman who took my children to keep them together so they could at least have each other. She promised she would, and she left with my boys. … I am particularly worried about my older son J.S.P.L. who was not doing well back in El Salvador after he saw MS gang members beat me and threaten me. He did not even want to leave my side to go to the restroom. … Both of my sons need their mother. I do not know if they are eating, sleeping, or even going to the restroom.
Testimony of Mirian:
The U.S. immigration officers then told me that they were taking my [18-month old] son from me. They said he would be going to one place and I would be going to another. I asked why the officers were separating my son from me. They did not provide any reason. … The immigration officers made me walk out with my son to a government vehicle and place my son in a car seat in the vehicle. My son was crying as I put him in the seat. I did not even have a chance to comfort my son, because the officers slammed the door shut as soon as he was in his seat. I was crying too. I cry even now when I think about that moment when the border officers took my son away.
Nielsen has said the government is acting as expeditiously as possible in such cases. “It’s not our intent to separate people one day longer than is necessary to prove that there is in fact a custodial relationship,” she told NPR last month. These affidavits call that claim into question.
Gelernt added that he has never seen anything this dramatic in his many years of working on immigration cases and doesn’t believe the public outrage has been nearly commensurate with the actions taking place.
“I just feel like the debate has become so abstract,” Gelernt told me. “If any policymaker could sit in that room for a day and watch these kids begging and screaming not to be taken away, I don’t know how they could continue this practice.” He says he fears the general population is already forgetting about the stakes of this case: “Roseanne will make another comment and the kids will be sitting there for another eight months, and no one will remember them.”
A mother unleashed a piercing scream as her baby was ripped from her arms during a slave auction. Even as a lash cut her back, she refused to put her baby down and climb atop an auction block.
The woman pleaded for God’s mercy, Henry Bibb, a former slave, recalled in an 1849 narrative that is part of “The Weeping Time” exhibit at the Smithsonian’s Museum of African American History and Culture, which documents the tragic history of children being separated from their parents during slavery. “But the child was torn from the arms of its mother amid the most heart-rending shrieks from the mother and child on the one hand, and the bitter oaths and cruel lashes from the tyrants on the other.”
Her mother was sold to the highest bidder.
Enslaved mothers and fathers lived with the constant fear that they or their children might be sold away.
“Night and day, you could hear men and women screaming … ma, pa, sister or brother … taken without any warning,” Susan Hamilton, another witness to a slave auction, recalled in a 1938 interview. “People was always dying from a broken heart.”
The Trump administration’s current crackdown on families that cross the border illegally has led to hundreds of children, some as young as 18 months, being separated from their parents. The parents are being sent to federal jails to face criminal prosecution while their children are being placed in shelters operated by the Department of Health and Human Services. Often, the children have no idea where their parents are or when they will see them again.
The policy has generated outrage among Democrats and immigration advocates. And it has conjured memories of some of the ugliest chapters in American history.
“Official US policy,” tweeted the African American Research Collaborative over the weekend. “Until 1865, rip African American children from their parents. From 1870s to 1970s, rip Native American children from their parents. Now, rip children of immigrants and refugees from their parents.”
Henry Fernandez, co-founder of the collaborative and a senior fellow at the Center for American Progress, said he drafted the tweet based on his research into several periods in U.S. history when government officials sanctioned the separation of children from their parents, including during slavery.
Another period of family cruelty, Fernandez said, began in the late 1800s and lasted well into the 1970s, when indigenous children across the country were forcibly separated from their families and sent to “Indian schools.” At the boarding schools, the children were required to assimilate. They were stripped of their language and culture. Often they were physically and sometimes sexually abused.
“In each case, we look back at the programs as barbaric,” Fernandez said. “History will similarly consider the Trump administration’s ripping children from their parents as an unconscionably evil government action.”
According to the Smithsonian’s National Museum of the American Indian, beginning in the late 1800s, thousands of American Indian children were sent to government-run or church-run boarding schools.
“Families were often forced to send their children to these schools, where they were forbidden to speak their Native languages,” according to the museum.
The exhibit includes a quote from Richard Henry Pratt, founder of the Carlisle Indian Industrial School: “In Indian civilization I am a Baptist,” Pratt wrote, “because I believe in immersing the Indian in our civilization and when we get them under, holding them there until they are thoroughly soaked.”
A teacher and students at the Carlisle Indian Industrial School in Pennsylvania in 1901. (Library of Congress)
At boarding schools, “children were forced to cut their hair and give up their traditional clothing,” according to the museum. “They had to give up their meaningful Native names and take English ones. They were not only taught to speak English, but were punished for speaking their own languages. Their own traditional religious practices were forcibly replaced with Christianity. They were taught that their cultures were inferior. Some teachers ridiculed and made fun of the students’ traditions. These lessons humiliated the students and taught them to be ashamed of being American Indian.”
“They tell us not to speak in Navajo language. You’re going to school. You’re supposed to only speak English. And it was true. They did practice that, and we got punished if you was caught speaking Navajo,” John Brown Jr., a Navajo who served in World War II as a code talker, using his Navajo language for tactical communications the Japanese could not decode, told the National Museum of the American Indian in a 2004 interview.
“When we got talking, ’cause we’re not allowed to talk our tribal language, and then me and my cousin, we get together and we talk in Indian, we always hush up when we see a teacher or faculty coming,” Charles Chibitty, a Comanche code talker, told the museum in 2004. “And then we always laughed and said, ‘I think they’re trying to make little white boys out of us.’ ”
Government Indian school on the Swinomish Reservation in La Conner, Wash., in 1907. (Library of Congress)
Until the end of the Civil War, it was common for slave owners to rip families apart by selling the children or the parents to other slave owners.
“Along with ongoing rape and the use of the whip to discipline human beings,” Fernandez said, “destroying families is one of the worst things done during slavery. The federal government maintained these evils through the fugitive slave laws and other rules which defined African Americans as property with which a slave owner could do whatever they wanted.”
Each of these U.S. policies, Fernandez said, begins with the assumption “that the idea of family is simply less important to people of color and that the people involved are less than human. To justify ripping families apart, the government must first engage in dehumanizing the targeted group, whether it is Native Americans, African Americans or immigrants from Central America fleeing murder, rape, extortion and kidnapping.”
“There is no question these children are innocent,” Fernandez said, “but Trump associates them with the idea that these are not like your children and thus less than human.”
Slave narratives reveal the heart-wrenching stories of children taken from families.
According to the Maryland State Archives: “For most slave children, the separation from their parents and the siblings was the hardest aspect of being sold. Slaves went to great lengths to keep their family together, but there was often limits to what they could do.”
The report includes a narrative from Charles Ball, who was enslaved as a child and remembered the day he was sold away from his mother.
“My poor mother, when she saw me leaving her for the last time, ran after me, took me down from the horse, clasped me in her arms, and wept loudly and bitterly over me,” Ball recalled. “My master seemed to pity her and endeavored to soothe her distress by telling her that he would be a good master to me, and that I should not want anything.”
Still, his mother would not let go. She walked beside the horse, begging the slave owner to buy her and the rest of her children.
“But whilst thus entreating him to save her and her family,” Ball recalled, “the slave-driver, who had first bought her, came running in pursuit of her with a raw hide in his hand. When he overtook us, he told her he was her master now and ordered her to give that little Negro to its owner and come back with him. My mother then turned to him and cried, ‘Oh, master, do not take me from my child!’ Without making any reply, he gave her two or three heavy blows on the shoulders with his raw hide, snatched me from her arms, handed me to my master, and seizing her by one arm, dragged her back towards the place of sale.”
After the end of the Civil War, thousands of former slaves looked for lost relatives and children who had been sold away from their families. They placed thousands of ads in newspapers.
Mary Bailey searches for her children, Nancy, Ben, Polly, Tempa and Isham Bailey. The ad ran in the Daily Dispatch newspaper in Richmond on Nov. 24, 1866.
Those ads are now being digitized in a project called “Last Seen: Finding Family After Slavery,” which is run by Villanova University’s graduate history program in collaboration with Philadelphia’s Mother Bethel AME Church.
The ads started appearing about 1863. By 1865, when the Civil War ended, they were coming out in streams, thousands of “Information Wanted” notices in black-owned newspapers across the country, seeking any help to find loved ones.
Mothers looked for their children; children looked for their mothers; fathers placed ads for lost sons; sisters looked for sisters; husbands sought their wives; wives tried to find their husbands.
The ads often gave detailed physical descriptions of the missing, names of former slave owners, locations where family members were last seen, and sometimes maps, tracing how many times they were sold from one owner to the next until they were so far from family members all they had to cling to were sketchy memories.
Elizabeth Williams, who had been sold twice since she last saw her children, placed a heart-wrenching ad in the Christian Recorder newspaper in Philadelphia:
“INFORMATION WANTED by a mother concerning her children,” Williams wrote March 17, 1866.
In four column inches, the mother summed up her life, hoping the details would help her find the children. She listed their names — Lydia, William, Allen and Parker — and explained in a few words that she last saw them when they were “formerly owned together” by a man named John Petty, who lived about six miles from Woodbury, Tenn.
She explained how her family was split apart when she was sold again and taken farther south into captivity.
“She has never seen the above-named children since,” the ad said. “Any information given concerning them, however, will be gratefully received by one whose love for her children survives the bitterness and hardships of many long years spent in slavery.”
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Resist the toxic, inhumane, immoral, and illegal immigration policies of Trump, Sessions, Nielsen, Miller, and the rest of their White Nationalist Gang. “Just say no” to the “Make America Grotesque Again” Mob. Join the New Due Process Army and stand up for the Constitutional rights of everyone in America, regardless of color, creed, or status!
The number of migrants attempting to cross illegally into the United States remained high last month, according to administration officials and Border Patrol agents, an early indication that “zero tolerance” measures separating parents from their children and President Trump’s deployment of National Guard troops have not had an immediate deterrent effect.
The Department of Homeland Security is expected to publish its closely watched monthly arrest totals in coming days, and Trump administration officials are bracing for a new eruption from the president. He has treated the statistics as a gauge for the success of his hard-line immigration policies, and when border arrests fell to historic lows in the months after his inauguration last year, Trump touted the decrease as a personal triumph.
Since then, migration trends have reversed. In March and again in April, border arrests exceeded 50,000, the highest monthly totals of Trump’s presidency, sending him into fits of rage, aides say. Trump unloaded on DHS Secretary Kirstjen Nielsen during a Cabinet meeting May 9, scorching her for nearly 30 minutes over the spike in illegal crossings, while demanding she “close” the border.
The Trump administration is preparing to renew its push for an $18 billion border wall plan that would also tighten asylum procedures and overhaul other laws Trump officials say are encouraging illegal behavior. Trump has threatened to shut down the government this fall if Democrats don’t provide the funds.
But with midterm elections approaching and the president preparing to campaign on his border crackdown, Nielsen and other Homeland Security officials do not appear to be satisfying his strict enforcement targets. May’s arrest totals are expected to be at least as high as the previous two months, administration officials and Border Patrol agents said.
Large groups of Central American migrants have been taken into custody in the Rio Grande Valley of South Texas in recent weeks, according to Border Patrol agents, speaking on the condition of anonymity because they are not authorized to discuss operations. During one 24-hour span last month, 434 migrants were processed at the Border Patrol station in McAllen, agents said.
Department of Homeland Security Secretary Kirstjen Nielsen and President Trump have had a contentious relationship as illegal border crossings increase.(Patrick Martin/The Washington Post)
“The numbers have been very high,” said one agent assigned to the Rio Grande Valley, the nation’s busiest corridor for illegal migration. “It’s to the point that we have had to bring in buses to come out and load these folks up, or send four of five vans at a time.”
Another agent said so many migrants were apprehended in the Rio Grande Valley last month that many were diverted to other sections of the border for processing. The Justice Department has reassigned additional prosecutors to the border region to increase the number of migrants it charges with federal crimes, but one veteran border agent said it was “too early to tell” if the tougher enforcement measures were giving pause to migrants thinking of making the journey from Honduras, El Salvador and Guatemala.
“It’s going to take longer for the message to get back to those countries,” the agent said.
On Friday, Homeland Security officials would not say whether the tougher enforcement measures were meeting their goals. They said the May border arrest totals were not ready for publication, and they would not confirm whether the figures have been sent to the White House.
“The bottom line is Congress needs to act and close loopholes that serve as a tremendous pull factor for illegal immigration,” said Tyler Houlton, a DHS spokesman. “The Trump administration is restoring the rule of law by increasing prosecutions of illegal border crossers.”
According to a Trump adviser, the president was warned this spring that illegal border crossings were likely to increase. Trump said at the time he would not be satisfied with any such surge and everything needed to be done to block it. That led to the decision to deploy the National Guard.
The number of illegal border crossings “is going to go higher and higher yet,” said the adviser. “You’re going to see a line that goes up all summer long.”
Trump has not been briefed on the May arrest numbers yet, two advisers said.
In a statement late Friday, Trump senior adviser Stephen Miller blamed Democrats for blocking the president’s immigration overhaul.
“The illegal migrant crisis is the exclusive product of Democrats’ shameless refusal to close catch-and-release loopholes that cartels exploit to smuggle illegal aliens into the United States at great cost in taxpayer dollars, jobs and, too often, lives,” Miller said.
Weak border enforcement remains the biggest incentive to illegal migration, according to Miller. “We must end catch-and-release by reforming our asylum laws, and establishing expedited removal, to stop the smuggling and defend the nation,” he said.
As in recent years, many of those taken into custody last month were teenagers or parents traveling with children, and the administration has triggered broad condemnation for separating more families with its push to prosecute anyone who crosses illegally.
More than 10,800 migrant children were in federal custody as of May 31, according to the Department of Health and Human Services, up 21 percent since the end of April. The agency’s shelters are 95 percent full, and HHS officials say they are preparing to add thousands of additional beds to cope with the increase.
A Border Patrol agent in South Texas said the family separation measures were not being applied as broadly as assumed. Some parents who face federal charges are apart from their children for only several hours, then released and assigned a court date, the agent said.
“To us, that’s still ‘catch-and-
release,’ ” the agent said. “People are going to continue to come.”
Arrests along the Mexican border peaked at more than 1.6 million in 2000, then fell sharply during the Obama administration. During the government’s past fiscal year that ended in September, U.S. agents made 303,916 arrests, the lowest total since 1971.
Trump’s fixation is driven, in part, by a view that border security is paramount to his most fervent supporters and that immigration is a winning issue for Republican candidates in November’s congressional elections.
“I’m very proud to say that we’re way down in the people coming across the border,” Trump said in January. “We have fewer people trying to come across, because they know it’s not going to happen.”
The arrest numbers began shooting upward soon after that, from 36,682 in February to 50,296 in March. The yearly total for 2018 is on pace to approach or exceed 400,000, a level more consistent with migration patterns of the past five years, DHS statistics show.
During a visit Thursday to the Nogales border crossing in southern Arizona, Nielsen called the increase in illegal migration a crisis and said Homeland Security officials were working to “end this lawlessness.”
The country’s borders are being violated “by criminals, by smugglers and by thousands of people who have absolutely no respect for our laws,” she said.
“This is changing, it will change, and we will do all that we can to change this,” Nielsen added, emphasizing that the “zero-tolerance” approach announced in April will be applied as aggressively as possible.
“If you come here illegally, whether you’re single, whether you have a family, whether you’re a smuggler or whether you’re a trafficker, you’ve broken the law, so we’re prosecuting,” she said.
On Friday, Democratic members of the House Judiciary Committee sent a letter to Nielsen and Attorney General Jeff Sessions demanding information on the administration’s enforcement efforts, including the number of children who have been separated from their parents and whether there are formal procedures to reunite them.
Border arrests typically rise during spring months, when seasonal labor demands increase. Farms across the Midwest are becoming desperate for workers, with the U.S. unemployment rate at the lowest level since 2000. Lawmakers from both parties have told Nielsen that worker shortages are squeezing an array of industries in their states, and the DHS said last week that it will issue 15,000 seasonal guest-worker visas.
But border agents said much of the increase this spring seems to be driven by the same groups — families and teenagers traveling alone — who have been straining Homeland Security capacity since the 2014 crisis that left Border Patrol stations overflowing.
Photos of recent mass arrests provided by one agent show migrants of all ages walking through willow groves along the Rio Grande or lined up in federal custody along the river levees, waiting to board government buses.
Josh Dawsey contributed to this report.
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No surprises here. “Toldja so” back when Trump unwisely declared “Victory at Sea” after a few months of reduced border apprehensions. Since Trump is proudly ignorant of history, he apparently didn’t study what happened to Bushie II after he declared “Victory in Iraq” or his “Heck of Job, Brownie” moment. Nor does he have any idea of the actual dynamics driving human migration. That’s the problem with policies driven by racism, bias, xenophobia, and White Nationalism.
Also, trying to rewrite the Constitution and international protection law, as Trump, Sessions, Miller, Cotton, and the rest of the White Nationalist Gang would dearly like to do, to deny established legal rights won’t work either. In fact, it would make things 10X worse.
The laws aren’t the problem! The problem is the people charged with implementing them.
We can diminish ourselves as a nation, (and in fact, we are diminishing under Trump) but it won’t stop human migration!
Just because Attorney General Jeff Sessions announced that every illegal immigrant crossing the border would be prosecuted (resulting in parents being separated from their children), that doesn’t mean it’s morally defensible.
President Trump’s attempt to blame Democrats for separating migrant families at the border is renewing a political uproar over immigration, an issue that has challenged Trump throughout his presidency and threatens to grow more heated as he imposes more restrictions to stem the flow of illegal immigration.
In one of several misleading tweets during the holiday weekend, Trump pushed Democrats to change a “horrible law” that the president said mandated separating children from parents who enter the country illegally. But there is no law specifically requiring the government to take such action, and it’s also the policies of his own administration that have caused the family separation that advocacy groups and Democrats say is a crisis.
In April, more than 50,000 migrants were apprehended or otherwise deemed “inadmissible,” and administration officials have made clear that children will be separated from parents who enter the country illegally and are detained. The surge in illegal border crossings is expected to continue as the economy improves and warmer weather arrives.
“I keep imagining somebody taking my kids from me. My kids are 2 and 4 years old, and that’s the age of some of the children that have been separated from their parents at the border,” said Rep. Joaquin Castro (D-Tex.), who is helping to organize a Thursday rally in San Antonio to highlight the issue. “When a lot of people hear the story, they get a similar reaction. They can’t imagine why this would be a standard government practice.”
Trump’s deflection offers a familiar playbook, critics of the administration’s policies say. In their view, Trump’s most recent comments are strategically similar to tactics he used when he ended the Obama-era Deferred Action for Childhood Arrivals program and then insisted on hard-line measures in a bill to permanently protect “dreamers.”
“He used DACA kids as a bargaining chip, and it didn’t work,” said Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies, a nonpartisan think tank. “So now he’s using vulnerable Central American families for his nativist agenda. It’s shameless.”
. . . .
“The law does not require this inhumane and immoral action – DHS could stop it today. We do not need a law. This is a punt. They literally just ran this bad-faith play with DACA,” Sen. Brian Schatz (D-Hawaii) tweeted Sunday. “They are going to use the suffering of children as political leverage for the wall, and we must refuse to participate, because if this kind of hostage taking is ever successful it will never stop.”
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Read the complete article at the link.
No, protections for refugees and children aren’t “loopholes!” They are important protections for those who have a right to seek a fair determination of their applications for refuge in the United States under our laws!
The statement that families can be “deported together” is simply more proof that Trump, Nielsen, and Sessions have already prejudged these cases. Although many are in fact denied, many more would be granted, possibly a majority, if individuals were given fair access to counsel, as the law contemplates, and the Government were actually required to correctly apply asylum and protection laws. Instead, for years the government has been getting away with politically influenced, unduly restrictive legal constructions and also coercing individuals with detention, entering bogus “in absentia orders” against them, or otherwise hustling them through the system without Due Process. Most of these tactics are directed specifically against those seeking protection from the Northern Triangle of Central America — one of the most dangerous regions in the world.
Join the New Due Process Army and stand up against the dishonest scofflaw public officials administering Trump’s sick immigration policies.
‘I have presided over a process that destroys families’
Judge can’t reconcile values and the law
Crackdown on illegal immigration takes its toll on a federal judge with an unparalleled sentencing record.
By Lauren Villagran
LAS CRUCES, N.M. — Day in, day out, immigrants shuffle into Judge Robert Brack’s courtroom, shackled at the wrist and ankle, to be sentenced for the crime of crossing the border.
The judge hands down sentences with a heavy heart. Since he joined the federal bench in 2003, Brack has sentenced some 15,000 defendants, the vast majority of them immigrants with little or no criminal record.
“See, I have presided over a process that destroys families for a long time, and I am weary of it,” said Brack one day in his chambers in Las Cruces. “And I think we as a country are better than this.”
Brack’s court in rural southern New Mexico is swollen with immigration cases, the migrants brought to his courtroom by the dozen. They exchange guilty pleas for “time served” sentences, usually not more than two months on the first or second offense. They leave his court as felons.
For years, federal authorities in this area along the New Mexico border have taken a distinctively hard-line approach to enforcing immigration law, pursuing criminal charges rather than handling cases administratively.
Essentially, authorities here have already been carrying out the “zero tolerance” policy Atty. Gen. Jeff Sessions unveiled in April, when he announced that all immigrants who cross the border will be charged with a crime.
Together, the Border Patrol and U.S. attorney’s office in New Mexico bring charges against nearly every eligible adult migrant apprehended at the state’s border, according to U.S. Customs and Border Protection. That amounted to 4,190 prosecutions last fiscal year.
Vigorous enforcement in New Mexico is a result of ample bed space in the state’s border county jails and a fast-track system that prosecutes nonviolent migrants quickly. The state also doesn’t face the volume of illegal crossings that south Texas does, for example.
“It is an efficient process,” says U.S. Atty. John Anderson of the District of New Mexico. “That is one of the key features that allows us to implement 100% prosecutions.”
For Judge Brack, it’s a punishing routine. And it has been building for a long time. Back in 2010, the judge had been on the federal bench for seven years, his docket overloaded with immigration cases, when “at some point I just snapped,” he said.
He sat down to compose a letter to President Obama to call for a more compassionate approach to immigration, one that would keep families together and acknowledge that the demands of the labor market drive immigration:
I write today because my experience of the immigration issue, in some 8,500 cases, is consistently at odds with what the media reports and, therefore, what many believe.
I have learned why people come, how and when they come, and what their expectations are. The people that I see are, for the most part, hardworking, gentle, uneducated and completely lacking in criminal history. Just simple people looking for work.
He didn’t get a reply.
No other federal criminal court judge comes near Brack’s sentencing record.
In the five years through 2017, Brack ranked first among 680 judges nationwide for his caseload, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks court data. He sentenced 6,858 offenders — 5,823 of them for felony immigration violations.
It’s a dubious honor for a man who is a devout Catholic and makes plain his moral dilemma in public hearings. He takes seriously his oath to uphold the laws of the United States. But he is a cog in a system he believes is unjust.
Johana Bencomo, director of organizing with the Las Cruces immigrant advocacy group Comunidades en Acción y Fe — Communities in Action and Faith — calls criminal prosecution of migrants “dehumanizing.”
“We’re just this rural community with some of the highest prosecution rates,” she said. “That is Brack’s legacy, no matter how you spin it.”
Advocates of stronger immigration enforcement counter that prosecutions are a crucial element of border security and have contributed to today’s historically low rates of illegal immigration.
“Criminal charges turn out to be one of the most effective tools for dissuading people from trying [to cross] again,” said Jessica Vaughan, director of policy studies at the Washington, D.C.-based Center for Immigration Studies, which advocates for tougher border enforcement.
The effects of this enforcement play out at the five-story, copper-colored federal building in Las Cruces, about 47 miles from the U.S.-Mexico border. Brack’s chambers are on the top floor.
In windowless cellblocks on the bottom floor, migrants from Mexico, Central America and Brazil wait to make their initial appearance in a federal magistrate courtroom.
The same scene repeats again and again: The immigrants crowd five broad benches, the juror’s box and the swivel chairs meant for attorneys. They wear the jumpsuits of the four county jails where they are being held: a sea of orange, navy, dark green, fluorescent yellow.
They hear their rights and the charges against them. They eventually plead guilty, to benefit from New Mexico’s fast-track process. Within a month or so, they will find themselves in Brack’s court for sentencing and within days they’ll be deported.
The border used to be wide open, but now it is closed, Brack tells each migrant at sentencing. There are more Border Patrol agents than you can count. Immigration used to be handled as a civil offense, but now it is criminal: a misdemeanor on the first attempt, a felony on the second.
“Everyone gets caught and what’s worse, everyone goes to jail,” he told one migrant, a Mexican woman named Elizabeth Jimenez Rios. “That is not how it has always been, but that is how it is now.”
Their fate is sealed, but Brack still asks the public defenders to tell each migrant’s story.
Elías Beltran, an oil field worker from Mexico, with no criminal history, tried to return to his wife and two kids, U.S. citizens in eastern New Mexico. He lived there for 15 years before he was deported.
Andres Badolla Juarez, a farmworker from Mexico, wanted to pick strawberries in California to support his wife, toddler and new baby — all U.S. citizens — in Arizona. He lived in the U.S. for 16 years and got deported after an aggravated DUI. It was his fourth failed attempt to cross the border.
Rosario Bencomo Marquez, a 52-year-old maid from Mexico, with no criminal history, hoped to return to her daughter and grandchildren in Santa Fe. She lived in the U.S. for 19 years before she was deported.
Brack also sees migrants charged with drug offenses or long criminal records and is unsparing in their punishment. But they are a minority, he said.
“I get asked the question, ‘How do you continue to do this all day every day?’ I recognize the possibility that you could get hard-edged, you could get calloused, doing what I do,” he said. “I don’t. Every day it’s fresh. I can’t look a father and a husband in the eye and not feel empathy.”
Brack, 65, is the son of a railroad-worker father and homemaker mother and earned a law degree at the University of New Mexico. He served as a state judge before being named to the federal bench by President George W. Bush.
In his chambers, above a shelf stacked with books on jurisprudence, Bible study and basketball, hang framed pictures of his forefathers: men who immigrated to the U.S. from England and Prussia. Brack grew up in rural New Mexico, where immigrants — whatever their status — were viewed as “valuable co-workers,” not a threat, he said.
After that first letter to Obama in 2010, he wrote another. And another. As the nation periodically heaved toward the possibility of immigration reform, only to leave the issues — and lives of millions — unresolved, Brack continued to write letters to the White House.
He told more heart-wrenching stories about families divided. He kept it up for four years. He pleaded for a civil debate: “See what I see, hear what I hear. Be wary of the loudest, angriest voices.”
He signed each letter with prayer: “May God continue to bless all those who serve our great nation.”
He never got a response. He stopped writing.
And now, after so many grueling years and thousands more immigration cases, Brack has decided enough is enough. He takes “senior status” in July, effectively stepping aside to serve part time. President Trump will name his replacement.
Villagran writes for Searchlight New Mexico.
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Imagine what the stress levels are like for U.S. Immigration Judges! They often have pending dockets in excess of 2500 cases; are expected to “grind out” so-called “oral decisions” in “life or death” cases without time to reflect or the assistance of judicial law clerks; lack the job tenure, independence, and status of an Article III judge; operate in an out of control court system largely without rules; have been stripped of effective control of their dockets; and are constantly subjected to disingenuous attacks, “production quotas” and a “bogus blame game” by their so-called “boss” Attorney General Jeff “Gonzo Apocalypto” Sessions — who has a well-earned reputation for lacking any moral sensitivity or responsibility for his statements and actions, having a biased and one-sided view of the law, and being totally unqualified and incompetent to administer a major court system that is supposed to be providing Due Process for migrants.
Identity and Interest of Amici Curiae ……………………………………………… 1
ARGUMENT …………………………………………………………………………………3
Because particular social group jurisprudence is unduly
complex and applicants face various access-to-justice
barriers, Immigration Judges and Board Members will
frequently clarify an applicant’s proposed particular social
group ……………………………………………………………………………………. 9
The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
appeal ………………………………………………………………………………… 21
This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28
In their decades of experience on the bench, amici regularly assisted applicants in the process of clarifying their proposed PSGs.Amici also allowed applicants to present revised PSGs during their administrative appeals. This judicial practice has afforded Board Members the flexibility to engage in an independent, meaningful review of the evidentiary record and provide appropriate relief to applicants based on revised PSGs. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (granting the applicant asylum based on a revised PSG that the Board itself formulated). In light of the complexity of PSG jurisprudence and the various access-to-justice barriers that applicants must navigate in immigration court, it is essential that the judicial practice of clarifying PSGs is not chilled by the decision below. See, e.g.,Ardestani v. INS, 502 U.S. 129, 138 (1991) (noting “the complexity of
3
immigration procedures, and the enormity of the interests at stake . . . .”).
Because PSG cognizability is a legal determination, amici believe that Immigration Judges and Board Members are obligated to consider any potential PSG that is supported by the factual record—even if the PSG is being proposed for the first time on appeal. PSG clarification is consistent with the requirement that administrative immigration decisions “must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotations and citations omitted); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 390-91 (BIA 2014) (“The question whether a group is a ‘particular social group’ within the meaning of the Act is a question of law that we review de novo.”). In this way, the judicial practice of clarifying an applicant’s PSG to match the evidentiary record falls squarely within the traditional roles of impartial administrative immigration tribunals. SeeUNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 16 (2011) (“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared . .
4
. .”); Matter of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997) (“Although we recognize that the burden of proof in asylum and withholding of [removal] cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”). Importantly, Amici did not receive reproach from the Board for clarifying proposed PSGs. Nor were amici overturned by circuit courts on the basis that the Board should not consider newly revised PSGs on appeal.
Amici believe that the decision below, Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), if affirmed by this Court, will constitute a significant departure from the current judicial practice of PSG clarification. The Board held that it “generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.” (AR 3) This decision completely ignores an important reality of the immigration court system: that Immigration Judges and Board Members have frequently clarified applicants’ proposed PSGs.
HERE’S THE “CAST OF CHARACTERS:”
APPENDIX BIOGRAPHIES OF AMICI CURIAE
The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has also worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.
The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as
App. 1
the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable George Chew was appointed as an Immigration Judge in 1995 and served until 2017, when he retired. He also previously served as a trial attorney for the former Immigration and Naturalization Service in New York from 1979 to 1981.
The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former
App. 2
president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past Board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. After retiring from the bench, he became the Managing Partner of Joyce and Associates and has 1,500
App. 3
active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of theBoard of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.
The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid &
App. 4
Defender Association from 2002 until 2004. Prior to her appointment to the Board, she worked from 1991-1995 as Director of the Legal Action Center at the American Immigration Law Foundation, was in private practice, and was the 1982 co-founder of the asylum and legal program at Centro Presente in Cambridge, Massachusetts. She is the author ofImmigration Law and Crimes, and was an adjunct professor of law and taught immigration law at American University Washington College of Law between 1997 and 2004. An excerpt from one of Judge Rosenberg’s separate opinions was quoted by the United States Supreme Court in its 2001 decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Judge Rosenberg has served as a member of the International Association of Refugee Law Judges, an elected member of the Board of Governors of AILA, a Board Member of the Federal Bar Association, Immigration Law Section. She also frequently lectures and trains immigration attorneys on current topics of complexity, including asylum and refugee law, human rights, and the intersection of criminal and immigration law. Judge Rosenberg is the founder of the Immigration Defense and Expert Advocacy Solutions (IDEAS) Consulting and Coaching, LLC, where she provides legal mentoring, consulting, and personal and
App. 5
business coaching for immigration lawyers. She currently serves as Senior Attorney and Advisor for the Immigrant Defenders Law Group, PLLC.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for AILA and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served
App. 6
as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986-1987, 1979-1981) and Deputy General Counsel (1978-1987). He also worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. Judge Schmidt practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice
App. 7
Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.
The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review and helped manage FOIA, Privacy, and Security as EOIR Records Manager until he retired in 2011. Before becoming aBoard Member, Villageliu was an Immigration Judge in Miami and oversaw both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu was a member of the Iowa, Florida, and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, he joined the Board of Immigration Appeals as a staff attorney in January 1978 and specialized in war criminal, investor, and criminal alien cases.
App. 8
The Honorable Polly Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, Judge Webber practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. Judge Webber also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School.
The Honorable Robert D. Weisel served as an Immigration Judge in the New York Immigration Court from 1989 until his retirement at the end of 2016. Judge Weisel was an Assistant Chief Immigration Judge, supervising court operations both in New York City and New Jersey. He was also in charge of the nationwide Immigration Court mentoring program for both Immigration Judges and Judicial Law Clerks. During his tenure as Assistant Chief Immigration Judge, the New York court initiated the first assigned counsel system within the Immigration Court’s nationwide Institutional Hearing Program.
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A warm welcome to our good friend and colleague Judge (and former Assistant Chief Immigration Judge) of the U.S. Immigration Court in New York, NY!
Most of the ICE folks that I met during my career (including with the “Legacy INS”) were hard-working, dedicated civil servants performing a very difficult and often thankless job. In particular, the attorneys in the Office of ICE Chief Counsel in Arlington were not only talented lawyers but had strong senses of justice that often went beyond the most narrow constructions of the law.
They also had strong senses of being part of the larger “justice system team” working cooperatively with both the Immigration Judges and the private bar to keep the dockets moving while dispensing justice with humanity that reflected legal knowledge, the willingness to exercise their discretion, and the courage to do what was necessary to make a broken system function in something approaching a fundamentally fair manner.
For those of us involved the creation of the forerunner of the “Modern Chief Counsel System” at INS in the 1980’s, it’s exactly what we had in mind. According to my sources, that important attitude and the values upon which it was based (which, admittedly, might never have existed in some ICE offices) has now largely disappeared in light of the Trump Administration’s mismanagement and “gonzo” enforcement policies.
I don’t see how I could have done my job as a judge without the thoughtful assistance and professionalism of the ICE Office of Chief Counsel in Arlington. Working with them, our private bar, and our dedicated court support team as a group was a daily pleasure and probably extended my career by a number of years.
The main problem with ICE these days appears to stem from extraordinarily poor leadership from the top down, starting, but by no means ending, with Trump himself. As a result, ICE is now well on its way to becoming the most hated and least trusted law enforcement agency in America. While it might not require abolition of ICE, it will require fundamental changes to ICE structure, culture, and policies in the future under more talented, practical, and humane leaders.
Unfortunately, and not necessarily thorough the fault of individual employees at the “working” level, today’s ICE is a national disgrace and an embarrassment — for American justice, the Constitution, and our national values.
Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes
By Lauren Fox and Tal Kopan, CNN
Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.
At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.
On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.
According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.
Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.
Trump calls for sweeping changes to US immigration legal process
By: Allie Malloy and Tal Kopan, CNN
President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.
“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.
“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.
Trump also questioned the process of immigrants going through the court system at all.
“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.
The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.
Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.
“I guess he has no belief in due process and the Constitution,” Lofgren said.
Comments run counter to Justice policies
At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.
To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!
On April 18 the Senate Committee on the Judiciary held a hearing on strengthening the Immigration Court system. Several organizations, including the American Bar Association and the American Immigration Lawyers Association, recommended that Congress make the immigration courts independent courts under Article I of the Constitution. Congress should do so without delay, especially in light of the attorney general’s May 17 decision in Matter of Castro-Tum eliminating administrative closure.
Because the immigration courts, along with the Board of Immigration Appeals, are currently part of the Department of Justice, the attorney general, and others in the executive, not least of all the president, are in charge of agency regulations, case procedures, the hiring and firing of judges, and decision-making.
In recent months the administration has made unprecedented attacks on the judicial independence of immigration judges, including policy changes that are in direct contradiction to the recommendations of an April 2017 Booz Allen Hamilton report commissioned by the Department of Justice.
On March 30 the administration instituted a case completion quota of 700 a year for a “satisfactory” performance rating. This amounts to each Immigration Judge needing to complete on average three cases every working day. For judges who have dockets with a high number of asylum cases, for example, this arbitrary requirement will push them to expedite cases in ways that are extremely dangerous to due process.
As the president of the National Association of Immigration Judges, Judge Tabaddor, testified at the congressional hearing, there has been ‘‘no quota ever, in any court; somehow implicit in [designating a quota] is that judges are not doing enough… [However, w]e should focus on [is] how we can support our judges.’’
Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.
The real problem is not with how hard-working the immigration judges are. As I explained in a 2016 article, part of the problem lies with understaffing. Instead of hiring a reasonable number of judges and law clerks, and otherwise investing in supporting the work of our Immigration Judges, the Administration is eliminating administrative closure and calling for administratively closed cases to be put back on the docket, actions that only serve to raise the number of pending cases.
If, for example, the Department of Justice puts all the administratively closed cases back on the docket, it would increase the court backlog to over 1,000,000. These are cases of crime victims and DACA recipients and others where an immigration judge has already determined that it would not be a good use of judicial resources, or in the public interest, to litigate, usually because the person is eligible for some non-judicial form of immigration relief and has a case pending with USCIS. Re-calendaring these cases would not only unnecessarily increase the work of taxpayer-funded DHS Trial Attorneys but it would add more pressure to the already overworked immigration judges.
The attorney general has also stepped into managing the immigration courts by restricting the use of continuances, which in the fast-paced detention context where my organization works are often necessary in order to have time to obtain crucial pieces of evidence and otherwise prepare for trial.
While the attorney general is the boss and is responsible for the judges’ performance, he should have a little more faith in the good judgement of his immigration judges, who, unlike the attorney general, are looking at the situation-specific issues in the individual case before them.
While the helpfulness of the attorney general’s methods for carrying out his job are questionable at best, the underlying problem remains that, regardless of our political opinion on the administration’s policies, those policies are affecting the judicial independence of our immigration courts and putting due process in jeopardy.
What the attorney general says matters to the immigration judges working under him. In one recent case, the immigration judge cited him as saying there is a lot of fraud in the asylum process as evidence that the asylum seeker was lying. Not only was the attorney general’s statement not based on facts — at least not on facts made publicly available, or that anyone even claimed exist, and which statement runs in stark contrast to my six years of on-the-ground experience — but that statement had nothing to do with the truthfulness of the individual asylum seeker present before the court.
Additionally, as stated by the former president of the National Association of Immigration Judges Dana Marks, there is a ‘‘conflict of interest between the judicial and prosecutorial functions [of the Department of Justice that] creates a significant (and perhaps even fatal) flaw to the immigration court structure.’’
It appears that the administration is looking for specific outcomes in cases with little regard to the merits of the claim. The attorney general has certified an unprecedented number cases to himself for review with the idea that he might change the decision of the Board of Immigration Appeals. This extraordinary power of one political-appointee to overturn the decision of trained immigration judges is fundamentally at odds with judicial independence.
Unfortunately, it appears that not only the review and firing of judges has become political, but their hiring too. Information has surfaced that the Department of Justice is asking candidates questions about their political party affiliation, their position on same-sex relationships, and their opinion on abortion; preparing internal memos on those whose immigration views that do not align with the administration’s policies; slowing down review of applications where there are ideological differences; and withdrawing employment offers or delaying start dates by up to a one and a half years.
Making judicial decisions subject to the political whims of the times, and not dependent on the accurate execution of the law, is a serious risk to the checks-and-balances system underlying our democracy. The need for independent immigration courts has never been clearer.
Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.
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As this article shows, inappropriate anti-asylum statements and knowingly false narratives from Jeff Sessions do affect the fairness of results. Yes, there are many courageous judges in the system who continue to treat respondents fairly and grant relief in appropriate cases.
But, numerous reports have established that there are Immigration Judges with anti-asylum and anti-migrant biases similar to Sessions’s. They now feel “empowered” to ignore the law, fairness, and Due Process to deny most applications and remove more migrants.
Moreover, some of the more experienced judges are retirement eligible and therefore largely immune from Sessions’s power because they are immediately eligible to retire. But, as they grow frustrated with the Aimless Docket Reshuffling and growing backlogs created by this Administration’s irresponsible actions and retire, they will be replaced by inexperienced judges. These new judges, in addition to being hand-picked by Sessions, without public input, are subject to removal at will during a two-year “probationary period.” Therefore, new judges are more likely to be influenced by Sessions’s xenophobic, anti-Due-Process views.
Additionally, Sessions is hard at work misusing his “certification” authority to overturn or limit established interpretations and procedures that implement protection and further Due Process and fairness for migrants.
Another important part of Sara’s article — giving lie to the concept that Immigration Judges can complete more than tow “full merits” asylum hearings per day consistent with Due Process.
Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.
Given the tendency of the current Administration not to settle or otherwise reasonably negotiate Immigration Court cases, the number of “full merits” hearings and appeals is likely to increase dramatically, thus adding to the already overwhelming backlog!
Just recently, a Washington lawmaker asked me a question over breakfast that has stayed with me ever since. The national legislator is a Christian, but genuinely was having a hard time understanding the message and motivation of the evangelical “advisers” to President Donald Trump. He posed the sincere query, “What about Jesus?” It is exactly the right question and I have thought about it since our conversation: “What about Jesus?”
What do these evangelicals do with that question as they listen and talk with and for Donald Trump? Would Jesus talk this way about immigrants, act this way toward women, use such divisive language of racial fear and resentment, show such a blatant disregard for truth, prefer strong-man to servant leadership, and really say that one country should be “first?” What do we do with Jesus? That is always the right question, including when it comes to politics, and especially if we say we are followers of Jesus Christ.
I ask you to watch this short four-minute video in which several Christian elders from across many traditions and racial lines ask that vital question in their message of Reclaiming Jesus in a Time of Crisis. Listen to their voices and the core teachings of Jesus they are raising.
Of course the “Biblical Jesus” would “just say no” to the rhetoric, philosophy, and corrupt actions of the Trump Administration. Stomping on the poor to aid the rich? “Suffer the children to come unto me” so that I can can separate them from their mothers and put their mothers in prison? Denying protection to the vulnerable stranger? Adultery? Sexual humiliation and abuse of women? Lies? Elevating the material over the spiritual? Putting one’s own “cult of personality” and financial interests ahead of God’s? Self aggrandizement as opposed to self-sacrifice? No Way!
If Jesus were among us, He certainly would be one of the members of the “Migrant Caravans” waiting with the vulnerable to see how we will judge Him and whether He and those around him will receive mercy and justice. There is no way He would be “hanging out” with the Trump Administration and their vile dehumanizing actions and false narratives!
