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REPORT FROM FBA DETROIT: Read My Speech: “THE 5-4-1 PLAN FOR RESTORING DUE PROCESS TO A BIASED & DYSFUNCTIONAL U.S. IMMIGRATION COURT“

Carrie Pastor, Chair, Detroit Chapter, FBA

FBA Detroit May 2019

THE 5-4-1 PLAN FOR RESTORING DUE PROCESS TO A BIASED & DYSFUNCTIONAL U.S. IMMIGRATION COURT

Federal Bar Association, Detroit Chapter

Detroit, Michigan

May 22, 2019

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

MEMBER, ROUNDTABLE OF FORMER IMMIGRATION JUDGES

I. INTRODUCTION

Good afternoon. Thanks so much to your Chapter Chair Carrie Pastor for inviting me and to you for coming out to listen.

Carrie and I have just returned from the Federal Bar Association (“FBA”) Annual Immigration Conference in Austin, Texas. We had over 500 enthusiastic attendees, an unprecedented level of interest and enthusiasm. And, most exciting, next year’s conference will be right here in Detroit, for the first time. I congratulate your chapter and look forward to once again shattering all attendance records!

While in Austin, I met with and recruited many new members of the “New Due Process Army.” These are legal professionals who are committed to fighting as hard and as long as it takes to triumph against the vicious attack on our Constitution, the rule of law, and human decency being waged daily by this Administration – much of it directed against the most vulnerable and deserving of our protection. Those consist of scared and desperate women, children, and families seeking legal asylum protection, fleeing from the “failed states” of the Northern Triangle of Central America. That is an area where femicide, gangs acting as de facto governments, and government corruption are rampant.

As many of you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold Carrie, the FBA, you, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth, based on my four and one-half decades in the fray at all levels of our immigration system.

Some say that I speak in anger. I prefer to think of it as passion. But, either way, I am channeling the anger and outrage of those of us like my many colleagues in the Roundtable of FormerImmigration Judges who have spent major parts of our professional lives, however imperfectly, trying to advance “good government” and working to make the EOIR vision of “guaranteeing fairness and Due Process for all a reality.

Of course, watching the system that we worked so hard to build being destroyed by a White Nationalist kakistocracy generates anger and outspoken criticism. Since those in the system, other than officers of the National Association of Immigration Judges (“NAIJ”) have been “muzzled,” if we don’t speak out for judicial independence, who will? And, for those of you who aren’t familiar with the term, a “kakistocracy” is “government by the least suitable or competent among us” – in other words, government by “the worst among us.”

I will tell you about my “5-4-1 program.” I’m going to highlight five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; four badly needed and long overdue reforms, and one critical solution.

II. THE FIVE PROBLEMS

Turning to the problems, the U.S. Immigration Court, which includes both a trial division and an appellate division known as the Board of Immigration Appeals (“BIA”) isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary.

As part of his “improper influence” over the Immigration Courts, former Attorney General Sessions imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.

And, current Attorney General Bill Barr has enthusiastically aggravated this problem. As we speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.”

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.

Obviously, these first two factors give the DHS a huge built in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” Former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more in less than two years than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS. Barr recently intervened to reverse a long-standing precedent and thereby deprive individuals who had demonstrated a “credible fear” of persecution from even seeking a bond from an Immigration Judge.

The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant cheerleader for DHS enforcement as well as publicly favoring a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so clearly identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges have meant more backlog.

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have tried to shift the blame to the victims— asylum applicants, migrants, their hard working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over the objections of most judges.

For example, Sessions abolished “administrative closing” of dormant or non-priority cases and imposed what are likely unconstitutional limitations on continuances. However, this ignores the fact that much, probably the majority, of Immigration Court delay and continuances are the result of “Aimless Docket Reshuffling” generated by EOIR itself. Despite falsely claiming to be an “fair and impartial court system” EOIR routinely “pretzels itself up” to meet DHS Enforcement’s ever changing “priority of the day,” without regard to administrative efficiency or the due process rights of individuals whose cases have been pending for years before these inept “captive courts.”

The result has been an increase in “Aimless Docket Reshuffling” (“ADR”) the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. Perhaps, some of YOU have been victims of ADR!

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out of the way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even though there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed, a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Indeed, in a move vigorously and publicly protested by our “Roundtable of Former Immigration Judges,” EOIR recently put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? What kind of “court system” acts in such an unethical manner against one party and in favor of another? This system is as disgraceful as it is dysfunctional.

I. THE FOUR REFORMS

Here are the four essential reforms. First, and foremost,a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner. That process would consider the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling John Ashcroft purge-related bogus “reforms” turned the BIA into a subservient assembly line. Now, Barr threatens to further “dumb down” the appellate process through the regulations I mentioned earlier. These ill-advised procedures which have destroyed professionalism and appellate independence at the BIA must be eradicated. The BIA today a false “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner.

A new, independent Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous asylum standards set forth years ago by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi are made realities, not just lip service. The Appellate Division must finally rein in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals to life threatening situations.

Some might say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.

Naturally, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

II. THE ONE SOLUTION

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released earlier this year.

Indeed, the ABA Commission found that the current system is so dysfunctional that it withdrew a previous recommendation for hiring more Immigration Judges at present. In other words, putting additional new, and often inadequately trained, judges in a badly broken system will aggravate the problems, rather than solving them. In this respect, it’s important to recognize that although this Administration has substantially increased the number of Immigration Judges on the bench, more judges have actually resulted in more backlog given the lack of discipline and competent management in the overall immigration system, including the Immigration Courts.

For example, incompetent management planning at EOIR has resulted in interpreter shortages, hiring freezes, and suspension of the much-needed “e-filing pilot program.” All of this leads to more “EOIR-style ADR.”

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all-out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

III. CONCLUSION

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, as I mentioned, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!

Thanks for listening! Get inspired! Join the New Due Process Army, do great things, save deserving lives, and remember: Due Process Forever, malicious incompetence never!

(05-22-19)

COURTSIDE HISTORY: BEYOND TRUMP’S MYTHICAL “WHITE NATIONALIST NATION” LET’S SEE WHO BESIDES ENSLAVED AFRICAN AMERICAN FORCED MIGRANTS DID THE WORK THAT MADE AMERICA GREAT — The Essential Role Of Despised Chinese Immigrants! — “Chinese workers were often left out of the official story because their alienage and suffering did not fit well with celebration. . . .Without them, Leland Stanford would probably be at best a footnote in history — and the West and the United States would not exist as we know it today.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=258d1f6b-0c42-4c29-925d-a144ec4f47b1

Professor Gordon Chang of Stanford University writes in the LA Times:

Immigrants got the job done

History finally has its eyes on Chinese laborers who built transcontinental railroad’s western leg

By Gordon H. Chang

The nation’s first transcontinental railroad, completed 150 years ago today at Promontory Summit in Utah, connected the vast United States and brought America into the modern age. Chinese immigrants contributed mightily to this feat, but the historical accounts that first transcontinental followed often marginalized their role.

Between 1863 and 1869, as many as 20,000 Chinese workers helped build the treacherous western portion of the railroad, a winding ribbon of track known as the Central Pacific that began in Sacramento.

At first, the Central Pacific Railroad’s directors wanted a whites-only workforce. Leland Stanford, the railroad’s president, had advocated for keeping Asians out of the state in his 1862 inaugural address as governor of California. When not enough white men signed up, the railroad began hiring Chinese men for the backbreaking labor. No women worked on the line.

Company leaders were skeptical of the new recruits’ ability to do the work, but the Chinese laborers proved themselves more than capable — and the railroad barons came to consider them superior to the other workers.

My colleagues and I initiated an international research project — based, appropriately, at Stanford University — to investigate the enormous contribution Chinese workers made to the transcontinental project. It proved to be a formidable task, not least because no written record produced by what were called “railroad Chinese” is known to exist. Without letters, diaries and other primary sources that are historians’ stock in trade, we amassed a sizable collection of evidence that included archaeological findings, ship manifests, payroll records, photographs and observers’ accounts.

The material allowed us to recover a sense of the lived experiences of the thousands of Chinese migrants Leland Stanford came to greatly admire. He told President Andrew Johnson that the Chinese were indispensable to building the railroad: They were “quiet, peaceable, patient, industrious and economical.” In a stockholder report, Stanford described construction as a “herculean task” and said it had been accomplished thanks to the Chinese, who made up 90% of the Central Pacific Railroad’s labor force.

These workers showed their mettle, and sealed their legacy, on the peaks of the Sierra Nevada. Many observers at the time had assumed that Stanford and the railroad were daft for thinking they could link California with the East because an immense mountain range separated the state from Nevada and beyond. The Sierra Nevada is a rugged, formidable range, its inhospitableness encapsulated by the gruesome tragedy of the Donner party in 1847 and 1848. Trapped by winter storms in the mountains, they resorted to cannibalism.

To get to the High Sierra, Chinese workers cut through dense forests, filled deep ravines, constructed long trestles and built enormous retaining walls — some of which remain intact today. All work was done by hand using carts, shovels and picks but no machinery.

The greatest challenge was to push the line through the Sierra summit. Solid granite peaks soared to 14,000 feet in elevation. The railroad bed snaked through passes at more than 7,000 feet. The men who came from humid south China labored through two of the worst winters on record, surviving in caverns dug beneath the snow.

They blasted out 15 tunnels, the longest nearly 1,700 feet. To speed up the carving of the tunnels, the Chinese laborers worked from several directions. After opening portals along the rock face on either side of the mountain, they dug an 80-foot shaft down to the estimated midway point. From there, they carved out toward the portals, doubling the rate of progress by tunneling from both sides. It still took two years to accomplish the task.

The Chinese workers were paid 30% to 50% less than their white counterparts and were given the most dangerous work. In June 1867, they protested. Three-thousand workers along the railroad route went on strike, demanding wage parity, better working conditions and shorter hours. At the time it was the largest worker action in American history. The railroad refused to negotiate but eventually raised the Chinese workers’ pay, though not to parity.

After the Sierra, the Chinese workers faced the blistering heat of the Nevada and Utah deserts, yet they drove ahead at an astonishing rate.

As they approached the meeting point with the Union Pacific, thousands of them laid down a phenomenal 10 miles of track in less than 24 hours, a record that has never been equaled. A Civil War officer who witnessed the drama declared that the Chinese were “just like an army marching over the ground and leaving the track behind.”

Progress came at great cost: Many Chinese laborers died along the Central Pacific route. The company kept no records of deaths. But soon after the line was completed, Chinese civic organizations retrieved an estimated 1,200 bodies along the route and sent them home to China for burial.

The transcontinental railroad’s completion allowed travelers to journey across the country in a week — a trip that had previously taken more than a month. Politicians pointed to the achievement as they declared the United States the leading nation of the world.

The transcontinental railroad has been viewed in a similarly nationalistic way ever since. Chinese workers were often left out of the official story because their alienage and suffering did not fit well with celebration. And attitudes toward them soon soured, with anti-Chinese riots sweeping the country. The Chinese Exclusion Act of 1882 barred Chinese laborers from entering the United States and placed restrictions on those already here.

Federal immigration law prohibited Chinese citizens from becoming Americans until 1943.

As a faculty member of the university that bears his name, I am painfully aware that Leland Stanford became one of the world’s richest men by using Chinese labor. But I also try to remember that Stanford University exists because of those Chinese workers. Without them, Leland Stanford would probably be at best a footnote in history — and the West and the United States would not exist as we know it today.

Gordon H. Chang is a professor of history at Stanford University.

**************************************************

Sometimes, it takes too long. Often, the “real heroes” die unrecognized (like the more than 1,200 Chinese workers mentioned in this article or the many anonymous enslaved African-Americans whose uncompensated labor and ingenuity “propped up” at least five of our first seven Presdients) long before justice comes. And, frequently, the flawed folks who were wrongly acclaimed “popular heroes” of their day escape judgement within their lifetimes.

But, history has a way of eventually “getting it right.” Trump and his misguided followers eventually will be in for a reckoning.

It won’t be pretty. Once the subpoenas can’t be ignored, the testimony perjured, the innumerable lies, intentional misrepresentations, and squalid distortions presented as “business as normal,” and the full historical record becomes available for study and analysis, free from the political hoopla of the present, it will be much, much worse than we can possibly imagine. The true unpalatable nature of Trump and his enablers will be revealed for some future generations. And, those who stood against them and their racism, greed, dishonesty, and cruelty will be vindicated.

PWS

05-10-19

FORMER ACTING ICE DIRECTOR JOHN SANDWEG TELLS CNN TRUMP’S MINDLESS PROPOSAL TO ELIMINATE U.S. IMMIGRATION JUDGES AND ABOLISH ASYLUM LAW IS “THE SINGLE DUMBEST IDEA I’VE EVER HEARD” – And, That’s Saying Something Given Some Of Trump’s Other Insane Threats, Lies, and Hoaxes!

https://apple.news/AWKeqCVDGSce8oOk8NklD4A

Ex-ICE head: Trump had ‘single dumbest idea I’ve ever heard’

New Day

Former Acting Director of US Immigration and Customs Enforcement John Sandweg says President Trump’s suggestion to eliminate immigration judges is “the single dumbest idea I’ve ever heard” in terms of dealing with border crossings.

Source: CNN

Nevertheless, I do take issue with John’s implicit assumption that the current 20-25% grant rate for Northern Triangle countries represents reality. This Administration in particular, but also previous Administrations, worked hard to unfairly skew the asylum system against asylum seekers from the Northern Triangle.

This includes:

Limiting opportunities for representation by counsel (counsel increases success rates by at least 4X);
Using detention in a coercive and punitive way to discourage claims and punish those who pursue them;
Skewing the law to make gender-based and gang-based claims, which could fairly easily be fitted into the conventional asylum framework, unnecessarily complicated and hard to establish;
Hiring mostly former prosecutors as Immigration Judges and then sending them a “deny and remove” message through the Attorney General, who unethically and in violation of any common sense concept of Due Process controls the Immigration Courts;
Failing to provide proper training and guidance to Immigration Judges through precedent decisions on how asylum claims can and should be granted;
Tolerating Immigration Judges who have shown bias toward asylum seekers and almost never grant asylum;
Intentionally making asylum law overly legalistic and focused on finding reasons to deny and remove, rather than protect.

One need look no further than two of my recent posts about judges who never grant asylum to see how sick, biased, and unfair the Immigration Court system has become to asylum seekers.

https://immigrationcourtside.com/2019/04/07/podcast-reveals-due-process-disaster-in-immigration-courts-particularly-for-transgender-individuals-deep-seated-problems-existed-this-administration-made-them-w/

https://immigrationcourtside.com/2019/04/04/courts-of-injustice-lawyers-groups-rip-bias-asylum-free-zone-at-el-paso-immigration-court/

And make no mistake — the racist scofflaws who have assumed control of immigration policy under Trump intend to eradicate asylum, the rule of law, and our Constitution. Don’t think that just because you might happen to be a U.S. citizen or even a Trump supporter you will be immune from the destruction of the foundations of our republic and your individual rights. Some day, your turn will also come. Who will defend and speak up for those who have watched the rights and the lives of the vulnerable among us be trampled?

For much of my tenure at the Arlington Immigration Court the asylum grant rate hovered around 70% with few DHS appeals. As someone who worked on the Refugee Act of 1980 and has been involved in the administration and application of U.S. asylum laws for decades, from all sides, that high grant rate was completely warranted. Those finding reasons to deny at rates approaching 100% are not fairly, impartially, and correctly applying asylum law in accordance with Due Process and the actual legal standards. For too long we have tolerated gross abuses of asylum seekers — it has been taken to a new level under this Administration.

It’s illegal, it’s unconstitutional, it’s unethical, and it must stop!

PWS

04-08-19

PODCAST “REVEALS” DUE PROCESS DISASTER IN IMMIGRATION COURTS, PARTICULARLY FOR TRANSGENDER INDIVIDUALS — Deep Seated Problems Existed — This Administration Made Them Worse!

https://www.revealnews.org/episodes/trans-national-migration/

Trans National Migration

Co-produced with

Apple Podcasts Google Podcasts Stitcher Spotify RadioPublic RSS

We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.

Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.

Credits

Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.

Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.

Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.

Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.

Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, the Heising-Simons Foundation and the Ethics and Excellence in Journalism Foundation.

************************************

Please click the link at the top to listen.

My takeaways:

The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious justice system and vulnerable human beings who need and are legally entitled to our protection.

Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.

I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.

PWS

04-07-19

TRUMP IMMIGRATION POLICIES APPEAR TO BE ENCOURAGING ILLEGAL ENTRIES!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d5c94949-b401-4f6b-9302-b19af62066b3

Wendy Fry reports in the LA Times/San Diego Times-Union:

SAN DIEGO — Three months into the Department of Homeland Security’s program that requires asylum-seeking migrants to wait in Mexico until their U.S. immigration hearings, observers said Friday that the policy may actually be encouraging illegal border crossings.

Last week, migrants rushed the border at least four times at Playas de Tijuana, many of them saying they were motivated by not wanting to wait in Mexico.

A Customs and Border Protection official said migrants who cross the border illegally are not being returned to Mexico while they seek asylum. Instead, they are taken into custody, where they eventually get to wait in the United States, sometimes up to three or four years until their asylum hearings before an American immigration judge.

“Why would I spend three years here in Tijuana when I could be in the United States?” asked Jeydi Fuentes Lopez Montes, a 29-year-old mother from Honduras traveling with a 1-year-old child. “I know there is work here in Tijuana, but isn’t the work better over there?”

Fuentes said she went to Tijuana planning to wait in line to ask for asylum, but she said that when she learned the list to get an initial appointment with U.S. officials could take several months, she decided to try to find another way into the U.S.

Legal experts say a judge is not allowed to deny a person’s asylum request based solely on whether he or she entered the country legally or illegally.

Samuel Rodriguez Guzman, from El Salvador, arrived in Tijuana this month. He said he went to the beach Thursday after hearing about more people successfully entering the U.S. illegally, and seeing on the news people getting through the border infrastructure at Playas.

“I’m trying whatever way I can to immigrate to the United States,” Rodriguez said. “I had problems with the gangs in my country and my father did, too. They want to kill us. When we get there to the United States, they have to respect our human rights to ask for asylum, right?”

Alan Bersin, the former commissioner of U.S. Customs and Border Protection, said there is no coordinated system between the Mexican government and the U.S. to accept large numbers of migrants returned to Tijuana.

So far, fewer than 300 people have been returned to Mexico under the program.

“It’s an incompetent program,” said Bersin, adding that people who cross illegally should be returned to Mexico in the same numbers as those who wait for months in line for their turn to cross legally.

“This policy has a chance of succeeding as a deterrent,” he said. “But [Mexican President Andres Manuel] Lopez Obrador is trying to avoid a fight with Trump so he says yes to everything but does nothing.”

This month, migrants have been climbing through holes in border fencing at Playas or climbing over the 15-foot-high fence.

On March 13, some people slipped through a hole in the border fencing near the beach. One of the men, who was seen in a video running down the beach carrying a small child while a border agent chased him, provided updates via WhatsApp to several people in his group and some witnesses. He said he was not apprehended and made it to Los Angeles.

A group of about 60 people who crossed on March 14 included men, women and children, most of whom said they were from Honduras. Customs and Border Protection spokesman Ralph DeSio said 52 people from that group were arrested.

Border officials also arrested 23 people from Honduras and one from Guatemala on Tuesday after they scaled the fence near the beach.

Then Thursday, activity at the border intensified as border agents and migrants clashed.

Two migrants and several witnesses said agents shot pepper spray across the fence and into their eyes. During the incident, one man climbed the fence and dropped into the U.S. before he was detained by border agents.

DeSio said Customs and Border Protection is averaging 167 arrests a day in the San Diego County area of responsibility, which stretches east to past Jacumba.

“Every arrest in San Diego Sector is investigated. Every breach in San Diego County is a concern whether it’s near Imperial Beach or in Jacumba,” DeSio said in a written statement. “Compromises in our fence are common due to our aging infrastructure. Efforts are made to repair breaches or compromises in a timely manner.”

On Friday, another hole big enough for people to climb through was visible at the base of the border fence at Playas.

“Really, we’re tired of fighting because we just want to cross and ask for asylum…. We’re not rude. We are allowed to come here and ask for asylum,” said Jose Reinera, a Honduran migrant who climbed up on top of the fence at Las Playas on Thursday.

Reinera said he turned back and climbed back down on the Mexican side of the border when he realized his wife and children would not be able to make the climb.

Fry writes for the San Diego Union-Tribune.

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Up until now, the Administration has been fortunate that their cruel, sometimes illegal, and always incompetent policies haven’t made things even worse.

Fact is, most individuals applying for asylum still turn themselves in either at legal ports of entry or shortly after crossing the border to apply for asylum. They can be logged in, fingerprinted, screened for criminal records and credible fear. Those who can’t demonstrate credible fear can be expeditiously returned.

Those who pass, become part of the legal system. If given an opportunity to understand the asylum system, obtain legal a representation (we know that represented asylum applicants succeed at a rate of 4X to 17X those who are forced to proceed without representation) and fairly present their cases, most will show up in Immigration Court. Many of those who are represented and treated fairly will qualify for asylum, withholding of removal, or relief under the Convention Against Torture (“CAT”), even in today’s administrative system which has been intentionally and unfairly skewed against them and their claims.

Those who don’t qualify will be subject to removal, although many will nevertheless face very real and legitimate harm (not fitting within our legalistic and often arcane asylum system) that a more prudent and humane Administration might use to fashion some type of temporary or long-term respite from removal.

But, if the Administration succeeds in it’s mindless plan to destroy the legal asylum and Immigration Court systems, forced migrants, who come of necessity not choice, will simply stop using it. With the help of smugglers, and paying higher prices and taking more deadly risks, many will simply be smuggled into the interior of our country. There, they will lose themselves in our huge country with a diverse population and an insatiable need for labor at all levels.

No screening, no registration, no taxes, etc. — some will undoubtedly be caught and removed. But the vast majority will remain “in the underground” until 1) we legalize them; 2) they decide that conditions have changed so it is their best interests to return to their native lands, or 3) they eventually get old and die. Not to mention that by forcing them into the “immigration black market” we deprive them of their human dignity and a chance to contribute their full potential to our country, while we lose the many benefits of having them do so.

Sounds like a bad system. But, it’s the type of mindless, White Nationalist, “lose, lose, lose” restrictionism that this Administration loves to feed to its “political base.” A bigger “immigration underground” means more folks to hate, loathe, blame, and run against.

PWS

03-26-19

DOJ SWEARS IN 31 NEW IMMIGRATION JUDGES WITHOUT ACKNOWLEDGING ITS ROLE IN CREATING AN UNMANAGEABLE BACKLOG! — Honesty & Admitting Own Mistakes Would Be A Prerequisite To A Rational Backlog Reduction Program! — Sessions Gone But System Remains FUBAR!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7cb1d269-89ec-411d-ab01-e88041025ddf

Molly O’Toole reports for the LA Times:

WASHINGTON — A girl in a pink bow stood proudly center stage Friday at the Justice Department, dwarfed by two statues and adults in black judicial robes behind her.

“We need more judges,” quipped James McHenry, director of the executive office of immigration review, which administers the country’s clogged immigration courts. “We’re now recruiting children too.”

Thus went the ceremony for officials, family and friends to welcome 31 new immigration judges, the second-largest class ever.

The Trump administration has hired more immigration judges in two years than was done in the previous seven years, according to Deputy Atty. Gen. Rod Rosenstein, who plans to retire soon.

But the hiring surge is unlikely to resolve the backlog of nearly 830,000 immigration cases that continues to grow.

Rosenstein said the new judges — on top of 414 currently serving — will help cut the vast logjam.

“Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties,” Rosenstein said.

It will also depend on money. McHenry notified immigration court staffers last week that budget shortfalls had blocked the hiring of additional judges and would delay recruitment of court support staff, according to BuzzFeed.

The caseload worsened significantly during the 35-day government shutdown over President Trump’s demands for a border wall. About 400 immigration judges were furloughed, and tens of thousands of hearings were canceled or delayed, exacerbating delays that now exceed two years on average.

Amid continued fighting with Congress over immigration and border security funding, the White House has requested money for 100 additional teams of immigration judges for 2020.

Migrants routinely wait years for a final determination of whether they can stay in the country, according to a Homeland Security inspector general’s report released Thursday.

In contrast to regular U.S. courts, immigration courts are not in the judicial branch of government. The judges are classified as government attorneys at the Justice Department and they ultimately report to Atty. Gen. William Barr.

The Trump administration has prioritized deporting thousands of migrants in detention and preventing their release into the United States while they await court hearings.

But because of limited detention space and record numbers of asylum seekers and Central American families adding to the backlog, Trump officials have released some detained migrants.

Some administration policies also have proved counterproductive to reducing the backlog, according to some current immigration judges, former officials — and McHenry.

Boosting enforcement efforts without increasing resources for immigration courts “could seriously compromise” their “ability to address [the] caseload and greatly exacerbate the current state of the backlog,” McHenry wrote to Rosenstein in October 2017.

In a plan that officials said would reduce the backlog, the Justice Department at the time instituted a quota for immigration judges and forced them to reopen closed cases. The caseload grew by more than 230,000 new cases last year, however.

McHenry sought to steel the new judges on Friday, saying they were entering into “the most significant and emotionally charged debate over immigration for some time.” He even read out a “pause for tense laughter.”

******************************************************

Rosenstein continues to play the “blame shame game.” Because the Trump Administration and the DOJ have given “built to fail” and counterproductive enforcement “gimmicks” priority over fixing the glaring due process problems in Immigration Court, and because today’s Immigration Judges have been forced to function more like “gerbils in a wheel” than independent judicial officials, the backlog is likely to continue to grow no matter what the individual Immigration Judges do. Indeed, they have been stripped by this Administration of not only their dignity as judges but also the last vestiges of control over their own dockets.

To his credit, McHenry actually tried to tell his handlers at DOJ that some of their misguided, enforcement-driven, restrictionist “backlog reduction” efforts would make the backlog even worse. He was ignored. And, the backlog has exponentially increased under this Administration — more judges in the hands of an Administration dedicated to “malicious incompetence” in the field of immigration has simply resulted in more backlog.

The one thing that judges can still control — impartial professional due process in each individual case coming before them — has been buried by this Administration’s dishonest rhetoric and “just pedal faster” invectives. But, any Immigration Judge who wants to succeed in real life terms, save lives, sleep at night, and be remembered by history as part of the solution not the problem will largely “tune out” the DOJ’s highly disingenuous babble about that which they can’t control and concentrate instead on guaranteeing fairness and due process in each individual case coming before her or him.

PWS

03-17-19

“DOJ MISMANAGEMENT CENTRAL:” In Failing U.S. Immigration Courts, Political Interference & Idiotic Quotas Push 1.1 Million Plus Case Backlog Higher!

https://apple.news/ASsFWST9rQTSnqDmrVtuZ2Q

Immigration judges say quotas will increase backlog of cases

LOS ANGELES — Immigration judges say a new quota system threatens to increase an already overwhelming backlog of cases in U.S. immigration courts.

The system pushes for judges to close 700 cases a year and calls for them to be evaluated on that quota.

Immigration Judge Ashley Tabaddor said in a March 12 letter to lawmakers that the change would create a perception of government interference in the handling of cases that will lead more immigrants to file appeals.

Tabaddor, who heads the National Association of Immigration Judges, says the move could also flood federal courts with cases.

It can take years to get a decision in the immigration courts, which have more than 800,000 pending cases.

The letter followed testimony last week before a House subcommittee by James McHenry, who oversees the nation’s immigration courts.

A message sent to immigration court officials was not immediately returned.

***************************************

Apparently, it’s going to take a complete collapse of not only the U.S. Immigration Courts but the entire Federal Judicial System (certainly on the horizon as the Immigration Courts’ systematic failure to provide expertise, impartial decision-making, Due Process, and fundamental fairness is pushing more and more cases into the Article III Courts). Unfortunately, to date, both Congress and the Article IIIs seem largely willing to watch disaster unfold, rather than taking the bold remedial action required to wrest the Immigration Court System out of the clutches of a spectacularly unqualified Department of Justice and reconstitute them as an independent court system where the standards of Due Process are taught, applied, and enforced!

In the meantime, lives are being needlessly, sometimes intentionally, endangered each day by our failure to live up to the U.S. Constitution!

PWS

03-14-19

GW CLINIC REPORT: Justice Finally Triumphs — 7-Year Battle On Behalf Of Abused Refugee Woman Succeeds!

Paulina Vera, Esq.; Professor Alberto Benitez; Rachel Petterson

Friends,

Please join me in congratulating S-P-G-G, from El Salvador, whose asylum application was granted by IJ David Crosland on February 26. We received the decision today. When told of the grant, S-P-G-G screamed. She can start the process of bringing her minor son to the USA. Please also join me in congratulating Rachael Petterson, Julia Navarro, Solangel González, Chen Liang, Xinyuan Li, Abril Costanza Lara, Allison Mateo, and Paulina Vera, who worked on this case.

The IJ found that S-P-G-G warranted humanitarian asylum because she established compelling reasons arising from the severity of her persecution. Among other things, she had been raped by her sister’s ex-boyfriend, which resulted in her becoming pregnant, and giving the child up for adoption. S-P-G-G testified that she experiences recurring nightmares, suicidal feelings, a sense of hopelessness, and fear as a result of her persecution.

FYI. The client’s initial hearing was on December 18, 2012, IJ Crosland denied asylum, she appealed to the Board of Immigration Appeals (BIA), which remanded to the IJ, he denied asylum again, she appealed to the BIA, which denied asylum, she appealed to the 4th Circuit Court of Appeals, which remanded to the IJ, and he finally granted asylum on February 26.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School

************************************

Congrats to SPGG and her wonderful team at the GW Immigration Clinic! More than six years of litigation, two wrongful denials, two appeals to the BIA, one incorrect BIA decision, and a remand from the Fourth Circuit before justice was finally done.

Illustrates four things:

The absolute BS of those like Sessions and other restrictionists who say asylum cases can be raced through the system on an assembly line;
The further BS of claiming that asylum applicants and their lawyers are “gaming” the system when many delays, like this, are caused by poor anti-asylum decision-making within EOIR combined with the DOJ’s incompetent administration of the Immigration Courts;
The importance of full appellate rights, including review by a U.S. Court of Appeals that is actually an independent, fair, and impartial court, not a Government agency masquering as a court;
The absurdity of claiming that unrepresented asylum seekers can receive anything approaching Due Process in the EOIR system, particularly when they are held in inherently coercive “civil immigration detention.”

What if we had a fair, expert Immigration Court system that made every effort to do right by asylum seekers in the first instance by interpreting and applying the law in the generous and humanitarian manner to protect those in need as originally intended in the Refugee Act of 1980 and described by the Supremes in Cardoza-Fonseca?

What if we had a Government that cared about Due Process and worked to promote it rather than attempting to whack it out of shape to screw the most vulnerable among us at every opportunity?

What if the emphasis in the Immigration Courts was on fairness, scholarship, respect, and teamwork with all concerned (not just “partnership” with the prosecutor and politicized Administration goals) rather than on “haste makes waste” methods and gimmicks.

Hey, we could have a working court system where justice was served and more things got done right in the first place, instead of the disgraceful mess that EOIR has become under DOJ’s highly politicized mismanagement!

PWS

03-07-19

REP. DON BEYER (D-VA) IN THE HILL: There Are Strategies To Constructively Address Human Rights Problems In The Northern Triangle — A Wall Isn’t One Of Them

https://thehill.com/blogs/congress-blog/foreign-policy/431757-rep-beyer-what-i-learned-in-central-america

Rep. Breyer writes:

Last week I traveled with colleagues to Central America’s Northern Triangle — Guatemala, Honduras, and El Salvador — where we spent five days meeting with heads of state, law enforcement, business leaders, U.S. ambassadors and diplomatic staff, USAID officials, and working people.

The trip, organized by Sen. Tom Carper of Delaware, was highly informative, particularly given the ongoing debate over immigration policy, temporary protected status (TPS), trade, and other related issues.

I think my fellow travelers – Sens. Carper and Jeff Merkley (Ore.) and Reps. Lisa Blunt Rochester (Del.), Lou Correa (Calif.), and Donald Norcross (N.J.) – would agree that what we saw and heard was both depressing and encouraging.

It is clear that the top mission of our U.S. presence in these countries is changing the conditions which drive irregular migration attempts to the United States. We are attacking the corruption, especially within the governments, which undermines citizen confidence that their countries will progress. We are training police forces to deal with both gang violence and narcotics trafficking, with significant reductions in the murder rates in all three countries. And we are investing in the conditions necessary for economic growth, especially the training of young people for jobs that pay much more than the minimum wage.

Our top concern was the decline in presidential support for U.S. initiatives to support economic growth and improved security in the region, and the naive idea that a wall on a border more than a thousand miles north will be any disincentive for jobless people living in fear of violence. The notion that a wall would magically solve the complex problems which cause people to flee to the United States was not borne out by what we saw.

Instead, we saw again and again that when we help create conditions of the most modest prosperity, when we reduce the fear of imminent violence, and when folks believe things will get better, it greatly reduces people’s desire to emigrate to the United States.

The most effective way for us to deal with unwanted immigration is to address the root causes in the developing economies of the Northern Triangle. We have already made a significant difference, but there is so much more we can and must do.

We should begin by shifting the useless waste of taxpayer funds in a silly border wall into greater investment into the Alliance for Prosperity, into our law enforcement efforts, and into diplomacy which will ensure ever less corrupt and more responsive governments.

My colleagues and I will be sharing these lessons with our colleagues this week, as Congress takes up a measure to reject the president’s fake national emergency, and beyond it as we look for humane, practical solutions to improve our immigration system and our relationships with these nations.

Beyer represents Virginia’s 8th District.

*************************************

There are many other things that we could do, both internationally and domestically, to address the current humanitarian situation in the Northern Triangle. The money that the Trump Administration is happy to waste on a wall, unnecessary and inhumane detention, and the unneeded stationing of troops on the border could actually support much more reasonable and effective approaches that would comply with the law, rather stretching and often breaking it.

We need a better government by better people. Join the New Due Process Army and help end the Trump Kakistocracy.

NOTE: Don Beyer is our Representative.

PWS

03-06-19

FRIDAY, MARCH 8 WILL BE A BIG DAY WITH TWO GREAT IMMIGRATION EVENTS TAKING PLACE IN WASHINGTON, D.C. & NY CITY! — Sign Up Now!

IN WASHINGTON D.C. —

ABA Hispanic Commission CLE: Future Legal Issues Facing the Hispanic Community

American Bar Association, 1 PM EST

4-Part Seminar – Future Legal Issues Facing the Hispanic Community

An in-depth look at the future of Hispanic rights, Immigration, Healthcare, and Children’s Rights; advice regarding career strategies and navigating the workplace.

Here are the links to the agenda and registration information:

https://www.americanbar.org/content/dam/aba/administrative/sexual_orientation/feb152019-program-agenda-final-cle-hc.pdf

https://www.americanbar.org/events-cle/mtg/inperson/358716264/

GW Law Professor and Clinic Director Alberto Benitez will be on the program and says:

“I’ll be on a ABA panel Friday, March 8. You are invited. The entire program is free for law students.”

*******************************************

IN NY CITY:

Description

The 2019 New York Asylum & Immigration Law Conference will take place on Friday, March 8th, 2019, at New York Law School. Designed to engage new attorneys as well as more experienced lawyers, academics, and students, the conference features panels ranging from introductory presentations on asylum law to more specialized and advanced sessions. Three tracks allow participants to engage in diverse topics including constructing narrative, detention, discussion of mandatory bars to asylum, and advanced issues such as new developments in particular social group formation. Earn up to 7.5 CLE credits, including Ethics as well as Diversity, Inclusion & Elimination of Bias credits.

This year, our conference is on International Women’s Day. Our plenary session and other events will commemorate and celebrate acts of courage and determination by women who have played extraordinary roles – as artists, as activists, and as advocates.

This conference is organized by the Federal Bar Association Immigration Law Section and New York Law School’s Asylum Clinic.

Registration closes on Wednesday, March 6th. No walk-in registrations, please.

View Conference Agenda

NYLS Tuition Assistance Policy and Refund Policy

Questions? Contact Professor Claire R. Thomas at claire.thomas@nyls.edu

Here’s a link to the Conference website:

https://www.eventbrite.com/e/2019-new-york-asylum-and-immigration-law-conference-tickets-56122936213

*************************************************

PWS

03-02-19

BIPARTISAN GROUP OF 58 NATIONAL SECURITY EXPERTS “CALLS B.S.” ON TRUMP’S BOGUS NATIONAL EMERGENCY!

https://www.washingtonpost.com/world/national-security/former-senior-national-security-officials-to-issue-declaration-on-national-emergency/2019/02/24/3e4908c6-3859-11e9-a2cd-307b06d0257b_story.html

Ellen Nakashima writes in the Washington Post:

A bipartisan group of 58 former senior national security officials issued a statement Monday saying that “there is no factual basis” for President Trump’s proclamation of a national emergency to build a wall on the U.S.-Mexico border.

The joint statement, whose signatories include former secretary of state Madeleine Albright and former defense secretary Chuck Hagel, comes a day before the House is expected to vote on a resolution to block Trump’s Feb. 15 declaration.

[Read the letter: Former national security officials dispute Trump’s emergency declaration]

The former officials’ statement, which will be entered into the Congressional Record, is intended to support lawsuitsand other actions challenging the national emergency proclamation and to force the administration to set forth the legal and factual basis for it.

“Under no plausible assessment of the evidence is there a national emergency today that entitles the president to tap into funds appropriated for other purposes to build a wall at the southern border,” the group said.

Albright served under President Bill Clinton, and Hagel, a former Republican senator from Nebraska, served under President Barack Obama.

Lawmakers argue over Trump’s national emergency declaration

Republican Sen. Lindsey O. Graham (R-S.C.) said he supported President Trump’s national emergency declaration to build the wall Feb. 17. (Reuters)

Also signing were Eliot A. Cohen, State Department counselor under President George W. Bush; Thomas R. Pickering, President George H.W. Bush’s ambassador to the United Nations; John F. Kerry, Obama’s second secretary of state; Susan E. Rice, Obama’s national security adviser; Leon E. Panetta, Obama’s CIA director and defense secretary; as well as former intelligence and security officials who served under Republican and Democratic administrations.

[Trump declares national emergency on southern border in bid to build wall]

Trump’s national emergency declaration followed a 35-day partial government shutdown, which came after Congress did not approve the $5.7 billion he sought to build a wall.

In announcing his declaration, Trump predicted lawsuits and “possibly . . . a bad ruling, and then we’ll get another bad ruling” before winning at the Supreme Court.

Trump’s actions are also drawing criticism from at least two dozen former Republican congressmen, who have signed an open letter urging passage of a joint resolution to terminate the emergency declaration. The letter argues that Trump is circumventing congressional authority.

A secondary border wall is under construction in Otay Mesa, Calif. (Sandy Huffaker/Getty Images)

The former security officials’ 11-page declaration sets out their argument disputing the factual basis for the president’s emergency.

Among other things, they said, illegal border crossings are at nearly 40-year lows. Undetected unlawful entries at the U.S.-Mexico border decreased from 851,000 to nearly 62,000 between 2006 and 2016, they said, citing Department of Homeland Security statistics.

Contrary to the president’s assertion, there is no documented emergency at the southern border related to terrorism or violent crime, they said, citing administration reports and independent think tank analyses.

[When Trump declared national emergency, most detained immigrants were not criminals]

Similarly, they state that there is no drug trafficking emergency that can be addressed by a wall along the southern border, noting that “the overwhelming majority of opioids” that enter the United States are brought in through legal ports of entry, citing the Justice Department.

They also argue that redirecting money pursuant to the national emergency declaration “will undermine U.S. national security and foreign policy interests.” And, they assert, “a wall is unnecessary to support the use of the armed forces,” as the administration has said.

Some of the same former officials wrote a joint declaration disputing the factual basis for the president’s order shortly after he took office in January 2017 barring entry to foreign nationals from seven predominantly Muslim countries. The former officials asserted that the order was not based on a bona fide national security assessment but on “a deliberate political decision to discriminate against a religious minority.”

Their views were filed as a joint declaration and later as a friend-of-the court brief in lawsuits challenging the original order and subsequent revisions, and it was cited by almost every federal judge who enjoined the ban. By the time the challenges reached the Supreme Court, the administration had significantly narrowed the ban, which the high court upheld on a 5-to-4 vote.

With respect to the declared national emergency, plaintiffs have filed two cases in the District of Columbia, two in California and one in Texas.

**************************************

It definitely will be worth noting for posterity those in the GOP who vote to sell out America by failing to stand up to Trump’s bogus national emergency ploy.

We also shouldn’t forget that if the GOP weren’t willing to sell out America because of fear of the “Off-base Trump Base” the vote to overturn his national emergency would be overwhelming and thereby “veto-proof.” A body that won’t stand up for its own Constitutional prerogatives, isn’t likely to strand up for the rights of anyone else.

PWS

02-26-19

PINOCCHIO 4.0: Stephen Miller Spews Forth Lies About Immigrants & Crime From White House Perch!🤥🤥🤥🤥

https://www.washingtonpost.com/politics/2019/02/21/stephen-millers-claim-that-thousand-americans-die-year-after-year-illegal-immigration/

The Washington Post’s “Fact Checker” Glenn Kessler reports:

“This is a deep intellectual problem that is plaguing this city, which is that we’ve had thousands of Americans die year after year after year because of threats crossing our southern border.”

— Stephen Miller, senior adviser to President Trump, in an interview with “Fox News Sunday,” Feb. 17, 2019

This article has been updated with a comment from the White House

Miller slipped this line in the final seconds of his contentious interview with host Chris Wallace over President Trump’s emergency declaration to fund a wall along the southern border, so some viewers might have missed it. But it’s an astonishing statement, suggesting that undocumented immigrants kill thousands of Americans every year.

The White House did not respond to a query concerning Miller’s math, but other anti-immigration advocates have made similar claims. Rep. Mo Brooks (R-Ala.) claimed in December that there are “thousands of Americans who are dead each year because [of] the Democrats’ refusal to secure our borders.” President Trump claimed in 2018 that 63,000 Americans have been killed by illegal immigrants since the Sept. 11, 2001, attacks, which works out to about 3,700 a year.

But there is no evidence these claims are true. In fact, the available evidence suggests these claims are false. This is a good example about how a paucity of data allows political advocates to jump to conclusions.

The Facts

First, some context: There is no nationwide data set on crime committed by undocumented immigrants, so researchers have tried to tease the answer from less-than-complete data. Yet study after study shows that illegal immigration does not lead to increased crime, violence or drug problems. In fact, the studies indicate that undocumented immigrants commit crimes at lower rates than native-born Americans.

A 2018 study published in the peer-reviewed journal Criminology, led by Michael Light, a criminologist at the University of Wisconsin at Madison, examined whether places with higher percentages of undocumented immigrants have higher rates of violent crime such as murder or rape. The answer: States with larger shares of undocumented immigrants tended to have lower crime rates than states with smaller shares in the years 1990 through 2014. Similar results were found in another peer-reviewed study by the same researchers that looked at nonviolent crime, such as drug arrests and driving under the influence (DUI) arrests.

Similarly, the libertarian Cato Institute in 2018 looked at 2015 criminal conviction data among undocumented immigrants in Texas — one of the few states to record whether a person who has been arrested is in the country illegally or not. Researcher Alex Nowrastehfound that criminal conviction and arrest rates in Texas for undocumented immigrants were lower than those of native-born Americans for homicide, sexual assault and larceny.

“As a percentage of their respective populations, there were 50 percent fewer criminal convictions of illegal immigrants than of native-born Americans in Texas in 2015,” Nowrasteh wrote. “The criminal conviction rate for legal immigrants was about 66 percent below the native-born rate.”

In 2015, there were 785 total homicide convictions in Texas. Of those, native-born Americans were convicted of 709 homicides (a conviction rate of 3.1 per 100,000), illegal immigrants were convicted of 46 homicides (2.6 per 100,000), and legal immigrants were convicted of 30 homicides (1 per 100,000). In other words, homicide conviction rates for illegal and legal immigrants were 16 percent and 67 percent below those of native-born Americans, respectively.

Some advocates of restraining immigration have sought to make the case that undocumented immigrants commit more crimes by relying on data from the State Criminal Alien Assistance Program (SCAAP), a federal program that offers states and localities some reimbursement for the cost of incarcerating certain criminal non-U. S. citizens. The Government Accountability Office (GAO) in July issued an updated report on SCAAP data, but GAO (and SCAAP) only counts total incarcerations, not individuals. Thus the numbers are not helpful for drawing conclusions about the criminality of undocumented immigrants.

In other words, the available research indicates that, when compared with U.S. citizens, illegal immigrants commit fewer crimes. But we understand that some people might argue that any crime committed by an illegal alien is one too many. Miller is involved in a counting exercise — thousands of deaths that in theory would not otherwise have happened if the undocumented immigrant had not set foot on U.S. soil.

But the available evidence does not support a count of thousands of deaths a year, either.

Nowrasteh pointed The Fact Checker to the Texas data. For the five years from 2014 through the end of 2018, there were 200 homicide convictions of illegal immigrants. We’ll assume each conviction represents one person, although, of course, someone could have been convicted of multiple murders.

According to the Department of Homeland Security Estimate of the Illegal Alien Population Residing in the United States in January 2015, there were 1.9 million illegal residents in Texas, or about 16 percent of the 12 million undocumented immigrants estimated by the agency nationwide. If one assumes that the homicide conviction rate is the same across the country — admittedly a big assumption — then that adds up to 1,250 homicide convictions over a five-year period, or 250 a year.

In the same five-year period, there were about 75,000 murders in the United States. The United States has a 70 percent conviction rate for murder, according to the Bureau of Justice Statistics, so that translates to illegal immigrants accounting for about 2.3 percent of homicide convictions from 2014 to 2018 while accounting for about 3.8 percent of the population.

Miller said “thousands of Americans” die each year. People tend to murder who they know and live with, so odds are many of these 250 or so murders are of other illegal immigrants, not Americans.

While the White House did not respond to a query about where Miller got his calculation, we should note that Brooks has justified his figure by citing people “murdered by illegal aliens, vehicular homicides by illegal aliens, or the illegal narcotics that are shipped into our country by illegal aliens and their drug cartels.”

That slippery wording can be used to justify just about any American death from heroin. But while 90 percent of the heroin sold in the United States comes from Mexico, virtually all of it comes through legal points of entry. “A small percentage of all heroin seized by [Customs and Border Protection] along the land border was between Ports of Entry (POEs),” the Drug Enforcement Administration said in a 2018 report.

Miller spoke vaguely about “threats crossing our southern border,” adding: “We have families and communities that are left unprotected and undefended. We have international narco terrorist organizations.” The clear implication, especially with the use of the word “terrorist,” was that people were being murdered. Adding drug deaths to the total is not justifiable given that Trump’s proposed wall would not stem the flow of drugs.

There’s a website of victims that says it’s “in honor of the thousands of American citizens killed each year by Illegal Aliens.” There are entries as recently as January, but fewer than 300 people are listed even though entries date as far back as 1994. The anecdotal stories are moving, but one would expect a much longer list if thousands of people were really killed each year.

Update, Feb. 22: A day after this fact check was published, we received the following statement from White House Principal Deputy Press Secretary Hogan Gidley:

“Stephen Miller’s comment is 100 percent correct because, sadly, thousands die every year from threats crossing our Southern Border. In the last two years alone, ICE arrested criminal aliens charged or convicted of approximately 4,000 homicides (and those are only the offenders authorities could track down). Three hundred Americans die every week from heroin overdoses – 90 percent of which enters from the Southern Border – and that horrific number doesn’t even take into account deaths from cocaine, fentanyl and meth pouring across at record amounts. This is a dangerous and deadly situation that needlessly kills thousands of Americans every single year – and while the sad statistical truth may not aid the Washington Post’s political agenda, the fact remains.”

(Regular readers know that this 4,000 figure is misleading in this context. It conflates charges and convictions, and there is no indication how long ago homicides may have taken place. As we noted, most drugs come through ports of entry.)

The Pinocchio Test

Miller is the senior presidential adviser responsible for immigration policy in the White House, so it’s especially important for him to stick to verifiable facts on such an important issue. There’s no evidence that thousands of Americans are killed by undocumented immigrants, especially in light of credible studies showing they commit crimes at lower rates than native-born Americans. He earns Four Pinocchios.

Four Pinocchios

**************************************************

“Fact checking” Trump, Miller, and the rest of the “Band of Liars,” particularly on immigration issues, must be more than a full-time job. But, as shown by the Mueller investigation, lying early and often, and then “lying about lying,” appears to be a “standard business practice” for Trump and his cronies.

Migrants, whether documented or undocumented, are not a threat to our national security. But, Trump & Miller are a “clear and present danger.”

PWS

02/25/19

ORION DONOVAN-SMITH @ WASHPOST: Long-Time Liberian Residents Learn That No Group Is Too Small To Escape The Xenophobic Wrath Of The Trump Administration! — PLUS “BONUS COVERAGE” — My “Saturday Essay” — “ANOTHER PERSPECTIVE”

https://www.washingtonpost.com/national/end-of-immigration-program-gives-liberians-in-us-a-choice-leave-their-american-children-or-become-undocumented/2019/02/20/03b3cae6-30db-11e9-813a-0ab2f17e305b_story.html

Orion writes:

MAPLE GROVE, Minn. — Magdalene Menyongar’s day starts with a 5:30 a.m. conference call with women from her church. They pray together as Menyongar makes breakfast and drives to work, reflecting on everything they are thankful for.

But lately, the prayers have turned to matters of politics and immigration. They pray with increasing urgency for Congress or President Trump to act before Menyongar, 48, faces deportation to her native Liberia, where she fled civil war nearly 25 years ago.

In less than six weeks, the order that has allowed her and more than 800 other immigrants from the former American colony in West Africa to live in the United States for decades will end, the result of Trump’s decision last year to terminate a program that every other president since George H.W. Bush supported. Come March 31, Menyongar will face a choice: Return to Liberia and leave behind her 17-year-old daughter, an American citizen, or stay in the United States, losing her work authorization and becoming an undocumented immigrant.

“It’s hard to think about because you have built a life,” said Menyongar, who works as a certified nursing assistant. “Maybe it’s part of my brain that I try to block out. When I think about it, all I do is pray.”

A portrait of Menyongar outside her home in Maple Grove, Minn., on Feb. 3. She faces a decision: Leave her daughter in the United States and return to Liberia or stay and become an undocumented immigrant. (Jenn Ackerman for The Washington Post)

Menyongar is among thousands of Liberian immigrants who were given temporary permission to stay in the United States in 1999, when President Bill Clinton implemented “deferred enforced departure.” DED was routinely extended by previous administrations but is set to end under Trump’s effort to terminate programs for immigrants without permanent status, which also has endangered Deferred Action for Childhood Arrivals and temporary protected status for immigrants from 10 other countries.

Temporary protected status, or TPS, was established by Congress in 1990 for citizens of countries suffering from war, environmental disaster, health epidemics or other unsafe conditions. They are given temporary permission to work in the United States and travel abroad without fear of deportation.

A class-action lawsuit filed Feb. 12 in a federal court in California seeks to block the Trump administration from ending TPS for immigrants from Honduras and Nepal. In October, a federal judge in the same court issued an injunction that stalled the end of TPS for citizens of four other countries.

But that court action does not apply to the smaller and lesser-known DED program, which operates purely at the president’s discretion and gives no statutory basis on which to sue.

Without a change of heart from the president — or new legislation from Congress — Liberians living in the United States under DED will lose their work authorization and become subject to deportation. Instead of self-deporting, many are expected to stay in the United States in hopes of getting a hearing in immigration courts, a process that could take years.

Trump has made curtailing illegal immigration a central tenet of his agenda, saying in his State of the Union address this month that immigrants should come to the United States “in the largest numbers ever, but they have to come in legally.”

But critics say his move to end protection for Liberians, leaving them undocumented after decades in the country legally, reflects an immigration policy that is capricious and, at worst, driven by racial bias.

Menyongar gets ready for work. Her paychecks from two nursing homes help support relatives in Liberia. (Jenn Ackerman for The Washington Post)

Family photos at Menyongar’s home. (Jenn Ackerman for The Washington Post)

Menyongar and her daughter, Gabby, at home. (Jenn Ackerman for The Washington Post)

“There comes a point where even if relief started as temporary, it needs to end with some possibility for permanence,” said Royce Murray, managing director of programs at the American Immigration Council, an advocacy group. “These are people who have built their lives here, have invested in their communities and are raising American citizens.”

Last week, a group of DED holders from Minnesota traveled to Washington to lobby representatives, and Democrats have responded with legislative efforts. Rep. Dean Phillips, a freshman Democrat who represents Menyongar’s Minnesota district, pushed unsuccessfully for a DED provision to be included in the spending bill Trump signed.

In addition, Sen. Jack Reed (D-R.I.) reintroduced a narrow bill he has pushed in every session of Congress since 1999 to offer Liberians with DED a chance to apply for permanent residency. A spokesman for Rep. Nydia M. Velázquez told The Washington Post the New York Democrat is working to include similar provisions in a broader immigration bill to be unveiled in the coming weeks.

Opponents of the programs say they have outlasted their original intent, to provide temporary protection, and represent a misuse of executive authority.

RJ Hauman, government relations director at the Federation for American Immigration Reform, which favors reduced immigration and greater enforcement, calls DED and TPS “flagrant abuses of our immigration system.”

“Both of these ‘temporary’ designations have been on autopilot for years, with one unmerited, open-ended extension after another,” Hauman said. “These individuals should return to their homeland, which has since recovered, and use their skills to enrich Liberian society.”

Like many Liberians who fled their country’s back-to-back civil wars between 1989 and 2003, Menyongar applied for asylum when she arrived in America in 1994. Her request was denied when she was unable to reach relatives in Liberia to get proof of her family ties to a politician there, whose prominence she feared would make her a target should she return. She was able to remain in the United States under TPS until 1999, when the program expired for Liberians and DED was created to extend protection to about 10,000 people at the time.

Liberians don’t have to register with the federal government to qualify for DED, so there’s no reliable count of how many people depend on the program. But as of March 2018, approximately 840 had work authorization under DED, according to U.S. Citizenship and Immigration Services. Liberians must have lived in the United States continuously since 2002 or earlier to qualify.

Most of the original DED beneficiaries have since left the country, died or gained permanent status, Murray said. She estimates as many as “a few thousand” may remain in the country but have not renewed their optional work permits, which cost a total of $495 in annual fees.

Permanent residency can come through political asylum, marriage to a U.S. citizen, family ties or an employer’s sponsorship. Menyongar’s husband, also a Liberian immigrant, died in 2011. Her attorney has advised that her surest option for a green card would be sponsorship by their daughter, Gabby Gworlekaju — something the teenager can’t provide until she is 21.

[American Girl: A 14-year-old prepares for life without her immigrant parents]

Gabby’s primary focus these days is preparing for college, possibly in Atlanta to be close to her father’s family and escape the frigid Midwest winters. She said she didn’t understand that her mother could have to leave until last March, when Trump declared a one-year “wind-down period” for DED. She has told her best friend how worried she is about the situation but avoids talking about it otherwise.

“It’d be a life-changing choice,” Gabby said. “That would mean that my mother would have to physically be removed out of my life, and I’d have to continue on. I can’t even explain how I would react.”

Some members of Bethel Robbinsdale’s congregation may face deportation when deferred enforced departure ends. (Jenn Ackerman for The Washington Post)

Pastor Natt J. Friday preaches at Bethel Robbinsdale on Feb. 3. “These people, if you grant them permanent residence, they are going to be so patriotic,” he said. (Jenn Ackerman for The Washington Post)

The choir sings at Bethel Robbinsdale on Feb. 3. (Jenn Ackerman for The Washington Post)

A second family, a second home

Minnesota is home to the nation’s largest Liberian community, concentrated in the northwestern suburbs of Minneapolis. A few times each week, Menyongar makes a 20-minute drive to Bethel Robbinsdale — one of several Liberian churches in the Twin Cities area — where she serves as president of the women’s ministry.

After communion during a recent Sunday service, the band and choir struck up a euphoric tune while Menyongar joined the congregation in dancing through the pews. Dressed in a brightly colored jumpsuit and a turquoise head wrap, she exchanged handshakes and hugs along the way.

“The church is my second family,” Menyongar said. “It’s like a support system that we have for each other.”

At one point during the two-hour service, the worship paused so a church member could announce an upcoming rally at the state capitol to raise the alarm about the end of DED. Later, Pastor Natt J. Friday led a prayer for those affected.

Friday knows Menyongar isn’t the only member of his church who could face deportation, but he can’t say for sure how many will. Many keep their immigration status secret.

“These people, if you grant them permanent residence, they are going to be so patriotic,” Friday said. “The burden would be lifted off their shoulders to know that they can finally live a normal life.”

Liberian immigrants have taken prominent positions in Minneapolis and its suburbs, such as Brooklyn Center, which recently elected its first Liberian-born mayor. They moved in part for the job market — a shortage of nurses and other health-care workers drew many, like Menyongar, to work in hospitals and assisted-living facilities.

Mary Tjosvold, who owns group homes for seniors and people with disabilities, employs more than 150 Liberians. Although she does not track how many of her employees are protected by DED, she said losing even a few workers would have wide ripple effects.

“People have had these jobs for a long time. They’re important parts of businesses,” said Tjosvold. “On an economic basis, it doesn’t make any sense, no matter what you think politically.”

[‘I feel this is my home’: Hundreds protest in Washington to support immigrants with temporary protected status]

An end to the policy also has economic implications abroad. Remittances sent from those working in the United States to their relatives in Liberia act as “a source of de facto foreign aid,” said Paul Wickham Schmidt, a former immigration judge and current adjunct professor at Georgetown Law School.

Menyongar works a combined 60-plus hours each week at two nursing homes, and her paychecks support her 97-year-old mother and other relatives in Liberia.

Schmidt said the idea that Liberians losing DED will self-deport is unrealistic.

“My experience is that most people go home not because they’re threatened, but because they deem it in their overall best socioeconomic interest,” he said. “A lot depends on what faces you at home, which is why this administration’s policy doesn’t work.”

Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think tank that supports sharp immigration restrictions, argues that a president should not be able to prolong temporary programs like DED without congressional approval. Even so, he said, “When we’ve permitted people to lawfully reside here for decades, it’s practically and politically and morally problematic to say, ‘Okay, now time is up.’ ”

Liberia has been emerging from war during the past 15 years and last year saw its first peaceful transfer of power since 1944. In a memorandum announcing the end of the temporary status, Trump wrote, “I find that conditions in Liberia no longer warrant a further extension of DED.”

Menyongar strongly disagrees with that assessment, citing violent crime, poor health care and infrastructure, and a lack of jobs in explaining why she could not return to her country of birth.

“The Liberia that I knew and grew up in is not the Liberia of today,” she said.

Menyongar worships at Bethel Robbinsdale. (Jenn Ackerman for The Washington Post)

This article was produced in partnership with the Investigative Reporting Workshop at American University, where Donovan-Smith is a student.

*****************************************

ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

Far from being a “problem,” as Trump and his restrictionist “naysayers” like to falsely claim, the TPS/DED program for Liberians has been a tremendous success! With a little “Congressional tinkering,” it could easily become a model for resolving future humanitarian situations without overburdening the US asylum system and adding to the huge existing U.S. Immigration Court backlog.

The US was able to provide humanitarian assistance to at least 10,000 Liberians during the darkest time for their country. This was accomplished without the time, expense, and often inconsistent and unsatisfactory results of forcing them into the formal US asylum system.

While in TPS/DED, Liberians were able to work legally, pay taxes, raise their families, live in peace, and otherwise contribute to American society. Over the years, many were over able to fit within our legal immigration system. Some died. Others found that with changes in Liberia, it made socio-economic sense for them to return there. A very few violated the rules of our hospitality and were duly arrested and removed after receiving Immigration Court hearings (most before the Trump Administration “trashed” due process in Immigration Court). The Government might even have turned a slight profit on the routine renewals of work authorization for which a fee was charged that probably exceeded the actual time it took to adjudicate them.

Now, we have approximately 800 long-term residents remaining who would like to stay here with their families, jobs, and communities. Passing the necessary legislative fix to allow them to get green cards should be a “bipartisan no brainer” — indeed if the Administration introduced and supported such a fix, it almost certainly would pass by huge margins and be signed into law. Presto — problem fixed and everyone wins! At a minimum, a rational Administration would exercise “prosecutorial discretion” (“PD”) to maintain the status quo and allow the few remaining Liberians to reside in the US and work legally pending good behavior and a legislative solution.

The law might or might not have been specifically designed for this outcome. But, wiser Administrations in the past used the available legal mechanisms along with Executive authority and common sense to solve human problems in a practical, efficient manner. Thanks exactly what “good government” is supposed to do.

That the Trump Administration chooses to use laws selectively to create “bogus emergencies” and “engineer problems” where none existed, rather than solving problems in a way that promotes the common good, should be of concern to all of us who favor good government and humane solutions to humanitarian issues.

PWS

02-23-19

LITHWICK & STERN @ SLATE: Will California’s Appeal To Conservative Jurisprudence Convince Conservative Judges In Litigation Against Trump’s Fake National Emergency?

https://slate.com/news-and-politics/2019/02/california-lawsuit-trump-emergency-wall-conservative-gorsuch.html

Dahlia Lithwick and Mark Joseph Stern write in Slate:

Last Friday, President Donald Trump declared a national state of emergency at the southern border, adding that it wasn’t one of those emergencies he actually “needed” to declare and then saying a bunch of other things. As he predicted, a coalition of 16 states filed a federal lawsuit on Monday night, seeking a preliminary injunction to prevent the president from acting on his emergency declaration. As he also predicted, that suit was filed in federal district court in California.

What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.

The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”

Much of the complaint details funding that will be diverted from National Guard and drug-interception projects favored by the states in order to build the wall instead. The plaintiffs say that grants them standing to sue in federal court since the president is redirecting money that would benefit their interests to a project that will not. But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally.

Trump, the plaintiff states write, has “violated the United States Constitution’s separation of powers doctrine by taking executive action to fund a border wall for which Congress has refused to appropriate funding.” By “unilaterally diverting funding that Congress already appropriated for other purposes to fund a border wall for which Congress has provided no appropriations,” the president has run afoul of the Presentment Clause.

This lawsuit joins a series of others that have already been filed by watchdog groups. While they all argue that there is no actual emergency at the southern border, that is not the gravamen of their complaint. Instead of asking the courts to second-guess Trump’s intent, these challengers ask them to decide whether Trump had authority to act in the first place.

The answer, they assert, is no. The Presentment Clause is straightforward: For a bill to become law, it must pass both houses of Congress, then be presented to the president for approval. Yet Congress never passed a bill authorizing and funding the border wall Trump now demands. It never presented such legislation to the president for his signature. This is the stuff of Civics 101. Whatever powers the National Emergencies Act may grant to the president, a federal statute cannot override the Constitution. The executive cannot use funds Congress did not appropriate. He cannot amend statutes himself to create money for pet projects. Trump asked Congress for a large sum of money to construct a border wall; Congress resoundingly and provably said no. The National Emergencies Act does not give him leeway to contravene Congress’ commands.

These problems ought to be catnip for SCOTUS’ conservative justices—particularly Justice Neil Gorsuch. In his very first dissent on the Supreme Court, Gorsuch extolled the virtues of this pristine constitutional system. “If a statute needs repair,” he wrote, “there’s a constitutionally prescribed way to do it. It’s called legislation.” Gorsuch continued:

To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.

A year later, in his rightly celebrated opinion in Sessions v. Dimaya, Gorsuch hammered this same point home again. “Under the Constitution,” he wrote, “the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.” The courts abdicate their responsibility when they ignore the Constitution’s “division of duties” between the branches of government. These “structural worries” form the bedrock of American constitutional governance, whose ultimate goal is to safeguard “ordered liberty.” These new challenges demonstrate that Trump is circumventing these “structural worries” and harming “ordered liberty” in the process.

There’s also clear precedent for allowing states to take up this kind of challenge. When President Barack Obama tried to defer deportation for the undocumented parents of American citizens and legal residents, the Supreme Court’s conservatives threw a fit. They accused the president of legislating from the Oval Office and acting without congressional approval. And they succeeded in blocking that program after Texas and 25 other states sued based on an allegation of the flimsiest of hypothetical harms. In that case, Obama was merely executing a statute that allowed him to set “national immigration enforcement policies and priorities,” not building a border wall by fiat in defiance of congressional appropriators. If a president can violate the cardinal principle of separation of powers by stretching congressional guidance, and the states can sue him for it, surely he commits the same constitutional sin against those states by flouting congressional commands.

Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power. California v. Trump offers that up on a silver platter: Whatever the president can do—whether his name is Obama or Trump—he cannot take funds Congress refused to appropriate and use them to thwart the will of Congress. No tears, no drama, no probing of the executive’s soul. Just the cornerstone of the Framers’ plan.

**********************************************

The appeal to “conservative jurisprudence” certainly appeared to “score” with Circuit Judge Jay Bybee of the 9th Circuit and Chief Justice John Roberts in the recent East Bay Sanctuary case (asylum regulations). Can it bring over Justice Neil Gorsuch and others in California v. Trump?

On the other hand, Professor Aziz Huq, writing in Politico says the case is already over and Trump has won because of the Supremes’ prior “what me worry” tank job in Hawaii v. Trump, the so-called “Travel Ban 3.0 Case” which also involved a “Trumped up bogus national emergency” to fulfill a political campaign promise. https://www.politico.com/magazine/story/2019/02/19/trump-national-emergency-border-wall-225164

With due respect to Professor Huq, I think this case is different because Congress specifically considered Trump’s request and “reasoning” for wanting more “Wall money” and rejected it. Whether that difference “makes a difference,” in terms of result, remains to be seen. Stay tuned!

PWS

02-20-19

NOTE: An earlier version of this post misidentified the subject of the East Bay Sanctuary case — it was about the Trump Administration’s attempt to circumvent the asylum statute, NOT DACA, in which the Court has taken no action on the Government’s pending petition.

THERE IS INDEED A HUMAN RIGHTS CRISIS TO OUR SOUTH – But It Has Little To Do With Trump’s Lies, Nonsense, & Racist Ramblings & Certainly Won’t Be Solved By His Latest Round Of Contempt For Congress & Our Constitution!

https://www.washingtonpost.com/opinions/global-opinions/you-want-to-see-a-real-emergency-mr-president-visit-me-in-honduras/2019/02/16/4650383c-3151-11e9-8ad3-9a5b113ecd3c_story.html

Amelia Frank-Vitale is a doctoral candidate in anthropology at the University of Michigan. She writes in the Washington Post:

Since I moved to San Pedro Sula, Honduras, in September 2017 to do research for my doctoral dissertation, I’ve accompanied a 16-year-old with three bullet holes in his body to the hospital, only to find that there was no blood for transfusions. I’ve looked in the face of a young mother, anguished over whether she should try to make it the United States, because the gang that she used to be a part of but had left behind wanted to pull her back in. I’ve gotten tearful phone calls from a single mother and her two children, who have been told by a gang that they want her house — and she has nowhere else to go. I’ve talked to many families whose teenagers have been taken away by police, never to be seen again. And I’ve also talked to police officers who have given up on law enforcement here, as their superiors undermine honest work and reward corruption.

On Friday, President Trump declared a national emergency as a pretext to allow him to begin construction of a border wall. But the real national emergency is here, in Honduras.

I arrived shortly before a likely fraudulent election installed Juan Orlando Hernández in a second, unconstitutional term as president. Rather than protest irregularities in the vote-counting process, the Trump administration congratulated Hernández on his victory.

Honduras was already in bad shape: a devastating hurricane in 1998; a coup d’etat in 2009; becoming the world’s most homicidal nation in 2010; and a long history of U.S. intervention. In 2015, the ruling National party was implicated in stealing millions of dollars from the nation’s social security fund. Honduras is also on the primary route for cocaine trafficking to the United States. The Drug Enforcement Administration has arrested many alleged narcotraffickers, among them the president’s brother, Tony Hernández. The country ranks high in corruption, impunity, poverty and inequality. It ranks low for literacy, employment and life expectancy.

The 2017 election, though, brought things to a head. There were massive protests, the country was shut down for more than a month, and at least 31 protesters were killed. Honduras has erupted in moments of insurrection since then, though the most visible aftereffects of the election have been a crackdown on dissidents, especially the young and students, and the caravans heading for the United States. People had staked their hope for a better future in a different electoral outcome. When that was taken from them, they went back to leaving the country.

Honduran migration isn’t new; what is new is that they are doing it publicly, in large groups, and asking, collectively, for protection. The real humanitarian crisis is that, mostly, Hondurans are denied this protection and deported.

So many young Hondurans — especially the urban poor — feel like they have no future here. Eight out of 10 violent deaths here are of young people. A young man told me, at 21 years old, that he once had a dream but it’s over. He has no dreams now. He was recently deported from the United States after losing an asylum claim. Yet, back in Honduras, he has to hide in the trunk of a car to be able to visit his mother. The gang there would kill him if they saw him enter her house.

At least he came back alive.

A week ago, I went with a family to receive the remains of their 16-year-old son, who had been murdered in Mexico. He had traveled as part of a caravan and was killed in Tijuana. We picked up the small coffin at the San Pedro Sula airport and loaded the slight white box into the back of a borrowed, barely running pickup truck. As I drove to the airport with his grandmother that day, her eyes had filled with tears as she told me how his father used to paint his face and take him on the bus, performing simple clown routines, hoping to be given a few lempiras. She also told me how two of her three sons were murdered in their early 20s. The third one was disappeared. An unasked question hung in the air: whether her grandson would have lived to adulthood had he stayed in Honduras.

Human history is one of migration; we are exceptionally good at moving around when the conditions for life become tenuous. Neither walls nor deserts nor oceans have ever deterred us from seeking safer horizons and better opportunities for survival.

Under these circumstances, Hondurans’ drive to seek safety elsewhere is not an emergency; that there may be no place in the world where they are allowed to find refuge is the real crisis.

**************************************************

I used to get folks from San Pedro Sula in Immigration Court. Horrible place! Most of them qualified for asylum, withholding of removal, or some other form of relief from removal. Or the DHS Assistant Chief Counsel, having better things to do, and actually not wanting to see decent folks get hurt, offered them prosecutorial discretion (“PD”).

Of course that was in the “pre-Trump days” when Immigration Judges were generally free to properly apply asylum law (if they chose to do so, which, sadly, not all did) and the ICE Chief Counsel in Arlington was taking a stab at working with the courts and the private bar to make the system operate as reasonably and humanely as it could under the circumstances. Not perfect by any means; but, a world away from the intentional cruelty, irrationality, lawlessness, and intentional bias that the Trump regime has used to destroy any semblance of justice, due process, and functionality in the Immigration Courts.

PWS

02-17-19

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IN WASHINGTON D.C. —

ABA Hispanic Commission CLE: Future Legal Issues Facing the Hispanic Community

American Bar Association, 1 PM EST

IN NY CITY:

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ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

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