"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.
In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.
Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.
The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”
Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.
Opinion by Judge Schroeder
** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
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HARD TIMES IN THE IVORY TOWER
by Paul Wickham Schmidt
The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.
In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.
Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose views span the entire “real world” of immigration jurisprudence.
Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.
“BELLEVUE — Arming deputies with federal immigration enforcement powers would not reduce crime, cut the jail population or have any impact on reducing local illegal immigration populations, a top Brown County officer says.
Chief Deputy Todd Delain of the Brown County Sheriff’s Office spoke Wednesday before the Public Safety Committee in response to Supervisor Guy Zima’s call for tougher local measures against illegal immigration.
Zima has asked that the sheriff’s office to participate in a partnership with U.S. Immigration and Customs Enforcement. The partnership program, called 287(g), provides a four-week training program for sworn officers and grants them the authority to question and detain immigrants deemed deportable.
In Zima’s formal request for consideration, he cites ICE’s website description of 287(g), which gives trained deputies the authority to use ICE databases, question inmates about their immigration status and place them on detainers to allow time for ICE agents to pick them up for deportation.
While that may sound attractive to people wanting a crackdown on illegal immigration, it wouldn’t accomplish that, Delain says.
First of all, 287(g) is offered to sworn jailers and prison guards, not to deputies out on the streets, Delain said.
In the Brown County Jail, sworn officers already monitor inmates’ immigration status to a degree, for purposes of flagging them for ICE attention, Delain said. ICE agents see those flagged inmates and review the entire jail population every day to look for other illegal immigrants, Delain said.
The criteria for placing qualified inmates on detainer and for deporting them are all established by the federal government, so having local officials perform the review would do nothing to increase local control over who is detained and deported, Delain said.
Having the deputies perform that task for the federal agents at county expense would do nothing to make the process more efficient, he said.
ICE only pursues inmates of illegal status if they face higher level crimes, what ICE calls “crimes of moral turpitude,” a standard set by the federal government, Delain said. Trained county deputies would have no authority to change the federal qualifying standards, he said.
ICE doesn’t deport inmates meeting that standard until they’re convicted and serve out their prison sentences, so deportation most often is handled through the Department of Corrections, not the local jail, Delain said.
Out of more than 17,000 law enforcement agencies nationwide, only 42 have opted to have their jailers trained under the program, Delain said.
On any given day, the Brown County Jail will have somewhere around 30 inmates who are illegal immigrants, Delain said. That’s out of a jail population of around 800. He estimated no more than about 15 are being held on federal detainers, which means if they’re to be released from jail, they’d be released into ICE custody.”
“Behind two rows of high fencing and winding coils of razor wire, and surrounded by thick forest in central Louisiana, hundreds of miles from the nearest major city, stands a newly created court the Trump administration hopes will fast-track the removal of undocumented immigrants.
Hearings take place in five poky courtrooms behind reinforced grey doors where the public benches, scratched with graffiti, are completely empty. There is no natural light. The hallways are lined with detainees in yellow jumpsuits awaiting their turn before a judge. The five sitting judges were quietly flown in by the US justice department from cities across the United States and will be rotated again within two weeks.
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This is the LaSalle detention facility that, since March this year, has been holding removal proceedings for hundreds of detained migrants in courtrooms adjoining a private detention center, which incarcerates more than 1,100 men and women and has the highest number of prisoner deaths of any in America over the past two years.
Inside courtroom No 2, during proceedings last Wednesday, Judge Arwen Swink, who usually sits in San Francisco, presided over a crowded morning docket. In an indication of the hastily arranged nature of the setup, the judge’s name was printed out on a piece of paper and stuck to a door behind her, the courtroom also functioning as a makeshift office, complete with a photocopier and in-trays attached to the wall.
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Marcos Ramirez Jr, sat alone before the judge, listening through a headset as a translator interpreted proceedings in Spanish. The court heard how the Guatemalan national had lived in America for almost four decades after crossing the border into the US in 1980. He had been with his wife in Alabama for 15 years and had no criminal history.
In April, Ramirez was apprehended by law enforcement for allegedly driving recklessly and without a license. The charges were enough to see him transferred to immigration detention. At a hearing earlier in May, he had been offered a bond of $7,000 but told the court on Wednesday he had no ability to pay it.
“It has been two weeks since I heard from my wife,” he said, his head cradled in his hands. “She has stage three cancer.” Ramirez had no idea if she was now in hospital or, by extension, whether she was alive or dead.
As things stood, without the money to pay for his bond, he would remain in detention until his full hearing, known as a merits hearing, where his chance of being ordered to be deported was much higher than if he had been released on bond and gone to trial at another non-detained court, according to studies of official data.
This building is operated by the Department of Homeland Security (DHS) and had never functioned as a court. Before March, the five rooms were used for video conferencing, allowing detainees to appear via video-link in preliminary hearings at an established immigration court (that now technically administers the court at LaSalle) in the small city of Oakdale 90 miles away.
A court room at the LaSalle detention facility. Photograph: Whiteconst.com
Lawyers and advocates say the new system increases the risk of due-process violations as cases move more rapidly through the system, at a remote venue that already has the lowest rate of legal representation for detainees in the US. The union representing immigration judges, meanwhile, argues that reassigning judges from around the US where courts are already chronically overburdened is simply a waste of resources.
The justice department’s executive office for immigration review (EOIR), which administers America’s immigration courts, declined to respond to a list of detailed questions about the new court.
The Guardian was also prevented from viewing the LaSalle court’s public docket, which had previously been printed out and displayed outside the courtrooms but removed on the day of the visit. The Guardian was instructed by a court officer, employed by private security firm GEO Group, that court clerks and administrative staff – public employees – would not take any questions for clarification. This meant that basic fact-checking, including the spelling of detainees’ names, could not always be completed.
Deportation without representation
In a number of ways, Ramirez’s story was typical of many of the 43 cases brought before judges that day.
Numerous hearings observed by the Guardian last Wednesday involved people who had been apprehended by law enforcement after allegedly committing minor traffic offenses. One individual, Osmani Radiya, appearing before Judge Patrick Savage, also on detail from San Francisco, had been arrested after accidentally reversing into a parked van allegedly under the influence. The father of three, two of his children US citizens, had no driver’s license or insurance documents and wound up in detention facing deportation.
Another, 21-year-old Diego Garcia, who appeared before Judge Margaret McManus (detailed from New York), had been picked up in Arkansas after driving without a license and providing a false name to police. “I’d like to apologise for what happened, it won’t happen again,” Garcia told the court. Both men were granted bond.
In the Trump administration’s first 100 days the number of immigration arrests have soared, with the sharpest increase among those with no criminal record. The LaSalle detention facility, which holds both men and women, serves as a major hub for arrestees from many of the southern states.
Paul Scott, an immigration attorney who has represented clients detained at LaSalle for nine years, characterised the new system as “taking a large mallet and trying to hit a small nail”.
“This fast-track system is now being backed up by less dangerous people who actually might have stronger cases [for relief from removal],” he said. “It’s not a very smart or precise plan.”
While the administration may have ramped up arrests, the number of people it has actually been able to deport has remained relatively consistent with the past two years of the Obama administration.
But Ramirez’s case was also typical in another manner: he had no lawyer representing him.”
This should be a wake-up call for all Americans who care about Constitutional due process, fundamental fairness, and national values. American’s largest Court System is held “captive” within the U.S. Department of Justice.
In reading the testimony of former FBI Director Comey today, I was struck by his double-talk about an “independent” Department of Justice and FBI. As pointed out by Allen Dershowitz and others, the U.S. Constitution does not provide for an independent DOJ. Perhaps it should have, but it doesn’t. As an Executive Branch Agency, the DOJ is, and always has been, subject to political shenanigans. No “court system” operating within the DOJ can possibly provide fairness and due process in all cases.
Moreover, the DOJ has clearly established over the past 16 years its total administrative incompetence to run a high volume court system. 600,000 pending cases and not a clue of how they might actually be completed consistent with due process! Indeed, the officials at the DOJ who are “pulling the strings” of the Immigration Court don’t have the faintest idea of what happens at the “retail level” or how to operate a fair and efficient court system.
The Trump Administration’s misuse of the U.S. Immigration Courts to deny, rather than protect, due process is just the disgraceful end product of a “built to fail system.” America needs an independent U.S. Immigration Court.
Thanks to Nolan Rappaport for sending this my way.
“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?
First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.
Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.
Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”
I encourage you to read the entire article.
Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:
Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself. So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!
Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.
“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.
On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.
But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.
Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.
This father and son aren’t the only ones whose immigration cases have been postponed lately.
“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”
On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.
The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.
“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”
Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.
The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”
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Read Beth’s complete article at the link.
A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh
Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.
Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!
And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.
And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡
No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.
But, other than that, it’s a great system!
Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!
Robert Samuels reports from Gillette, WYO for the Washington Post:
“In Gillette and surrounding Campbell County, people were beginning to feel the comeback they voted for. Unemployment has dropped by more than a third since March 2016, from 8.9 percent to 5.1 percent. Coal companies are rehiring workers, if only on contract or for temporary jobs. More people are splurging for birthday parties at the Prime Rib and buying a second scoop at the Ice Cream Cafe.
Maybe it was President Trump. Much was surely because of the market, after a colder winter led to increases in coal use and production. But in times when corporate profits are mixed with politics, it was difficult for people here to see the difference.
“I’m back to work,” Gorton said. “It’s real. Did Trump do it all? I don’t think so. But America voted in a man who was for our jobs.”
In a divided nation, optimism had bloomed here in a part of the country united in purpose and in support of the president. Close to 90 percent voted for the same presidential candidate, and 94 percent of the population is the same race. And everyone has some connection to the same industry. They felt optimistic about the tangible effects of the Trump economy, which favors fossil fuels, and the theoretical ones, which favor how they see themselves. Once on the fringes, their jobs had become the centerpiece of Trump’s American mythology.
. . . .
“We once powered the nation,” Gorton said. “But you got the feeling that things are not quite the same and that political forces are encroaching on your livelihood. It’s like they are willing to take away your town.”
Now the fear of what might be taken away was carried by someone else. There was another side of this American story, a tenser and more terrifying one, where immigrant families worried about deportation raids and liberals marched with witty placards to protest the “war on science.”
Far beyond the borders of this isolated town, many Americans were gripped by the latest evidence of the president’s coziness with the Russians, and wondered why the white working and middle classes hadn’t abandoned their increasingly unpopular president. In that America, the early optimism about Trump was fading. A Quinnipiac poll released last month said that 52 percent of Americans were pessimistic about the country’s direction, 20 percent higher than when Trump was inaugurated. And Friday’s anemic employment report, showing the country gained only 138,000 jobs in May, provided little consolation.
Gorton found it difficult to reconcile those two polarized feelings; it seemed that either you had to believe in the country’s pending prosperity or its impending doom.
“I know there are people who are scared about where the country is headed, but before I was scared,” Gorton said. “Either they’re dreaming, or I’m dreaming.”
The question is, once Trump and his cronies are done with their policies of hate, disrespect, and divisiveness, will anyone ever be able to put the pieces of America together again?
Seems like folks on both sides of the aisle should have been able to get together and solve the problems of the nice people of Gillette without reigniting an essentially dying industry that, in the long run, is neither economically viable nor environmentally desirable. When the world fries, I doubt that God will exempt Wyoming from the consequences. Those skies could get cloudy some day. And, by that time, the Trump crowd will be long gone.
“Immigrants who have legally lived and worked in the U.S. since disasters in their countries years ago may have to start thinking about going home, the U.S. Homeland Security chief said Thursday.
In an interview with The Associated Press, Secretary John Kelly sent strong signals that immigration benefits known as “temporary protected status” should not be as open-ended as they have become for tens of thousands of people from Haiti and Central America.
“The point is not that there be a complete recovery of all ills in the country,” Kelly said. “The point is, whatever the event is that caused TPS to be granted — that event is over, and they can return.”
That might shock 86,000 immigrants from Honduras and another 263,000 from El Salvador, who constitute the vast majority of the program’s current beneficiaries.
The Hondurans, along with more than 5,000 immigrants from Nicaragua, became eligible for the temporary protections in 1999 because of destruction from Hurricane Mitch a year earlier. Immigrants from El Salvador were included in 2001 after a series of earthquakes.
Immigrants from those three countries make up 80 percent of the 435,000 people from 10 nations currently eligible. Their status has been renewed every 18 months, and it will be up for renewal again early next year.
Kelly spoke with AP in Miami a day after meeting with Haiti’s president to discuss the return of roughly 50,000 Haitians to the long-troubled Caribbean country. He joined Florida Gov. Rick Scott at the National Hurricane Center to mark the start of hurricane season Thursday.
Kelly said he has not yet discussed ending temporary status with the Central American countries’ leaders. However, he emphasized that those privileges were intended to be temporary, even though they have not been administered that way.
“People in my position automatically — without thinking about it very much, apparently — just simply extended it,” Kelly said. “They weren’t taking the same approach to the law as I am.”
First, Hondurans with TPS have been in the U.S. continuously since 1999, El Salvadorans since 2001. Most of them have homes, jobs, and U.S. citizen kids. They are members of our society. Are we really going to send them home after they have been here for decades in many cases?
Second, the last time a termination of these programs was considered was during the Clinton Administration. At that time, the Governments of El Salvador and Honduras went berserk, telling the State Department that return of that many individuals in a short period of time could destabilize their economies and their political systems. In plain terms, those countries could collapse. Moreover, money sent home by El Salvadorans and Hondurans with TPS status was basically propping up the economies of those countries.
Third, some TPS individuals are under final orders of removal. In theory, they would become removable immediately if they failed to depart after termination of the programs. But, they could move to reopen Deportation or Removal Proceedings if circumstances in their cases have materially changed, which is quite possible. Moreover, many, probably the vast majority, of those with TPS either 1) were never place in Removal Proceedings, or 2) had such proceedings “administratively closed” prior to a decision on the merits by an Immigration Judge. In both of these situations, individuals would have to be placed back on the Immigration Courts’ Master Calendar (that is arraignment) dockets.
Given the current 600,000 case backlog in Immigration Court, and that many Immigration Judges are scheduling new non-detained cases for “individual hearing” dates three, four, or more years from now, most of these cases wouldn’t even be heard on the merits until well after the end of President Trump’s current term.
By that time, individuals will have been in the U.S. for almost a quarter of a century. Many will have adult U.S. citizen children who can petition for them for permanent immigration.
Eventually, folks here from El Salvador and Honduras will have to be given some type of permanent or semi-permanent status, with or without a “path to citizenship.” Until then, they are working, paying taxes, and are an asset to the U.S. and their communities. Because of the nature of TPS, those relatively few who do commit one felony or two misdemeanors are arrested, detained, and removed promptly, unless they qualify for additional relief. And, the Government apparently makes money from the fees generated by extensions of TPS status and work authorization.
So, regardless of the original legal framework, TPS is one of the most successful and beneficial programs that DHS runs right now. Better not to mess with it unless you have a better idea. And, better ideas on immigration are not a strong point of the Trump Administration generally or Secretary Kelly, specifically.
I am delighted to provide an original article by my good friend and colleague the Honorable Jeffrey Chase, who recently joined us in the ranks of the “retired but still engaged.” Judge Chase is a former U.S. Immigration Judge in New York, a former Senior Attorney Adviser at the BIA, and a former sole immigration practitioner in New York. He’s also a gentleman, a scholar, and an immigration historian. In a subsequent post I’ll be providing some links to parts of the “Chase Immigration History Library” which has previously been published by our friend and former colleague Judge Lawrence O. Burman in the FBA’s The Green Card.
Welcome to retirement and to immigrationcourtside, Judge Chase! We live in interesting times. Enjoy the ride.
Now, for your reading pleasure, here’s the complete original version of Judge Chase’s article about a recent BIA precedent. Enjoy it!
On May 24, the Board of Immigration Appeals published its long-anticipated precedent addressing family as a particular social group, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). Thirteen amicus briefs were received by the Board addressing the issue of whether a “double nexus” is required in claims based on the particular social group of family. The good news is that the Board did not create a “double nexus” requirement for family-based PSG claims. In other words, the decision does not require an asylum applicant to prove both their inclusion in the social group of X’s family, and then also establish that X’s own fear is on account of a separate protected ground.
Nevertheless, the resulting decision was highly unsatisfying. The Board was provided a golden opportunity to adopt the interpretation of the U.S. Court of Appeals for the Fourth Circuit, which has held persecution to be “on account of” one’s membership in the particular social group consisting of family where the applicant would not have been targeted if not for their familial relationship. Such approach clearly satisfies the statutory requirement that the membership in the particular social group be “at least one central reason for persecuting the applicant.” If the asylum seeker would not have been targeted if not for the familial relationship, how could such relationship not be at least one central reason for the harm? L-E-A- rejected this interpretation, and instead adopted a much more restrictive “means to an end” test. Under L-E-A-, even though the respondent would not be targeted but for her familial relationship to her murdered husband, she would not be found to have established a nexus because the gangsters she fears do not wish to harm her because of an independent animus against her husband’s family. Rather, targeting her would be a means to the end of self-preservation by attempting to silencing her to avoid their own criminal prosecution.
Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself. Applying the same logic to political opinion, a popular political opponent of a brutal dictator could be denied asylum, as the dictator’s real motive in seeking to imprison or kill the political opponent could be viewed as self-preservation (i.e. avoiding losing power in a free and fair election, and then being imprisoned and tried for human rights violations), as opposed to a true desire to overcome the applicant’s actual opinions on philosophical grounds.
Sadly, the approach of L-E-A- is consistent with that employed in a line of claims based on political opinion 20 years ago (see Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)) in which attempted guerrilla recruitment, kidnaping, and criminal extortion carried out by armed political groups were not recognized as persecution where the perpetrator’s motive was to further a goal of his/her political organization as opposed to punishing the asylum applicant because of his/her own political opinion.
Nearly a decade earlier, an extreme application of this “logic” resulted in the most absurd Board result of to date. In Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), the Board actually held that a deserter from an illegal guerrilla army’s fear of being executed by a death squad lacked a nexus to a protected ground, because the employment of death squads by said illegal guerrilla army was “part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline,” (to quote from the headnotes). After three decades of following the course of such clearly result-oriented decision making, the Board missed an opportunity to right its course.
The author formerly served as an immigration judge, and as a staff attorney at the Board of Immigration Appeals.
I agree with Judge Chase that this is a missed opportunity that will come back to haunt all of us. A correct decision would have allowed many of the Central American asylum seekers clogging the court system at all levels to be granted needed protection, either at the USCIS or in court. Here is a link to my prior blog and “alternative analysis” of L-E-A-.
http://wp.me/p8eeJm-Sh
Instead, I predict that some of these cases could still be “kicking around the system” somewhere a decade from now, unless some drastic changes are made. And the type of positive, due process, fairness, and protection oriented changes needed are not going to happen under the Trump Administration. So, the battles will be fought out in the higher courts.
Although the BIA did it’s best to obfuscate, it’s prior precedent in Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) basically established a “common sense/but for” test for one central reason. In a mixed motive case, if the persecution would have occurred notwithstanding the protected ground, then it is tangental, incidental, and not “at least one central reason.” On the other hand, if “but for” the protected ground the perseuction would not have occurred, that ground is at least “one central reason” of the persecution.
In L-E-A- the respondent would not have suffered threats and attempts to kidnap him “but for” his membership in the family. Hence family clearly is “at least one central reason” for the persecution. That’s basically the test the Fourth Circuit Court of Appeals would apply.
It’s a fairly straightforward case. The respondent in L-E-A- satisfies the refugee definition. In fact, the serious threats delivered by a gang which clearly has the ability and the means to carry them out amounts to past persecution. Hence, the respondent is entitled to the rebuttable presumption of future persecution.
Instead of properly applying its own precedents and reaching the correct result, the BIA launches into paragraphs of legal gobbledygook designed to mask what’s really going on here: manipulating the law and the facts to deny protection to Central American refugees whenever possible.
I know, this respondent is from Mexico; but, the BIA’s intended target obviously is Northern Triangle gang-based asylum claims. This precedent gives the Immigration Judges and Asylum Officers lots of “hooks” to deny claims by women and children fleeing family-targeted gang violence.
And, it insures that nobody without a really good lawyer and the ability to litigate up to Courts of Appeals if necessary even has a chance. The BIA is certainly well aware that the Trump Administration is pulling out all the stops to effectively deny counsel to arriving asylum seekers by a combination of using expedited removal, increasing negative credible fear determinations, and detaining everyone in out of the way locations where conditions are discouraging and pro bono counsel are not readily available.
Yeah, I don’t suppose any of this is going to bother Trump Administration officials any more than it did the BIA’s DOJ bosses during the Bush and Obama Administrations. Some negative case precedents on repetitive Central American claims proved mighty handy in border enforcement efforts and “don’t come, you’ve got no chance” publicity campaigns. The only problem is the it twists protection law out of shape.
Finally, let the record reflect that I lodged a dissent in Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); and Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997), wrongly decided BIA precedent cases cited by Judge Chase. Indeed, Matter of T-M-B- eventually was reversed by the Ninth Circuit Court of Appeals, Borja v. INS, 175 F.3d 332 (9th cir. 1999), something which many BIA Appellate Judges only grudgingly acknowledged in later cases.
So, it will be left for the Courts of Appeals to straighten out nexus in the family context. Or not.
Again, welcome Judge Chase. Look forward to hearing more from you.
Over the past several months, counselors at Laura’s House domestic violence agency in Orange County, California, have seen fewer and fewer undocumented immigrants coming in to report abuse. The agency’s legal director, Adam Dodge, does not see this as a good sign. He says undocumented domestic violence victims are facing a heightened fear that if they speak out against an abuser or take legal action, they could get deported—so they’re keeping quiet.
The trend started in February, when Dodge says the agency saw a dramatic change among the roughly 80 people who come in over the course of a typical month. “We went from 40 to 45 percent of our clients being undocumented—helping them get restraining orders for themselves and their children—to nearly zero,” he tells SELF.
Dodge says Laura’s House—which provides vital services like emergency shelter, counseling, and legal aid to survivors of domestic violence—first noticed a decrease in undocumented immigrant clients after Immigration and Customs Enforcement (ICE) agents detained an undocumented domestic violence survivor on Feb. 9, in El Paso, Texas, when she was in court filing a protective order against her alleged abuser. “That just spread like wildfire through the undocumented community across the United States and created this chilling effect where no one’s going in to seek restraining orders,” Dodge says. “People are just so scared of having their name in any system. We can’t tell them with any certainty that they won’t get picked up by ICE if they come to court.”
In the first few months following the El Paso incident, he says only one openly undocumented survivor came to their agency. Her situation was grave. “She thought she was going to die if she stayed in the relationship,” Dodge says. “She said she was willing to risk deportation to get a restraining order.” Now, the agency has seen a slight increase to one or two undocumented clients each week—but it’s still well below the norm. “The situation is still very dire,” he says.
El Paso was an early and powerful example of how ramped up ICE activity, spurred by President Trump’s aggressive and expansive new rules on immigration, can have a devastating impact on immigrants living in the U.S. without documentation. In February, the President issued new immigration policies, calling for the deportation of illegal immigrants even if they haven’t been formally convicted of a crime and an increase in ICE resources. In March, a video surfaced showing ICE officers poised to make an arrest at a Denver courthouse, a place where victims of domestic violence also appear when their cases go to court. NPR reported that after the video came out, four women dropped domestic violence cases in Denver, fearing they’d be spotted at the courthouse and deported.
When incidents like these happen, experts say the news—and fear of deportation—spreads, affecting how many survivors come forward. At the end of March, reports of sexual assault in Los Angeles had dropped 25 percent among the Latino population and reports of domestic violence had fallen 10 percent among the community compared to the previous year. Los Angeles Police Chief Charlie Beck said similar decreases in reports weren’t seen in any other ethnic groups, the Los Angeles Times reports.
Ruth Glenn, executive director of the National Coalition Against Domestic Violence, tells SELF the perception of how survivors are treated matters—and it can affect how undocumented immigrants proceed if they find themselves in an abusive situation. “If you have a case and you’re thinking about going forward, and then this environment that we’re in right now does not seem supportive, then you’re not going to follow through,” Glenn says. “It’s very disturbing.”
Critics of the administration’s treatment of undocumented survivors sounded an alarm in May, when it was discovered that the U.S. Department of Homeland Security’s new Victim Information and Notification Exchange—an online database created to track when criminals are released from or into ICE custody—publicly listed the names and detainment location of victims of domestic violence, sexual assault, and human trafficking who’ve applied to stay legally in the U.S. on special protective visas. DHS is prohibited from releasing identifying information about immigrants seeking these protections because of the dangers it poses to them. The Tahirih Justice Center, a nonprofit that serves immigrant women and girls, first contacted the DHS about the issue on May 12. As of the May 25, the organization said the names of abuse victims were still searchable in the database. In response to the uproar, an ICE spokesman told BuzzFeed News they were working to “correct” and “prevent” any non-releasable information disclosed on the site.”
While the Trump Administration has turned the VOICE Program for victims of crime committed by undocumented aliens into a big showpiece, they have basically declared an “open season” on undocumented victims of crime. Years of hard work by local police and social agencies to get the undocumented community its to report crimes, help in solving them, and seek appropriate victim assistance are going down the drain. And, I suspect that once lost, that trust will be difficult, if not impossible to regain.
At the same time, by discouraging individuals from reporting crime, I suppose the Administration can achieve fake “reduction in crime” stats resulting from its enforcement efforts.
“The death of an undocumented immigrant while in the custody of federal authorities is the latest in a series of deaths that advocates worry will continue to grow as more people living illegally in the US are detained under the Trump administration.
Vicente Caceres-Maradiaga, 46, died Wednesday night from acute coronary syndrome as he was being transferred to a hospital from a private detention center in Adelanto, California. He is the ninth person to die in the custody of US Immigration and Customs Enforcement (ICE) this fiscal year, which started Oct. 1. That compares to 10 deaths for all of fiscal year 2016.
The Daily Beast was the first to report on the trend.
Christina Fialho, executive director of Community Initiatives for Visiting Immigrants in Confinement (CIVIC), said the deaths were disturbing.
“They also point to systemic failures that are likely to grow even starker as the Trump administration carries out its crackdown on immigration,” Fialho told BuzzFeed News. “I have no doubt that the increase in immigration detention deaths is directly connected to both the increase in the number of people detained and the effective elimination of federal standards on humane treatment.”
Operating under executive orders and memos from the Trump administration that call for an increase in arrests of people living illegally in the US, data analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that there has already been a sharp increase in the number of detainees who are waiting for their court cases to be heard.
The rise in both the number of arrests and detainees is a change from the Obama administration, which allowed many undocumented immigrants out of detention while their legal cases played out — a practice maligned by critics as “catch-and-release.” During Obama’s tenure, 27% of people with immigration cases were kept in custody, compared to 61% under Trump, according to TRAC.”
I suppose that this Administration just looks at detainee deaths as a “cost of doing business.” Or, perhaps “collateral damage” as they say in the military. As noted in prior posts, private detention facilities had been determined by the DOJ’s Inspector General to have substandard conditions. Under then Attorney General Lynch, the DOJ was in the process of phasing private detention out of the prison system. While the DHS had not taken the same action with respect to civil immigration detention, then Secretary Johnson had received a report from an Advisory Committee noting the problems with private detention and recommending that it be phased out. The Trump Administration, with Attorney General Jeff Sessions leading the way, has reversed the course and intends to maximize the use of private detention while it builds it promised “American gulag” for both civil detainees and criminals. At no time that I am aware of have Trump, Sessions, or Kelly expressed any concern about detention standards or the health and safety of detainees.
“From 1906 to 1915, the year Vita died, Basilicata lost nearly 40 percent of its population to emigration. The Italian landowners — the same ones who raped and starved my relatives and maybe yours — were devastated by American emigration, left with too few hands to work their land.
The Italian government, initially happy to see its poorest and most troublesome people leave the country, realized that the best and strongest were now leaving as well, looking for a better life and higher wages. Before a United States congressional commission, a politician from Calabria testified that emigration from the South had gone too far, adding that he was sorry Columbus had ever discovered America.
The United States government used the theories of Cesare Lombroso, a 19th-century Northern Italian doctor, to stop more of his suffering, starving countrymen and women from immigrating.
Lombroso, a traitor to his own people, was convinced that there was such a thing as a “natural born criminal.” He measured the heads and body parts of thousands of fellow Italians — particularly Southerners — and came up with a description that matched the description of most of the immigrants coming over at the time: short, dark, hairy, big noses and ears.
He compared them to lower primates and said they were more likely to commit violent crimes when they arrived in the United States than immigrants from Germany, Norway, Austria, Sweden, England and every other European country.
Lombroso — and a growing sea of American nativists — branded the Southern Italians savages and rapists, blaming them for the crime that was on the rise in the United States.
The United States Immigration Commission concluded in the infamous 1911 Dillingham report: “Certain kinds of criminality are inherent in the Italian race. In the popular mind, crimes of personal violence, robbery, blackmail and extortion are peculiar to the people of Italy.”
The Immigration Act of 1924 barred most Italians from coming into the country — causing immigration from Italy to fall 90 percent. Even though the vast majority of those coming to America were good, honest working people and not criminals.
Italian-Americans who today support the president’s efforts to keep Muslims and Mexicans out of the country need to look into their own histories — and deep into their hearts. After all, they’re just a couple of generations removed from that same racism, hatred and abuse. Had our ancestors tried to come days, weeks or months after the 1924 ban, we may not have even been born.”
Notwithstanding Trump and his White Nationalist gang (whose anti-American, anti-world efforts were on display this week), we are a nation of immigrants.
“Outside Robledo Family Winery, south of Sonoma, on a cool April Sunday, the U.S. and Mexican flags whipped a stiff salute in the wind blowing off the San Pablo Bay. A third banner bore the winery logo. The flags represent three themes central to the lives of Reynaldo Robledo and many other Mexican migrant workers who have helped shape California’s wine industry: heritage, opportunity and family.
Robledo is part of a small but growing community of Mexican American families who started as migrant workers and now have their own wineries. They have emerged from the invisible workforce of laborers who prune the vines in bitter winter cold and tend them under searing summer sun. We read about them when they collapse from heat exhaustion in California’s Central Valley or perish in a winery accident. But they rarely appear in the glossy magazines that extol the luxury wine lifestyle, except as cheerful extras in harvest photos.
Amelia Morán Ceja worked in vineyards after school in the early 1970s. Now she owns Ceja Vineyards. The Cejas are one of five Mexican American families recognized by the Smithsonian for their work in California’s wine industry. (Ceja Vineyards; Sarah Deragon/Ceja Vineyards)
Five Mexican American families are helping craft the next chapter in the story. They started as migrant workers and now have their own wineries.
They came from Michoacan or Jalisco, two agricultural provinces near Mexico City. Their fathers left for El Norte as migrant workers — some under the Bracero guest-worker program, others crossing the border illegally but gaining legal status in a time when papers were easier to come by. They worked in California’s burgeoning agricultural industry before settling in wine country. They encountered some of Napa Valley’s most celebrated winemakers and contributed to California’s wine revolution in the 1970s and 1980s, a period that saw dramatic changes in viticulture and food culture as the United States became a wine-loving nation.
“Their story is the journey,” says Steve Velasquez, associate curator at the Smithsonian Institution’s National Museum of American History, which honored the families during its annual winemakers’ fundraising dinner in May. “A journey from Mexico to the U.S. to work in agriculture, from a handful of families to a thriving community of Mexican Americans, from vineyard workers to winery owners. . . . These families represent Mexican Americans who once just supported an industry but now help shape it.”
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Read the five inspiring stories at the link.
I observed similar success stories in many of the families that came before me in court. Laborers became supervisors. Cooks became chefs. Waiters became restaurant managers. Drywallers started construction companies. Truck drivers started trucking companies. Mechanics bought auto repair businesses. Gardeners started lawn services and landscaping companies. Folks took care of their own family members; but, they also created jobs and opportunities for other American workers. They were all about quality service, hard work, skills, family, and a certain amount of risk taking. Just what America needs for a great future!
In a published concurring opinion from the denial of a stay of removal, Judge Reinhardt write, in part:
“We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.”
Judge Reinhardt is a well-know liberal jurist, so perhaps his candid remarks come as no surprise. Read his full opinion which gives the facts of Magana Ortiz’s situation.
During most of my career at Arlington, I felt that everyone in the courtroom had worked hard to reach the fairest and best possible result under the law. Basically, whenever we could legitimately save someone’s life in accordance with the law, we did. During my tenure, I received tremendous cooperation and support not only from the private immigration bar but also from the DHS Office of Chief Counsel, which often could help achieve reasonable solutions that would have been outside of my reach. But, sadly, from feedback I am getting, that spirit of teamwork and cooperation in achieving justice seems to have disappeared under the new regime.
Even in Arlington, however, there were a few days when I felt like Judge Reinhardt. I was entering orders of removal against folks who, while not legally entitled to remain, were actually assets to our country. In other words, by enforcing the law, I was actually making things worse, not only for the individual, but for his or her family, their community, and the overall interests of our country.
This has become particularly true as successive administrations have filled U.S. Immigration Court dockets with cases that there is no hope of completing in a timeframe that would produce a fair result. Yet, the cases, and the lives involved in them, linger and are passed from docket to docket, from court to court, from date to date, as one misguided set of “priorities” replaces another one in a system where political operatives ultimately pull all the strings.
This is what I call “Aimless Docket Reshuffling;” and it is close to bringing down the entire U.S. Immigration Court system, and a large chunk of the American justice system with it.
“On Monday, Feb. 6, two days before Guadalupe García Aguilar made headlines as the first person deported under President Donald Trump’s new executive orders on immigration, she and her family drove to the modest stucco offices of Puente, an organization that represents undocumented immigrants. It was a postcard day: warm and dry, hovering around 70 degrees, the kind of winter afternoon that had long ago turned Phoenix into a magnet for American retirees and the younger, mostly Latin American immigrants who mulch their gardens and build their homes.
García Aguilar and her family — her husband and two children — squeezed together with four Puente staff members into the cramped little office that the group uses for private consultations. Carlos Garcia, Puente’s executive director, had bought a fresh pack of cigarettes right before the talk; he needed nicotine to carry him through the discomfort of telling García Aguilar that she would almost certainly be deported on Wednesday. Until that moment, she and her family had not wanted to believe that the executive orders Trump signed on Jan. 25 had made her expulsion a priority. She had been living in the United States for 22 years, since she was 14 years old; she was the mother of two American citizens; she had missed being eligible for DACA by just a few months. Suddenly, none of that counted anymore.
García Aguilar’s troubles with Immigration and Customs Enforcement (ICE) began in 2008, after police raided Golfland Sunsplash, the amusement park in Mesa, Ariz., where she worked. She spent three months in jail and three months in detention. (ICE booked her under the last name “García de Rayos.”) In 2013, an immigration court ordered her removal. Yet under pressure from Puente, which ultimately filed a class-action lawsuit contending that Maricopa County’s work-site raids were unconstitutional, ICE allowed García Aguilar (and dozens of others) to remain in Arizona under what is known as an order of supervision. ICE could stay her removal because the Obama administration’s guidelines for the agency specified terrorists and violent criminals as priorities for deportation. But Trump’s January orders effectively vacated those guidelines; one order specifically instructed that “aliens ordered removed from the United States are promptly removed.” García Aguilar, who had a felony for using a fabricated Social Security number, was unlikely to be spared.
Orders of supervision are similar to parole; undocumented immigrants who have them must appear before ICE officers periodically for “check-ins.” García Aguilar’s next check-in was scheduled for Wednesday, Feb. 8. She had three options, Garcia explained. She could appear as usual and hope for the best. She could try to hide. Or she could put up a fight, either from a place of sanctuary or by appearing for her check-in amid media coverage that Puente would organize on her behalf. Whatever she decided, he said, she would be wise to spend Tuesday preparing for separation from her children.
The family was devastated. García Aguilar left the meeting red-faced with tears.
The next day a dozen activists gathered at Puente to strategize for García Aguilar’s case. After reviewing the logistics for the usual public maneuvers — Facebook post, news release, online petition, sidewalk rally, Twitter hashtag, phone campaign — they debated the pros and cons of using civil disobedience. In the final years of the Obama administration, activists in Arizona had come to rely on “C.D.,” as they called it, to make their dissatisfaction known. Puente members had blocked roads and chained themselves in front of the entrance to Phoenix’s Fourth Avenue Jail. Yet Francisca Porchas, one of Puente’s organizers, worried about setting an unrealistic precedent with its membership. “For Lupita we go cray-cray and then everyone expects that,” she said. What would they do if Puente members wanted them to risk arrest every time one of them had a check-in?
Ernesto Lopez argued that they needed to take advantage of this rare opportunity. A week earlier, thousands of people had swarmed airports around the country to protest the executive order barring citizens from seven Muslim-majority nations. “There’s been a lot of conversation about the ban, but for everything else it’s dead,” Lopez said. “Nobody is talking about people getting deported. In a couple of months, it won’t be possible to get that media attention.”
Garcia wasn’t sure a rally for García Aguilar would work. “We’re literally in survival mode,” Garcia told me that week. It was too early to tell how ICE would behave under Trump, but they were braced for the worst. Nobody had a long-term plan yet. Even as he and his staff moved to organize the news conference, his mind kept running through the possibilities: Would it help García Aguilar stay with her family? Would it snowball into an airport-style protest? Would it cause ICE to double down on her deportation? He decided it was worth trying.
Shortly before noon on Wednesday, García Aguilar and her lawyer, Ray Ybarra Maldonado, entered ICE’s field office as supporters chanted “No está sola!” (You are not alone!) behind her. Telemundo, Univision and ABC shot footage. Supporters posted their own videos on Twitter and Facebook. ICE security warily eyed the scene. An hour later, Ybarra Maldonado exited ICE alone. García Aguilar had been taken into custody. All around the tree-shaded patio adjacent to ICE’s building, Puente members teared up, imagining the same dark future for themselves. Ybarra Maldonado filed a stay of deportation, and Porchas told everyone to come back later for a candlelight vigil.
That night a handful of protesters tried to block several vans as they sped from the building’s side exit. More protesters came running from an ICE decoy bus that had initially distracted those attending the vigil out front. Manuel Saldaña, an Army veteran who did two tours in Afghanistan, planted himself on the ground next to one van’s front tire, wrapping his arms and legs around the wheel. The driver looked incredulous; if he moved the van forward now, he would break one of Saldaña’s legs. Peering through the van windows with cellphone flashlights, protesters found García Aguilar sitting in handcuffs. The crowd doubled in size. “Those shifty [expletive],” Ybarra Maldonado said as he stared at the van. ICE, he said, had never notified him that her stay of deportation had been denied.
Four hours later, García Aguilar was gone. After the Phoenix Police arrested seven people and dispersed the crowd, ICE took her to Nogales, Mexico. By then images of García Aguilar and the protest were already all over television and social media. She and her children became celebrities within the immigrant rights movement. Carlos Garcia, who was with her in Nogales, told me that Mexican officials stalked her hotel, hoping to snag a photo. “Everyone wanted to be the one to help her,” he said. “Everyone wanted a piece.” Later that month, her children — Jacqueline, 14, and Angel, 16 — sat in the audience of Trump’s first address to Congress, guests of two Democratic representatives from Arizona, Raúl Grijalva and Ruben Gallego.
During the Obama years, most immigrant rights organizations focused on big, idealistic legislation: the Dream Act and comprehensive immigration reform, neither of which ever made it through Congress. But Puente kept its focus on front-line battles against police-ICE collaboration. For Garcia, who was undocumented until a stepfather adopted him at 16, the most important thing is simply to contest all deportations, without exception. He estimates that Puente has had a hand in stopping about 300 deportations in Arizona since 2012.
Ever since Arizona passed Senate Bill 1070, one of the toughest anti-undocumented bills ever signed into law, the state has been known for pioneering the kind of draconian tactics that the Trump administration is now turning into federal policy. But if Arizona has been a testing ground for the nativist agenda, it has also been an incubator for resistance to it. Among the state’s many immigrant rights groups, Puente stands out as the most seasoned and most confrontational. In the weeks and months following Election Day 2016 — as progressive groups suddenly found themselves on defense, struggling to figure out how to handle America’s new political landscape — Garcia was inundated with calls for advice. He flew around the country for training sessions with field organizers, strategy meetings with lawyers and policy experts and an off-the-record round table with Senators Dick Durbin and Bernie Sanders in Washington. A soft-spoken man with a stoic demeanor and a long, black ponytail, Garcia was also stunned by Trump’s victory. But organizers in Phoenix had one clear advantage. “All the scary things that folks are talking about,” he told me, “we’ve seen before.” On Nov. 9, he likes to say, the country woke up in Arizona.”
. . . .
On May 3, the day Arreola was to have been deported, Arreola and Andiola gathered with friends, family and supporters for a prayer breakfast at the First Congregational United Church of Christ in Phoenix, which had offered to house Arreola if she chose sanctuary. Pastor James Pennington had been active in the fight for gay rights. The patio of First Congregational was decorated with several flags, including a rainbow flag, an Arizona state flag and an American flag. Inside the church, members of Puente and former members of ADAC formed a circle with several non-Hispanics who had only recently allied themselves with the undocumented. Standing together they recited Psalm 30 in Spanish:
Te ensalzaré, oh Señor, porque me has elevado, y no has permitido que mis enemigos se rían de mi.
I’ll praise you, Lord, because you’ve lifted me up. You haven’t let my enemies laugh at me.
Yet their enemies remained hard at work. A week later, Marco Tulio Coss Ponce, who had been living in Arizona under an order of supervision since 2013, appeared at ICE’s field office in Phoenix with his lawyer, Ravindar Arora, for a check-in. ICE officers, Arora said, knew that Coss Ponce was about to file an application for asylum — several of his relatives had been recently killed or threatened by the Sinaloa cartel in Mexico — and they had assured Arora several times that Coss Ponce would not be removed. They said he simply needed to wear an ankle monitor to make sure he didn’t disappear. The fitting was delayed several times until finally Arora had to leave to argue a case in court. After he departed, ICE officers handcuffed Coss Ponce and put him in a van, alone. Three hours later, he was in Nogales.”
Read the entire, very lengthy but worthwhile, article at the link.
Wow, can’t help but think “what if” all the energy, emotion, and activity on both sides of the immigration issue were re-directed at working together to “make America greater,” rather than engaging in a dangerous, counterproductive “grown up” game of hide and seek aimed at intimidating and removing productive members of American society who aren’t causing anyone any particular harm!
I’ve got some bad news for “the enforcers.” The U.S. families of most of the deportees aren’t going anywhere. And, there will be a steep price to pay in future generations for intentionally alienating some of America’s “best and brightest,” and our hope for the future as a nation.
Actions have consequences. Hate and disrespect aren’t quickly forgotten. Witness that even today, more than a century after the event, we’re still struggling as a nation with the misguided and hateful cause that created the short-lived “Confederate States of America,” killed hundreds of thousands of Americans of all races, and ruined millions of lives.
“The Trump administration has yet to break ground for its promised border wall to keep the undocumented out of the United States, but by embarking on a campaign of misinformation and secrecy, it is rapidly moving forward with efforts to target and deport immigrants already here.
To advance the false narrative that the undocumented community includes an outsized and particularly dangerous set of criminals, the Administration ignores data that shows that high rates of immigration actually coincide with reduced crime rates, and that immigrants are less likely to commit crimes than those born in the United States. As Alex Nowrasteh of the libertarian Cato Institute noted, “It is absurd to highlight the crimes committed by a small group of people without reporting on the crimes committed by everybody.” The misleading use of crime data not only results in questionable policy decisions, but also could lead to unwarranted fear of immigrants and an uptick in hate-crimes against them.
Such fear-mongering appears to be behind the new office for Victims of Immigration Crime Engagement (VOICE) recently launched by Immigration and Customs Enforcement (ICE). VOICE will share selective data about alleged criminals’ immigration and custody status, but will omit information on other crimes, including crimes in which immigrants are victims. VOICE stems from the President’s Executive Order on internal safety and immigration enforcement, which also decreed that Privacy Act protections do not apply to the undocumented. The result is that when VOICE shares information about immigrants, their right to legally challenge potentially erroneous disclosures may be curtailed. The implications could be devastating for individuals who are wrongly targeted, especially given administration’s track record with the facts.
The launch of the VOICE office comes on the heels other efforts by the administration to manipulate facts to support misleading conclusions about immigration enforcement. In an apparent effort to name and shame, the White House ordered ICE to release weekly reports highlighting jurisdictions it claimed did not comply with requests to keep undocumented individuals in custody for up to 48 hours beyond their scheduled release—so-called “detainer requests.” Law enforcement officials in counties nationwide described the data as “unfair and misleading” and openly disputed ICE’s claims. Because complying with detainer requests has been held to be unconstitutional, jurisdictions also objected to the reports’ mischaracterization that they were not complying with federal law. Responding to pressure, ICE has temporarily suspended publication of its misleading weekly reports, but is now concealing data about its own immigration investigations and enforcement with its illegitimate decision to withhold information previously released under Freedom of Information Act (FOIA) requests.
To be sure, the immigration enforcement and deportation machine grew to new levels under a cloak of secrecy during the Obama administration, with serious policy consequences that resonate today. Rights groups litigated with ICE for years to obtain information about its controversial deportation and fingerprint program, known as Secure Communities, which required local law enforcement to forward the digital fingerprints of everyone they booked, regardless of citizenship. ICE then used the information to determine who could be deported. To this day, the FBI continues to expand the massive biometrics database that grew dramatically under the Secure Communities program, and ICE’s ability to issue detainer requests continues because local law enforcement still forwards biometric information about suspects in custody.”
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One of the biggest lies repeated by the Trump Administration and many GOP politicos is that the Obama Administration “didn’t enforce immigration law.” On the contrary, as those of us who served during that Administration know well, Obama enforced the heck out of immigration law — sometimes wisely, sometimes not. Most of today’s real immigration problems (such as the total mess in the U.S. Immigration Courts) stem from over enforcement, not any type of mythical “under enforcement.”
