Undocumented Individuals – Page 56 – immigrationcourtside.com

U.S. MINISTER OF HATE! — As We Approach 75th Anniversary Of The End Of WWII, Our Taxpayer Dollars Are Paying For Neo-Nazi Stephen Miller To Spread His Vile Hitlerian Propaganda Of Racism & White Supremacy From The White House! — “At various times, the SPLC reports, Miller recommendations for McHugh included the white nationalist website, VDare; Camp of the Saints, a racist novel focused on a ‘replacement’ of European whites by mass third-world immigration; conspiracy site Infowars; and Refugee Resettlement Watch, a fringe anti-immigrant site whose tagline is ‘They are changing America by changing the people’.”

https://www.theguardian.com/media/2019/nov/12/trump-adviser-stephen-miller-white-nationalist-agenda-breitbart?CMP=Share_iOSApp_Other

Jason Wilson reports for The Guardian:

Senior Trump adviser Stephen Miller shaped the 2016 election coverage of the hard right-wing website Breitbart with material drawn from prominent white nationalists, Islamophobes, and far-right websites, according to a new investigative report by the Southern Poverty Law Center (SPLC).

Miller also railed against those wishing to remove Confederate monuments and flags from public display in the wake of Dylann Roof’s murderous 2015 attack on a black church in Charleston, South Carolina, and praised America’s early 20th-century race-based, restrictionist immigration policies.

Emails from Miller to a former Breitbart writer, sent before and after he joined the Trump campaign, show Miller obsessively focused on injecting white nationalist-style talking points on race and crime, Confederate monuments, and Islam into the far-right website’s campaign coverage, the SPLC report says.

Miller, one of the few surviving initial appointees in the administration, has been credited with orchestrating Trump’s restrictionist immigration policies.

The SPLC story is based largely on emails provided by a former Breitbart writer, Katie McHugh. McHugh was fired by Breitbart over a series of anti-Muslim tweets and has since renounced the far right, telling the SPLC that the movement is “evil”.

However, throughout 2015 and 2016, as the Trump campaign progressed and she became an increasingly influential voice at Breitbart, McHugh told the SPLC that Miller urged her in a steady drumbeat of emails and phone calls to promote arguments from sources popular with far-right and white nationalist movements.

Miller’s emails had a “strikingly narrow” focus on race and immigration, according to the SPLC report.

At various times, the SPLC reports, Miller recommendations for McHugh included the white nationalist website, VDare; Camp of the Saints, a racist novel focused on a “replacement” of European whites by mass third-world immigration; conspiracy site Infowars; and Refugee Resettlement Watch, a fringe anti-immigrant site whose tagline is “They are changing America by changing the people”.

McHugh also says that in a phone call, Miller suggested that she promote an analysis of race and crime featured on the website of a white nationalist organization, American Renaissance. The American Renaissance article he mentioned was the subject of significant interest on the far right in 2015.

In the two weeks following the murder of nine people at a church in Charleston by the white supremacist Dylann Roof as Americans demanded the removal of Confederate statues and flags, Miller encouraged McHugh to turn the narrative back on leftists and Latinos.

“Should the cross be removed from immigrant communities, in light of the history of Spanish conquest?” he asked in one email on 24 June.

“When will the left be made to apologize for the blood on their hands supporting every commie regime since Stalin?” he asked in another the following day.

When another mass shooting happened in Oregon in October 2015, Miller wrote that the killer, Chris Harper-Mercer “is described as ‘mixed race’ and born in England. Any chance of piecing that profile together more, or will it all be covered up?”

Miller repeatedly brings up President Calvin Coolidge, who is revered among white nationalists for signing the 1924 Immigration Act which included racial quotas for immigration.

In one email, Miller remarks on a report about the beginning of Immigrant Heritage Month by writing: “This would seem a good opportunity to remind people about the heritage established by Calvin Coolidge, which covers four decades of the 20th century.” The four decades in question is the period between the passage of the Immigration Act and the abolition of racial quotas.

Miller also hints at conspiratorial explanations for the maintenance of current immigration policies. Mainstream coverage of the 50th anniversary of the removal of racial quotas in immigration policy had lacked detail, Miller believed, because “Elites can’t allow the people to see that their condition is not the product of events beyond their control, but the product of policy they foisted onto them.”.

Miller used a US government email address during the early part of the correspondence, when he was an aide to senator Jeff Sessions, and then announced his new job on the Trump campaign, and a new email address, to recipients including McHugh.

As well as McHugh, recipients of his emails included others then at Breitbart who subsequently worked in the Trump administration, including Steve Bannon and current Trump aide, Julia Hahn.

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“The Worst Generation?”

Also, remember that Miller is an acolyte of shameless White Nationalist racist Jeff “Gonzo Apocalypto” Sessions. The latter was last seen groveling and pleading before Donald Trump in what hopefully for America will be a vain attempt to regain his Senate seat in Alabama. The country certainly has been enriched by not having this vile purveyor of racist lies, false narratives, and gratuitous cruelty on the national scene since Trump fired him. Nevertheless, his cruelty, illegal, and immoral actions during his tenure as Attorney General continue to destroy lives and haunt our nation.

PWS

11-13-19

“LET ‘EM DIE IN MEXICO” — U.S. ASYLUM OFFICER EXPOSES TRUMP ADMINISTRATION’S INTENTIONAL RACIST VIOLATIONS OF HUMAN RIGHTS, ENABLED BY A COMPLICIT 9th CIRCUIT! — “The MPP both discriminates and penalizes. Implementation of the MPP is clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States. This is evident in the arbitrary nature of the order, in that it only applies to the southern border. It is also clear from the half-hazard implementation that appears to target populations from specific Central American countries even though a much broader range of international migrants cross the southern border.”

https://www.washingtonpost.com/opinions/2019/11/12/scathing-manifesto-an-asylum-officer-blasts-trumps-cruelty-migrants/

Greg Sargent writes in the WashPost:

November 12, 2019 at 3:47 p.m. EST

President Trump’s requirement that asylum seekers remain in Mexico while they await hearings in the United States is creating a new humanitarian crisis. Yet it isn’t generating nearly the outrage and media scrutiny that his horrific family separations did.

But now a deeply dismayed asylum officer has authored a remarkable manifesto that was obtained by Sen. Jeff Merkley (D-Ore.), as part of an investigation Merkley is conducting of Trump’s asylum policies.

The manifesto indicts the “Remain in Mexico” program from the inside in sweeping and scalding terms, describing it as illegal under U.S. law, a violation of the United States’ international human rights obligations and arbitrarily implemented to deliberately punish people for seeking asylum here.

The policy is “clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States,” the asylum officer writes in the manifesto.

The asylum officer recently left their job, and in the missive, the officer says he or she could not continue to implement it “after careful consideration and moral contemplation.”

The officer’s condemnations of the policy are among the key revelations in a forthcoming assessment of Trump’s asylum policies by Merkley’s office.

Those policies include everything from ongoing efforts to send asylum seekers back to Honduras, which is “one of the most violent and unstable nations in the world,” to a new proposal to charge asylum applicants a $50 fee.

Merkley’s report, portions of which I’ve seen, will conclude that the administration has undertaken “systemic efforts” to “effectively rewrite U.S. asylum laws, rules and procedures,” with the overarching goal of “gutting the asylum system” but “without congressional approval or involvement.”

Merkley’s report will also conclude that Trump’s policies have “intentionally inflicted trauma” on asylum seeking families.

The Remain in Mexico policy — which is also known as the Migrant Protection Protocols (MPP) — requires migrants seeking asylum to wait in Mexico pending hearings in the United States, with the ostensible goal of preventing them from disappearing into the interior during that waiting period. About 50,000 migrants have been relocated there.

Numerous critics have said it’s deeply cruel to knowingly force migrants to wait in places where they’ll be subjected to serious risk, and journalistic exposés and studies alike have documented that the MPPs do does just that.

The officer, who has repeatedly been in touch with Merkley’s office as part of its investigation, will remain anonymous.

But the officer’s lawyer — Dana Gold, senior counsel at the Government Accountability Project — confirmed to me the authenticity of the manifesto and confirmed that it accurately depicts the person’s circumstances.

“In addition to this whistleblower, we are representing several other Department of Homeland Security whistleblowers who have raised serious concerns about immigration-related abuses,” Gold said. “That Congress is taking these issues seriously is essential to promoting accountability and protecting ethical civil servants committed to upholding their oaths of office.”

Tensions have been rising between asylum officers and U.S. Citizenship and Immigration Services, the agency that oversees the asylum system. And the union for asylum officers has already issued a legal brief condemning MPP amid litigation over the program.

But this asylum officer’s personal indictment of the policy goes much further.

For one thing, he or she accuses the administration of implementing the policy in an “arbitrary” manner:

The MPP both discriminates and penalizes. Implementation of the MPP is clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States. This is evident in the arbitrary nature of the order, in that it only applies to the southern border. It is also clear from the half-hazard implementation that appears to target populations from specific Central American countries even though a much broader range of international migrants cross the southern border.

For another, he or she alleges that internal processes are breaking down. Under MPP, if asylum seekers in U.S. territory declare in their initial interview a fear of being returned to Mexico, they’re supposed to get a second screening, conducted by a trained asylum officer who is supposed to determine whether that fear is credible.

But the asylum officer charges that U.S. Citizenship and Immigration Services — which didn’t immediately respond to an email seeking comment — is mismanaging the system in a way that’s deliberately designed to be punitive and to make it harder for applicants to succeed:

The implementation is calculated to prevent individuals from receiving any type of protection or immigration benefits in the future. As such, it is a punitive measure intended to punish individuals who attempt to request protection in the United States. There is no clearly established policy and system for notifying applicants of changes to hearing dates and times, or for the applicants to provide change of addresses to the courts and Border Patrol. Without a highly functional notice system, the administration has ensured that a high number of applicants will miss their court dates.

And the asylum officer blasts the program as “ad hoc” and rigged against applicants:

The current process places on the applicants the highest burden of proof in civil proceedings in the lowest quality hearing available. This is a legal standard not previously implemented by the Asylum Office and reserved for an Immigration Judge in a full hearing. However, we are conducting the interviews telephonically, often with poor telephone connections, while at the same time denying applicants any time to rest, gather evidence, present witnesses, and, most egregious of all, denying them access to legal representation.

In a statement sent my way, Merkley vowed more revelations to come.

“This whistleblower reveals that in multiple ways, the Trump administration has asked them and other American asylum officers to take actions they believe break their oath of office and violate the law,” Merkley told me. “In the coming days, I will be releasing a report that details the full scope of this administration’s efforts to gut our legal asylum system.”

What this will confirm again is that for Trump, the goal is to make it as hard as possible for people to apply for asylum who actually would likely qualify for it — further eroding our commitment to the principle that desperate people have the right to appeal for refuge here and get a fair hearing without fear of being returned to face catastrophe.

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So, why are those supposedly sworn to uphold the law, given the privilege of life-tenure, participating in overtly transparent human rights, legal, and constitutional violations?

Why do “ordinary civil servants” have more legal understanding and courage than the “robed ones in the ivory tower?”

Why are Federal Judges permitting a corrupt, biased, and racist Administration to cut off access to courts and punish individuals for exercising their legal rights under our laws?

Why is it OK to use the legal system as a “deterrent” to those seeking legal refuge under our laws?

Assuming that our republic survives, the question for the future is what can we do to insure appointment of Federal Judges, at all levels, with integrity who possess the courage to stand up for the most vulnerable among us in the face of unconstitutional racism and White Nationalism.

PWS

11-13-19

NIGHTMARE ON 1st ST., NE: AS SUPREMES APPEAR SEARCHING FOR WAY TO “STICK IT TO” DREAMERS, TRUMP’S OBSESSION WITH REMOVING LONG-TIME UNDOCUMENTED INDIVIDUALS REMAINS HIGHLY UNPOPULAR!

https://apple.news/AVLJN2Lt1SD-o5h81B1pQqw

Chantal Da Silva reports for Newsweek:

Most Americans Want Undocumented Immigrants To Be Able To Stay Legally

November 12, 2019

The majority of Americans believe it is important for the U.S. to establish a way for most undocumented immigrants in the country to remain here legally, a new study has found.

The revelation from the Pew Research Center’s findings, which were published on Tuesday, comes as the Supreme Court deliberates over whether the Trump administration can legally end the Deferred Action for Childhood Arrivals (DACA) program.

Under the DACA program, nearly 800,000 undocumented immigrants brought to the U.S. by their parents have been allowed to live and work in the country.

Related Stories

• Will Donald Trump Be Able to End DACA? Decision Heads to Supreme Court

However, the Trump administration has sought to bring the program to an end, a bid which was temporarily blocked by courts and which will now be brought before the Supreme Court this week.

According to the Pew Research Center’s findings, two-thirds of Americans (67 percent) said it was “very or somewhat important” for the U.S. to establish a way for “most immigrants in the country illegally to remain her legally.”

While support for a pathway for undocumented immigrants to remain in the U.S. fell largely along party lines, nearly half (48 percent) of Republican and Republican-leaning participants said they were in favor of the idea.

Meanwhile, 82 percent of Democrats and Democratic-leaning independents said they felt it was an important goal.

In addition to establishing a route for most undocumented immigrants to be able to remain in the U.S., Americans also expressed support for taking in refugees fleeing war and violence.

Seventy-three percent of the 9,895 respondents who were surveyed between September 3 and 15 said they felt it was important for the U.S. to take in refugees, with Republicans showing greater support for that goal than in previous years.

In 2016, Pew said, just 40 percent of Republicans identified admitting refugees as an important initiative. This year, however, a majority of Republicans (58 percent) said they supported that goal.

While the majority of Americans were in favor of both of the above initiatives, they also expressed support for strengthening security along the U.S.-Mexico border, with 68 percent of participants in favor of that goal.

Around 9 in 10 Republicans (91 percent) said they were in favor of increasing security at the border, while about half of Democrats and Democratic-leaning respondents (49 percent) said they believed it was an important bid.

The apparent divide between Republicans and Democrats is also significant when it comes to increasing deportations of immigrants unauthorized to be in the U.S.

Roughly eight-in-ten Republicans (83 percent) said they were in favor of increasing deportations, including 51 percent who identified that initiative as “very important.”

Meanwhile, among Democrats, support for that bid was much lower, with around just three-in-10 (31 percent) in favor of boosting deportations and only 10 percent calling it a “very important” goal.”

Despite what the American public thinks, the decision on whether DACA is allowed to move forward currently sits in the Supreme Court’s hands.

Justices will be deliberating on whether federal courts should have been able to block the Trump administration’s decision to end the program—and whether Trump had the legal right to end it in the first place.

If the program does come to an end, the thousands of people who benefit the program, as well as the many who might have applied for DACA protections in the future could face deportation from the U.S.

In an interview with Newsweek on Monday, Carolina Fung Feng, a DACA recipient and plaintiff in one of the cases before the Supreme Court, said that if the Supreme Court rules in the Trump administration’s favor, she could lose her job and be deported back to a country that she left when she was 12-years-old.

“I’d be separated from my family here in New York and, also, I would lose the ability to be independent,” Feng said. “Right now, I live on my own with my younger brother, so if they were to eliminate the DACA program permanently I wouldn’t be able to help my brother pay for the house.”

Feng, who is now 30 and works in the U.S. helping adult learners earn their high school equivalency diplomas, said she cannot understand why the U.S. government would want to see the country lose a population that has contributed to the country’s economy and strengthened its local communities.

“We contribute to this economy. We haven’t done anything wrong,” she said. “We’re just human beings who want to live a better life and we want to protect our families and do the best we can so they can have a better life.”

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A majority of the Supremes appear ready to “go along to get along” with the latest move by the Trump Administration to screw, demean, and dehumanize undocumented American young people who are continuing to contribute to our society.

A Court that not so long ago had little trouble treating inanimate and amoral large corporate interests as “persons” under the Constitution appeared to have no such concerns for the rights and dignity of a large class of human beings actually living, working, and studying in America.

By either agreeing with the bogus legal argument half-heartedly presented by the Solicitor General or saying Trump could act for no particular reason other than his White Nationalist political agenda, the Supremes appeared willing to allow young people to be held hostage for an extreme nativist anti-immigrant legislative program.

Trump gave his usual “off-the-wall tweet.” First, he smeared so-called “Dreamers” as containing among their ranks “tough, hardened criminals” (even though such individuals were specifically excluded from the program by the Obama Administration). At the same time, he said that if his Supremes gave him what he demanded he would cut a “deal” with the Dems for Dreamer relief. We’ve heard that before.

That’s highly unlikely to happen without regime change in the Executive and the Senate. Similar to the last failed exercise, the Trump Administration would almost certainly demand an end to refugee and asylum programs, sharp cuts to legal immigration, massive new funding for the New American Gulag, and a free hand to summarily deport almost anyone without due process in return for even limited Dreamer relief. That’s a “deal” the Dems aren’t going to make.

Therefore, most Dreamers likely will continue to “twist in the wind” for another election cycle and perhaps longer. With Immigration Court backlogs at an astounding 1.3 million and growing, they won’t be forcibly removed any time in the near future, even if Trump wins re-election.

On the other hand, deprived of work authorization and “color of law” status, most will face obstacles to legal employment or study in the U.S. This will leave them with the “choice” of “going underground” or “self-deportation.” Either way, America will be deprived of the full potential of some of our most talented and dedicated younger generation.

Of course, I hope that my gloomy analysis is wrong. But, things are sure looking like another avoidable judicially-enabled nightmare in a nation that has empowered a White Nationalist minority to run roughshod over individual rights with judicial complicity.

I would expect the Supreme majority’s decision to be loaded with some disingenuous and self-serving references as to how disputes like the fate of the Dreamers should be determined by the “political system.” Then, it will be good to remember that this is a Court that has chosen to take a “pass” on partisan gerrymandering and other gimmicks used by the GOP and the Trump Administration to disenfranchise racial minorities, suppress the vote, and circumvent true democratic rule. In other words, the Supremes know full well that the “political system” is broken to a large extent because they have helped enable its demise.

That’s why it’s important for the New Due Process Army and others who believe in the Constitution, the rule of law, and basic human decency to get out the vote, remove the GOP across the board, and pave the way for better, more intellectually honest judges, who will uphold individual rights and true Constitutional values rather than siding with the tyranny of an unrestrained, unprincipled Executive and inanimate corporate interests in derogation of human rights.

Obviously, there are lots of folks out there, even among the GOP, who don’t “buy in” to Trump’s unrelenting cruelty toward migrants (except, I guess, those migrants he marries and their foreign-born families). The Dems shouldn’t be afraid to run on a program of Dreamer relief combined with other practical, common sense reforms that would allow us to “rationalize” the inevitable and largely positive forces of human migration. We could actually be “beefing up” our revenue collections with a sane immigration policy, rather than hemorrhaging billions on cruel, inhumane, and ultimately futile “enforcement only” schemes and gimmicks. And, yes, with a more rational and realistic system in place, including for the processing of legitimate refugees and asylees, removal of those who evade it would become more efficient, effective, and uniform than it is under our current broken system, at least as administered by the Trump Administration.

Finally, here’s a link to a great article from Zachary Pleat at Mediamatters “calling out” NBC, CBS, and other so-called “mainstream media” for uncritical repetition and re-publication of Trump’s smears and racist-inspired lies about “Dreamers.” https://www.mediamatters.org/immigration/daca-goes-supreme-court-cbs-and-nbc-push-trumps-lie-about-dreamers.

PWS

11-12-19

THE HATER-IN-CHIEF: “Trump has attacked and scapegoated immigrants in ways that previous presidents never have — and in the process, he has spread more fear, resentment and hatred of immigrants than any American in history.”

https://www.washingtonpost.com/outlook/trump-has-spread-more-hatred-of-immigrants-than-any-american-in-history/2019/11/07/7e253236-ff54-11e9-8bab-0fc209e065a8_story.html

Professor Tyler Anbinder writes in WashPost:

November 7, 2019 at 10:03 a.m. EST

President Trump insists that he harbors no prejudice against immigrants. “I love immigrants,” he told Telemundo in June. Indeed, Trump has married two immigrants — Ivana Zelníčková (from what is now the Czech Republic) and Melanija Knavs (born in what is now Slovenia). He does occasionally say something positive about an immigrant group, such as when he wondered why the United States couldn’t get more immigrants from Norway. But for the most part, Trump portrays immigrants as a threat or a menace, and he calls the largest segment of America’s newcomers — Latinos — “animals” and invaders.

As a historian who specializes in the study of anti-immigrant sentiment, I know that Trump is not the first president to denigrate newcomers to the country. But Trump has attacked and scapegoated immigrants in ways that previous presidents never have — and in the process, he has spread more fear, resentment and hatred of immigrants than any American in history.

Trump’s nativism is especially striking for its comprehensiveness. Over the centuries, nativists have leveled 10 main charges against immigrants: They bring crime; they import poverty; they spread disease; they don’t assimilate; they corrupt our politics; they steal our jobs; they cause our taxes to increase; they’re a security risk; their religion is incompatible with American values; they can never be “true Americans.”

Trump has made every one of these charges. No American president before him has publicly embraced the entire nativist worldview. A commander in chief who is also the nativist in chief has the potential to alter immigrants’ role in American society now and for generations to come.

There have, of course, been upsurges of nativism in previous eras, but presidents have rarely been the ones stoking the flames. President John Adams signed the Alien and Sedition Acts in 1798, which among other things nearly tripled the time immigrants had to wait before they could become citizens and vote, but his voluminous writings contain nary a word critical of immigrants.

Millard Fillmore, president at the height of the massive influx of Irish immigrants fleeing the Great Famine, remained silent during his administration on the social tensions these newcomers caused. Even in 1856, when the anti-Catholic, anti-immigrant American Party (popularly called the Know Nothing Party) nominated Fillmore to return to the White House, he and his surrogates eschewed attacks on immigrants and rebranded the party as a moderating force between proslavery Democrats and anti-slavery Republicans.

Congress has typically been the source of the greatest nativist zeal in national politics — and presidents have generally tried to tamp down that zeal. Rutherford B. Hayes and Chester Arthur vetoed legislation barring the immigration of Chinese laborers in the 1870s and 1880s, though Arthur later agreed to sign a 10-year ban. In subsequent decades, Grover Cleveland, William H. Taft and Woodrow Wilson vetoed bills making the ability to read a prerequisite for adult men to immigrate. Congress eventually overrode Wilson’s veto to enact such a law in 1917.

By the 1920s, most Americans were convinced that further limits on immigration were necessary. “America must be kept American,” President Calvin Coolidge declared in December 1923, following the political winds, and by “American,” he meant white in race, Anglo-Saxon in ethnicity and Protestant in religion. Coolidge endorsed the severe limits Congress placed on the immigration of Slavs, Poles, Italians, Greeks and Eastern European Jews and accepted a ban on immigration from Asia and Africa, as well.

Those racist restrictions were rescinded in 1965. When Lyndon Johnson sat at the feet of the Statue of Liberty and signed legislation that ended the discriminatory quotas, he predicted that the federal government would “never again shadow the gate to the American nation with the twin barriers of prejudice and privilege.” But Johnson could not have imagined a president like Trump.

The only Americans who came even remotely close to rivaling Trump’s nativist influence were more narrowly focused than the president is. Charles Lindbergh and Henry Ford were widely admired anti-Semites whose views reached millions, but their animus was focused on powerful Jews at home and abroad, not Jewish immigrants in general. Father Charles Coughlin, a Catholic priest, had millions of loyal radio listeners in the 1930s, but he, too, was more an anti-Semite than a broad nativist. None of them commanded the devotion of nearly as large a share of the population as Trump does.

John Tanton, who died this year, was a driving force behind the modern anti-immigration movement, organizing and raising money for a variety of groups that have advocated a reduction in immigration. But those groups didn’t have influence until Trump began spreading their ideas and appointing their leaders and allies to positions in his administration.

Trump’s anti-immigrant efforts have featured several classic nativist tropes. He falsely associates immigrants with crime, as when he said during his campaign that Mexicans are “bringing drugs. They’re bringing crime. They’re rapists.” In truth, immigrants commit significantly less crime than the native-born do. He scapegoats entire immigrant religious groups for the actions of one or two criminals, calling for “a total and complete shutdown of Muslims entering the United States” after Syed Rizwan Farook (who was not even an immigrant) and his wife (who was foreign-born) killed 14 people in San Bernardino, Calif. He perpetuates the notion that immigrants pose a public health threat, as when he wondered in 2018 why we let “all these people from shithole countries come here.” One of his objections, reportedly, was that Haitians “all have AIDS,” though the White House denies he said that. He’s making it harder for low-income immigrants to come here in ways that would almost certainly reduce immigration from Latin America, Africa and the Caribbean, justifying his proposal on the grounds that he needs to “protect benefits for American citizens.” And he argues that even the U.S.-born children of recent immigrants — if they are part of ethnic, religious or racial minorities — are not real Americans, as he suggested when he tweeted that four congresswomen of color should “go back” to “the totally broken and crime infested places from which they came.”

What makes Trump more influential than any previous American nativist is the size of his audience and the devotion of his supporters. Trump has more than 66 million Twitter followers and a powerful echo chamber in conservative media, allowing him to instantaneously convey his ideas to a quarter of the adult population. Other presidents had passionate followers (Andrew Jackson, Franklin Roosevelt and Ronald Reagan come to mind), but none of them expressed much, if any, animus toward immigrants. Trump’s rhetoric has changed the way many Americans view immigrants: Nearly a quarter now call immigration a “problem,” more than double the percentage who characterized it that way in 2015, and the highest share since Gallup began asking that question a quarter-century ago.

Trump has made public expressions of nativism socially acceptable for the first time in generations. As he lambasted Rep. Ilhan Omar (D-Minn.), a Somali immigrant, at a July rally in Greenville, N.C., the crowd erupted with chants of “Send her back,” echoing Trump’s notorious tweet. “There was a filter,” a Latino resident of Greenville noted after the rally, that previously prevented Americans from expressing such hatred of immigrants, but “now the filter has been broken. My Hispanic friends are afraid to go to the store. They’re afraid to do anything. It’s scary.”

Trump’s spread of nativism has led to an upsurge in animosity directed at immigrants. Those who read or hear the president’s nativist views are more likely to write offensive things on social media about the groups he targets, one political science study found. One study using data compiled by the Anti-Defamation League found that counties that hosted Trump rallies in 2016 saw a 226 percent increase in hate crimes in the following months, primarily assaults or acts of vandalism, compared to counties that didn’t host rallies. ABC News identified at least 29 cases in which violence or threats of violence were carried out, and the perpetrators targeted immigrants or those perceived to be immigrants more than any other group.

The president’s rhetoric inspires not merely petty violence but occasionally full-fledged acts of terrorism as well. Throughout the fall of 2018, Trump relentlessly sowed fears that an “invasion” of Central American refugees was imminent via an immigrant “caravan” heading through Mexico toward the United States. Before a gunman killed 11 worshipers in a Pittsburgh synagogue in October 2018, he apparently justified his actions on the grounds that the Hebrew Immigrant Aid Society, which these days assists refugees from all over the world, “likes to bring in invaders that kill our people. I can’t sit by and watch my people get slaughtered.”

Five months later, the man accused of killing more than 50 Muslims at two mosques in New Zealand hailed Trump as a symbol “of renewed white identity” in an online manifesto. In August, a man traveled to El Paso with the goal of killing as many Latinos as possible, authorities said, slaying 22 people at a Walmart. A manifesto linked to him echoed many of the president’s favorite talking points: It condemned “the Hispanic invasion of Texas,” charged that immigrants are taking jobs from natives and lauded Republicans for reducing “mass immigration and citizenship.” These accused shooters all seemingly found Trump’s nativist rhetoric inspirational.

While this upsurge in nativist violence is terrifying, history suggests that, over the long term, those who embrace immigrants will win out over those who fear them. The percentage of Americans who want to cut immigration has risen since Trump took office, but that figure is still down by almost half since the mid-1990s. Ironically, Trump’s nativist pronouncements and actions may have galvanized Americans who oppose him to look even more favorably at immigrants than they did before. Seventy-six percent of Americans now say that immigration is good for the country — an all-time high in Gallup’s poll — while the percentage who call it harmful, 19 percent, is at an all-time low.

Anti-immigrant attitudes have always been part of American culture. They have spiked periodically — in the 1850s, in the 1920s — but those nativist upswings have proved ephemeral. The one we are witnessing today can be traced primarily to the uniquely powerful influence of Trump, the most successful purveyor of anti-immigrant sentiment in American history. But the admiration that the vast majority of Americans hold for immigrants cannot be extinguished by any man or woman, no matter how influential.

After all, most Americans understand that immigrants make America great.

Twitter: @TylerAnbinder

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Beyond the vileness and lies of Trump’s White Nationalist, racist, xenophobia, Professor Anbinder’s article ends on an upbeat note:

Anti-immigrant attitudes have always been part of American culture. They have spiked periodically — in the 1850s, in the 1920s — but those nativist upswings have proved ephemeral. The one we are witnessing today can be traced primarily to the uniquely powerful influence of Trump, the most successful purveyor of anti-immigrant sentiment in American history. But the admiration that the vast majority of Americans hold for immigrants cannot be extinguished by any man or woman, no matter how influential.

After all, most Americans understand that immigrants make America great.

Unfortunately, the “upward arc of history” will be too late to save the many individual lives and futures daily destroyed by Trump’s White Nationalist hate campaign.

That’s why the “New Due Process Army” is fighting to save lives and protect the Constitutional, legal, and human rights of everyone.

PWS

11-11-19

9TH CIRCUIT’S CONTINUING SHAME: “Let ‘Em Die In Mexico” Program Was Ruled “Illegal From The Git Go” By Courageous U.S. District Judge – Then, 9th Intervened To “Open The Killing Fields” – Empowered By Appellate Judicial Complicity, DHS Agents Now Simply Commit Fraud On Asylum Applicants & Their Lawyers By Returning Them To Mexico With Fake Hearing Dates!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1e0901c7-ba27-4d78-a71a-823c2481d392

Gustavo Solis reports for the San Diego Union-Tribune:

By Gustavo Solis

Asylum seekers who have finished their court cases are being sent back to Mexico with documents that contain fraudulent future court dates, keeping some migrants south of the border indefinitely, records show.

Under the Migrant Protection Protocols policy, asylum seekers with cases in the United States have to wait in Mexico until those cases are resolved. The Mexican government agreed to accept only migrants with future court dates scheduled.

Normally, when migrants conclude their immigration court cases, they are either paroled into the United States or kept in federal custody depending on the outcome of the case.

However, records obtained by the San Diego Union-Tribune show that on at least 14 occasions, Customs and Border Protection agents in California and Texas gave migrants who had already concluded their court cases documents with fraudulent future court dates written on them and sent the migrants back to Mexico anyway.

Those documents, unofficially known as tear sheets, are given to every migrant in the Migrant Protection Protocols program who is sent back to Mexico. The document tells the migrants where and when to appear at the border so that they can be transported to immigration court. What is different about the tear sheets that migrants with closed cases receive is that the future court date is not legitimate, according to multiple immigration lawyers whose clients have received these documents.

This has happened both to migrants who have been granted asylum and those who had their cases terminated — meaning a judge closed the case without making a formal decision, usually on procedural grounds. Additionally, at least one migrant was physically assaulted after being sent back to Mexico this way, according to her lawyer.

Bashir Ghazialam, a San Diego immigration lawyer who represents six people who received these fake future court dates, said he was shocked by the developments.

“This is fraud,” he said. “I don’t call everything fraud. This is the first time I’ve used the words, ‘U.S. government’ and ‘fraud’ in the same sentence. No one should be OK with this.”

The Department of Homeland Security and Customs and Border Protection did not respond to multiple requests to comment about why they had engaged in the practice.

Ghazialam first noticed this in September, when three of his clients were sent back to Mexico after their cases were terminated on Sept. 17. After the judge made his decision, the family spent 10 days in Customs and Border Protection custody.

On Sept. 27, the family was given a document that read, in part, “At your last court appearance, an immigration judge ordered you to return to court for another hearing.” That piece of paper told them to return to court on Nov. 28.

However, the immigration judge ordered no further hearing. Ghazialam’s clients do not have a hearing scheduled on that or any other day.

To confirm Ghazialam’s claims, a reporter called a Department of Justice hotline that people with immigration court cases use to check their status and dates of future hearings. That hotline confirmed that the family’s case had been terminated on Sept. 17 and that “the system does not contain any information regarding a future hearing date on your case.”

“That date is completely made up and the Mexican authorities are not trained enough to know this is a fake court date,” Ghazialam said.

After being returned to Mexico, the mother was stabbed in the forearm while protecting her children from an attempted kidnapping. She still has stitches from the wound, Ghazialam said.

The mother presented herself at the border shortly after the stabbing. She told Customs and Border Protection agents that she was afraid to stay in Mexico. The agents gave her a fear of return interview and tried to send her back to Mexico.

But this time, Mexican immigration officials refused to let her and her children back into Mexico because they did not have a court date, Ghazialam said. She is currently with relatives in New York, waiting to figure out the future of her legal status in the United States while wearing an ankle monitor.

In most of these cases, immigration attorneys aren’t aware that their clients were sent back to Mexico until it’s too late.

In one case, a Cuban asylum seeker was returned to Mexico after an immigration judge in Brownsville, Texas, granted her asylum.

The woman’s lawyer, Jodi Goodwin, remembers hugging her client after the decision and arranging a place to meet after authorities released her later that day following processing.

Goodwin expected the process to take 45 minutes, so she went to a nearby Whataburger and ordered a chocolate milkshake. About 40 minutes later, she got a phone call from her client.

“She was hysterical and crying,” Goodwin said. “I’m like, ‘What happened?’ and she says, ‘I’m in Mexico.’ ”

Goodwin called U.S. and Mexican immigration authorities to try to find out what happened. She spent five hours at the border until 9 p.m. and then went home to draft a lawsuit. It wasn’t until she threatened to sue CBP that her client was paroled into the United States.

“It was total chaos for 24 hours to try to figure it out,” Goodwin said. “It shouldn’t be like that, especially when CBP is blatantly lying. They are creating documents that have false information.”

The American Immigration Lawyers Assn. said it was worried about the practice.

“The idea that even though these vulnerable individuals are able to obtain an asylum grant from an immigration judge and CBP is sending them back to harm’s way in Mexico is really disturbing, especially under the guise that there’s a future hearing date,” said Laura Lynch, senior policy counsel for the organization.

Mexico’s National Institute of Migration did not immediately respond to questions about this practice.

Although Ghazialam and Goodwin were able to eventually get their clients back into the United States, some people are still in Mexico.

That’s what happened to a Guatemalan woman and her two children after a judge terminated their case on Oct. 18. The same day the judge closed their case, a U.S. immigration official gave her a piece of paper with the false hearing date of Jan. 16.

“But this appointment does not exist,” said the woman’s New York City attorney, Rebecca Press. “If you check with the immigration court system, there is no January hearing date and the case has already been terminated.”

It’s unclear how widespread this practice is. Lawyers in San Diego; Laredo, Texas; and Brownsville confirmed they have seen it firsthand.

However, only about 1% of asylum seekers in the Migrant Protection Protocols program have lawyers. Therefore it’s difficult to track what happens to the overwhelming majority of the people in the program.

Lawyers said asylum seekers without legal representation who have been sent back in this manner probably have no way of advocating for themselves. It took Goodwin hours of calls to high-level officials in both U.S. and Mexican immigration agencies plus the threat of a lawsuit to get her client back into the United States.

“If you don’t have someone who’s willing to sit around and spend five hours on the phone and stay up all night drafting litigation to force their hand, you’re going to be stuck,” she said.

As news of these false hearing dates spread among the immigration attorney community, some lawyers are taking proactive steps to protect their clients from being returned to Mexico after their court cases are closed.

Siobhan Waldron, a Los Angeles lawyer, wrote a letter to Mexican immigration officials explaining that her client had no future hearing date and outlined a step-by-step process Mexican officials could take to verify that her client’s case had been closed by using the Department of Justice hotline.

The letter worked at first.

When CBP officers tried to return Waldron’s client to Mexico on Nov. 1 with a false January hearing date, her client showed the note to Mexican officials, who refused to take her in. However, the next day, CBP officers sent Waldron’s client back to Mexico with another false court date and this time did not allow her to show Mexican officials her lawyer’s letter that she kept in a special folder, Waldron said.

“They didn’t let her take it out,” Waldron said. “They said, ‘You can’t present anything from that folder.’ ”

The lawyer plans to file “any complaint you can imagine” to CBP, the Department of Homeland Security and other regulatory agencies because “these agents need to be held accountable.”

Her client is still in Mexico, too afraid to walk outside because she has already been kidnapped and assaulted, Waldron said.

Solis writes for the San Diego Union-Tribune.

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

As my friend Laura Lynch points out, the individuals affected by this judicially-enabled outrage are not just “asylum applicants” – they include those who have been GRANTED ASYLUM as well as those whose removal proceedings were terminated because a U.S. Immigration Judge found that DHS ILLEGALLY SUBJECTED THEM to the “Let ‘Em Die In Mexico Program.”

The 9^th Circuit’s horrible and incompetent handling of Innovation Law Lab v. McAleenan will live in infamy as a monumental judicial abdication of duty that has actually harmed or killed innocent asylum seekers while inspiring DHS to new heights of illegal behavior and contempt for our entire legal system.

Why have a “Judicial Branch” that won’t stand up for individual legal rights in the face of Executive tyranny, overreach, and downright fraud? What are these robed folks doing to earn their lifetime paychecks? And, given the quality and philosophy of many of Trump”s judicial appointments, rammed through a corrupt GOP Senate by “Moscow Mitch,” these are questions the majority of Americans might be asking for decades to come!

PWS

11-08-19

BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.

Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.

Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.

For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect. It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.

Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.

In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.

This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.

The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.

Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.

Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.

Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.

Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.

Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.

Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.

However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.

Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.

They are some of the last disappearing remnants of what EOIR could have been under different circumstances. Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.

PWS

11-07-19

“JUDICIAL” FARCE: In 1983, The Reagan Administration Created EOIR To Enhance Judicial Independence – Hon. Ashley Tabaddor Tells Us How The Trump Administration & Billy Barr Are Rewriting That History To Weaponize EOIR As The Servant Of DHS Enforcement!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Dear Colleagues,

As you may be aware, on August 26, 2019, the Agency announced drastic organizational changes to EOIR, via interim regulations effective immediately. Among a number of troubling changes, the Agency collapsed the role of the Director with that of the Chairperson of the Board. Attached please find NAIJ’s comment, filed on October 25, 2019, in response to this interim rule. You may also visit the following link to see other comments by additional organizations in response to the EOIR’s interim rule.

https://www.regulations.gov

I personally would like to take this opportunity to thank Judge Khan and Judge Marks for leading the laborious effort in finalizing this Comment for publication.

Additionally as we have just concluded our rating period, IJs should be receiving their formal performance evaluations. Please contact us with any questions or concerns if you believe (or have been notified) that you will receive a rating of less than Satisfactory on all of your PWP elements.

Many IJs have inquired about ways that they may register their protest against the imposition of the quotas and deadlines. If you are inclined, you may use the proposed language below in your cover email returning the electronically signed PWP to your ACIJ.

● Protest Language – “I do not agree that the numerical metrics/quotas constitute an accurate measure of my performance. Nor do I agree that the numbers produced by EOIR are accurate within the designated metric categories.”

As always, we welcome any questions, comments and concerns. Hope you have a great weekend,
Ashley Tabaddor
President, NAIJ

Here’s the complete NAIJ comment:

NAIJ Comment re Organization of EOIR 84 Fed.Reg. 44537 , RIN 1125-AA85- Final

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

Outrageous!

One of the “under the radar” aspects of this “deconstruction of justice in America” is the arrogant confidence of Sessions, Barr, and their minions at DOJ and EOIR that Congress and the Article III Courts will turn a “blind eye” to their blatantly “in your face” unconstitutional behavior. So far, they have been right.

Article III Courts have recognized the Immigration Judges’ “duty to remain neutral and impartial when they conduct immigration hearings.” See, e.g., Wang v. Att’y Gen., 423 F.3d 260, 267–68 (3d Cir. 2005). Yet, they have basically ignored their own rules and pronouncements by continuing to approve decisions from a “fake” court system. One where the “judges” are selected, supervised, and can be removed by the “Chief Prosecutor” and are told that they owe their first duty of obedience to that prosecutor rather than to the Constitution or the rule of law that they are sworn to uphold. Even when they do rule in favor of the individual, the prosecutor can and does simply reach in, change the result, and then designate his prosecutorial decision as a “precedent.”

What kind of “Due Process” and “fundamental fairness” is that? What Article III Judge would submit him or herself to such a parody of “justice?”

EOIR as “redesigned, politicized, and weaponized” against migrants and their courageous representatives by the Trump DOJ mocks the stated criteria and standards of the Article IIIs. Why are the Article IIIs afraid to follow up their legal rhetoric with the actions that logically should flow from it?

Under Trump, the Attorney General and his toadies have disingenuously disparaged the motives and character of the individuals coming before the “courts” and their attorneys. Many are actually forced to appear “unrepresented” and have no idea what is happening and the intentionally arcane, hyper technical, and confusing “rules” being applied to extinguish their rights and claims.

DOJ officials have also demeaned, disparaged, and denigrated the work ethic and character of their own “judges” with limitations on their authority, “Mickey Mouse” quotas and timeframes, and giving away judicial authority to non-judicial officials at EOIR, as Judge Tabaddor cogently points out.

Article III Courts compound that error when they improperly “defer” to Executive Branch adjudicators who are neither “fair and impartial” nor in many cases “expert.” The whole system is intentionally put under pressure to “produce and deport,” with scholarship, independent judicial decision making, and Due Process being shoved to the “back of the bus.”

By accepting contemptuous unlawful actions from Barr and the DOJ, the Article III Judiciary basically diminishes itself and demeans its Constitutional role. Perhaps that doesn’t make any difference to most of them; life tenure guarantees that they get paid every day just for waking up regardless of what they do afterwards. But, as Congress is finding out, once you establish yourselves as feckless in the face of a tyrannical and overbearing Executive, respect and proper Constitutional roles might prove difficult or impossible to regain.

Since the NAIJ leadership seem to be the only ones courageous enough to speak out against the travesty occurring in the Immigration Courts, no wonder the DOJ is trying to illegally disband the NAIJ. I wonder why these very overt actions to suppress the First Amendment and subvert the Fifth Amendment are going “over the heads” of the Article III Judiciary. What’s the purpose of an “independent judiciary” that is afraid or unwilling to stand up for judicial independence when it matters most!

As the late Dr. Martin Luther King, Jr., said:

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

I think he would be totally disgusted with the overall performance of the Article III Appellate Judiciary in failing to stand up for and protect the legal rights and very lives of the most vulnerable among us: migrants, including asylum seekers.

FULL DISCLOSURE: I am a proud retired member of the National Association of Immigration Judges.

PWS
11-03-19

CORRUPTED “COURTS” – No Stranger To Improper Politicized Hiring Directed Against Migrants Seeking Justice, DOJ Under Barr Doubles Down On Biased Ideological Hiring & Promoting “Worst Practices”– “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted . . . .”

https://www.miaminewtimes.com/news/trump-officials-appoint-miami-immigration-judge-deborah-goodwin-to-top-appeals-court-11310052

Manuel Madrid reports for the Miami New Times:

Trump Officials Give Permanent Promotion to Asylum-Denying Miami Immigration Judge

MANUEL MADRID | NOVEMBER 1, 2019 | 11:00AM

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A Miami immigration judge with less than two years of experience on the bench was fast-tracked for a permanent position on the nation’s highest immigration court. The move has raised concerns about politicized hiring at the Justice Department.

Deborah Goodwin was one of six judges handpicked by Justice Department officials to fill vacancies on the Board of Immigration Appeals (BIA), a 21-member appellate court that sets binding legal precedents for more than 400 immigration judges serving in the nation’s 57 immigration courts. These six judges, who have little in common other than their markedly high rates of asylum denial, were permanently added to the board in August without undergoing any probationary period, according to documents obtained through Freedom of Information Act requests by the investigative website Muckrock.

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Memos sent to the office of Attorney General William Barr in July reveal that the Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, adopted new hiring procedures in March to evaluate candidates. It was “EOIR practice” to appoint a board member temporarily and require that person to complete a two-year probationary period, but the agency now believes that a sitting immigration judge has “the same or similar skills” as an appellate judge and should therefore be immediately installed permanently. The memos, obtained by Muckrock and shared with CQ Roll Call, were written by EOIR Director James McHenry.

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“This is clearly a political move. There’s no question about it,” says Jason Dzubow, a D.C.-based immigration lawyer who runs the blog the Asylumist. “And there’s no way someone looking at the appearance of this can consider the hirings good for fairness in the immigration court system.”

Goodwin has a strong background in immigration enforcement: She worked as an associate legal adviser and assistant chief counsel for Immigration and Customs Enforcement. The judge, who presides over the court in Miami-Dade’s Krome migrant detention center, began hearing cases in 2017. As of the end of last year, she had an asylum denial rate of 89 percent, according to Syracuse University’s Transactional Records Access Clearinghouse. That’s far above the national average of 57 percent during the same period and almost 10 percentage points higher than the average for the Miami immigration court as a whole.

Of the six judges, Goodwin — who was appointed by former Attorney General Loretta Lynch — has received relatively little attention due to her limited time on the bench. Other appointees, such as Atlanta’s William Cassidy and Charlotte’s Stuart Couch, have been far more controversial. Cassidy, who had an asylum denial rate of 95 percent between 2013 and 2018, has been the subject of various complaints from immigration attorneys over the years. Couch, who had a rejection rate of 92 percent, issued ten rulings in 2017 that were found “clearly erroneous” by the Board of Immigration of Appeals. All ten of those of rulings involved the rejection of asylum claims by women who had been victims of domestic violence.

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In a recent interview with Dzubow, former U.S. Chief Immigration Judge MaryBeth Keller said the recent BIA hirings were “stunning.”

“I think [immigration judges] are generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that,” Keller told Dzubow. “I find these recent hires to be very unusual.”

Immigration judges, and appellate judges in particular, can come from a wide range of legal and professional backgrounds, although scandals of politicized hiring have cropped up in the past. In 2008, a report by the Office of the Inspector General revealed the George W. Bush administration had engaged in illegal hiring practices for years by selecting immigration judges based on their political views. Perhaps unsurprisingly, immigration judges selected during that time were found to have disproportionately denied asylum claims.

Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals, responded to the new appellate court appointments on his blog, immigrationcourtside.com: “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qaualifications [sic] of candidates who were passed over.”

Manuel Madrid is a staff writer for Miami New Times. The child of Venezuelan immigrants, he grew up in Pompano Beach. He studied finance at Virginia Commonwealth University and worked as a writing fellow for the magazine The American Prospect in Washington, D.C., before moving back to South Florida.

CONTACT:

Manuel Madrid

FOLLOW:

Twitter:@manueljmadrid

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OK, so I can’t spell or proofread. That’s why I’m a “gonzo journalist.” (I actually went back and corrected the spelling after seeing Manuel’s article. But, it definitely was in the original posting.)

Every time a Court of Appeals signs off on a “removal order” generated by these blatantly unconstitutional (not to mention unqualified) “courts” that violate Due Process every day in numerous ways, those Article III Judges are betraying their duties to uphold the Constitution.

Manuel’s article also sheds some light on the opaque hiring practices of the Obama Administration under AG Loretta Lynch. Not only did Lynch incompetently administer the mechanics of Immigration Judge hiring — approximately two years to fill an average IJ vacancy (ridiculous) & dozens of open positions negligently left “on the table” for Sessions — she consistently filled the courts with “go along to get along government insiders” to the exclusion of many better qualified candidates from the private bar who could have added to the dialogue much-needed scholarship (particularly in the asylum and Due Process areas) and a more practical understanding of the predicament of asylum seekers.

Of course, some Government attorneys make outstanding, fair, scholarly Immigration Judges. I recommended numerous well-qualified INS and DHS attorneys for such appointments over the years, along with many from private practice and academia. But, along the lines of what former Chief Judge Keller said, Government attorneys can’t essentially be the “sole source” of judicial appointments.

To a large extent, Sessions and Barr have “weaponized” and accelerated Lynch’s already one-sided exclusionary hiring practices. While Lynch apparently didn’t want to “rock the boat” with any possible “pushback” while she promoted some of the Obama Administration’s worst anti-asylum policies and practices, including family detention, “Aimless Docket Reshuffling,” and forcing toddlers to “litigate” in court, Sessions and Barr intend to “sink the boat” with all migrants on board!

Toxic as the GOP’s hiring practices and manipulation of the process have been under Bush and Trump, they at least understand the potential impact of who sits on the Immigration Courts and the BIA, and act accordingly. By contrast, the Democrats have been lackadaisical, at best, and inept at worst, in appointments to the Immigration Judiciary.

Under Obama, the Democrats. loved to complain that Mitch McConnell stood in the way of judicial appointments. But, given a chance to positively reshape an entire court system, perhaps the most important if least respected and appreciated courts in America, without any Congressional interference or roadblocks, they dropped the ball. And that explains lots of today’s atrocious dysfunction in the immigration justice system.

Assuming that we someday get much needed “regime change,” an independent U.S. Immigration Court must be the number one priority. The Dems could have gotten the job done in 2008. Their failure to do so has caused untold human suffering, including needless deaths, and a potentially fatal degradation of our entire justice system. Never again!

PWS

11-01-19

TRUMP’S ILLEGAL BEHAVIOR REBUKED: The 9th Joins Other Circuits Finding That Trump Administration Lacked Legal Authority To “Punish” Jurisdictions Choosing Not To Assist ICE!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a28c0bb6-7496-4bde-a4f5-5fa4a50a4a12

Maura Dolan reports for the LA Times:

Court rules against Trump

9th Circuit panel says White House can’t force L.A. to help deport immigrants in order to receive funds.

By Maura Dolan

SAN FRANCISCO — A federal appeals court decided unanimously Thursday that the Trump administration may not force Los Angeles to help the government deport immigrants as a condition of receiving a federal police grant.

A panel of two Republican appointees and one Democrat of the U.S. 9th Circuit Court of Appeals said federal law did not permit the Trump administration to impose the conditions.

The decision involved the Edward Byrne Memorial Justice Assistance Grant Program, the primary provider of federal aid to local and state law enforcement agencies.

Congress authorized the program in 2005 to help law enforcement pay for personnel, supplies and other services. It is administered by the U.S. Department of Justice.

In 2017, the Trump administration imposed two new requirements on the grant. One required recipients to notify immigration authorities before releasing immigrants from jail. The other said recipients had to give federal agents access to correctional facilities to meet with immigrants who might be in the country without authorization.

The city of Los Angeles sued, saying it did not cooperate with immigration agents because doing so would discourage immigrants from helping police in fighting crime.

A district judge blocked the requirements, and the Trump administration appealed to the 9th Circuit.

Judge Sandra S. Ikuta, writing for the panel, said the 9th Circuit agreed with two other circuit courts that the law authorizing the grants does not give the Justice Department “broad authority to impose any condition it chooses.”

Ikuta, appointed by President George W. Bush, was joined by Judge Jay S. Bybee, also appointed by Bush, and Judge Kim McLane Wardlaw, a Clinton appointee.

Wardlaw wrote separately, saying she agreed the conditions were unlawful but criticizing the majority’s analysis as “contrary to every other court to have addressed the issue in a reasoned opinion.”

Los Angeles City Atty. Mike Feuer called Thursday’s decision “a victory for public safety on our streets and for the Constitution.”

“We will continue to fight the Trump administration’s unlawful overreach and to stand up for the best interests of L.A. residents,” he said.

Los Angeles uses the federal grant to support local criminal law enforcement and drug treatment and enforcement programs.

The immigration conditions would have denied the grant to hundreds of sanctuary cities.

Last year, the U.S. 7th Circuit Court of Appeals upheld an injunction preventing the federal government from applying the immigration conditions. That ruling stemmed from a lawsuit by the city of Chicago.

In another decision this year, the 3rd Circuit also decided the conditions were not authorized by law. That case was brought by the city of Philadelphia.

The grants can be used for technical assistance, strategic planning, research and evaluation, data collection, training, personnel, equipment, forensic laboratories, supplies, contractual support and criminal justice information systems.

The law authorizes $1.1 billion in grants, but funding is generally significantly lower.

According to the National Criminal Justice Assn., Congress appropriated $830 million for fiscal year 2002, but in later years funding for the grants was about $500 million.

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A wiser, more professional, and less ideological future Administration likely could work out agreements with states and localities for mutually beneficial cooperation in the immigration area.

But, the Trump Administration’s intentionally toxic and inflammatory White Nationalist rhetoric and actions overtly intended to terrorize local ethnic communities have “poisoned the well.” They have also been bad for legitimate law enforcement; reporting of serious crimes, particularly domestic violence, as well as cooperation in anti-gang efforts, has gone down in localities mindlessly targeted by Trump’s totally politicized DHS.

It’s also significant that conservative Bush-appointed Judge Jay S. Bybee, often the target of liberals because of his involvement in Bush-era attempts to legally rationalize torture, has stood up against the Trump Administration’s lawlessness on several important occasions.

PWS

11-01-19

TRAC DOCUMENTS “MALICIOUIS INCOMPETENCE” IN EOIR‘S STATISTICS: “Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.”

Incomplete and Garbled Immigration Court Data Suggest Lack of Commitment to Accuracy

TRAC recently discovered gross irregularities in recent data releases from the Executive Office for Immigration Review (EOIR), the agency that oversees the US immigration court system. After attempting – unsuccessfully – to work with the EOIR to fix these problems, TRAC decided to make public our observations of the quality of the agency’s public data releases as well as express our concerns about the lack of commitment within the agency to responsible data management.

Policymakers and the public routinely put their faith in federal agencies to provide complete and accurate information about their work. The value of government transparency is even higher in the area of immigration law and the Immigration Courts, which have become topics of considerable concern for Americans from all walks of life and for all three branches of government. In the present context, TRAC views concerns about EOIR’s data inconsistencies – outlined below – as substantive, ongoing, and in need of prompt attention. Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.

“Significant Errors” in Past EOIR Data

This is not the first time the public has identified significant inaccuracies in EOIR’s reported data. For instance, the Supreme Court of the United States relied upon figures provided by the EOIR as the basis for a major ruling affecting ICE detention practices. After the Supreme Court decided the case, the public discovered that the figures provided by the EOIR were fundamentally wrong. The EOIR did not uncover the data irregularities on its own. The EOIR’s mistakes were only recognized because the public obtained the underlying data through a Freedom of Information Act (FOIA) request and identified the relevant discrepancies.

After the public alerted the government to its inaccuracies, in 2016 the U.S. Solicitor General was compelled to issue a formal letter to the Supreme Court apologizing for providing inaccurate data. The following excerpt of the Solicitor General’s letter on August 26, 2016 attests to this error:

“This letter is submitted in order to correct and clarify statements the government made in its submissions. … EOIR made several significant errors in calculating those figures. … This Court’s opinion cites figures that ‘EOIR ha[d] calculated,’ …, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. … The Court therefore may wish to amend its opinion…” (emphasis added)

This example illustrates the very real danger posed by the EOIR’s mishandling of data, as well as the value to society – and the government itself – of ongoing oversight through Freedom of Information Act (FOIA) requests. Despite the EOIR’s past data mistakes, however, the quality of the agency’s data releases has recently declined to unacceptable levels, as we discuss in the following section.

Recent Data Trouble at the EOIR

As a result of TRAC’s ongoing FOIA requests, the Executive Office for Immigration Review releases a large batch of anonymized data about Immigration Court cases every month. Statistics on the operation of the Immigration Courts largely rely on information kept in a massive database maintained by the EOIR. The EOIR records information on each matter filed with the court and tracks subsequent events as the Court processes each case. This data is central to the Court’s ability to efficiently and effectively manage its workload.

Although this data is highly valuable to policymakers and the public, the EOIR’s mishandling of the data undermines its accuracy and public value. These data problems have been occurring with increasing regularity. Severe irregularities with the September 2019 data release set a new low.

On October 9, 2019, the EOIR responded to TRAC’s FOIA request for updated case-by-case data through September 2019. TRAC promptly began processing the data in order to update TRAC’s online tools and reports, and discovered serious inconsistencies that made the data unusable. TRAC alerted the EOIR to the problems we uncovered. The chronology below summarizes the cycle of data mishandling for the September data release, and TRAC’s attempts to work with the EOIR to obtain complete and corrected data.

Data Release, Batch 1. The initial release of the EOIR’s September data included 11 separate files of records on Immigration Court proceedings that were incorrectly formatted. The garbled data resulted in substantial confusion over the relationship between certain variables and values, with some values appearing to apply to the wrong variables in the file. If potential users were even able to read the garbled data, one could reach entirely erroneous conclusions about court events. As soon as TRAC discovered these issues, it alerted the EOIR directly. EOIR promised to look into the matter.

Data Release, Batch 2. In response to TRAC’s notification, the EOIR replaced the first release with a second release and informed TRAC that the problems had been fixed. However, when TRAC processed the second release, it found that while the first set of problems had been fixed, an entirely new set of problems had occurred. In Batch 2, thousands of records of court proceedings and 2.8 million records on scheduled hearings – hearings and proceedings which were included in the first release – had entirely disappeared. TRAC alerted the EOIR directly to the new set of data inconsistencies. EOIR promised once again to look into the matter.

Data Release, Batch 3. The EOIR informed TRAC that it had fixed these new problems, and that TRAC could trust Batch 3 of the EOIR’s data release. Note that EOIR doesn’t change the labels it uses for each release; the file name remains the same and hence on its face indistinguishable from any previous release. After processing millions of records contained in the series of separate tables that made up the new release, TRAC found that problems in batch three were identical to problems in batch two. We again notified EOIR that the problems remained. At first EOIR insisted that TRAC was wrong and that the problems had been fixed. It later emerged that while the General Counsel’s office of EOIR (TRAC’s point of contact) believed a third and corrected release was being supplied, the files had not been changed but were actually the same files that TRAC had received in Batch 2.

Data Release, Batch 3 (cont.) TRAC was finally provided access to what was again billed as the corrected September release. TRAC again processed these files. This time, based on total record counts it appeared that the missing 2.8 million records on scheduled hearings had reappeared. However, some court proceedings that had been contained in Batch 1 were still missing. And there were still other puzzling omissions which we describe in more detail below.

After this series of mistakes, TRAC urged the agency to implement basic quality control procedures to ensure that the EOIR’s data releases to the public were not inadvertently garbled or incomplete. Moreover, TRAC expressed concern about the EOIR’s underlying data management practices which posed a risk to both the public and the government if left unaddressed. We conveyed these concerns to EOIR noting specifically:

“There are standard procedures that anyone in charge of maintaining databases use. The pattern of repeatedly releasing files which are either unreadable or incomplete demonstrates the agency’s standard operating procedures are woefully inadequate.

This really needs to be taken seriously. Without answers to our questions that get to the bottom of what occurred, identifying what went wrong, and implementing a plan to catch mistakes before the agency publicly distributes bad data, means that history will keep repeating itself.”

On Friday, October 25, 2019, while admitting mistakes had been made, the EOIR dug in its heels. The agency responded to TRAC’s entreaties by sidestepping the underlying issue and avoiding responsibility for its routine inaccuracies:

“[T]he FOIA [Freedom of Information Act] does not require the Agency to create records in response to your specific questions, nor to certify the accuracy of data contained in responsive documents.”

TRAC was forced to take note of the EOIR’s unwillingness to fully correct their mistakes and to work with the public to resolve the declining quality in their data releases.

The Case of the EOIR’s Disappearing Data

After recognizing the seeming inability of EOIR to produce a correct and complete data release for September 2019, TRAC began digging deeper into the problem.

Our concern about EOIR’s data was already heightened. We recently discovered that some months ago the EOIR had begun silently deleting swaths of records in their entirety from the data releases that we and other members of the public received. EOIR belatedly told us that withholding of entire records was necessary to protect immigrants’ privacy. This rationale was perplexing since these records were already anonymized and all identifying details deleted. Regardless of the EOIR’s justification for withholding the records, the agency had started making these deletions without alerting us that it was doing so, and failed to mark the data in any way to indicate the magnitude of the deletions or indicate in which files the deletions occurred.

TRAC is in a fairly unique position to examine this problem. For many years, TRAC has been regularly requesting snapshots of anonymized data from EOIR’s database as part of our mission to provide the public (and often other government agencies themselves) with access to reliable, accurate data about the Immigration Courts. Because we receive and retain these monthly snapshots, we are able to monitor changes in these releases over time and assess whether releases are incomplete or inaccurate in some other way.

Therefore, TRAC undertook a careful comparison by matching the records received in the September 2019 release against the EOIR’s release for the previous month, August 2019, and with the release we received a year ago for September 2018. This time we matched records based on unique identification numbers rather than simply comparing total record counts. This allowed us to identify records which the EOIR released in the past but were missing entirely from the current shipment.

The results of this comparison were sobering. Compared to the August 2019 release, the (allegedly-accurate) final September 2019 release was inexplicably missing more than 1,500 applications for relief that were present the previous month. We further found that 896,906 applications for relief which were present in the September 2018 release from a year ago were missing from the September 2019 files we received. This discrepancy of nearly a million records largely occurred because the EOIR appears to have started silently but systematically deleting records.

Compared to the data from August 2019, the EOIR’s files for September were also missing records on over 600 charges DHS had filed. Also missing were over 700 case and/or court proceeding records, and over 900 records on scheduled hearings. An additional 1,200 records flagging various specific types of cases were also missing. For context, this flagging system is used to identify juveniles, recently arrived families seeking asylum, and immigrants required to remain in Mexico under the Migration Protection Protocols, and other special cases.

When the records in the September 2019 release TRAC received were matched with those from the September 2018 release a year earlier, the problems we uncovered multiplied. It was clear that the problem of missing records grew by leaps and bounds with the passage of time.

EOIR Data Management: Problems and Solutions

Based on the investigation above, TRAC identified key gaps in the EOIR’s data verification procedures that lead to unreliable and inaccurate data releases.

Unintentional data removal. The EOIR’s data is inconsistent because the agency apparently does not perform a simple yet essential data verification step: it does not compare the number of records in its source database and the number of records in its released files to ensure that no records have been lost along the way. This is not merely a best practice. It is an industry standard for agencies managing large databases, and it is a routine practice in many of the EOIR’s peer agencies that provide large data releases to TRAC.

Intentional data removal. The EOIR also does not appear to be keeping track of intentionally deleted records. If the EOIR is screening out records for specific reasons, then the number withheld for each reason in a file should be counted and these counts provided. The number withheld plus the number released should match the total number of records read in to ensure reliability.

Garbled data releases. The EOIR is paying insufficient attention to how data releases are produced and formatted. Columns and rows in each table need to properly line up; otherwise information becomes garbled. And since EOIR’s database consists of many closely interconnected tables, copying data in individual tables at widely separated points in time inherently means the information will be out of sync.

Possible data deletion in master database. Deletions of the EOIR’s original source records need to be carefully tracked and procedures in place to prevent unauthorized deletions from occurring. If applied systematically, such a verification process would also pinpoint whether there were deletions made in EOIR’s original source records. Any suspicious deletions need to be investigated to ensure the integrity and completeness of this master database is maintained.

If the EOIR does not implement basic data verification procedures, the public cannot tell if records were intentionally withheld and why they were withheld, or if records were accidentally omitted during the data copying process. The failure to address these problems also means that the public has no way to test for potential problem areas in EOIR’s underlying master data files.

Accuracy, Reliability, Cooperation

Under any circumstance, maintaining a massive database of this nature is challenging. Clearly it requires the resources necessary for day-to-day operations. More fundamentally, however, it requires a commitment on behalf of the agency to provide the public with complete, accurate, and reliable data about the agency’s operations. When TRAC uncovered unexplained data issues in the past, we have brought them to the attention of the EOIR and generally found the agency to be fairly responsive and committed to ensuring accurate reporting. The recent change in posture is therefore concerning. Moreover, because EOIR’s data are relied upon as part of the official record of court filings and proceedings that have taken place, one should not expect official records to simply go missing without explanation.

It is deeply troubling that rather than working cooperatively with TRAC to clear up the reasons for these unexplained disappearances, the agency has decided to dig in its heels and insist the public is not entitled to have answers to why records are missing from the data EOIR releases to the public. TRAC urges the EOIR to take the basic steps necessary for managing any large database, especially a database of as inestimable value and relevance as the one EOIR maintains for the Immigration Courts.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

Report date: October 31, 2019

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Without accurate data, there can be no effective oversight, by Congress, the Judiciary, or the public (which contrary to their nasty attitude, is whom EOIR actually serves). TRAC’s experience with “malicious incompetence” is typical of the Trump Administration’s “stonewalling” and disregard of honesty and public service. They are too busy denying Due Process and evading the law to bother with facts.

Quality is simply not a factor, or even an objective, at the “New EOIR!” Unfortunately, that’s true not only in record keeping, but also in making life or death adjudications.

The only thing that makes any difference in this Administration is a preconceived White Nationalist agenda that has absolutely nothing to do with facts or public service and everything to do with racism, xenophobia, and political pandering. Obviously, because facts and data don’t support, and typically directly refute, this Administration’s draconian anti-immigrant initiatives, they have no interest in the truth or accuracy. Indeed, as in most things, facts and truth are quite damaging to the Trump Administration’s programs.

There is absolutely no excuse for EOIR’s continued existence. Much of the information that EOIR feeds to the Judiciary, through DOJ attorneys, is misleading, inaccurate, or perhaps even fabricated. By not putting a stop to EOIR’s nonsense and non-responsiveness, both Congress and the Article III Courts are demeaning themselves and shirking their Constitutional responsibilities.

PWS

11-01-19

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

Tanvi Misra reports for Roll Call:

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the border DHS advances plan to get DNA samples from immigrant detainees White House plans to cut refugee admittance to all-time low

Error! Filename not specified.

James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

Volume 90%

The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21^st Century America?

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”

We’re in a war for the survival of our democracy and the future of humanity. There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

PWS

10-31-19

HOW TRUMP, COMPLICIT COURTS, FECKLESS CONGRESS, AND DHS ARE KILLING MORE CHILDREN AT THE SOUTHERN BORDER WHILE HELPING HUMAN SMUGGLERS STRIKE IT RICH – “Malicious Incompetence” Fueled By Judicial Dereliction Of Duty & Congressional Malpractice Is A Boon to The Bad Guys! – “Most of all, he sees no end to the ways he can make profits off the border crackdown. He makes a joke out of it.”

https://www.bloomberg.com/news/features/2019-10-19/a-smuggler-describes-how-children-die-and-he-gets-rich-on-border

Nacha Cattan reports for Bloomberg News:

Children Die at Record Speed on U.S. Border While Coyotes Get Rich

Deaths of women and children trying to cross into U.S. set record in first nine months of the year, UN research project finds

By

Nacha Cattan

October 19, 2019, 8:00 AM EDT

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Roberto the coyote can see a stretch of border fence from his ranch in Ciudad Juarez, Mexico, about a mile south of El Paso. Smuggling drugs and people to “el otro lado,” the other side, has been his life’s work.

There’s always a way, he says, no matter how hard U.S. President Donald Trump tries to stop the flow. But this year’s crackdown has made it a tougher proposition. A deadlier one, too—especially for women and children, who are increasingly dying in the attempt.

Not much surprises Roberto, who asks not to be identified by his surname because he engages in illegal activity. Sitting on a creaky metal chair, shaded by quince trees and speaking above the din from a gaggle of fighting roosters, the 65-year-old grabs a twig and scratches lines in the sand to show how he stays a step ahead of U.S. and Mexican security forces.

Here’s a gap in the fence that migrants can dash through—onto land owned by American ranchers in his pay. There’s a spot U.S. patrols often pass, so he’s hiring more people to keep watch and cover any footprints with leaf-blowers.

Coyote Roberto, on Aug. 28.

Photographer: Cesar Rodriguez/Bloomberg

Roberto says he was taken aback in July this year, when he was approached for the first time by parents with young children. For coyotes, as the people-smugglers are known in Mexico, that wasn’t the typical customer profile. Roberto asked around among his peers. “They were also receiving a lot of families,” he says. “Many, many families are crossing over.”

That helps explain one of the grimmer statistics to emerge from all the turmoil on the U.S.-Mexican border.

Even more than usual, the 2,000-mile frontier has turned into a kind of tectonic fault line this year. Poverty and violence—and the pull of the world’s richest economy—are driving people north. At the border, they’re met by a new regime of tightened security and laws, imposed by Trump in tandem with his Mexican counterpart, Andres Manuel Lopez Obrador, also known as AMLO.

Some give up and go home; some wait and hope—and some try evermore dangerous ways to get through.

Nineteen children died during attempted crossings in the first nine months of 2019, by drowning, dehydration or illness, according to the UN’s “Missing Migrants” research project. That’s up from four reported through September 2018 and by far the most since the project began gathering data in 2014, when two died that entire year. Women are dying in greater numbers, too—44 in the year through September, versus 14 last year.

A 9 month-old baby sleeps inside El Buen Pastor migrant shelter, on Aug. 29. The baby had been in and out of hospitals due to respiratory illnesses during his shelter stay.

Photographer: Cesar Rodriguez/Bloomberg

Many of those families are fleeing crime epidemics in Central America, as well as economic shocks. Prices of coffee—a key export—in the region plunged this year to the lowest in more than a decade, crushing farmers.

Making matters worse, climate change will produce more frequent crop failures for those growers that will, in turn, drive more migration, said Eleanor Paynter, a fellow at Ohio State University. “Asylum law does not currently recognize climate refugees,” she said, “but in the coming years we will see more and more.”

The demand side is equally fluid. When the Great Recession hit in 2007, a slumping U.S. economy led to a sharp drop in arrivals from Mexico and Central America. Today, the reverse is true: Record-low unemployment in the U.S. is attracting huge numbers from Central America.

Recession Factor

The U.S. economy’s slump a decade ago coincided with a sharp drop in migrant arrivals from Central America

Source: Estimates by Stephanie Leutert, director of Mexico Security Institute at University of Texas, based on model created for Lawfare blog

But none of those factors fully explains why so many families are now willing to take such great risks. To understand that, it’s necessary to go back to the birth of the “Remain in Mexico” policy in January, when new U.S. rules made it much harder to seek asylum on arrival—and its escalation in June, when Trump threatened to slap tariffs on Mexican goods, and AMLO agreed to deploy 26,000 National Guard troops to the border.

The crackdown was aimed at Central Americans—mostly from such poor, violent countries as El Salvador and Honduras—who’d been entering the U.S. through Mexico in growing numbers. Many would cross the border, turn themselves in and apply for asylum, then wait in the U.S. for a court hearing. That route was especially favored by migrants with young children, who were likely to be released from detention faster.

Under the new policy, they were sent back to Mexico by the tens of thousands and required to wait in dangerous border towns for a court date. They might wait in shelters for months for their number to be called, with only 10 or 20 families being interviewed each day. Word was getting back that applications weren’t being approved, anyway.

A white cross marks the death of a person near the border between Ciudad Juarez and El Paso.

Photographer: Cesar Rodriguez/Bloomberg

That pushed thousands of families into making a tough decision. Juan Fierro, who runs the El Buen Pastor shelter for migrants in Ciudad Juarez, reckons that about 10% of the Central Americans who’ve stayed with him ended up going back home. In Tijuana, a border town hundreds of miles west, Jose Maria Garcia Lara—who also runs a shelter—says some 30% of families instead headed for the mountains outside the city on their way to the U.S. “They’re trying to cross,” he says, “in order to disappear.”

The family that approached Roberto in Ciudad Juarez wanted to take a less physically dangerous route: across the bridge into El Paso.

Roberto has infrastructure in place for both options. He says his people can run a pole across the Rio Grande when the river’s too high, and they have cameras on the bridge to spot when a guard’s back is turned. He has a sliding price scale, charging $7,500 for children and an extra $1,000 for Central Americans—fresh proof of studies that have shown smugglers’ prices rise with tighter border controls. “They pay a bundle to get their kids across,” he says. “Why don’t they just open a small grocery with that money?”

Typically, migrants don’t come from the very poorest communities in their home countries, where people struggle to cover such coyote costs, or from the middle class. Rather, they represent a range from $5,000 to $10,000 per capita in 2009 dollars, according to Michael Clemens, an economist at the Center for Global Development in Washington. This happens to be the level that the economies of El Salvador, Honduras and Guatemala have reached.

A mother and her 5-month-old baby has lived in a migrant shelter since July, waiting for their November court date, on Aug. 29.

Photographer: Cesar Rodriguez

For the family going across the bridge into El Paso, Roberto wanted to send the parents and children separately, to attract less attention. Ideally, the kids would be asleep, making the guards less likely to stop the car and ask questions. But that raised another problem. He resolved it by arranging for a woman on his team to visit the family and spend three days playing with the children. That way, they’d be used to her and wouldn’t cry out if they woke up while she was taking them across.

Roberto says the family made it safely into the U.S. with their false IDs, a claim that couldn’t be confirmed. He earned about $35,000 from the family, and soon after had another three children with their parents seek passage. “They want to cross, no matter what,” he says. “I don’t know where the idea comes from that you can stop this.”

But people are being stopped and turned back, and the number of migrants caught crossing the U.S. border has plunged from its peak in May. That has allowed Trump to portray the new policy as a success. (Mexican officials tend to agree, though the Foreign Ministry didn’t respond to a request for comment.) Yet it’s not that simple. Andrew Selee, president of the Migration Policy Institute, said the flow northward initially surged because Trump threatened to close the border, setting off a wave of migrant caravans and smuggling activity. Arrests rose 90% through September from a year earlier, but they’re now at the same levels they were before the surge.

Enrique Garcia was one of those arrested. A 36-year-old from Suchitepequez in Guatemala, he was struggling to feed his three children on the $150 a month he earned as a janitor. So he pawned a $17,000 plot of land to a coyote in exchange for passage to the U.S. for him and his son.

They slipped into Mexico in August on a boarded-up cattle truck, with eight other adults and children, and drove the length of the country, to Juarez. The coyotes dropped them by car at the nearby crossing point called Palomas, where they literally ran for it.

After 45 minutes in the summer heat, Garcia was getting worried about his son, who was falling behind and calling out for water. But they made it past the Mexican National Guard and gave themselves up to a U.S. border patrol, pleading to be allowed to stay. Instead, they were sent back to Mexico and given a January court date.

Children play outside a migrant shelter while a women hand washes clothing in a sink.

Photographer: Cesar Rodriguez/Bloomberg

Garcia, who recounted the story from a bunk bed in a Juarez shelter, said he was devastated. He couldn’t figure out what to do for five months in Mexico, with no prospect of work. His coyotes had managed to reestablish contact with the group, and most of them—with children in tow—had decided to try again. This time, they wouldn’t be relying on the asylum process. They’d try to make it past the border patrols and vanish into the U.S.

But Garcia decided he’d already put his son’s life at risk once, and wouldn’t do it again. He scrounged $250 to take the boy home to Guatemala. Then, he said, he’d head back up to the border alone. He wouldn’t need to pay the coyotes again. They’d given him a special offer when he signed away his land rights—two crossing attempts for the price of one.

Researchers say there’s a more effective deterrent to such schemes: opening more lawful channels. Clemens, at the Center for Global Development, noted that illegal immigration from Mexico dropped in recent years after U.S. authorities increased the supply of H-2 visas for temporary work, almost all of them going to Mexicans—a trend that’s continued under Trump.

The current debate in Washington assumes that “hardcore enforcement and security assistance in Central America will be enough, without any kind of expansion of lawful channels,” Clemens said. “That flies in the face of the lessons of history.”

The Legal Route

Illegal crossings by Mexicans have plunged. They’re now much more likely to enter the U.S. with temporary H-2 work visas

Source: Calculations by Cato Institute’s David Bier based on DHS, State Dept data

A hard-security-only approach deters some migrants, while channeling others into riskier routes where they’re more likely to die. That’s what happened after Europe’s crackdown on migration from across the Mediterranean, according to Paynter at Ohio State, who’s studied data from the UN’s “Missing Migrants” project. In 2019, “even though the total number of attempted crossings is lower, the rate of death is three times what it was,” she said.

A child plays outside a migrant shelter in Ciudad Juarez.

Photographer: Cesar Rodriguez/Bloomberg

As for Roberto, he expresses sadness at the children who’ve died trying to cross the U.S.-Mexico border. He claims he would’ve tried to help them, even if they couldn’t pay.

Most of all, he sees no end to the ways he can make profits off the border crackdown. He makes a joke out of it.

“I’m hearing Trump wants to throw crocodiles in the river,” he says. “Guess what will happen? We’ll eat them.” And then: “Their skin is expensive. We’ll start a whole new business. It’ll bring in money, because we’ll make boots, belts and wallets. We’ll look real handsome.”

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

The “Trump Immigration Kakistocracy” is as evil and immoral as it is stupid and incompetent.

But, that shouldn’t lessen the responsibility of complicit Article III Appellate Judges (including the Supremes) and a sleazy and immoral GOP Senate who are failing to stand up for our Constitution, the rule of law, and human rights. They should not be allowed to escape accountability for their gross derelictions of duty which are killing kids with regularity and unconscionably abusing vulnerable asylum seekers on a daily basis.

America can’t afford to be governed by idiots abetted by the spineless. Join the “New Due Process Army” and fight to save our country, our Constitution, and humanity from evil, incompetence, and disgusting complicity.

PWS

10-31-19

INSIDE TRUMP’S “NEW AMERICAN GULAG” THERE IS NEITHER DUE PROCESS NOR JUSTICE! – So, What Happened To The Legislative & Judicial Branches Who Are Supposed To Protect Against Such Outrageous Executive Overreach? — “Whatever we call them, America’s immigration prisons are antithetical to the free society we claim to be. We must do all we can to dismantle this system.”

https://apple.news/AsyQuZEMeR0mXWpvWd19-Mg

By Naureen Shah:

opinion

At detention facilities, legal rights ‘in name only’

Whether we call them ‘concentration camps’ or detention centers, the lack of justice for those seeking refuge must end.

7:42 pm EDT Oct. 25, 2019

As President Donald Trump prepares to pick a new secretary for the Department of Homeland Security, Rep. Alexandria Ocasio-Cortez, D-N.Y., is preparing to appear in a Brooklyn court. She is being sued for blocking a man on Twitter who criticized her for calling immigration detention sites “concentration camps.” Her opponents seized on the comment. One of their talking points: America’s hardworking immigration officers should not be equated with Nazis.

To some extent, I can understand their perspective.

I recently visited four Immigration and Customs Enforcement (ICE) detention sites across the country. I met many of their workers. They carried clear plastic backpacks and lunchboxes as they filed through security in the morning, looking weary and bored. As I left each site, some asked me whether I had had a “nice visit” and wished me safe travels.

These workers don’t bring to mind cinematic villains. Yet they are part of a system that, no matter its appearances, is inflicting the horror of trapping people inside.

I saw it in the eyes of the people I interviewed in detention. A 28-year-old Cuban woman told me about spending five days sleeping on the ground in an outdoor cage run by Border Patrol, the “perrera” — a place for dogs. That was followed by 17 days in the “hielera,” a frigid room. She had been denied a shower the entire time.

She recounted this months later, when I met her at an ICE detention site in Adams County, Mississippi. She had not seen or talked to her husband for months, since U.S. authorities separated and detained them. She said that last summer, an asylum officer interviewed her and determined that her fear of persecution if she returned to Cuba was credible — the first step in an asylum case. But she said she had never seen a judge, had no court date, no lawyer, no ICE officer assigned to her. She was alone and trapped: She had no idea of what would happen to her next, how to move her asylum case forward and whether she would ever be released.

COLUMN: In the hands of police, facial recognition software risks violating civil liberties

Adams County is part of the immigration detention boom. Detention levels have skyrocketed to a record high of about 50,000 people a day, at an annual cost of more than $2 billion. Counties are grabbing at detention contracts that provide jobs, although many will be filled by out-of-town residents. New detention sites are opening in the Deep South — hours from urban areas with networks of pro bono or low-cost attorneys. Even in big cities, the number of people detained far outpaces the number of attorneys available to help them. The result is that these immigration jails are effectively legal black holes, where legal rights often exist in name only.

“You come to this place and you can never win,” another woman told me. She had spent three months in an ICE detention center near Miami, separated from her then 5-month-old baby. Her husband, a U.S. citizen, was driving her to Walmart when local police questioned them during a random traffic stop. She was not accused of a crime, and she was in the process of petitioning for residency based on her marriage to a citizen. But police took her to a local jail and held her for ICE.

COLUMN: After terrifying ICE raid, Mississippi is still fighting back

“I haven’t seen my baby in three months,” she said, and asked me what would happen to her.

Without a lawyer, she is likely to remain in detention for months or years — and ultimately be deported away from her husband and child. Just 3% of detained individuals without a lawyer succeeded in their cases, compared with 74% of nondetained and represented individuals who won in theirs, according to a study that focused on New York immigration cases. For asylum-seekers, the stakes are often life or death.

Yet immigrants have been denied the right to a government-appointed lawyer in their deportation proceedings. I met many who didn’t have enough money to make a phone call from prison, let alone pay a lawyer. Even those who could afford it struggled to find one, since they are stuck on the inside without access to Google, email or a cellphone.

POLICING THE USA: A look at race, justice, media

Our immigration system is set up for them to fail, with Kafka-esque limits on their ability to apply for legal relief and appeal to federal courts. Navigating this complex and unforgiving set of legal rules is hard for lawyers, let alone for detained individuals. Some are offered release on bond, but in unaffordable amounts like $25,000.

Many people I met had never seen a judge, several months into their detention. They had no idea how or when they might ever be free. They were confused, scared and, in some cases, suicidal. A woman from Cameroon who fled its ongoing civil war after her father was murdered told me she prayed that God would provide her a way out.

We have an obligation to respond.

Local governments should end ICE detention contracts, if they exist, and prohibit new ones. Cities and states should robustly fund free legal service providers and bond funds. Major law firms should send their lawyers to the Deep South to work with local pro bono providers to address the drastic shortfalls in legal services. Community groups should lobby Congress to cut funding for detention and pass comprehensive reform legislation like the Dignity For Detained Immigrants Act.

Trump’s new Homeland Security secretary is likely to ramp up immigration detention to even higher levels, using the specter of prison to deter people from coming here and the reality of it to punish those who do. We cannot afford to be divided by semantics.

Whatever we call them, America’s immigration prisons are antithetical to the free society we claim to be. We must do all we can to dismantle this system.

Naureen Shah is the senior advocacy and policy counsel at the American Civil Liberties Union, working on immigrant rights.

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7:42 pm EDT Oct. 25, 2019

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

DHS’s “New American Gulag” – the “brainchild” of Stephen Miller, Jeff Sessions, and Steve Bannon – is an affront to our Constitution, the rule of law, and human decency. Remember that the next time Trump’s “Gulag Enablers” like Kelly, Nielsen, Sessions, and Barr try to “reinvent themselves” as something other than the sleazy human rights violators they are and will always remain.

PWS

10-29-19

LET THE IMMIGRATION JUDGES SPEAK! — What Kind Of “Court System” Muzzles Judges, Shuns Educational Dialogue?

https://lawprofessors.typepad.com/immigration/2019/10/immigration-law-professors-let-immigration-judges-speak.html

Adjunct Professor Carrie L. Rosenbaum
Golden Gate Law

Professor Maureen Sweeney
U. of Maryland Law

Thursday, October 24, 2019

Immigration Law Professors: Let Immigration Judges Speak!

By Immigration Prof

Share

Four immigration law professors, Laila L. Hlass, Elora Mukherjee, Carrie L. Rosenbaum, and Maureen Sweeney on Slate criticize the Trump administration for barring immigration judges, Immigration and Customs Enforcement attorneys, and asylum officers from talking to classes about immigration law and policy.Such guest lectures were common in the recent past. However,

“things have recently changed. When we’ve asked judges, ICE attorneys, and asylum officers to visit our classes, almost all have declined. They’ve told us they can’t speak with our classes even on their days off, even in their personal capacities, without prior clearance and approval from high-level supervisors—approval that is increasingly difficult to obtain. This silencing of line officers is a marked departure from past years. It is taking place across the country, and it is no coincidence. The administration has denied these civil servants permission to speak publicly. According to former immigration judge Jeffrey Chase, immigration judges `are not even allowed to speak at conferences or law schools, because the administration does not consider them qualified to speak on behalf of the agency or its policies.’”

KJ

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

Obviously, this is an “agency,” not a “court,” at war with the public it supposedly serves.

Somewhat “below the radar screen” in the Administration’s all-out White Nationalist attack on migrants is the assault on those who represent them. Studies show that represented individuals both show up for their hearings at an exceptionally high rate and succeed in their cases at a rate that is multiples of unrepresented individuals. Therefore, some type of “universal representation program” utilizing a combination of public and private sector funding, would be the “first logical step“ in solving the Due Process and operational crises in our Immigration Courts. And, it wouldn’t cost any more than the expensive, inhumane, often illegal, and frequently ineffective “enforcement only gimmicks” being employed against migrants, and often their attorneys, by this Administration.

PWS

10-28-19

HON. JEFFREY CHASE: More Than Three Decades After The Supremes’ Decision On Well- Founded Fear In Cardoza-Fonseca, Immigration Judges and BIA Judges Continue To Get It Wrong — 2d Cir. Recognizes Problem, But Fails To Take Effective Corrective Action Through Publishing Its Important Decision!

https://www.jeffreyschase.com/blog/2019/10/25/when-does-fear-become-well-founded

Oct 25 When Does Fear Become “Well-Founded?”

During a recent radio interview, the reporter interviewing me expressed surprise when I mentioned that an asylum applicant need only show a ten percent chance of being persecuted in order to succeed on her claim. That standard was recognized 32 years ago by the U.S. Supreme Court in the case of INS v Cardoza-Fonseca, 480 U.S. 421 (1987). The holding represented a dramatic shift in asylum eligibility, as prior to the decision, the BIA (and therefore, the immigration judges bound by its decisions) had interpreted “well-founded fear” to require a greater than fifty percent chance of persecution. But what was the practical impact of this change on the adjudication of asylum claims?

Following the Supreme Court’s decision, the BIA and circuit courts set out to define what an asylum seeker must show to satisfy the lower standard. The general test adopted by the circuit courts requires a finding that the asylum seeker possess a genuine subjective fear of persecution, and that there is some objective basis for such fear in the reality of the circumstances so as to make such fear reasonable.1 Prof. Deborah Anker in her treatise The Law of Asylum in the United States emphasizes the link between the subjective and objective standards, noting that while the objective element is meant to ensure “that protection is not provided to those with purely fanciful or neurotic fears,” it is “critical, however, that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.” This is obviously quite different than the purely objective approach necessary under the prior “more likely than not” standard.

In Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019), the U.S. Court of Appeals for the Second Circuit, in an unpublished decision, once again considered the question of what is required for a fear of persecution to be “well-founded.” Although the primary target of the government’s persecution was the petitioner’s husband, an activist with the opposition Democratic Party in their native Albania, police twice sprayed the restaurant jointly owned by the couple with bullets, pushed the petitioner herself to the ground during raids of their home, and at one point threatened to kidnap the petitioner and sell her into prostitution if her husband did not back the ruling Socialist Party candidate for parliament. The local Socialist Party leader also threatened the petitioner that the restaurant would be burned to the ground with her family in it if they did not stop hosting Democratic Party meetings there.

The immigration judge found the petitioner to be completely credible and to have a genuine subjective fear of persecution. However, the IJ denied asylum on the ground that the fear was not objectively reasonable, because the authorities had opportunities to harm her when they were persecuting her husband, but in the IJ’s opinion, did not do so. The judge thus concluded that nothing suggests that the authorities would “suddenly” be inclined to harm the petitioner in the future if they had not done so in the past.

The Second Circuit rejected the above standard as “too exacting,” adding that the applicant’s fear can be objectively reasonable “even if it is improbable that he will be persecuted upon his return to his own country.” The court added that there only need be “a slight, though discernible, chance of persecution,” noting that the standard is whether “a reasonable person in the same circumstances would have such a fear.”

At oral argument, the Chief Judge of the Second Circuit, Hon. Robert Katzmann, directly asked the government attorney if she would be afraid to return to Albania if she faced the same facts as the respondent, adding that he himself would be.

The question of whether one in the asylum seeker’s shoes would be afraid to return is the proper approach to determining if the subjective fear is reasonable. Back in 1992, before either of us were appointed judges, my former colleague William Van Wyke, a brilliant legal mind, authored a much talked about article entitled “A New Perspective on ‘Well-Founded Fear.’” Judge Van Wyke’s approach was to consider the asylum seeker the factfinder: having assessed all of the facts in the home country, the asylum seeker decided that the threat of persecution was enough to warrant fleeing the country. In Judge Van Wyke’s perspective, the asylum adjudicator is placed in the position of an appeals court, reviewing the asylum seeker’s decision for reasonableness. Although such approach sounds radical, it’s really just another way of applying the circuit court standard.

However, too many decisions deny asylum because they pose the wrong question. If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident. The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight? Of course, the answer is yes. The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane. Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable. Or as the Second Circuit held in Qosaj, “no reasonable factfinder could conclude that” the petitioner “did not show at least a ‘discernible [ ] chance of persecution,’” which the Second Circuit confirmed as enough “to render her subjective fear objectively reasonable.”

But how often is this standard applied correctly in asylum adjudication? For example, case law allows an asylum adjudicator to conclude that an asylum applicant’s fear is not objectively reasonable based on the continued safety of family members who remain in the country of origin. But if there is a sufficient ten percent risk of persecution, that means that there is 90 percent chance that nothing will happen. Wouldn’t that mean that it is overwhelmingly likely that the remaining family would suffer no harm? If so, why should their safety to present undermine the claim? Or in assessing whether the government is unable or unwilling to control a non-state actor persecutor, shouldn’t the proper inquiry be whether there is a ten percent chance that the government would not afford such protection?2

It’s a shame that Qosaj wasn’t issued as a published decision. Nevertheless, attorneys might find it useful to reference at least in the Second Circuit as a reminder of the proper application of the burden for determining well-founded fear. And Congrats to attorney Michael DiRaimondo (who argued the case) and fellow attorneys Marialaina Masi and Stacy Huber of DiRaimondo & Masi on the brief (Note: I am of counsel to the firm, but had no involvement with this case).

Notes:

1. See, e.g., Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).

2. I thank attorney Joshua Lunsford for bringing this point to my attention.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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

Here’s a link to the full decision in

Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019):

https://casetext.com/case/qosaj-v-barr

Jeffrey’s article raises two important points.

First, three decades after Cardoza-Fonseca, and nearly four decades after the enactment of the Refugee Act of 1980, EOIR Judges are still getting the fundamentals wrong: basics, like the correct legal standards to be used in evaluating asylum claims.

Getting that asylum standard correct should be neither complex nor difficult. Just look at how relatively short, concise, and to the point the Second Circuit’s reversal in Qosaj was, particularly in comparison with the legal gibberish spouted by Barr and Sessions in attempting to rewrite the law intentionally to screw migrants in some of their unconstitutional and unethical precedents.

Improper adjudication by Immigration Judges is hardly surprising in a system that emphasizes law enforcement and speedy removals over quality and Due Process. Then, it’s compounded by politicos attempting to improperly and unethically influence the judges by spreading false narratives about asylum applicants being malafide and their attorneys dishonest.

It’s really quite the opposite. There is substantial reason to believe that the system has been improperly, dishonestly, and politically “gamed” by the DOJ to deny valid claims (or even access to the system) to “discourage” legitimate asylum seekers and further to intentionally abuse those (often pro bono or low bono) lawyers courageously trying to help them.

Also, massive appointments of Immigration Judges at both the trial and appellate levels, some with questionable qualifications, and all with no meaningful training on how to recognize and grant asylum claims have compounded the problem.

Does anyone seriously think that the “New Appellate Immigration Judges” on the BIA, some of whom denied asylum at rates upwards of 95%, were properly applying the generous legal standards of Cardoza-Fonseca to asylum seekers? Of course not! So why is this unconstitutional and dysfunctional system allowed to continue?

Which brings me to my second point. It’s nice that the Second Circuit actually took the time to correct the errors, unlike some of the “intentionally head in the sand Circuits” like the 5th and the 11th, who all too often compound the problem with their own complicity and poor judging. But, failing to publish important examples of DOJ/EOIR “malicious incompetence” like this is a disservice to both the country and the courts.

It leaves the impression that the Second Circuit doesn’t really value the rights of asylum seekers or view them as important. It also signals that the court doesn’t really intend to hold Barr and EOIR accountable for lack of quality control and fundamental fairness in the Immigration Court system.

Furthermore, it deprives immigration practitioners of the favorable Article III precedents they need to fight the abuses of due process and fundamental fairness being inflicted on asylum seekers every day at the “retail level” — in Immigration Court. It also fails to document a public record of the widespread “malicious incompetence” of DOJ and EOIR under Trump’s White Nationalist restrictionist regime.

It’s also horrible for the court. You don’t have to be a judicial genius to see where this is going. Unqualified, untrained Immigration Judges are being pushed to cut corners and railroad asylum seekers out of the country. The BIA has been “dumbed down” and weaponized to “summarily affirm” this substandard work product. That means that the circuit courts are going to be flooded with garbage — sloppy, unprofessional work. As the work piles up or is sent back for quality reasons, the Administration will blast and blame the Article III courts for their backlogs and for delaying deportations.

So why wait for the coming disaster? Why not be proactive?

The Second Circuit and the other Circuits should be publishing precedents putting the DOJ and EOIR on notice that Due Process, fair treatment, and quality work is required from the Immigration Courts. If it’s not forthcoming, why shouldn’t Barr and the officials at DOJ and EOIR responsible for creating this mess be held in contempt of court?

Two historical notes. First, our good friend and former colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, successfully represented the respondent before the Supremes in Cardoza-Fonseca (for the record, as DHS DGC. I was aligned with the SG on the “losing” side). Therefore, I sometimes call Judge Marks the “Founding Mother” of modern U.S. asylum law.

Second, immigration practitioner Michael DiRaimondo who successfully argued Qosaj before the Second Circuit began his career in the General Counsel’s Office of the “Legacy INS” during the “Inman-Schmidt Era.” He then went on to a distinguished career as the INS Special Assistant U.S. Attorney in the Eastern District of New York before entering private practice. Way to go, Michael D!

PWS

10-27-19

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