"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Migrant children are still confined and vulnerable. It’s a gratuitous act of cruelty.
By Editorial Board
May 25 at 2:09 PM ET
As the pandemic gathered speed In March, a federal judge called the government’s immigrant detention centers “hotbeds of contagion” and ordered that migrant children be released from them without delay. Some have been. But the Trump administration has dragged its feet in freeing many migrant children detained with their families, offering parents the formal “option” of letting their children go — to be separated from their mothers and fathers.
That Hobson’s choice was presented in mid-May to several hundred asylum-seeking parents at the three migrant family detention centers, in Texas and Pennsylvania, run by U.S. Immigration and Customs Enforcement. Many Americans may have assumed that the administration, scalded by its last experiment with separating migrant children from their families, would not again broach that subject. But it did.
[[Full coverage of the coronavirus pandemic]]
On May 13 and 14, parents at those facilities, mainly mothers, were herded into sudden encounters with ICE officials, who presented them with forms to sign. The detainees’ lawyers were neither notified nor aware of what was going on. The forms presented parents with the option of allowing government agents to place their children with relatives or other sponsors elsewhere in the United States, while the parents would stay behind in detention. Very few of the parents assented, though plenty were shaken by the experience; some agreed without realizing the repercussions, according to a subsequent court filing.
Judge Dolly M. Gee, of the U.S. District Court in Los Angeles, has jurisdiction over detained migrant children under the 1997 Flores settlement, which prohibits the long-term detention of migrant minors. In March, as covid-19 cases were spreading rapidly in migrant detention facilities, she ordered the administration to speed up the release of minors; hundreds were placed with sponsors. However, the Flores agreement grants the judge no jurisdiction over parents detained with their children.
That apparently prompted ICE to undertake its proceedings in the family detention centers, in which agents asked asylum-seeking parents if they were willing to part with their children, some of them babies and toddlers. In fact, ICE has the authority to release families pending their next appearance in immigration court, and has done so routinely in the past. The Trump administration has taken a different tack, raising the bar on asylum as it subjects migrant families to months-long confinements even if children suffer in the process — which they do.
According to advocates and attorneys for the migrant parents, the parents summoned by ICE officials were confused and intimidated. Some thought they risked being deported if they refused to let their children be taken away. In at least one instance, according to a court filing, a mother who signed the form asked an ICE officer if she could change her mind; she was told no.
[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]
The administration closed the U.S. southern border to asylum seekers this spring, citing the risk of the pandemic. Most detained migrants had entered the country months earlier, and more than 1,000 covid-19 cases have been reported in detention facilities nationwide, including among detainees and staff members. None have been confirmed in the three family detention centers, perhaps because there has been little testing. Still, hundreds of migrant minors detained with their families remain at risk of contracting the virus. At this point, their continuing confinement seems a gratuitous act of cruelty.
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A regime of scofflaws, child abusers, and human rights violators. How will we explain that to future generations?
This November, vote like your life depends on it. Because it does!
A 34-year-old Guatemalan man who tested positive for COVID-19 died in Immigration and Customs Enforcement custody at a Georgia hospital on Sunday, according to an internal government report obtained by BuzzFeed News.
Santiago Baten-Oxlaj, 34, had been in ICE custody at Stewart Detention Center, in Lumpkin, since early March and was granted a voluntary departure to Guatemala, ICE later confirmed in a press release.
Baten-Oxlaj was arrested on March 2 at a probation office in Marietta, Georgia “pursuant to his conviction for driving under the influence,” ICE said. On March 26, an immigration judge granted him voluntary departure. “At the time of his death, Baten was awaiting departure from the United States,” ICE added.
On April 17, he was admitted to a local hospital for treatment of decreased oxygen saturation levels, hospital officials tested the man for COVID-19 and the result was positive.
On Sunday, he died at the hospital, according to the report, which listed his preliminary cause of death as COVID-19.
ICE said it “is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases.”
His death comes weeks after a 57-year-old man in ICE custody in San Diego died after testing positive for COVID-19. The San Diego County medical examiner’s office said the man, Carlos Ernesto Escobar Mejia, died of acute respiratory failure due to pneumonia resulting from COVID-19. He was the first immigrant in ICE custody to die of the disease.
As of May 16, 1,201 immigrant detainees have tested positive for the disease in ICE custody out of 2,394 who had been tested.
. . . .
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Read the rest of Hamed’s article at the above link.
Unfortunately, this won’t be the last victim. According to the article, over 50% of those detainees tested for COVID-19 were positive.
With the BIA basically taking a “pass/dive” on requiring health and safety considerations to be serious factors in custody decisions, custody cases will continue to be litigated in U.S. District Courts throughout the country. Why have a BIA incapable of functioning as an independent tribunal consistent with due process?
This op-ed argues that the terms we use to discuss immigration rely on a lot of anti-immigrant assumptions.
The United States has a long history of hostility toward immigrants, from barring “undesirables” (a shifting category that has targeted the nonwhite, the disabled, and women) to turning away desperate asylum seekers who went on to gruesome deaths. Even after these cruel laws have been rolled back (and some haven’t), they’ve fundamentally shaped the way we as a nation think of immigration. A lot of the modern policy we consider “common sense” was directly molded by this history. It means that often the terms of the immigration debate rely on a lot of anti-immigrant assumptions. Even the best-intentioned progressives can fall into these traps, which is why examining how we talk about these issues is so important.
THE NOTION THAT THERE ARE “GOOD” AND “BAD” IMMIGRANTS
One common talking point holds that we should welcome the “good” immigrants while getting rid of the “bad” or “criminal” ones. This framing obscures the realities of the U.S. justice system, which disproportionately arrests, convicts, and incarcerates people of color. Black immigrants make up just 7.2% of the noncitizen population, yet they make up over 20% of people facing deportation on criminal grounds. The “good” vs. “bad” framework also obscures how laws are an expression of class power: Financial crimes committed by wealthy individuals and corporations often go unpunished, while everyday people are often punished for their poverty. And even people convicted of crimes shouldn’t lose their humanity, especially in a system that is incentivized to incarcerate.
Anti-immigration advocates often invoke misleading language and statistics suggesting that immigrants commit more crime, while ignoring a vast legal framework set out to criminalize immigrants for minor infractions. Many studies have found that undocumented immigrants actually commit crimes at lower rates than native-born Americans, but our very definition of what constitutes a crime has grown dramatically over the past few decades. A set of 1996 laws expanded deportable offenses by reclassifying more minor crimes as “aggravated felonies” in the context of immigration. As a result, immigrants can be considered felons for acts like drug possession or failing to appear in court.
DISTINGUISHING “REAL” REFUGEES FROM ECONOMIC MIGRANTS
Another dangerous misconception is the differentiation between “real” refugees (people whose search for safety we consider valid) and “economic migrants,” who are perceived as “gaming the system” to obtain a higher standard of living in America. This is a fundamentally false dichotomy: People, and the systems we live in, are far too complex to fit in these binaries. Who gets to be considered a “real” refugee is significantly informed by America’s ideological attitudes; for decades, the system was based more on Cold War politics than any real concern for the safety of asylum seekers. Those fleeing political or religious persecution are seen as legitimate, while those fleeing violent crime or a lack of economic opportunity — causes that also have political roots — are, too often, not. It’s a pattern that continues today: People coming to the U.S. from countries where America has vested geopolitical interests have historically had a harder time gaining asylum than those from countries the U.S. ideologically opposes, even if they have strong claims of persecution.
This hierarchy has stark consequences. As the bar becomes ever higher for who is a “true” refugee, many who flee certain death are turned away. Meanwhile, those who flee “less serious” violence, like poverty and starvation, often have no avenue for help. Their experiences expose the glaring gaps in our asylum policy. Why should certain types of violence be taken more seriously than others? Who is to say that the fear of gang violence is worse than that of not being able to feed your children?
. . . .
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Read the rest of the op-ed at the link.
Whether you accept Uhlmann’s conclusions or not, her point that immigrants’ advocates often accept the terms and framework set forth by nativists and restrictionists is basically valid. One false concept that appears to govern much of the debate is that immigration is fundamentally “negative” and therefore 1) must be limited to those who can provide immediate economic benefits to us (leaving aside the range of human interests of the immigrants themselves), and 2) that any increases in “desirable” immigration must be offset by cuts, restrictions, and/or removals of “undesirables.”
In many ways, this explains the sad failure of the Obama Administration to adopt more humane and effective immigration policies. They apparently never could get over the idea that they had to “prove their toughness” by deporting record numbers of folks and inflicting some gratuitous cruelty on migrants, particularly helpless asylum seekers, to “establish their creds” and get the GOP to the table to discuss serious immigration reform. No chance!
With restrictionists, even record levels of removals and historically low levels of border apprehensions are “never enough.” That’s because they are coming from a place of ideological nativism which is neither fact nor reality driven. It’s driven by inherent biases and nativist myths.
Overall, immigration is both a human reality — one that actually predated the establishment of “nation-states” — and a plus for both the immigrants and the receiving countries.
That being said, I personally think that immigration should be robust, legal, humane, and orderly. But, I doubt that “immigration without limits” is politically realistic, particularly in today’s climate.
Generally, global “market forces” affect immigration much more than nativists are willing to admit. When the legal system is too far out of line with the realities of “supply and demand” the excess is simply forced into the “extralegal market.”
That’s why we have approximately 11 million so-called “undocumented immigrants” residing in the U.S. today. Most are law abiding, gainfully employed, and have helped fuel our recent economic success. Many have formed the backbone of the unheralded “essential workforce” that has gotten us through the pandemic to this point. Many pay taxes now and all could be brought into the tax system by wiser government policies.
That’s why the mass removals touted by Trump and his White Nationalists are both impractical and counterproductive, as well as being incredibly cruel, inhumane, and cost ineffective.
There is a theory out there that although Trump’s uber-enforcement policies might be doomed to long-term failure, he is “succeeding” in another, much more damaging, way. By attacking the safety net, government, education, science, the environment, worker safety, and the rule of law while spreading racism, xenophobia, divisiveness, and maximizing income inequality, Trump has finally succeeded in making the U.S. a less desirable place for “immigrants with choices” to live.
As Bill Gelfeld wrote recently in International Policy Digest:
This pandemic has laid bare national weaknesses, and these weaknesses will have not gone unnoticed by potential and future migrants. Where they have a choice, and many skilled and even unskilled migrants do indeed have a choice, they will increasingly opt for those locales that have figured out universal health care, pandemic and crisis response, and unified national action, and these are the nations that now stand to gain from this migratory boon. https://apple.news/AiY6v3tN0SU6ES08RMUe29g
In the “post-pandemic world economy,” as our birthrate continues to go down and we need immigrants to fuel continued economic growth, the U.S. might well find itself losing the international competition for immigrants, particularly those we most want to attract.
The latter is likely if we give in to the restrictionist demand that we cut legal immigration. That simply forces more immigrants into the “extralegal market.” “Immigrants with choices” are more likely to choose destinations where they can live legally, integrate into society, and fully utilize their skills over a destination that forces them to live underground.
“Petitioner Richard Marvin Thompson (“Thompson”) appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2) (A)(vi) (the “Pardon Waiver Clause”), because a pardon issued by the Connecticut Board of Pardons and Paroles is “not effective for purposes of establishing entitlement to” a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.”
[Hats off to Gregory Romanovsky, William M. Tong, Attorney General of Connecticut, Jane Rosenberg, Assistant Attorney General, Clare Kindall, Solicitor General, amicus curiae for the State of Connecticut, Trina Realmuto, Kristin Macleod-Ball and Emma Winger!]
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So, let’s take a little closer look. Thompson immigrated legally to the U.S. in 1997, at age 14. Nearly two decades ago, Thompson was convicted of second degree assault in Connecticut and given a suspended sentence and 3-years probation. In other words, no jail time.
He successfully completed probation, got a GED, and worked as a commercial operator for 10 years. Essentially, Thompson successfully rehabilitated and became a productive member of society.
In 2012, the Obama Administration DHS, in its wisdom, instituted removal proceedings against Thompson based on his 2001 Connecticut assault conviction. After being found removable and losing on appeal, Thompson received a full and complete pardon from the Connecticut State Board of Pardons, the highest pardoning authority in the state. Although established by the legislature, the Board of Pardons’ action was deliberative and based on an assessment of the factors in Thompson’s individual case. It was not an “automatic expungement” pursuant to legislation.
Since the time for filing a motion to reopen had expired, Thompson asked the BIA to reopen his case “sua sponte” — on its own motion — to recognize that the pardon had eradicated the legal basis for removal.
Following its previous rulings, as well as sound policy and common sense, the BIA should promptly have granted Thompson’s motion and terminated proceedings in a two or three sentence order. Instead, the BIA, now operating under the “Trump removal regime in 2018,” denied the motion based on specious reasons that deviated without rational explanation from their prior treatment of substantially identical motions.
The BIA’s action touched off approximately 20 months of furious litigation involving a small army of lawyers on both sides, including the Connecticut Attorney General and the Connecticut Solicitor General, as well as the American Immigration Council, filing briefs in support of Thompson.
Following this 34-page opus by the First Circuit, Thompson’s case is by no means over. It’s been “orbited” back to the “Weird World of EOIR” where Thompson might, or might not, receive justice at some undetermined point in the future. To make matters even worse, Thompson remains detained at the Etowah County Detention Center in Gadsden, Alabama. Alabama is one of the current “hot spots” for COVID-19.
Is it any wonder that a “weaponized,” overtly anti-immigrant “court system” that looks for “reasons to deny” meritorious cases, rather than promoting prompt and efficient due process in deserving cases is running a backlog of approximately 1.4 million “on and off calendar” cases?
The longer the reviewing Circuit Courts keep up the fiction of treating EOIR as a legitimate adjudicative organization rather than the biased, “non-expert,” unconstitutional extension of DHS Enforcement that it has become, the bigger the mess will get and the more injustice that will be done to individuals like Thompson.
Meanwhile, legions of lawyers and judges at all levels, who could and should be devoting their talents to operating a constitutional immigration justice system that provides “due process and fundamental fairness with efficiency and humanity for all concerned” will instead continue to flail as a result of this “designed and operated to fail” system run by a kakistocracy to produce injustice and to squander judicial time and legal resources on a massive scale. When will it ever end?
Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.
How did you get involved in immigration law in the first place?
I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.
What is so dehumanizing about immigration?
In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.
The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.
What surprises people when they learn about the realities of the U.S. immigration system?
People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.
You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?
Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.
. . . .
Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.
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You can read the rest of the profile at the link.
Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.
David H. Wetmore, Esq. is a career appellate litigator in the United States Department of Justice, currently serving as Associate Deputy Attorney General. During his tenure at the Department of Justice, Mr. Wetmore has also served as Senior Counsel to the Deputy Attorney General and as a Trial Attorney in the Civil Division. He has been the principal author of hundreds of appellate briefs and argued over twenty-five cases in federal courts of appeals. Prior to joining the Department of Justice, Mr. Wetmore was an associate attorney in Sidley Austin LLP’s District of Columbia office, and at Jenner & Block LLP’s Chicago office, where his practice focused on civil, criminal, and constitutional litigation. Mr. Wetmore has experience in all aspects of litigation, from initial investigation and discovery through trial and appeal, in both state and federal courts, including in the District of Columbia. He has also served as an Adjunct Professor at The George Washington University Law School.
Mr. Wetmore earned his Bachelor of Arts, magna cum laude, from Miami University, where he was elected to Phi Beta Kappa, graduated from the University Honors Program, and received Departmental Honors in Political Science and Philosophy. He earned his Juris Doctor, with High Honors, from The George Washington University Law School, where he was an Articles Editor of The George Washington Law Review, elected to Order of the Coif, and a member of the Moot Court Board. Following law school, Mr. Wetmore served as a law clerk to the Honorable Gordon J. Quist, in the United States District Court for the Western District of Michigan, and later to the Honorable Daniel A. Manion, in the United States Court of Appeals for the Seventh Circuit.
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Normally reliable, totally unofficial anonymous sources say Wetmore’s “the one.”
There is further rank, unverified speculation that the current Acting Chair, Judge Garry Malphrus, eventually will get the just-advertised “Vice Chair/Deputy Chief Appellate Judge” position as a reward for reliably furthering the BIA’s anti-immigrant jurisprudence during his tenure. Malphrus replaced former Chair David Neal who resigned suddenly last Fall.
Wetmore currently is an Associate Deputy Attorney General at the DOJ. That’s roughly the DOJ equivalent of the “Under Assistant West Coast Promo Man*.” The Associate Deputy Attorney General, of course, should never be confused with the Deputy Associate Attorney General, an entirely different position. Actually, it’s about as far up the DOJ hierarchy that a “career” attorney can get. The higher level positions, in this case the Deputy Attorney General, are Presidentially-appointed politicos.
With this development, the connection between the BIA and the Office of Immigration Litigation (“OIL”) should become “seamless.” The BIA staff can just “cut and paste” OIL briefs into their decisions and vice versa. This eliminates the need to sometimes request time-consuming Circuit Court remands to get the BIA to adopt OIL’s preferred litigating position. In turn, this should totally eliminate the possibility of an individual ever “winning” a BIA appeal and will eradicate any remainingtraces of due process or fundamental fairness at the BIA.
These moves, combined with an outrageous proposed increase in the filing fee for a BIA appeal, will undoubtedly be a powerful tool for deterring, discouraging, and punishing individuals for exercising their legal rights. These are critical steps in insuring the smooth operation of the regime’s “Deportation Railroad.”
Any way you look at it, today’s BIA certainly presents an “interesting diversity profile,” particularly considering the community whose rights it once was supposed to protect, but now has unabashedly abandoned as it seeks to carry out the Trump/Miller/Barr White Nationalist mission of “Dred Scottifying the other.”
It also continues a two-decades long “DOJ tradition” of intentionally failing to attract better-qualified candidates from the private immigration sector, with actual experience representing and interacting with asylum seekers and other migrants, for BIA judgeships. The “outside, non-restrictionist world” has also been overwhelmingly excluded from appointments to Immigration Courts, with essentially de facto preference being given to government prosecutors.
Obviously, the reduction of Immigration Judges and Appellate Immigration Judges to something akin to “deportation clerks” straining to meet “production quotas” and pressured by regime politicos to aid DHS Enforcement by churning out deportation orders has been an important step in “dumbing down” EOIR. Today, EOIR is probably more subservient to DHS Enforcement, less impartial, and more of an administrative disaster than it was under the “Legacy INS.” Except, now there is more of everything — more overt political interference in the adjudication process, more bad law intentionally created, more and bigger backlogs, more intellectual dishonesty, more chaos, more disrespect for and demeaning of respondents and their attorneys, and more lives ruined.
Due Process Forever! Weaponized, Captive, “Courts” Never!
PWS
05-21-20
*Stones, The Rolling, “The Under Assistant West Coast Promo Man”
Well, I’m waiting at the bus stop in downtown L.A.
Well, I’m waiting at the bus stop in downtown L.A.
But I’d much rather be on a boardwalk on Broadway
Well, I’m sitting here thinkin’ just how sharp I am
Well, I’m sitting here thinkin’ just how sharp I am
I’m an under assistant west coast promo man
Well, I promo groups when they come into town
Well, I promo groups when they come into town
Well they laugh at my toupee, they’re sure to put me down
Well, I’m sitting here thinking just how sharp I am
Yeah, I’m sitting here thinking just how sharp I am
I’m a necessary talent behind every rock and roll band
Yeah, I’m sharp
I’m really, really sharp
I sure do earn my pay
Sitting on the beach every day, yeah
I’m real real sharp, yes I am
I got a Corvette and a seersucker suit
Yes, I have
Here comes the bus, uh oh
I though I had a dime
Where’s my dime
I know I have a dime somewhere
I’m pretty sure
Family Separation 2.0: “You aren’t going to separate me from my only child.”
On April 7, 2020, Amnesty International issued a report, ‘We are adrift, about to sink’: The looming COVID-19 disaster in US immigration detention facilities, documenting how the Trump administration was failing to adequately protect tens of thousands of immigrants and asylum- seekers whom the U.S. Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) agency was detaining in over 200 detention centers across the United States.1
Three of these facilities detain families, including infants as young as 1-year-old who are still breast-feeding. Deceptively named “family residential centers” (FRC), these detention facilities are: the Berks County Residential Center (“Berks”) in Leesport, Pennsylvania; the South Texas Family Residential Center (“Dilley”) in Dilley, Texas; and the Karnes County Residential Center (“Karnes”) in Karnes City, Texas.
While the dangerous conditions in immigration detention remain little changed since Amnesty International published its April report, ICE has now introduced a new element of harm: family separation. Once again, this administration is weaponizing its public health response to COVID- 19 to punish and deter people seeking safety.
. . . .
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Read the complete report at the above link.
The regime’s “Dred Scottification” — dehumanization of “the other” before the law — continues unabated as those institutions charged with preventing such abuses tank.
This November, vote like your life depends on it! Because it does!
WASHINGTON — The Trump administration has expedited the deportation of child migrants during the coronavirus pandemic, citing public health, but documents obtained by NBC News show that as far back as 2017, now–DHS Acting Secretary Chad Wolf sought to expedite child deportations in order to discourage Central American asylum seekers.
Recent reports from immigration lawyers, DHS officials and congressional staff have indicated a rise in the number of rapid deportations of unaccompanied migrant children. Previously, children who arrived in the U.S. without a parent or legal guardian were given protections under anti-trafficking laws, which included the right to claim asylum and to be placed in the custody of the Department of Health and Human Services until they could be placed with a guardian.
The New York Times recently reported that more than 900 children have been deported under a new policy that sends children back to their home countries before they have had a chance to coordinate plans with a guardian at home or claim asylum in the U.S.. Many of those children, according to the Times, were in the U.S. and living in HHS custody or with family members before the pandemic began.
DHS has said the deportations are justified under Title 42, which allows restrictions on immigration to slow the spread of disease.
But a 2017 policy proposal by Wolf shows that the agency has long sought the ability to deport children more quickly, long before the threat of a virus gave it cover to do so.
The documents were first obtained by Sen. Jeff Merkley, D.-Ore., and then shared with NBC News.
Wolf, who was then chief of staff to DHS Secretary Kirstjen Nielsen, sent a collection of policy ideas to the Justice Department, which included plans to reclassify unaccompanied migrant children as accompanied once they had been placed in the care of a parent or sponsor.
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Read Julia’s complete article at the link.
As I keep saying, ever since “tanking” on the so-called “Travel Ban Cases,”John Roberts and his GOP buddies on the Supremes have been avoiding their duty to critically examine the clearly invidious motives of the Trump regime. They have encouraged legal and intellectual fraud by inviting the regime to present a plethora of demonstrably bogus pretexts to thinly cloak their unlawful intent.
Undoubtedly, we’re just seeing the “tip of the iceberg” here. Future historians will unearth overwhelming evidence of the racism and other improper drivers of the regime’s cowardly attack on vulnerable children and asylum seekers. They will expose fully the disgraceful role of Roberts and his gang in encouraging and covering up what future generations will almost universally view as grotesque abuses of human rights and the rule of law. Which they are!
This November, we have a chance to change course and start writing an end to this disgraceful chapter of American history. Don’t blow it!
The last time Sandra Rodríguez saw her son Gerson, she bent down to look him in the eye. “Be good,” she said, instructing him to behave when he encountered Border Patrol agents on the other side of the river in the United States, and when he was reunited with his uncle in Houston.
The 10-year-old nodded, giving his mother one last squinty smile. Tears caught in his dimples, she recalled, as he climbed into a raft and pushed out across the Rio Grande toward Texas from Mexico, guided by a stranger who was also trying to reach the United States.
Ms. Rodríguez expected that Gerson would be held by the Border Patrol for a few days and then transferred to a government shelter for migrant children, from which her brother in Houston would eventually be able to claim him. But Gerson seemed to disappear on the other side of the river. For six frantic days, she heard nothing about her son — no word that he had been taken into custody, no contact with the uncle in Houston.
Finally, she received a panicked phone call from a cousin in Honduras who said that Gerson was with her. The little boy was crying and disoriented, his relatives said; he seemed confused about how he had ended up back in the dangerous place he had fled.
Hundreds of migrant children and teenagers have been swiftly deported by American authorities amid the coronavirus pandemic without the opportunity to speak to a social worker or plea for asylum from the violence in their home countries — a reversal of years of established practice for dealing with young foreigners who arrive in the United States.
The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.
Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.
That process appears to have been abruptly thrown out under President Trump’s latest border decrees. Some young migrants have been deported within hours of setting foot on American soil. Others have been rousted from their beds in the middle of the night in U.S. government shelters and put on planes out of the country without any notification to their families.
The Trump administration is justifying the new practices under a 1944 law that grants the president broad power to block foreigners from entering the country in order to prevent the “serious threat” of a dangerous disease. But immigration officials in recent weeks have also been abruptly expelling migrant children and teenagers who were already in the United States when the pandemic-related order came down in late March.
Since the decree was put in effect, hundreds of young migrants have been deported, including some who had asylum appeals pending in the court system.
Some of the young people have been flown back to Central America, while others have been pushed back into Mexico, where thousands of migrants are living in filthy tent camps and overrun shelters.
In March and April, the most recent period for which data was available, 915 young migrants were expelled shortly after reaching the American border, and 60 were shipped home from the interior of the country.
During the same period, at least 166 young migrants were allowed into the United States and afforded the safeguards that were once customary. But in another unusual departure, Customs and Border Protection has refused to disclose how the government was determining which legal standards to apply to which children.
“We just can’t put it out there,” said Matthew Dyman, a public affairs specialist with the agency, citing concerns that human smugglers would exploit the information to traffic more people into the country if they knew how the laws were being applied.
On Tuesday, the Trump administration extended the stepped-up border security that allows for young migrants to be expelled at the border, saying the policy would remain in place indefinitely and be reviewed every 30 days.
Chad F. Wolf, the acting secretary of the Department of Homeland Security, said the policy had been “one of the most critical tools the department has used to prevent the further spread of the virus and to protect the American people, D.H.S. front-line officers and those in their care and custody from Covid-19.”
An agency spokesman said its policies for deporting children from within the interior of the country had not changed.
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Read the rest of Caitlin’s article at the above link.
Thanks to my friend, the amazing “Due Process Warrior Queen,” 👸🏼 👑 ⚔️🛡Deb Sanders for bringing Caitlin’s article to my attention.
Kids suffer, the law is ignored, corrupt bureaucrats like Chad Wolf continue to wander around spreading lies. There is no evidence that any of those kids “rocketed” out of the country in violation of laws and human rights had coronavirus.
And if they did, returning them to a poorer nation with even fewer resources to fight the pandemic without taking proper precautions and safeguards would be totally irresponsible, inhumane, and ultimately counterproductive. What goes around, comes around!
This has absolutely nothing to do with “protecting” the U.S. from coronavirus (something that Trump otherwise largely eschews) and everything to do with advancing a racist, xenophobic, White Nationalist political agenda designed to appeal to a relatively narrow slice of Trump voters. So, how does this pass “legal muster?” Clearly, “It doesn’t!”
How do folks like Trump, Miller, Wolf, and their accomplices get away with it? Easy when GOP legislators and life-tenured Federal Judges look the other way rather than forcing the regime to comply with the rule of law and simple human decency.
Congressional letters, particularly to a lawless regime, are useless unless accompanied by veto-proof legislation. Courts that fail to take a unified “Just Say No” approach to Trump’s systemic abuses, all the way up to the Supremes, and which rule without holding the officials and lawyers masterminding these abuses legally accountable are basically feckless!
These are not difficult questions from either a legal or moral standpoint. What the Administration is doing is wrong! Period! Those who say otherwise are wrong! Period!
The Trump regime disguises their vicious attacks on human dignity and the rule of law as bogus “legal issues.” And, the Federal Courts encourage them by going along with the charade. This is no “normal Executive.” It’s a “rogue regime” and must be treated as such!
The failure to end these disgraceful practices and hold those who are abusing their authority accountable says much about the current state of our democratic institutions, justice system, civil servants, and the inadequacy and moral complacency of many of our current GOP legislators and Federal Judges.
This November, vote like your life and your humanity depends on it! Because it does!
Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.
Hon. Paul Wickham Schmidt U.S. Immigraton Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
Judge (Retired) Paul Wickham Schmidt
Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.
So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?
The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.
The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.
In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.
In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.
In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.
Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.
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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions.
Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.
Immigration courts in ‘chaos,’ with coronavirus effects to last years
By Tal Kopan
WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.
This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.
Thanks to the coronavirus, she will have to endure the wait for three more years.
“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”
Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.
“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.
The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.
The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.
The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.
In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.
With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.
None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.
Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.
Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.
The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.
The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.
Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.
Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.
She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.
“It was the most bitter experience I’ve ever had,” she said in Spanish.
After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”
“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”
Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.
San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.
Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.
“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.
She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”
Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.
Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.
“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.
Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.
The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”
Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.
“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”
Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.
“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”
San Francisco Chronicle staff writer Alexei Koseff contributed to this report.
It’s great to have you back, Tal! We’ve missed you!
It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.
What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.
Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.
While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.
As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.
In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.
This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.
The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”
Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!
Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.
Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.
Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.
Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”
Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.
Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.
To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?
Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!
Three years ago, President Donald Trump appeared to be politically wounded and legally encircled. On May 17, 2017, eight days after Trump had fired James Comey, then the F.B.I. director, Robert Mueller was appointed as special counsel, to investigate ties between the Trump campaign and Russia. Memos written by Comey stated that Trump had asked him to “let go” of the F.B.I. investigation of Michael Flynn, Trump’s national-security adviser, who had been fired after he lied to Vice-President Mike Pence and other officials about the nature of a phone call that he’d had with the Russian Ambassador. As 2017 came to a close, Flynn pleaded guilty to lying to F.B.I. agents about the call and agreed to serve as a coöperating witness for Mueller’s investigation. Trump’s effort to flout post-Watergate reforms, which were designed to prevent a President from pressuring the F.B.I. into halting a politically embarrassing investigation, appeared to have failed.
Yet now, six months before he faces reëlection, Trump, with the help of Attorney General William Barr, is successfully rewriting that history. Last Thursday, Barr dismissed the charges against Flynn, declaring him the victim of an F.B.I. plot. (The federal judge who oversaw Flynn’s case said that he would appoint a retired judge to review Barr’s action, and whether Flynn should now be charged with perjury.) At Barr’s direction, the Justice Department is conducting a criminal investigation of Comey, the F.B.I. officials who investigated the Trump campaign, and the C.I.A. officials who concluded that Russia had intervened in the 2016 election on Trump’s behalf. Barr is flatly rejecting the findings of Mueller and the Justice Department’s inspector general: that the F.B.I was justified in investigating the highly unusual contacts between the Trump campaign and a hostile foreign government—which did, in fact, intervene in the race on Trump’s behalf—and that Trump and his aides had welcomed that aid and repeatedly lied about their own actions.
Instead, Barr, in an extraordinary act by an Attorney General, declared, last month, that the F.B.I. investigation of the Trump campaign was “without any basis,” an attempt to “sabotage the Presidency,” and “one of the greatest travesties in American history.” He added, in reference to his department’s new investigation—but without citing any specifics—that “the evidence shows that we are not dealing with just mistakes or sloppiness” but that “there was something far more troubling here.” Those statements violated a long-standing Justice Department practice of not commenting on investigations before they have been completed. In a subsequent interview, Barr hinted that he might release the results of the ongoing probe, led by a federal prosecutor, John Durham, before the election. Barr said that a Justice Department policy prohibiting prosecutors from filing criminal charges or taking investigative steps to impact elections did not apply. “The idea is you don’t go after candidates,” Barr said. “But, you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.”
On Wednesday, the acting director of National Intelligence, Richard Grenell, gave Republican senators records he had declassified that listed the names of three dozen Obama Administration officials, including Joe Biden, who requested to know the identity of an American citizen who had had a series of phone calls with foreign officials after Trump won the election. The citizen was Flynn. On Wednesday, those senators released the names of the officials and accused the former Vice-President of participating in a plot to entrap Flynn. Former national-security officials said that it is routine to request, or “unmask,” the names of Americans whose conversations with foreign officials contain intelligence, and noted that the practice has increased by seventy-five per cent under Trump. Ben Rhodes, a former top Obama adviser, tweeted, “The unconfirmed, acting DNI using his position to criminalize routine intelligence work to help re-elect the president and obscure Russian intervention in our democracy would normally be the scandal here.” Grenell replied in a tweet, “Transparency is not political. But I will give you that it isn’t popular in Washington DC.”
Next Tuesday, the Senate Intelligence Committee is expected to approve the nomination of John Ratcliffe, a pro-Trump Republican congressman from Texas, to replace Grenell as the director of National Intelligence. Ratcliffe caught Trump’s eye when he assailed Mueller on national television during the former special counsel’s testimony before Congress. An individual involved in Ratcliffe’s confirmation effort said that “the fact that the President trusts Congressman Ratcliffe—not because they are friends but because he’s observed his good judgment and the way he handles himself—that affords a great opportunity to strengthen the relationship between the President and the intelligence community.”
Former Justice Department and intelligence officials have expressed alarm at Trump’s success at appointing partisan loyalists who they say echo the Presidents political messaging. David Laufman, a former head of the Justice Department’s counterintelligence section, who worked on the Trump-Russia investigation, told me, “I think we need to be careful not to be too lackadaisical in recognizing the significance of what is happening throughout our government, not just in law enforcement and intelligence but the attempted politicization of our public health system,” citing attacks by Trump supporters on Dr. Anthony Fauci, one of the government’s top infectious-disease experts. “It’s everywhere, and it matters in ways that are increasingly important to the well-being of people in our country.”
The transformation has been most striking at the Justice Department, an institution that, after Watergate, both Republicans and Democrats agreed should strive to remain politically neutral. Stephen Gillers, a professor of legal ethics at New York University, said that, more than any other modern Attorney General, Barr has enabled the President to use the department for his own purposes. “I’ve lived through Attorneys General Mitchell and Meese,” Gillers said, referring to John Mitchell and Edwin Meese, who served as Attorneys General in the Nixon and Reagan Administrations, respectively. “Those guys were choir boys next to Barr.” (A spokeswoman for Barr did not respond to a request for comment.)
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Read the rest of Rohde’s article at the link.
Ethics certainly has taken a holiday, a long one, during the Trump regime! Talk about someone “stocking the swamp!”🐊 On the “choirboy front,” remember that “John the Con” Mitchell actually served time in a Federal Pen for his role in Watergate. So, it’s “no mean feat” for Billy to achieve a higher “corruption rating” than “The Con” from Professor Gillers!
As someone who “came to Washington” during Watergate, I was shocked by the ease with which Trump and his cronies did away with all the ethical rules and protections put in place in the aftermath.
I’m still stunned and saddened by the lack of integrity and courage shown by the Article III Federal Judiciary under the spineless leadership and kowtowing to Executive authority of John Roberts. I actually thought he was better than that. But, hey, I was wrong to give him the “benefit of the doubt.”
I’m also surprised by the complete corruption of today’s GOP. During Watergate, Nixon certainly had his GOP defenders, particularly at first. But, as the evidence against him mounted, many members of the GOP joined in pressuring him to “do the right thing” and resign before being impeached and removed. And, Nixon, for all his quirks, biases, cover-ups, and total lack of personal charisma was still a better and more effective leader, even at the end, than Trump ever has been or will be.
Also, the “meltdown” at Justice stands out. During Watergate, Nixon had to get down to the #3 politico at the DOJ, Solicitor General Robert Bork, to fire the Watergate Prosecutor, after AG Elliot Richardson and DAG William Ruckelshaus resigned rather than violate their oaths of office. And, Bork’s questionable decision to comply with Nixon’s order probably helped cost him a seat on the Supremes.
Today, by contrast, the “5th Floor” of the DOJ is teeming with unethical sycophants, starting with Barr, who seem to be competing with each other to “out-Trump Trump.”
Another interesting thing is how Billy managed to hide his far-right extremism, intellectual dishonesty, contempt for American Justice and rule of law beneath a veneer of “corporate respectability” in the ranks of “Big Law” for many years. At Billy’s confirmation hearing, perhaps glad to finally be rid of “Gonzo Apocalypto,” many seemed to “take him at his word” as he skirted the big questions and lied his way to the head position at one of the “nerve centers” of American Justice.
This November, vote like your life depends on it. Because it (and the future of our nation) does!
WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.
Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.
The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.
The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.
The current, “voluntary” concept was previously termed “binary choice,” but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.
The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.
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Read the rest of Julia’s article at the link.
Just another “in your face” unlawful move by DHS officials sending a strong message of contempt to the Federal Judges handling various aspects of the regime’s intentional child abuse, family separation, and punishing asylum seeking families by needless imprisonment in the New American Gulag (“NAG”).
Yes, the District Court Judges handling these matters have ordered the Government to take various forms of corrective action. But, even where the judges use forceful language, it’s largely ineffective to change illegal policies. The regime and its officials just play “hide the ball” and develop schemes and “work arounds” to violate the law and court orders in other ways. That they continue to do this over and over – a strategy known as “malicious compliance” – shows their total disrespect for the Federal Courts and that they share Trump and Miller’s belief that they are above the law.
So far, particularly in the immigration and refugee area, the scofflaws have largely prevailed.They have dismembered immigration and asylum laws with neither legislative enactments nor meaningful judicial consequences. They have publicly and arrogantly “thumbed their noses” at court orders they don’t like. Unless and until the Federal Judges back up their orders by holding Chad Wolf and other scofflaw officials in contempt – real contempt – jail time not just meaningless fines – the abuse and the open disregard for the rule of law and for the authority of Federal Judges will continue.
The law, our Constitution, and human rights will continue to be mocked. Even the best of Federal Judges will appear feckless unless and until they start treating immigration officials as the lawless criminals they actually are!
Undoubtedly, some of the children and families intentionally being abused, dehumanized, and punished by the Trump regime as Federal Courts play bystander won’t survive long enough to tell their stories. But, some will. While those officials, legislators, and judges enabling, or in some cases masterminding and encouraging, these abuses appear likely to escape “temporal” legal accountability for their actions, moral and historical accountability are a different matter altogether. Lots of folks who believe they are “operating under the radar screen” are going to look very bad when the light of history shines on the grotesque human rights, moral, and constitutional violations at our borders and in our Gulags and those who carried them out or failed to effectively halt them.
THE WORLD CHANNELS “COURTSIDE” — A Shocked & Dismayed World Now Sees America Under The Trump Clown 🤡🤡 Kakistocracy For What It Is: A Rich, Arrogant, Willfully Ignorant, Dishonest, Dangerous “Failing State” To Be Pitied — Not To Be Trusted, Followed, Or Admired — “But there is one emotion that has never been directed towards the US until now: pity.”
The Trump administration has repeatedly claimed that the US is “leading the world” with its response to the pandemic, but it does not seem to be going in any direction the world wants to follow.
Across Europe, Asia, Africa and Latin America, views of the US handling of the coronavirus crisis are uniformly negative and range from horror through derision to sympathy. Donald Trump’s musings from the White House briefing room, particularly his thoughts on injecting disinfectant, have drawn the attention of the planet.
“Over more than two centuries, the United States has stirred a very wide range of feelings in the rest of the world: love and hatred, fear and hope, envy and contempt, awe and anger,” the columnist Fintan O’Toole wrote in the Irish Times. “But there is one emotion that has never been directed towards the US until now: pity.”
The missing six weeks: how Trump failed the biggest test of his life
The US has emerged as a global hotspot for the pandemic, a giant petri dish for the Sars-CoV-2 virus. As the death toll rises, Trump’s claims to global leadership have became more far-fetched. He told Republicans last week that he had had a round of phone calls with Angela Merkel, Shinzo Abe and other unnamed world leaders and insisted “so many of them, almost all of them, I would say all of them” believe the US is leading the way.
None of the leaders he mentioned has said anything to suggest that was true. At each milestone of the crisis, European leaders have been taken aback by Trump’s lack of consultation with them – when he suspended travel to the US from Europe on 12 March without warning Brussels, for example. A week later, politicians in Berlin accused Trump of an “unfriendly act” for offering “large sums of money” to get a German company developing a vaccine to move its research wing to the US.
People gather to protest the stay-at-home orders outside the state capitol building in Sacramento, California, this month. Photograph: Josh Edelson/AFP via Getty Images
The president’s abrupt decision to cut funding to the World Health Organization last month also came as a shock. The EU’s foreign policy chief, Josep Borrell, a former Spanish foreign minister, wrote on Twitter: “There is no reason justifying this move at a moment when their efforts are needed more than ever to help contain & mitigate the coronavirus pandemic.”
A poll in France last week found Merkel to be far and away the most trusted world leader. Just 2% had confidence Trump was leading the world in the right direction. Only Boris Johnson and Xi Jinping inspired less faith.
A survey this week by the British Foreign Policy Group found 28% of Britons trusted the US to act responsibly on the world stage, a drop of 13 percentage points since January, with the biggest drop in confidence coming among Conservative voters.
Dacian Cioloș, a former prime minister of Romania who now leads the Renew Europe group in the European parliament, captured a general European view this week as the latest statistics on deaths in the US were reported.
“Post-truth communication techniques used by rightwing populism movements simply do not work to beat Covid-19,” he told the Guardian. “And we see that populism cost lives.”
Around the globe, the “America first” response pursued by the Trump administration has alienated close allies. In Canada, it was the White House order in April to halt shipments of critical N95 protective masks to Canadian hospitals that was the breaking point.
The Ontario premier, Doug Ford, who had previously spoken out in support of Trump on several occasions, said the decision was like letting a family member “starve” during a crisis.
‘It will disappear’: the disinformation Trump spread about the coronavirus – timeline
“When the cards are down, you see who your friends are,” said Ford. “And I think it’s been very clear over the last couple of days who our friends are.”
In countries known for chronic problems of governance, there has been a sense of wonder that the US appears to have joined their ranks.
. . . .
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Read the full article at the above link.
Are we still “to be feared,” even if no longer admired or respected?Good question!
Probably, insofar as our collapse would take down a chunk of the world’s economy with it, leave a leadership vacuum, and change the balance of power, perhaps in favor of China, Russia, South Korea, Canada, and India. We also still have a big military and lots of sophisticated weapons, although modern terrorism has shown that sophistication in expensive weaponry is not always the “be all and end all” either for winning wars or causing mass disorder, death, and mayhem.
Still, as our civil governance and international influence disintegrates, what happens with and to our military is a huge concern and a “big X factor.” Will the tradition of “civilian control over the military” also fall victim to the kakistocracy and the failure of civilian governing institutions? What’s happened to our intelligence community under the Trump kakistocracy is likely a bad omen.
Who would have thought that Trump could do so much permanent or at least long-term damage in such a short period of time? And who would have believed that our centuries-old constitutional and democratic institutions, meant to protect individual rights, enforce the rule of law, and check unrestrained abuses of power by a megalomaniac, yet highly incompetent, dishonest, dangerous, and evil Executive would have crumbled so quickly and performed so haplessly when confronted by a President and an unscrupulous, corrupt, authoritarian regime and party of toadies perfectly willing to press aggressively inane and illegal policies and false narratives to destroy the nation and everyone in it as a means of pillaging and enhancing their own power?
Yet, here we are! Much of the rest of the world appears to “get” it. Yet tens of millions of Americans who continue to support and enable the kakistocracy don’t, or they simply don’t care about our nation and the common good.
This November, vote like your life depends on it! Because it does!
For the foregoing reasons, in the absence of clear and convincing evidence that his release would endanger the public or that he is a flight risk, coupled with the known risks associated with the presence of COVID-19 at Pulaski, this Court concludes that Galan-Reyes’ continued indefinite detention violates his Fifth Amendment right to due process. The government’s interests in continuing his detention must therefore yield to his liberty and safety interests.6
Disposition
IT IS HEREBY ORDERED that the Petition for writ of habeas corpus is GRANTED.
Respondents are ORDERED to IMMEDIATELY RELEASE Omar Galan-Reyes, pursuant to the following conditions:
1. Petitioner will reside at a certain residence, will provide his address and telephone contact information to Respondents, and will quarantine there for at least the first 14 days of his release;
2. If Department of Homeland Security (DHS) determines that Petitioner is an appropriate candidate for Alternatives to Detention (ATD), then Petitioner will comply with DHS instructions as to any ATD conditions;
3. Petitioner will comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing and shall be placed on home detention;
4. The Court’s order for release from detention shall be revoked should Petitioner fail to comply with this order of release;
5. This Order does not prevent Respondents from taking Petitioner back into custody should Petitioner commit any crimes that render him a threat to public safety or otherwise violate the terms of release;
6. Petitioner will be transported from Pulaski County Detention Center to his home by identified third persons;
7. Petitioner will not violate any federal, state, or local laws; and
8. At the discretion of DHS and/or ICE, to enforce the above restrictions, Petitioner’s whereabouts will be monitored by telephonic and/or electronic and/or GPS monitoring and/or location verification system and/or an automated identification system.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
6 In light of the Court’s conclusion on Petitioner’s due process claim, it is not necessary to address his Administrative Procedures Act claim.
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Many thanks to Dan Kowalski over at LexisNexis for passing this along. And congrats to NDPA members A. Ross Cunningham, Esquire, and Jake Briskman, Esquire, for their representation of the prisoner rotting in the New American Gulag (“NAG”) in this case!
This decision reads like an indictment of the entire badly failed and fundamentally unfair DHS Enforcement and Immigration Court systems as mismanaged, weaponized, and politicized by the Trump regime Politicos and their toadies:
Abuse of detention system by detaining non-dangerous individuals who are not flight risks;
Uselessness of bond determinations by Immigration Judges who are functioning like enforcement officers, not independent judicial decision-makers;
Extraordinarily poor judgment by DHS Detention officials;
Delays caused by backlogged dockets driven by failure of DHS Enforcement to exercise prioritization and reasonable prosecutorial discretion compounded by the Immigration Judges who lack the authority, and in some cases the will, to control their dockets — dockets structured by politicos for political, rather than practical or legal, reasons (see, e.g., “Aimless Docket Reshuffling” or “ADR”);
Adangerously useless BIA that fails to set reasonable national bond criteria and fails to properly and competently consider Due Process interests in bond cases;
The importance of placing the burden of proof in bond cases where it constitutionally belongs: on DHS, rather than on the individual as is done in Immigration Court;
In this case, the US District Judge had to do the careful analytical work of individual decision making that should have been done by the Immigration Court, and which the Immigration Court should have, but has failed to, require DHS to adopt;
Leaving the big question: Why have Immigration Courts at all if the meaningful work has to be done by the U.S. Courts and U.S. Magistrates?
Why not “cut out the useless middleman” and just have U.S. Magistrate Judges under the supervision of U.S. District Judges conduct all removal and bond proceedings in accordance with the law, Due Process, and the Eighth Amendment until Congress replaces the current constitutionally flawed Immigration Courts with an independent immigration judiciary that can do the job and that functions as a “real court” rather than an arm of DHS Enforcement thinly disguised as a “court?”
