HON. JEFFREY CHASE COMMENTS ON THE DISINGENUOUS ABSURDITY OF THE ATTORNEY GENERAL’S LATEST ATTACK ON CHILDREN IN U.S. IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/12/28/lawyer-files-disciplinary-complaint-against-chief-immigration-judge

 

Dec 28 Lawyer Files Disciplinary Complaint Against Chief Immigration Judge
On December 22, New York attorney Bryan S. Johnson filed a complaint with the Assistant Chief Immigration Judge for Conduct and Professionalism against Chief Immigration Judge MaryBeth Keller. The basis for the complaint was the Chief Judge’s issuance of guidelines to immigration judges on the handling of cases involving juveniles, including unaccompanied children (OPPM 17-03, Dec. 20, 2017). In that directive, Judge Keller instructed immigration judges that in spite of the sympathetic factors involved in children’s cases, “judges must remain neutral and impartial when adjudicating juvenile cases and shall not display any appearance of impropriety when presiding over such cases.” The complaint argues that such directive instructs immigration judges to violate federal statute, specifically the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which requires the Attorney General to train immigration judges to “work with unaccompanied alien children, including identifying children who are victims of severe forms of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate.” 8 U.S.C. § 1232(e).

Instructing judges to “remain neutral and impartial,” while open to interpretation, will be perceived by many as requiring passivity. As one senior judge explained to me when I was new to the bench, judges should consider themselves blank slates and only consider what the parties have chosen to write on that slate. However, exceptions exist. In a precedent decision issued 20 years ago, the BIA held that in asylum cases in which the parties have not presented enough evidence to provide an adequate record, immigration judges should themselves present country condition evidence into the record. The Board cited favorably to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which defines the role of the adjudicator as to “ensure that the applicant presents his case as fully as possible and with all available evidence.” Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997). Decided by a BIA that possessed some brilliant minds and courage, the Board in S-M-J- established that there are times that an immigration judge must not remain neutral when doing so will deny an asylum seeker justice.

Ten years later, the Chief Immigration Judge issued guidance to immigration judges handling juvenile cases to take a proactive approach, due to the vulnerability of the child respondents. It bears noting that the 2007 guidelines were issued under a Republican administration. Obviously, a neutral, passive approach by the judge will not ensure a fair hearing where the two parties involved are the Department of Homeland Security, represented in court by one of its attorneys, and a young (and possibly unrepresented) child. In such circumstances, the judge must to some degree advocate for the child to “ensure that the applicant presents his case as fully as possible and with all available evidence,” to use the language of S-M-J-. In response to this need, EOIR created special juvenile dockets, and provided specialized training to the immigration judges chosen to preside over them. In 2008, Congress passed the TVPRA, the statute relied upon by attorney Johnson in his complaint. In 2013, EOIR created an Assistant Chief Immigration Judge position specifically dedicated to “vulnerable populations.”

EOIR has the additional opportunity to create a more level playing field by assigning counsel to all unrepresented juveniles appearing in immigration court. Yet the agency strongly opposed this solution in a class-action lawsuit filed by advocacy groups (including the ACLU and the Northwest Immigrant Rights Project), J.E.F.M. v. Lynch. The U.S. Court of Appeals for the Ninth Circuit dismissed the case last year, finding that the court lacked jurisdiction to decide the issue. However, the court’s majority opinion emphasized that it was not ruling on the merits of the claim, and in a concurring opinion, two of the three judges on the case’s panel acknowledged that “thousands of children are left to thread their way alone through the labarynthine maze of immigration laws, which, without hyperbole, ‘have been termed second only to the Internal Revenue Code in complexity.’” The judges continued that “given the onslaught of cases involving unaccompanied minors, there is only so much the most dedicated and judicious immigration judges…can do.” The court called on Congress and the Executive branch to take action to provide government-funded counsel to all children appearing in immigration court. The judges concluded that “to give meaning to “Equal Justice Under Law,” the tag line engraved in the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration justice system, and to protect the interests of children who must struggle through that system, the problem demands action now.”

Democratic lawmakers have introduced draft legislation, entitled the Fair Day in Court for Kids Act, that would remedy this situation. Versions of the bill went nowhere in 2016; a 2017 version sponsored by Rep. Zoe Lofgren (D-Cal.) and 31 co-sponsors was introduced on April 6, 2017 and has made no progress since. The website GovTrack.us states that the bill has a 3 percent chance of being enacted. In the meantime, the Chief Immigration Judge’s latest memo signals a move in the opposite direction under the present administration. Last week, the Trump administration confirmed that it is considering a policy of separating children from their parents upon arrival at the U.S. border. While the administration claims that the policy is designed to discourage Central Americans from making the dangerous journey north, it ignores the fact that those making such journey are refugees fleeing the threat of death in what has become one of the most violent and dangerous regions in the world.

The administration has not explained what alternatives exist to parents seeking to save their children from being murdered and raped by violent gangs, including MS-13, whose members Trump himself has referred to as “animals.” As reported by the New York Post, Trump stated during a speech last July in Long Island, NY of MS-13 members: “They kidnap. They extort. They rape and they rob. They prey on children. They stomp on their victims. They beat them with clubs. They slash them with machete. They stab them with knives.” It would therefore seem that the current administration should be seeking to do everything in its power to provide children fleeing the above-described treatment to have their claims for asylum considered as fully and fairly as possible. Restoring the 2007 guidelines, respecting the TVPRA requirements, refusing to separate children from their parents, and providing counsel at government expense to unrepresented children would all be welcome steps towards that goal.

Copyright 2017 Jeffrey S. Chase. All rights reserved.
JEFF CHASE
Dec 8 The Impact of Returning Children on Well-Founded Fear
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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I appreciate Judge Chase’s kind reference to Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997). I was on the en banc BIA that decided S-M-J-. (Yes, unlike now, most precedents were issued en banc, so that each Appellate Judge was required to take a public vote on the outcome. Something known as “transparency and accountability” that has disappeared from today’s BIA.)

Forget all the legal gobbledygook in the “Keller Memorandum.” Here’s what a straightforward policy from an Attorney General actually committed to upholding the Constitution and the “Rule of Law” might look like:

  • The first duty of a Judge is to insure Constitutional Due Process for each individual coming before the court.
  • A Judge should not conduct a merits hearing for any unrepresented child, including any individual the Judge reasonably believes to be a child.
  • The Judge and all court personnel should work cooperatively with nongovernmental organizations, bar associations, legal services groups, and community officials to insure that cases involving children are placed on the docket and scheduled in a manner that insures representation in each case
  • When in doubt, a Judge should always act in a manner that maximizes Due Process protections for each individual coming before the court.

PWS

12-29-17

JRUBE IN WASHPOST; GONZO’S SCAPEGOATING OF UNDOCUMENTED RESIDENTS IMMORAL & STUPID!

https://www.washingtonpost.com/blogs/right-turn/wp/2017/12/27/scapegoating-illegal-immigrants-isnt-just-immoral-its-bad-crime-policy/

Rubin writes:

“Anti-immigrant voices’ smokescreen that they were only opposed to illegal immigration has been shredded. They now revel in their calls for immigration exclusionism. If allowed to persist, it will distort and damage our economy and impede entrepreneurship. It has already encouraged a wholly-misguided approach to crime fighting.

Attorney General Jeff Sessions and Trump have concocted a theory that we are awash in crime because of illegal immigrants, especially those living in “sanctuary cities.” That is patently false, and Sessions’ efforts to punish cities that refuse to do the feds bidding in detaining and helping to deport illegal immigrant have been swatted down in court. However, the barrage of litigation over sanctuary cities and obsession with the issue has led us to ignore both the successes and failures in crime fighting — and the causes of each.

. . . .

So when Los Angeles mayors and police chiefs tell the Justice Department that making police into immigration agents will impair their community policing success and divert valuable resources, maybe we should listen to them. Conservatives used to understand that in federalism we have the “laboratories of democracy,” namely the opportunities to find through experimentation what works and what doesn’t. Rather than riding roughshod of localities, Sessions should highlight the successes of local police departments, urge others to follow suit and increase funding — rather than threaten to yank it for spurious reasons — for those localities that need it the most. Alas, his ideological fixation with demonizing illegal immigrants seems to preclude such a fact-based approach.“

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Read JRube’s compleat article at the link.

As she indicates, Gonzo is undoubtedly the most “fact and law free” Attorney General in our lifetime. Almost every one of his amazingly horrible and destructive  decisions is driven by deeply ingrained ideological bias. Senator Liz Warren and the others who spoke up at the confirmation hearings were right. But, the GOP Senate tuned them out. Remember that the next time you go to the polls!

PWS

12-27-17

 

MORE LUMPS FOR TRUMP FROM LOWER COURT ON REFUGEE BAN!

http://thehill.com/homenews/administration/366337-federal-judge-partially-lifts-trump-ban-on-refugees

Jesse Byrnes and Julia Manchester report for The Hill:

“A federal judge in Seattle has partially lifted a ban on certain refugees imposed by the Trump administration.

U.S. District Judge James Robart issued a ruling on behalf of the American Civil Liberties Union (ACLU) and Jewish Family Service on Saturday.

The groups had urged the judge, an appointee of former President George W. Bush, to halt the ban on refugees from some majority-Muslim nations.

Robart ruled that the federal government should process certain refugee applications, saying his order doesn’t apply to refugees who do not have a “bona fide” relationship with an individual or an entity in the U.S.

The ban originally went into effect after the president issued an executive order reinstating the refugee program “with enhanced vetting capabilities” in October.

The ACLU argued that a memo sent to the president from Secretary of State Rex Tillerson, acting Homeland Security Secretary Elaine Duke and Director of National Intelligence Daniel Coats saying certain refugees should be banned unless security was enhanced did not provide enough evidence for why more security was needed.

The judge wrote Saturday that “former officials detailed concretely how the Agency Memo will harm the United States’ national security and foreign policy interests” and said his ruling restores “refuge procedures and programs to the position they were in prior” to the ban, which he noted included thorough vetting of individuals traveling to the U.S.

The lawsuits stemming from the ACLU and Jewish Family Services were consolidated and involved refugees who have been blocked from coming to the U.S.”

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Read the complete article over at The Hill at the link.

Like other recent lower court rulings against the Travel Ban, I expect this will be largely a “symbolic victory” for the plaintiffs. Based on the Supremes’ actions on other “Travel Ban”  cases to date, I expect that the Administration will eventually prevail in its effort to restrict refugee admissions from abroad.

PWS

12-26-17

CHRISTMAS 2017: Pope Francis Makes Migrants’ Humanity, Plight, Rights Focus Of Christmas Message To World’s Christians!

 

https://www.huffingtonpost.com/entry/pope-christmas-eve-migrants_us_5a4025cfe4b025f99e17c35b

Phillip Pullella reports for HuffPost:


“Pope Francis strongly defended immigrants at his Christmas Eve Mass on Sunday, comparing them to Mary and Joseph finding no place to stay in Bethlehem and saying faith demands that foreigners be welcomed.
Francis, celebrating his fifth Christmas as leader of the world’s 1.2 billion Roman Catholics, led a solemn Mass for about 10,000 people in St. Peter’s Basilica while many others followed the service from the square outside.
Security was stepped up, with participants checked as they approached St. Peter’s Square even before going through metal detectors to enter the basilica. The square had been cleared out hours earlier so security procedures could be put in place.
The Gospel reading at the Mass in Christendom’s largest church recounted the Biblical story of how Mary and Jesus had to travel from Nazareth to Bethlehem to be registered for a census ordered by Roman Emperor Caesar Augustus.
“So many other footsteps are hidden in the footsteps of Joseph and Mary. We see the tracks of entire families forced to set out in our own day. We see the tracks of millions of persons who do not choose to go away, but driven from their land, leave behind their dear ones,” Francis said.
Even the shepherds who the Bible says were the first to see the child Jesus were “forced to live on the edges of society” and considered dirty, smelly foreigners, he said. “Everything about them generated mistrust. They were men and women to be kept at a distance, to be feared.”

“NEW SOCIAL IMAGINATION”
Wearing white vestments in the flower-bedecked church, Francis called for a “new social imagination … in which none have to feel that there is no room for them on this earth.”
The 81-year-old pope, who was born of Italian immigrant stock in Argentina, has made defense of migrants a major plank of his papacy, often putting him at odds with politicians.
Austria’s new chancellor, Sebastian Kurz, has aligned himself with central European neighbors like Hungary and the Czech Republic in opposing German-backed proposals to distribute asylum seekers around EU member states.
In elections in Germany in September, the far-right and anti-immigrant Alternative for Germany (AfD) party made significant gains, with electors punishing Chancellor Angela Merkel for her open-door policy and pushing migration policy to the top of the agenda in talks to form a coalition government.
Italy’s anti-immigrant Northern League, whose leader Matteo Salvini often gives fiery speeches against migrants, is expected to make gains in national elections next year. A law that would give citizenship to children born in Italy to migrant parents is stalled in parliament.
In his homily, Francis said, “Our document of citizenship” comes from God, making respect of migrants an integral part of Christianity.
“This is the joy that we tonight are called to share, to celebrate and to proclaim. The joy with which God, in his infinite mercy, has embraced us pagans, sinners and foreigners, and demands that we do the same,” Francis said.
Francis also condemned human traffickers who make money off desperate migrants as the “Herods of today” with blood on their hands, a reference to the Biblical story of the king who ordered the killing of all newborn male children near Bethlehem because he feared Jesus would one day displace him.
More than 14,000 people have died trying to make the perilous crossing of the Mediterranean to Europe in the past four years.
On Christmas Day, Francis will deliver his twice-yearly “Urbi et Orbi” (To the City and to the World) blessing and message from the central balcony of St. Peter’s Basilica.

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Compare the Pope’s very clear statement of true Christian values with the fear-mongering, false narratives, and xenophobic rantings and actions of the so-called “Christians” in the Trump Administration.

PWS

12-26-17

9th Blasts Trump Again In (Mostly Symbolic) Rejection Of Travel Ban 3.0 – Expect The Supremes Eventually To Hand a Victory To Trump On This One!

https://www.huffingtonpost.com/entry/trump-third-travel-ban-appeals-court_us_5a3da390e4b06d1621b461cc

 

Dan Levine reports for Reuters:

“Reuters) – A U.S. appeals court on Friday said President Donald Trump’s hotly contested travel ban targeting people from six Muslim-majority countries should not be applied to people with strong U.S. ties.

The 9th U.S. Circuit Court of Appeals, which covers several West Coast states, also said its ruling would be put on hold pending a decision on the latest version of the travel ban from the Trump administration by the U.S. Supreme Court.

Since taking office in January, Trump has been struggling to enact a ban that passes court muster.

A three-judge panel from the 9th Circuit narrowed a previous injunction from a lower federal court to those people “with a credible bona fide relationship with the United States.”

It also said that while the U.S. president has broad powers to regulate the entry of immigrants into the United States, those powers are not without limits.

“We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority,” the panel said.

The ban targets people from Chad, Iran, Libya, Somalia, Syria and Yemen seeking to enter the United States. The Republican president has said the travel ban is needed to protect the United States from terrorism.

The state of Hawaii, however, challenged it in court, and a Honolulu federal judge said it exceeded Trump’s powers under immigration law.

Trump’s ban also covers people from North Korea and certain government officials from Venezuela, but the lower courts had already allowed those provisions to go into effect.

The same three judge 9th Circuit panel, which limited a previous version of Trump’s ban, heard arguments earlier this month. Some of the judges appeared more cautious toward the idea of blocking the president’s policy.

Trump issued his first travel ban targeting several Muslim-majority countries in January, which caused chaos at airports and mass protests.

He issued a revised one in March after the first was blocked by federal courts.

That expired in September after a long court fight, and was replaced with the current version.

The ban has some exceptions. Certain people from each targeted country can still apply for a visa for tourism, business or education purposes, and any applicant can ask for an individual waiver.

U.S. Justice Department officials were not immediately available for comment.

(Reporting by Dan Levine in San Francisco and Jon Herskovitz in Austin, Texas; Editing by Tom Brown)”

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I think the result here is largely a symbolic protest against Trump by the 9th Circuit. The court stayed it’s own order, pending inevitable Supreme Court review; therefore, the ruling changes nothing.

But, in reality, although going through the motions of pressing the lower courts to rule, it appears that the  majority of the Supremes have already decided Travel Ban 3.0 in favor of the Trump Administration. Otherwise, the Supreme’s recent decision to stay the lower court injunctions pending review would fall somewhere between inexplicable to indefensible on the scale of judicial conduct. Justices Ginsburg and Sotomayor dissented from the lifting of the stay. Therefore, I would expect a “split decision,” with the Administration’s margin of victory to be in the range of 5-4 to 7-2.

 

PWS

12-24-17

TRUMP ADMINISTRATION’S “CHRISTMAS GIFT” TO VULNERABLE FAMILIES: MORE WANTON CRUELTY: “You think your native country is cruel? America is even crueller.”

https://www.washingtonpost.com/opinions/exactly-how-cruel-is-homeland-security/2017/12/23/6ecdf1c2-e74d-11e7-a65d-1ac0fd7f097e_story.html

From the Washington Post Editorial Board:

“FAMILIES AND unaccompanied children detained at the Mexican border are often fleeing horrific conditions in Central American countries, especially El Salvador, Guatemala and Honduras, where violent gangs, drug trafficking and rampant criminality contribute to some of the world’s highest murder rates. Now the Trump administration, alarmed at the recent surge in border crossers, is considering a new strategy to deter them. The message: “You think your native country is cruel? America is even crueller.”

That’s the logic behind a proposal under consideration by Homeland Security Secretary Kirstjen Nielsen that would try to discourage migrant families from crossing the border by threatening to separate parents from their children when they are taken into custody in the United States.

Until now, that approach has been beyond the pale for U.S. officials, who rejected it as inhumane and coldhearted in the extreme, given the trauma it would inflict on children, who by definition are innocent.

If Ms. Nielsen gives the green light to break up migrant families, many of whom have plausible asylum claims, she would be responsible for a policy whose heartlessness would rival that of Executive Order 9066, which authorized the forcible internment of some 110,000 U.S. citizens and noncitizens of Japanese descent during World War II. Four decades after that act of mass inhumanity, President Ronald Reagan signed legislation formally apologizing for it.

Arrests by the Border Patrol plummeted after Mr. Trump took office nearly a year ago, reflecting a decline in illegal border crossing driven at least partly by the president’s aggressive anti-immigrant rhetoric. Despite that, detentions began climbing again in the spring — mainly of families and solo children. And in November, more than 7,000 “family units” were taken into custody at the border, a 45 percent surge compared with October; in the same month, the number of unaccompanied minors crossing the border shot up by a quarter.

U.S. officials are correct that those families take tremendous risks, often at the hands of coldblooded smugglers who guide them north to the border. They are also justified in wanting to discourage migrants from undertaking the journey, in which ransom, rape and other forms of abuse are rampant.

The right way to do that is not to double down on the cruelty with which those families already contend by tearing children from their parents’ arms. What’s more, it is unlikely to work in the case of families and children who flee their native countries in fear for their lives.

Heedless of horrendous conditions in Central America, the Trump administration cynically believes border-crossing families are trying to game America’s system, with its years-long backlog in immigration courts and legal protections that allow many people to live and work freely while they await adjudication of their cases. In fact, many have legitimate asylum claims based on the threats they face in their home countries, and all are entitled to due process.

The idea of wrenching children from their families was first entertained in March by then-Homeland Security Secretary John F. Kelly, now the White House chief of staff, who said the minors would be “well cared for as we deal with their parents.” Has a U.S. official ever issued a more chilling “assurance”?”

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On the eve of the day when the world’s Christians celebrate the birth of Jesus Christ, I find it ironic that we have a President who uses “Merry Christmas” as an “in your face” insult to followers of other religions and atheists, yet with every day in office moves us further and further as a nation away from the humane, compassionate values and teachings of Jesus.

Indeed, were Christ to return to earth today, he would most certainly be found among the vulnerable and downtrodden known as “undocumented migrants” or among those assisting them. He would never walk among the Pharisees such as Trump, Sessions, and Pence. The undocumented are truly the “children of God;” Trump and his followers, not so much.

PWS

12-24-17

THE NY TIMES TAKES YOU INSIDE THE “NERVE CENTER” OF THE WHITE NATIONALIST EMPIRE: TRUMP’S “GONZO” IMMIGRATION POLICIES DRIVEN BY XENOPHOBIA, RACISM, IRRATIONAL FEAR, FAKE NEWS, MISINFORMATON, AND BIAS! – Trump & Cronies Deny Our Nation’s Immigrant Past While Seeking To Destroy Our Future As A Powerful and Diverse Democracy!

https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html?_r=0

 

Michael D. Shear & Julie Hirschfield Davis report for the NY Times:

“WASHINGTON — Late to his own meeting and waving a sheet of numbers, President Trump stormed into the Oval Office one day in June, plainly enraged.

Five months before, Mr. Trump had dispatched federal officers to the nation’s airports to stop travelers from several Muslim countries from entering the United States in a dramatic demonstration of how he would deliver on his campaign promise to fortify the nation’s borders.

But so many foreigners had flooded into the country since January, he vented to his national security team, that it was making a mockery of his pledge. Friends were calling to say he looked like a fool, Mr. Trump said.

According to six officials who attended or were briefed about the meeting, Mr. Trump then began reading aloud from the document, which his domestic policy adviser, Stephen Miller, had given him just before the meeting. The document listed how many immigrants had received visas to enter the United States in 2017.

More than 2,500 were from Afghanistan, a terrorist haven, the president complained.

Haiti had sent 15,000 people. They “all have AIDS,” he grumbled, according to one person who attended the meeting and another person who was briefed about it by a different person who was there.

Forty thousand had come from Nigeria, Mr. Trump added. Once they had seen the United States, they would never “go back to their huts” in Africa, recalled the two officials, who asked for anonymity to discuss a sensitive conversation in the Oval Office.

As the meeting continued, John F. Kelly, then the secretary of homeland security, and Rex W. Tillerson, the secretary of state, tried to interject, explaining that many were short-term travelers making one-time visits. But as the president continued, Mr. Kelly and Mr. Miller turned their ire on Mr. Tillerson, blaming him for the influx of foreigners and prompting the secretary of state to throw up his arms in frustration. If he was so bad at his job, maybe he should stop issuing visas altogether, Mr. Tillerson fired back.

Tempers flared and Mr. Kelly asked that the room be cleared of staff members. But even after the door to the Oval Office was closed, aides could still hear the president berating his most senior advisers.

Sarah Huckabee Sanders, the White House press secretary, denied on Saturday morning that Mr. Trump had made derogatory statements about immigrants during the meeting.

“General Kelly, General McMaster, Secretary Tillerson, Secretary Nielsen and all other senior staff actually in the meeting deny these outrageous claims,” she said, referring to the current White House chief of staff, the national security adviser and the secretaries of state and homeland security. “It’s both sad and telling The New York Times would print the lies of their anonymous ‘sources’ anyway.”

While the White House did not deny the overall description of the meeting, officials strenuously insisted that Mr. Trump never used the words “AIDS” or “huts” to describe people from any country. Several participants in the meeting told Times reporters that they did not recall the president using those words and did not think he had, but the two officials who described the comments found them so noteworthy that they related them to others at the time.

The meeting in June reflects Mr. Trump’s visceral approach to an issue that defined his campaign and has indelibly shaped the first year of his presidency.

How We Reported This Story

The Times conducted over three dozen interviews with current and former administration officials, lawmakers and others close to the process.

Seizing on immigration as the cause of countless social and economic problems, Mr. Trump entered office with an agenda of symbolic but incompletely thought-out goals, the product not of rigorous policy debate but of emotionally charged personal interactions and an instinct for tapping into the nativist views of white working-class Americans.

Like many of his initiatives, his effort to change American immigration policy has been executed through a disorderly and dysfunctional process that sought from the start to defy the bureaucracy charged with enforcing it, according to interviews with three dozen current and former administration officials, lawmakers and others close to the process, many of whom spoke on the condition of anonymity to detail private interactions.

But while Mr. Trump has been repeatedly frustrated by the limits of his power, his efforts to remake decades of immigration policy have gained increasing momentum as the White House became more disciplined and adept at either ignoring or undercutting the entrenched opposition of many parts of the government. The resulting changes have had far-reaching consequences, not only for the immigrants who have sought to make a new home in this country, but also for the United States’ image in the world.

“We have taken a giant steamliner barreling full speed,” Mr. Miller said in a recent interview. “Slowed it, stopped it, begun to turn it around and started sailing in the other direction.”

It is an assessment shared ruefully by Mr. Trump’s harshest critics, who see a darker view of the past year. Frank Sharry, the executive director of America’s Voice, a pro-immigration group, argues that the president’s immigration agenda is motivated by racism.

“He’s basically saying, ‘You people of color coming to America seeking the American dream are a threat to the white people,’” said Mr. Sharry, an outspoken critic of the president. “He’s come into office with an aggressive strategy of trying to reverse the demographic changes underway in America.”

. . . .

Even as the administration was engaged in a court battle over the travel ban, it began to turn its attention to another way of tightening the border — by limiting the number of refugees admitted each year to the United States. And if there was one “deep state” stronghold of Obama holdovers that Mr. Trump and his allies suspected of undermining them on immigration, it was the State Department, which administers the refugee program.

At the department’s Bureau of Population, Refugees and Migration, there was a sense of foreboding about a president who had once warned that any refugee might be a “Trojan horse” or part of a “terrorist army.”

Mr. Trump had already used the travel ban to cut the number of allowable refugees admitted to the United States in 2017 to 50,000, a fraction of the 110,000 set by Mr. Obama. Now, Mr. Trump would have to decide the level for 2018.

At an April meeting with top officials from the bureau in the West Wing’s Roosevelt Room, Mr. Miller cited statistics from the restrictionist Center for Immigration Studies that indicated that resettling refugees in the United States was far costlier than helping them in their own region.

Mr. Miller was visibly displeased, according to people present, when State Department officials pushed back, citing another study that found refugees to be a net benefit to the economy. He called the contention absurd and said it was exactly the wrong kind of thinking.

But the travel ban had been a lesson for Mr. Trump and his aides on the dangers of dictating a major policy change without involving the people who enforce it. This time, instead of shutting out those officials, they worked to tightly control the process.

In previous years, State Department officials had recommended a refugee level to the president. Now, Mr. Miller told officials the number would be determined by the Department of Homeland Security under a new policy that treated the issue as a security matter, not a diplomatic one.

When he got word that the Office of Refugee Resettlement had drafted a 55-page report showing that refugees were a net positive to the economy, Mr. Miller swiftly intervened, requesting a meeting to discuss it. The study never made it to the White House; it was shelved in favor of a three-page list of all the federal assistance programs that refugees used.

At the United Nations General Assembly in September, Mr. Trump cited the Center for Immigration Studies report, arguing that it was more cost-effective to keep refugees out than to bring them into the United States.

“Uncontrolled migration,” Mr. Trump declared, “is deeply unfair to both the sending and receiving countries.”

. . . .

As the new year approached, officials began considering a plan to separate parents from their children when families are caught entering the country illegally, a move that immigrant groups called draconian.

At times, though, Mr. Trump has shown an openness to a different approach. In private discussions, he returns periodically to the idea of a “comprehensive immigration” compromise, though aides have warned him against using the phrase because it is seen by his core supporters as code for amnesty. During a fall dinner with Democratic leaders, Mr. Trump explored the possibility of a bargain to legalize Dreamers in exchange for border security.

Mr. Trump even told Republicans recently that he wanted to think bigger, envisioning a deal early next year that would include a wall, protection for Dreamers, work permits for their parents, a shift to merit-based immigration with tougher work site enforcement, and ultimately, legal status for some undocumented immigrants.

The idea would prevent Dreamers from sponsoring the parents who brought them illegally for citizenship, limiting what Mr. Trump refers to as “chain migration.”

“He wants to make a deal,” said Mr. Graham, who spoke with Mr. Trump about the issue last week. “He wants to fix the entire system.”

Yet publicly, Mr. Trump has only employed the absolutist language that defined his campaign and has dominated his presidency.

After an Uzbek immigrant was arrested on suspicion of plowing a truck into a bicycle path in Lower Manhattan in October, killing eight people, the president seized on the episode.

Privately, in the Oval Office, the president expressed disbelief about the visa program that had admitted the suspect, confiding to a group of visiting senators that it was yet another piece of evidence that the United States’ immigration policies were “a joke.”

Even after a year of progress toward a country sealed off from foreign threats, the president still viewed the immigration system as plagued by complacency.

“We’re so politically correct,” he complained to reporters in the cabinet room, “that we’re afraid to do anything.”

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Read the full, much more comprehensive and detailed, article at the link.

Disturbing for sure, but unfortunately not particularly surprising for those of us who have watched the Administration roll out its toxic, ill-informed immigration policies. Perhaps ironically, while the immigration issue has certainly allowed Trump to capture and control the GOP, polls show that his extreme restrictionist, xenophobic views on immigration are generally out of line with the majority of Americans (although not necessarily the majority of GOP voters).

PWS

12-23-17

THE HILL: Nolan Says That Expedited Removal Can “Ease The Burden” Of Immigration Detention; I Don’t Think So!

http://thehill.com/opinion/immigration/365829-expedited-removal-can-solve-concerns-with-immigration-detention

Nolan Rappaport writes at The Hill:

“Earlier this month, the DHS Office of Inspector General (IG) released a report on “Concerns about ICE Detainee Treatment and Care at Detention Facilities.” According to the ACLU, the way to address the violationsdescribed in this “damning new report” is to “release people from immigration detention and prohibit ICE from using dangerous and inhumane jails.”

The IG found problems at four of the five detention centers it inspected, but it is a stretch to call the report “damning” or to claim that ICE is “using dangerous and inhumane jails.” Many of the problems were relatively minor, and, apparently, all of them are going to be corrected.

In addition to federal service centers, ICE uses facilities owned and operated by private companies and state and local government facilities. The contracts of facilities that hold ICE detainees require them to adhere to the 2000 National Detention Standards, the 2008 Performance-Based National Detention Standards (PBNDS), or the 2011 PBNDS.

. . . .

The immigration court backlog is so long that, as of October 2017, the average wait for a hearing was 691 days, and Trump’s backlog reduction plan isn’t going to bring it under control.

ICE cannot release detainees because wait-times are too long. Many of them will not return for their hearings. During FY2015, 23.4 percent of the aliens who were released from custody did not return for their hearings, and releases were limited to cases in which there was reason to expect the aliens to return.

I see only two solutions, reduce the backlog by removing aliens from the immigration court and disposing of their cases in expedited removal proceedings, which do not require a hearing before an immigration judge, or have a large legalization program.

Which alternative do you expect the Republicans to choose?”

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

Go on over to The Hill to read Nolan’s complete article.

Why Expedited Removal Isn’t the Answer (Leaving Aside The Substantial Legal and Moral Issues Involved):

  • Under Trump, DHS has already “maxed out” the use of expedited removal at the border. 
  • While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.
  • Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.
  • Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.
  • Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).
  • Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision  by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.
  • Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.

What Does Work:

  • Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g.,  http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf   
  • Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g.https://www.justice.gov/eoir/file/852516/download
    • Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
    • This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.
    • My own experience at the Arlington Immigration court was that individuals 1) represented by counsel , and 2) with applications for relief filed showed up for their hearings nearly 100% of the time. Indeed, beyond criminal record and family ties, those were the two most significant factors for me in setting immigration bonds.

An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative  ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.

PWS

12-23-17

MICA ROSENBERG @ REUTERS ANALYZES GONZO’S LATEST ATTACK ON CHILDREN (OR, IN “GONZOSPEAK” “UNMARRIED INDIVIDUALS UNDER THE AGE OF 18”) IN US IMMIGRATION COURT – No More “Mister Nice Guy” — Show ’em The Ugly Side Of America — These Kids Are Out To Get Us (Even If They Are So Scared, Confused, and Traumatized They Barely Know The Time Of Day)

https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-u-s-memo-weakens-guidelines-for-protecting-immigrant-children-in-court-idUSKBN1EH037

Mica reports:

“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.

An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”

The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.

The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.

‘WOLVES IN SHEEP CLOTHING’

Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.

Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”

The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.

While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.

Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”

Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”

Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”

“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”

In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.

The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.

Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”

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

Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”

After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.

The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.

Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.

At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.

I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?

Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.

To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.

So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solution for getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?

But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reforms necessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.

PWS

12-23-17

TAL @ CNN: TRUMP GOP’S WHITE NATIONALIST AGENDA IMPEDES DREAMER NEGOTIATONS! (Plus, Extra Bonus : “Quadruple Header” From Tal!)

http://www.cnn.com/2017/12/18/politics/trump-administration-immigration-hardline/index.html

“Trump fully embraces far right immigration playbook

By: Tal Kopan, CNN

President Donald Trump and his administration have been sending a message in recent weeks: Trump’s campaign rhetoric on immigration was not just talk. In fact, it was just the beginning.

Trump has never shied from his attacks on illegal immigration, which, alongside a US-Mexico border wall, was a core component of his campaign.

But doubts existed about his commitment level, as some of the more aggressive proposals considered by the administration languished in bureaucratic morass and as he said strongly favorable things about recipients of the Deferred Action for Childhood Arrivals program in September as he opted to end it.

RELATED: DACA negotiations reach critical week

Of late, however, Trump and the administration have upped their rhetoric on immigration.

Trump has railed in several instances against “chain migration” and lotteries for green cards. His administration is moving to alter a program for the spouses of high-skilled visa holders. And the White House and Congress remain far apart on how to address DACA.

In mid-September, Trump wrote, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?”

But since then, he has insisted on controversial immigration reduction proposals that would have a hard time passing even among some Republicans, including drastically cutting the overall number of green cards given out annually and transforming the way they are given out, placing a heavy emphasis on only highly skilled, English-speaking immigrants and not low-skilled individuals.

Groups that have long advocated for reducing overall immigration are energized.

“We’re excited about how the administration has held firmly to these issues,” said Dan Stein, president of the Federation for American Immigration Reform. “We’ve put almost $1 million into ads. … This is the moment we’ve been waiting for four decades.”

Stein was especially pleased with Trump’s recent insistence that any deal to save DACA, which protected young undocumented immigrants brought to the US as children, include cuts to family-based immigration, or “chain migration,” and the diversity visa program, which allows up to 50,000 individuals from countries with low levels of immigration to the US to come on visas distributed by lottery.

Chain migration focus

The administration also was quick to point out that two recent terrorist attacks in New York City were committed by individuals with connections to family-based migration and the diversity lottery.

“You think the countries’ giving us their best people?” Trump said Friday in a speech to law enforcement personnel. “No. What kind of system is that? They come in by lottery. They give us their worst people, put them in a bin, but in his hand when he is picking them is really the worst of the worst.”

The theme of the dangers of immigrants — despite no research showing them to be more prone to crime than the native-born population — has been particularly hammered by longtime immigration hardliner Attorney General Jeff Sessions.

“If we accept lawlessness, then we encourage lawlessness. When people break our laws without consequences, we shouldn’t be surprised when they continue breaking our laws,” Sessions said in a speech last week. “We should give priority to those who are likely to thrive here — such as those who speak English or are highly skilled — not someone chosen at random or who happens to be somebody’s relative.”

In reality, individuals in those countries are selected randomly but still must meet the security and eligibility requirements placed on all immigrants to actually get their visas. Diversity recipients specifically must also have at least a high school education or equivalent and job experience. The process includes an in-person interview, and anyone that is found to be a security threat would be inadmissible to the US.

While the diversity lottery only affects about 50,000 of roughly 1 million green cards given out to the US annually, Trump has supported legislation from two GOP senators that would drastically reduce family visa categories, cutting yearly numbers in half.

The administration has also made its own efforts to reduce immigration levels without Congress, including setting a historically low number of refugee admissions for next year, instituting the travel ban and submitting would-be visitors and immigrants to “extreme vetting.”

Late last week, the Department of Homeland Security revealed it intends to do away with work permits for spouses of high-skilled visa holders who are waiting in a years-long green card backlog. The announcement also said the agency intends to set a higher bar for the high-skilled visa itself.

New Homeland Security Secretary Kirstjen Nielsen spent last week establishing her hardline immigration bona fides, touting security at the border and attacking sanctuary cities and immigrant-related crime. Her tour came after weeks of broadsides from Trump-aligned sources like Breitbart, which had pejoratively nicknamed her “Lady DACA.”

Leon Fresco, an immigration attorney and Obama administration alum, said that while there may be some fraud in the immigration system, the Trump agenda goes beyond reasonably trying to resolve it.

“They’re not just fixing the system, they are signaling a belief that regardless of their skills and talent, people from foreign countries are not welcome,” Fresco said. “Many of these reforms that are being implemented are simply out of the wishlist of the anti-immigrant groups and are not serving a legitimate purpose of reforming the immigration system. … The goal is to reduce the total number of foreigners.”

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

Right on, Leon!

DHS can use more lawyers, better technology, and some new equipment. The Dems certainly could offer up that.

The U.S. Immigration Court could use more resources. But, with “Gonzo” in charge, it’s probably a case of “throwing good money after bad.”

“The Wall” is overkill and has some bad symbology. But, in human rights terms, it’s not as overtly harmful as the other stuff on the restrictionist’s list.

The rest of the “restrictionist wish list” is pretty toxic. Don’t see how the Dems can vote for a bill that contains any of it.

For any of you who thought Tal was “easing up” on her amazing pace, here are her interesting reports on Puerto Rico:

http://www.cnn.com/2017/12/19/politics/puerto-rico-washington-equal-treatment/index.html

Puerto Rico governor calls out Washington on ‘equal treatment’By Tal Kopan, CNN

http://www.cnn.com/2017/12/19/politics/carson-nielsen-puerto-rico-visit/index.html

Carson: Puerto Rico recovery is ‘better than what I had heard’

By Tal Kopan

and Senator Lindsay Graham:

http://www.cnn.com/2017/12/18/politics/lindsey-graham-donald-trump-immigration-daca/index.html

“Graham had ‘long’ talk with Trump about immigration”

By: Tal Kopan, CNN”

 

Thanks for all you do, Tal!

Hope you will get some rest and relaxation over the holidays!

PWS

12-22-17

 

 

RESISTING TRUMP AND THE WHITE NATIONALIST STATE: “YEAR 1” — Read Polish Journalist Martin Mycielski’s “Authoritarian Regime Survival Guide”

YEAR 1 Under Authoritarianism

What to Expect?

  1. They will come to power with a campaign based on fear, scaremongering and distorting the truth. Nevertheless, their victory will be achieved through a democratic electoral process. But beware, as this will be their argument every time you question the legitimacy of their actions. They will claim a mandate from the People to change the system.

    Remember – gaining power through a democratic system does not give them permission to cross legal boundaries and undermine said democracy.

  2. They will divide and rule. Their strength lies in unity, in one voice and one ideology, and so should yours. They will call their supporters Patriots, the only “true Americans”. You will be labelled as traitors, enemies of the state, unpatriotic, the corrupt elite, the old regime trying to regain power. Their supporters will be the “People”, the “sovereign” who chose their leaders.

    Don’t let them divide you – remember you’re one People, one Nation, with one common good.

  3. Through convoluted laws and threats they will try to control mainstream media and limit press freedom. They will ban critical press from their briefings, calling them “liars”, “fake news”. They will brand those media as “unpatriotic”, acting against the People (see point 2).

    Fight for every media outlet, every journalist that is being banned, censored, sacked or labelled an “enemy of the state” – there’s no hope for freedom where there is no free press.

  4. They will create chaos, maintain a constant sense of conflict and danger. It will be their argument to enact new authoritarian laws, each one further limiting your freedoms and civil liberties. They will disguise them as being for your protection, for the good of the People.

    See through the chaos, the fake danger, expose it before you wake up in a totalitarian, fascist state.

  5. They will distort the truth, deny facts and blatantly lie. They will try to make you forget what facts are, sedate your need to find the truth. They will feed “post-truths” and “alternative facts”, replace knowledge and logic with emotions and fiction.

    Always think critically, fact-check and point out the truth, fight ignorance with facts.

  6. They will incite and then leak fake, superficial “scandals”. They will smear opposition with trivial accusations, blowing them out of proportion and then feeding the flame. This is just smokescreen for the legal steps they will be taking towards totalitarianism.

    See through superficial topics in mainstream media (see point 3) and focus on what they are actually doing.

  7. They will propose shocking laws to provoke your outrage. You will focus your efforts on fighting them, so they will seemingly back off, giving you a false sense of victory. In the meantime they will push through less “flashy” legislation, slowly dismantling democracy (see points 4 and 6).

    Focus your fight on what really matters.

  8. When invading your liberal sensibilities they will focus on what hurts the most – women and minorities. They will act as if democracy was majority rule without respect for the minority. They will paint foreigners and immigrants as potential threats. Racial, religious, sexual and other minorities will become enemies to the order and security they are supposedly providing. They will challenge women’s social status, undermine gender equality and interfere with reproductive rights (see point 7). But it means they are aware of the threat women and minorities pose to their rule, so make it your strength.

    Women and minorities should fight the hardest, reminding the majority what true democracy is about.

  9. They will try to take control of the judiciary. They will assault your highest court. They need to remove the checks and balances to be able to push through unconstitutional legislation. Controlling the judiciary they can also threat anyone that defies them with prosecution, including the press (see point 3).

    Preserve the independence of your courts at all cost, they are your safety valve, the safeguard of the rule of law and the democratic system.

  10. They will try to limit freedom of assembly, calling it a necessity for your security. They will enact laws prioritizing state events and rallies, or those of a certain type or ideology. If they can choose who can demonstrate legally, they have a legal basis to forcefully disperse or prosecute the rest.

    Oppose any legislation attempting to interfere with freedom of assembly, for whatever reason.

  11. They will distort the language, coin new terms and labels, repeat shocking phrases until you accept them as normal and subconsciously associate them with whom they like. A “thief”, “liar” or “traitor” will automatically mean the opposition, while a “patriot” or a “true American” will mean their follower (see point 2). Their slogans will have double meaning, giving strength to their supporters and instilling angst in their opponents.

    Fight changes in language in the public sphere, remind and preserve the true meaning of words.

  12. They will take over your national symbols, associate them with their regime, remake them into attributes of their power. They want you to forget that your flag, your anthem and your symbols belong to you, the People, to everyone equally. Don’t let them be hijacked. Use and expose them in your fight as much as they do.

    Show your national symbols with pride, let them give you strength, not associate you with the tyranny they brought onto your country.

  13. They will try to rewrite history to suit their needs and use the education system to support their agenda. They will smear any historical or living figure who wouldn’t approve of their actions, or distort their image to make you think they would. They will place emphasis on historical education in schools, feeding young minds with the “only correct” version of history and philosophy. They will raise a new generation of voters on their ideology, backing it with a distorted interpretation of history and view of the world.

    Guard the education of your children, teach them critical thinking, ensure their open-mindedness and protect your real history and heritage.

  14. They will alienate foreign allies and partners, convincing you don’t need them. They won’t care for the rest of the world, with their focus on “making your country great again”. While ruining your economy to fulfil their populist promises, they will omit the fact that you’re part of a bigger world whose development depends on cooperation, on sharing and on trade.

    Don’t let them build walls promising you security instead of bridges giving you prosperity.

  15. They will eventually manipulate the electoral system. They might say it’s to correct flaws, to make it more fair, more similar to the rest of the world, or just to make it better. Don’t believe it. They wouldn’t be messing with it at all if it wasn’t to benefit them in some way.

    Oppose any changes to electoral law that an authoritarian regime wants to enact – rest assured it’s only to help them remain in power longer.

And above all, be strong, fight, endure, and remember you’re on the good side of history.
EVERY authoritarian, totalitarian and fascist regime in history eventually failed, thanks to the PEOPLE.
– With love, your Eastern European friends

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

Martin Mycielski is a journalist, serving as Brussels correspondent for leading Polish daily Gazeta Wyborcza. Before that he was one of the leaders of the Committee for the Defence of Democracy (KOD) NGO and protest movement, which has organized the largest mass demonstrations in Poland since the fall of communism, opposing the authoritarian and unlawful actions of the Law and Justice (PiS) government and its leader, Jarosław Kaczyński (read more here and here, or just Google). In 2016 KOD’s efforts to defend democracy, fundamental freedoms and the rule of law were recognized by the European Parliament which awarded it the European Citizen’s Prize.

Since childhood Martin has been enamoured with the US, it’s culture, politics and people. Tragically, January events have put the worlds greatest democracy at risk, as they have clearly undermined the fundamental values the States were build upon, such as freedom, democracy, equality & diversity. As these values form the idea of America Martin has been raised on, he has decided to step in and help to defend them the only way he knows how – by sharing with you his experiences from a continent being currently torn apart by populists, authoritarians and tinpot dictators.

His message to President Donald J. Trump is therefore a paraphrased fragment from W. B. Yeats:

But I, being poor, have only my dreams;
I have spread my dreams under your feet;
Tread softly because you tread on my dreams;
And if you don’t, we the People will push you off them.

You can follow Martin on Twitter at @mycielski.

To view his professional background visit his portfolio, or invite him on LinkedIn to connect.

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

Scary, but important points to remember if we want “liberal Western democracy” to survive the Trump era.

Points 8, 9, an 14 have particular relevance to what is happening in our legal and immigration systems now. thus, I reiterate them in full here:

Point 8

When invading your liberal sensibilities they will focus on what hurts the most – women and minorities. They will act as if democracy was majority rule without respect for the minority. They will paint foreigners and immigrants as potential threats. Racial, religious, sexual and other minorities will become enemies to the order and security they are supposedly providing. They will challenge women’s social status, undermine gender equality and interfere with reproductive rights (see point 7). But it means they are aware of the threat women and minorities pose to their rule, so make it your strength.

Women and minorities should fight the hardest, reminding the majority what true democracy is about.

Point 9

They will try to take control of the judiciary. They will assault your highest court. They need to remove the checks and balances to be able to push through unconstitutional legislation. Controlling the judiciary they can also threat anyone that defies them with prosecution, including the press (see point 3).

Preserve the independence of your courts at all cost, they are your safety valve, the safeguard of the rule of law and the democratic system.

Point 14

They will alienate foreign allies and partners, convincing you don’t need them. They won’t care for the rest of the world, with their focus on “making your country great again”. While ruining your economy to fulfil their populist promises, they will omit the fact that you’re part of a bigger world whose development depends on cooperation, on sharing and on trade.

Don’t let them build walls promising you security instead of bridges giving you prosperity.

 

 

PWS

12-22-17

MICHELLE GOLDBERG IN THE NYT: AS GOP LEADERS SUCK UP TO “DER FURHER,” THIS IS WHAT NEO-NAZI SUBMISSION LOOKS LIKE!

https://www.nytimes.com/2017/12/22/opinion/fifty-shades-trump-republicans.html

Michelle writes:

“At a televised cabinet meeting on Wednesday, Donald Trump, as is his custom, called on his appointees to publicly praise him. In a performance that would have embarrassed the most obsequious lackey of the North Korean leader Kim Jong-un, Vice President Mike Pence delivered an encomium to his boss, who sat across the table with arms folded over his chest, absorbing abasement as his due.

“I want to thank you, Mr. President,” Pence said. “I want to thank you for speaking on behalf of and fighting every day for the forgotten men and women of America. Because of your determination, because of your leadership, the forgotten men and women of America are forgotten no more. And we are making America great again.” The president thanked him for his kind words, and Pence replied, “Thank you, Mr. President, and God bless you.”

It was a neat summation of where the Republican Party is at the end of the first year of Trump. There’s been a synthesis, in which Trump and establishment Republicans adopt one another’s worst qualities. Trump, who campaigned as a putative economic populist — even calling for higher taxes on the rich — will soon sign into law the tax plan of the House speaker Paul Ryan’s Ayn Randian dreams. The majority of elected Republicans, in turn, are assuming a posture of slavish submission to Trump, worshiping their dear leader and collaborating in the maintenance of his alternative reality.

Some of this might be strategic; everyone knows Trump is susceptible to flattery. But in many cases — certainly with Pence — it seems sincere. In a recent Atlantic profile of the vice president, McKay Coppins wrote that Pence’s faith mandates obedience to temporal as well as heavenly authority. When he accepted the vice-presidential nomination, Coppins wrote, “he believed he was committing to humbly submit to the will of Donald Trump.” From a secular perspective, Pence, like many other Republicans, appears to be a person inclined to authoritarianism.

Erich Fromm, a German-Jewish psychoanalyst who fled Nazism, described authoritarian personalities as simultaneously craving power and submission. “The authoritarian character loves those conditions that limit human freedom; he loves being submitted to fate,” he wrote. Fate, in his formulation, can be the laws of the market, the will of God, or the whims of a leader. According to Fromm, authoritarians might make a show of valuing freedom and independence — watchwords of the American right — but long to be ruled by a stronger force.

Viewed this way, it’s not surprising that religious conservatives have been among Trump’s most ardent fans. Certainly, it’s understandable that people on the right would try to get what they can out of this president. But the relationship between Trump and many Republicans increasingly looks less like a marriage of convenience than a sadomasochistic affair.

. . . .

It is, as they say, not normal for erstwhile law-and-order Republicans to attack the F.B.I. for being overzealous in its pursuit of Russian subversion. Nunes’s inquiry appears similar to Trump’s voter fraud commission, invented to substantiate right-wing fantasies about Democratic vote rigging. The point, in both cases, is to flesh out a lie rather than find the truth. Hannah Arendt once wrote of this sort of policy-as-disinformation: “Totalitarianism will not be satisfied to assert, in the face of contrary facts, that unemployment does not exist; it will abolish unemployment benefits as part of its propaganda.”

For the past year, a lot of us have assumed that Republicans are putting up with Trump out of fear of their base or lust for tax cuts. We’ve imagined that beneath our mutual partisan loathing lies some remaining shared commitment to liberal democracy. Maybe that’s true, and Republicans will display new independence once tax reform is signed, particularly if support for the president keeps dwindling.

But there’s another possibility, which is that a critical mass of Republicans like being in thrall to a man who seems strong enough to will his own reality, and bold enough to voice their atavistic hatreds. Maybe Trump is changing Republicans, or maybe he’s just giving men like Pence permission to be who they already were.”

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Read Michelle’s entire article, aptly named “Fifty Shade of Orange” at the above link. I’ll reluctantly go with “possibility two:” Trump is just giving GOP “closet bigots,” oligarchs, anarchists, racists, theocrats, and neo-Nazis permission publicly to be what they always were underneath. Not a happy thought, but at least we’ll know what we’re up against and why to date most so-called “establishment Republicans” who intend to remain in office have “gone along to get along.”

Remember, at the  end of the day, not a single GOP Senator was willing to vote against a fairly obvious “Tax Heist.”  That, plus all the “slavish submission” and repulsive flattery of “The Supreme Leader” this week tell you all you need to know about the “Heart and Soul” of the GOP. The country needs “regime change” before it’s too late!

PWS

12-22-17

PANIC IN THE WHITE NATIONALIST EMPIRE: As Border Crossings Continue To Rise, Trump’s Neo-Nazis See All Out War On “Families Of Color” Seeking To Assert Statutory & Constitutional Rights As Last, Best, Hope for A “Whiter, Less Hispanic” America!

https://www.washingtonpost.com/world/national-security/to-curb-illegal-border-crossings-trump-administration-weighs-new-measures-targeting-families/2017/12/21/19300dc2-e66c-11e7-9ec2-518810e7d44d_story.html?utm_term=.44b39f31bc4e

 

Nick Miroff reports for the Washington Post:

“The Trump administration is considering measures to halt a surge of Central American families and unaccompanied minors coming across the Mexican border, including a proposal to separate parents from their children, according to officials with knowledge of the plans.

These measures, described on the condition of anonymity because they have not been publicly disclosed, would also crack down on migrants living in the United States illegally who send for their children. That aspect of the effort would use data collected by the Department of Health and Human Services (HHS) to target parents for deportation after they attempt to regain custody of their children from government shelters.

The Department of Homeland Security (DHS) has previously considered some of these proposals, but there is renewed urgency within the administration to address an abrupt reversal of what had been a sharp decline in illegal immigration since Trump took office in January.

In November, U.S. agents took into custody 7,018 families, or “family units,” along the border with Mexico, a 45 percent increase over the previous month, the latest  DHS statistics show. The number of “unaccompanied alien children,” or UAC, was up ­­26 percent.

Children’s shelters operated by HHS are at maximum capacity or “dangerously close to it,” an official from the agency said. Overall, the number of migrants detained last month along the Mexico border, 39,006, was the highest monthly total since Trump became president, according to DHS figures.

5:01
In a small city in Upstate New York, ICE arrests drive migrants into hiding

The proposals, which have been presented for approval to new DHS Secretary Kirstjen Nielsen, were developed by career officials at Immigration and Customs Enforcement (ICE) and other DHS agencies, administration officials said.

Tyler Houlton, a DHS spokesman, confirmed the agency has “reviewed procedural, policy, regulatory and legislative changes” to deter migrants. Without giving further details, he said some of the measures “have been approved,” and DHS is working with other federal agencies “to implement them in the near future.”

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders, and as a result we are continuing to review additional policy options,” Houlton said.

The most contentious ­proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be “well cared for as we deal with their parents.”

Kelly did not move forward with the plan, in part because of the backlash it triggered, administration officials said, and also because illegal migration had plunged to historic lows.

Trump administration officials described the measures as unpalatable but necessarily tough policy options to discourage Central American families from embarking on the long, dangerous journey to the border — or hiring smugglers to bring their children north.

2:21
In southern Texas, a rancher explains why he supports Trump but not the wall.

“People aren’t going to stop coming unless there are consequences to illegal entry,” one DHS official said.

Migrants from El Salvador, Guatemala and Honduras represent the largest share of families and children taken into U.S. custody along the border, with many telling border agents that they fear for their lives if sent back to their home countries. The three nations, known as the “Northern Triangle” of Central America, are crippled by gang violence and homicide rates that are among the world’s highest.

Trump administration officials say Central American migrants and the paid smugglers who bring them to the border shamelessly exploit Americans’ compassion, entering the United States illegally and gaming the asylum process.

If a migrant’s stated fear of being sent home is considered “credible,” they enter an asylum process that may take years to adjudicate, and the flood of such petitions in recent years has worsened the backlog of more than 600,000 cases pending in U.S. immigration courts.

Asylum seekers are typically issued work permits while they wait for the process to play out, and when their rejected appeals are exhausted, they often ignore court orders to leave the United States, choosing to remain in the country illegally.

The Trump administration wants to significantly expand immigration detention capacity, and hire more judges and expedite asylum cases to stop migrants from taking advantage of “loopholes” in the asylum process.

The proposal to separate parents from their children is viewed by the agency as a more immediate tool to halt the latest border surge.

DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids,” said Andrew R. Arthur, a resident fellow at the Center for Immigration Studies, which seeks to reduce immigration. A former U.S. immigration judge and Republican congressional policy staffer, he called it “a reasonable step to take.”

“It might seem heartless, but it’s more heartless to give them the illusion they’re going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real,” Arthur said.

The unaccompanied minors are typically seeking to reunite with a parent already living illegally in the United States. By law, migrants under age 18 who arrived without a parent must be turned over to HHS within 72 hours of being taken into DHS custody. The shelters where they are housed are designed to be more like boarding schools than grim detention centers.

The minors are placed in the care and custody of the Office of Refugee Resettlement at HHS’s Administration for Children and Families (ACF), which seeks to identify an adult sponsor who can take custody of them.

The process takes about six weeks on average, HHS officials say. “It’s a little-known fact that over half of those who enter illegally are placed with a parent already in the United States,” ACF spokesman Kenneth Wolfe said.

The parents, or any other adult seeking to take custody of a child, must submit to an extensive background check that includes information about their immigration status. But administration officials say that information is neither checked against DHS biometric data nor shared with ICE for potential enforcement purposes. The new DHS proposals under consideration would change that.

If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting “devastating” trauma on families fleeing Central America because they feel their lives are at risk.

“These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers,” said Greg Chen, director of government relations of the American Immigration Lawyers Association.

“These are families that have no other choice for their survival,” he said.”

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

“Come on, man” clueless claim:

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids.”

The hard truth:

“These are families that have no other choice for their survival.”

The Non-White Nationalist reality:

We could absorb all of the “good guys” fleeing from gang violence in the Northern Triangle without any long-term adverse effects; in fact, it would likely help us prosper as a nation, and would be far more “cost-effective” than the various failing “strategies” we now employ, and have employed in the past, in a vain and counterproductive attempt to prevent the inevitable.

I wouldn’t necessarily give everyone a “Green Card” right off the bat. But, we should have a vastly expanded TPS program for the Northern Triangle, keeping open the possibility of eventually issuing everyone who wants to stay and who has demonstrated payment of taxes (something that even native born GOP rich guys, and most notably the Trumpster himself, hate to do) and no serious crimes to eventually qualify for the Green Card.

PWS

12-21-17

NEW EOIR MEMO ENCOURAGES IMMIGRATION JUDGES TO DUMP ON UNACCOMPANIED CHILDREN (“UACS”) – “When In Doubt, Kick ‘em Out” New Motto Of Gonzo’s “Captive Courts!” — We’ve Come A Long Way From “Guaranteeing Fairness And Due Process For All” In A Short Time!

Responding to several recent “hate speeches” by Attorney General Jeff “Gonzo Apocalypto” Sessions, EOIR issued a new memorandum basically telling U.S. immigration Judges to revise their thinking and look for any way possible to “shaft” unaccompanied minors fleeing for their lives and asserting claims for protection under U.S. laws.

The memorandum from Chief U.S. mmigration Judge Marybeth Keller, dated Dec. 21, 2017, is available in full at this link:

http://www.aila.org/infonet/eoir-releases-memo-with-guidelines-for-immigration?utm_source=AILA+Mailing&utm_campaign=b0fd06181c-AILA8_12_20_2017&utm_medium=email&utm_term=0_3c0e619096-b0fd06181c-291958957

However, because it is drafted in dense bureaucratic doublespeak with a just a touch of “lip service” to the law, I will give you the “high points” as they would appear to most Immigration Judges:

  • The Attorney General hates UACS, and so should you if you want to keep your job.
  • While this Administration works on its announced plans to strip UACS of all statutory and Constitutional rights, you must always look for ways to effectively eliminate such “false rights” administratively in advance of any changes in the law.
  • Always look for ways to find that someone previously determined by DHS or the ORR to be a “UAC” is no longer, or never should have been, entitled to UAC benefits. 
  • The “best interests of the child” should NOT be an important consideration in an Immigration Court proceeding involving a UAC. 
  • Conversely, the “best interests of the Administration” should generally be given conclusive weight. 
  • Never let considerations of human empathy, misplaced kindness, false compassion, common sense, decency, or any other human emotion lead you to give a break or the benefit of the doubt to a UAC.  
  • Is is permissible, however, to create a false sense of informality and friendliness in your courtroom, so long as it doesn’t result in a grant of any type of protection or relief to the UAC. (Indeed, lulling a UAC into a false sense of comfort or security can be an effective strategy for insuring that he or she will not attempt to find a lawyer and will sign away or waive any rights.)
  • Remember that no matter how young, immature, discombobulated, confused, inarticulate, traumatized, or scared a UAC might be, he or she is NEVER entitled to appointed counsel or to any meaningful help from you in stating or supporting a claim for protection.
  • While all DHS requests should generally be treated as “priorities,” the only request from a UAC or his or her representative that should receive “priority” consideration is a request for immediate voluntary departure from the US. (You should never hesitate to grant such a request even if it appears to be the product of duress or against the UAC’s best interests.)
  • A good way to overcome the unfortunate tendency of some reviewing courts to find testimony of UACS “credible”” is to conclude that even if credible and facially sufficient to establish a claim for relief, the UAC’S testimony is “too generalized” or “not sufficiently detailed” (or any other kind of meaningless legal jargon you might come up with) to satisfy the “burden of proof” for protection.
  • Your main responsibility as an Immigration Judge, and the one for which you will be held accountable, is to ferret out and report fraud, not to insure fairness or due process for the UAC.
  • In discharging your duties as an Immigration Judge, you must always give primacy to the enforcement priorities of the Administration (including the overriding objective of deterrence and how it is advanced by REMOVAl orders, not relief) and the DHS over any legal claims advanced by a UAC. 
  • You should presume that all UACS and particularly any with “dirty” attorneys representing them are “fraudsters” unless and until otherwise established beyond a reasonable doubt. 
  • While it is permissible to present yourself to the public, and particularly to any reviewing courts Congressional, or media representatives as a “judge of a full due process court,” for all other purposes, you should always remember that you are a mere subordinate of the Attorney General, sworn to carry out his policies, and never, under any circumstances, should you consider yourself to be a “real judge” exercising independent judgement.
  • If you have any questions about this memorandum, please consult your ACIJ (who is specially trained to help you maximize final removals orders) rather than your conscience.
  • Remember: “When In Doubt, Kick ‘Em Out!”

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

There was a time in the (seemingly now distant) past when children and other vulnerable individuals were considered appropriate for “special humanitarian consideration,” and treatment. Now, they are “special targets” for Gonzo and his White Nationalist storm troopers: “Fish in a barrel,” “easy numbers, “low hanging fruit,” “roadkill.”

I was particularly impressed (not necessarily favorably) by the straightforward exhortation for the Immigration Court to establish itself as perhaps the only court in the America where the widely accepted principle of “the best interests of the child” is specifically to be given short shrift.

On the other hand, you should think about the possibility that some day you’ll get the question “What did you do during Trump’s War on America, Mommy (or Daddy)?” Do you really want to say:  “I stood by and watched Gonzo Apocalypto abuse, harm, and in some cases kill, helpless children?” We all have choices to make!

PWS

12-21-17

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

************************************
“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of  “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
JUST SAY NO TO GONZO!
PWS
12-21-17