"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Migrants arriving at the U.S. border to seek asylum are routinely subjected to tactics that immigration rights advocates say are designed to drive them away in violation of their rights under federal law.
The tactics include forcing them to wait at the border indefinitely or sending them back into Mexico to join a backlogged list maintained by Mexican immigration officials.
The Trump administration says such measures are necessary because it is not equipped to deal with a large increase in the number of asylum seekers, many of them from Central America. Last year, U.S. immigration courts handled 120,000 asylum requests, a fourfold increase since 2013.
But immigrant advocates contend the government is violating the U.S. Immigration and Nationality Act, which says any foreigner who reaches the U.S. has the right to apply for asylum.
U.S. Customs and Border Protection “is violating the law and turning away asylum seekers on Texas bridges,” said Shaw Drake, an El Paso-based attorney with the Texas ACLU’s Border Rights Center.
He said forcing immigrants to join a long waiting list is tantamount to turning them away.
“To turn them away with some amorphous instructions is illegal,” he said.
The issue is likely to come to a head when a caravan of several thousand Central Americans now heading north through Mexico arrives at the U.S. border. Many are expected to claim asylum, which they can do based on fear of persecution due to their race, religion, nationality, social group or political opinion.
Trump, who has vowed to close the border, said in an interview Monday with conservative TV and radio host Laura Ingraham that the U.S. would allow migrants to file asylum claims but that they would be forced to live in “tent cities” while they await court rulings, a process that can take years.
“We’re not going to build structures and spend all of this, you know, hundreds of millions of dollars,” Trump said. “We’re going to have tents. They’re going to be very nice and they’re going to wait and if they don’t get asylum, they get out… They don’t usually get asylum.”
Edgar Hernandez Gonzalez, right, his daughter Sherly and girlfriend Sofia Alvarez Favela wait to request asylum on the Santa Fe International Bridge in Ciudad Juarez. Gonzalez said he and his family were being threatened and were fleeing crime in Juarez. (Genaro Molina / Los Angeles Times)
Last week, after 20 immigrants from Cuba, Honduras, Mexico and Russia arrived at the border bridge in El Paso, U.S. officers stationed in the middle of the bridge — the “limit line” — told them to wait. And so they did, some for days in the cold and rain. Others stayed at a nearby shelter.
“We’ll wait and see, night and day, because I don’t have anywhere to go,” said Alexander Narzilloev, 35, who was with his wife and sons, ages 3 and 6.
Narzilloev ran a construction supply business in Moscow but fled after he was extorted by local mafia and received death threats, including one from a man who called and said he knew where Narzilloev’s son attended kindergarten, he Narzilloev said.
The family had originally gone to the crossing in Calexico, Calif., where officers told them they didn’t have space. After waiting a week and spending what remained of their $8,000 savings on a hotel, Narzilloev and his family caught a bus to Ciudad Juarez, Mexico, in hopes of entering El Paso.
“I heard in the news Trump said close all the borders. Has it happened yet?” he said. “That’s supposed to be for illegals. We are legal.”
Last week, several House Democrats sent a letter to Homeland Security Secretary Kirstjen Nielsen requesting a briefing on why and how asylum seekers were being turned away. Sen. Tom Udall, a New Mexico Democrat, issued a statement calling for “fair and orderly processing of asylum seekers.”
“Any attempts to deny these families and individuals their right to seek asylum are wrong,” he said.
The Trump administration has tried a variety of approaches to deter people from trying to reach the United States — most controversially a “zero tolerance” policy of criminally charging every adult migrant who crosses the border illegally, separating parents from their children.
The policy resulted in 2,654 children being separated and widespread outrage before Trump canceled it in June.
The administration still wants to detain families indefinitely and has been battling immigrant advocates in hopes of overturning a federal judge’s 1997 order that requires children be held for no longer than 20 days. Federal prosecutors have also fought to narrow the definition of political asylum.
But the government has been flummoxed by what Kevin McAleenan, commissioner of Customs and Border Protection, calls the “asylum gap”: the inability to stop people from making false claims for asylum and living legally in the U.S. for years while their cases proceed.
Immigrant advocates say the new tactics at the border are aimed at discouraging asylum claims. The ACLU of Texas noted Tuesday that Customs and Border Protection, the largest federal law enforcement agency, with a staff and budget doubled in the last 20 years, processed 1.1 million fewer people at the southern border last year than it did in 2000.
Instead of expanding capacity to process asylum seekers at border crossings, officials have forced them to wait. The method varies from crossing to crossing.
Cuban migrant Yunier Reyes, 35, waits with other migrants from Honduras and Mexico. (Genaro Molina / Los Angeles Times)
In El Paso, customs officers have told immigrants to return in a few hours, or simply “later.” The San Ysidro crossing in San Diego has been using a process called “metering,” in which asylum seekers have had to make appointments through Mexican immigration officials.
In a federal class-action lawsuit filed last year that’s still pending, Los Angeles- and Tijuana-based Al Otro Lado and other advocacy groups argued on behalf of more than a dozen immigrants that the policy violates international law and the right to due process.
During a visit to San Ysidro last week, McAleenan praised metering and said it’s likely to expand to other crossings if there’s a “significant increase in arrivals” in coming weeks.
He said the process didn’t amount to turning away immigrants because “they can stay in line if they want.”
“If somebody arrives and they have a claim, we are providing access,” he said, adding that some officers have been investigated, disciplined and retrained after turning away asylum seekers.
Other allegations were unsubstantiated, he said.
Edith Tapia, a policy research analyst with the Hope Border Institute, center, talks with a Mexican couple and their children who hope to request asylum in the U.S. at the foot of an international Bridge in Ciudad Juarez, Mexico. (Genaro Molina / Los Angeles Times)
Workers from the nonprofit Hope Border Institute visit El Paso bridges to document cases of asylum seekers being turned away. On Oct. 24, they found Pedro Morales, 21, and girlfriend Janet Macola, 19.
The two said they fled Cuba after authorities halted their attempt to open a beauty salon and threatened to throw Morales in jail. Now they were seeking asylum.
So was a family of four from the southern Mexican state of Guerrero. They said that their area had become a ghost town, controlled by a mayor in league with organized crime, and that they were too scared to be quoted by name.
The Cuban couple and the Mexican family approached U.S. officers at the center of the bridge and were told the same thing: “It’s full right now.”
It’s all a ridiculous political stunt that Secretary Mattis has shamefully gone along with. Talk about someone forgetting his oath — allowing the US Military to be used as a “political prop” for “White Nationalist Nation.” Presumably historians and biographers will remember “Mad Dog’s” dereliction of duty at a critical point in our country’s existence.
The real point is that for much less money than Trump is wasting on his “military stunt” he could place enough USCIS Asylum Officers at or near ports of entry on the Mexican border to promptly, professionally, and humanely process applicants in accordance with our laws. That would also encourage and reward individuals for appearing for orderly processing and security screening at the proper places, rather than entering the country surreptitiously. It would also reduce the strain on the Border Patrol by reducing incentives for illegal crossings of asylum seekers between ports of entry.
But, this isn’t about sensible or lawful border and asylum policy. It’s about a White Nationalist demagogue putting on a “show” for his “base.”
Immigration courts under the Trump administration have approved asylum cases at the lowest rate in nearly two decades, according to an analysis of Department of Justice data.
The new figures come after a year in which Attorney General Jeff Sessions has taken a series of steps to curtail when individuals can gain asylum. In June, Sessions issued a major decision that eliminated claims of domestic violence or gang violence by nongovernmental actors as reasons for granting asylum. He also limited when judges can suspend or continue cases.
The new statistics illustrate the difficulty that many of those traveling with a new caravan across Mexico will face if they present themselves as asylum candidates at the US border.
Experts pointed to Sessions’ rulings and restrictions on judges as partly responsible for the drop in the number of asylum cases granted.
“Through a targeted and well-coordinated effort the Trump administration has significantly decreased the number of people who qualify for asylum,” said Sarah Pierce, an analyst at the Migration Policy Institute. “While it is true that our asylum system is in need of major reforms, the administration’s response has been to reverse years of case law dictating who are legitimate asylum seekers.”
The Department of Justice released the asylum data Friday. According to Pierce’s analysis, the asylum approval rate is just over 33% for the 2018 fiscal year, which ended in September. Under the Obama administration, the rate hovered between 44% and 55%. The last time the rate dipped below 33% was in 1999, during the Bill Clinton administration, when it was 31%, according to Pierce’s analysis.
The Department of Justice declined to comment on the analysis.
The administration is processing the largest number of asylum cases in years and has granted asylum to more individuals — more than 14,000 — than in any year since at least 1996. Yet, the number of denials also dwarfs those of the past two decades — more than 28,000. The previous high for denials was more than 25,000 in 1996.
The rates do not include cases processed by US Citizenship and Immigration Services when individuals voluntarily apply for asylum before being placed in deportation proceedings. Individuals who are denied after applying through USCIS are then processed through the immigration courts in deportation proceedings, according to Pierce.
Sessions has long been critical of the way asylum cases are handled. In an October 2017 speech to immigration judges, he tipped off his future attempts to restrict asylum grants, arguing that the laws were never intended to provide asylum to those who had a fear of generalized violence or crime and that those claims had swamped the system. He hit out against “dirty immigration lawyers” who allegedly were persuading clients to make false claims of asylum.
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases.
Jeffrey Chase, a former immigration judge, said that the numbers can also be attributed to the fact that many asylum cases in recent years don’t fall within the classic asylum formula that was developed as a response to World War II. In his decisions, Sessions cut the kinds of arguments individuals could make to potentially gain asylum.
“Sessions,” Chase said, “skewed the numbers in the most recent fiscal year through his issuance of precedent decisions that reflect his personal, politically motivated views on immigration, as opposed to proper legal reasoning.”
This evidence strongly suggests that with reasonable access to lawyers and a truly fair, impartial, and unbiased judicial system, a majority of those seeking refuge in the U.S. probably could qualify for asylum or some other type of protection.
Will the Article III Courts continue to “go along to get along” with this mockery of justice involving life or death claims. Or, whether “conservative” or “liberal” will the “real” Article III independent judiciary step in and force immigration hearings to be conducted fairly and impartially and without the overriding influence of biased officials like Sessions who treat the courts as appendages of the DHS enforcement system? Only time will tell. But, history will record who stood tall and who went small!
The meeting was way overdue, and it wasn’t going well.
It was May 21. The Department of Homeland Security, where I worked as a senior adviser in the Office for Civil Rights and Civil Liberties, had been making a show of prosecuting undocumented immigrant parents for weeks, cleaving them from their children without paying much attention to where the family members went or setting up any procedure for tracking and reuniting them later.
My office had played a central role, for years, in Homeland Security’s treatment of families and children. But when a cadre of Trump administration political appointees put the family separation plan into motion, neither they nor the career staff in the immigration enforcement agencies under DHS consulted with the civil servants in my office. When media reports throughout April and May led us to understand what was going on, we had urgent questions: What exactly was the policy? What had DHS’s front-line agents in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) been told to do? How had the department assessed the risk that litigation would interfere with the policy? How was this justified in light of our treaty obligations toward refugees? And why was the department pushing out transparently misleading — or simply false — statistics to justify these steps? We were obliged, under the law that created our office, to register our objections that the administration was knowingly violating people’s rights.
But the top political appointee at the May meeting — John Mitnick, the experienced, Senate-confirmed general counsel — and his deputy seemed confused that the civil rights office would see any cause for concern. The administration was claiming in public that a policy of prosecuting all border crossers didn’t target families as such, so it could not present any legal issues. And if there were any issues, they hadn’t been raised ahead of time.
That was false. The next day, I called around to colleagues who confirmed that there had been multiple interagency phone calls and documents, involving the State and Justice departments as well as DHS, making clear that lawyers throughout the government worried that deliberately separating families could violate migrants’ rights under humanitarian treaties or U.S. law. But the political appointees simply didn’t listen. And a few weeks later, I came across an April 24 memo — signed by the very officials I had met with a month later — acknowledging, but dismissing, the legal risks. Even worse, it encouraged indicting immigrants specifically because doing so would justify separating families, arguing that the government’s “legal position” on “separating adults and children through the immigration process . . . is likely strongest [when] separation occurs in connection with a referral of an adult family member for criminal prosecution.”
Mitnick, through a DHS spokeswoman contacted by The Washington Post, declined to comment for this story. That spokeswoman, Katie Waldman, said: “The Department of Homeland Security does not disclose or comment on privileged legal advice provided by our attorneys to the Secretary or other officials, and therefore, unfortunately, we are not in a position to refute false narratives put forward by a former employee. We note, however, that in order to address the crisis at the border, the Trump Administration made a decision to enforce long-standing U.S. law and refer for prosecution under 8 U.S.C. § 1325(a) adults who crossed into the United States illegally. As we have repeatedly stated, the policy was to enforce the law, not to separate families.”
She also sent a statement from Cameron Quinn, the Trump appointee who runs the office I worked in: “I participated in the meeting in question. It was a brief, general discussion, and Mr. Mitnick made it clear that he desired to work collegially with our office.”
By law, our job in that office was to ensure that “the civil rights and civil liberties of persons are not diminished” by DHS’s programs. When it became clear that the department would be tearing families apart and — thanks to incompetence, dishonesty and sheer disinterest — had no reasonable plan to put them back together, I realized I could not do that. A few weeks after that meeting, I quit my job and left public service, carrying a profound sense of failure.
Children and parents from Central America, part of a caravan trying to reach the United States, wait to apply for asylum in Mexico at a checkpoint in Ciudad Hidalgo on Oct. 20. (Ueslei Marcelino/Reuters)
The government formally announced the family separation policy in April. The point was clear, as several officials later admitted: By threatening to separate their children, the administration hoped to deter Central American asylum seekers from coming here in search of humanitarian protection. Then-Homeland Security Secretary John Kelly had suggested the practice during a CNN interview in March 2017, and it had been gaining support in the White House since then.
Many senior civil servants at DHS believed that the policy violated the civil and human rights of migrants. (Many of them, like me, were trained and licensed attorneys, though our role was to give policy advice, not legal advice.) Crossing the border to surrender immediately to authorities and claim asylum is protected by the United Nations refugee protocol signed by the United States. Even for families outside that protection, the substantive due process principle in the Constitution suggests that it is illegitimate to threaten to harm or abscond with someone’s children to deter the commission of a misdemeanor. (First-time unlawful entry is the lowest level of federal crime.)
During past surges in border crossings, such as in 2005, 2006 and 2007 under George W. Bush and 2014 under Barack Obama, the civil rights office was central to planning humane and effective protections for migrants as they were arrested, detained, screened and, if they passed initial “credible fear” screenings, placed into immigration court proceedings. But Trump appointees such as White House adviser Stephen Miller, Attorney General Jeff Sessions, DHS Secretary Kirstjen Nielsen, CBP Commissioner Kevin McAleenan and U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna — along with many deputies, assistants and enablers inside ICE and CBP who dreamed up the “zero tolerance” policy — didn’t consult career experts like me: not when it was being considered last year, not when it was unveiled and not for the critical weeks afterward, even as we begged to share our legal and policy analyses.
My job was to ensure that the government did not violate clearly established individual rights, and the Trump administration was pushing a policy whose principal aim was to do just that. My colleagues and I identified a number of constitutional provisions and related case law holding that parents had rights to due process that could limit the ability of the government to separate them from their children for civil immigration violations. That meant that once parents served their typically short criminal sentences for crossing the border illegally, they should have been reunited with their children. Our research also suggested that threatening to detain children separately, and threatening civil detention generally to deter future conduct, was probably unconstitutional.
In our capacity as a gateway for public complaints about DHS, my office was analyzing hundreds of incidents of family separation, including dozens sent over by career staff at the Department of Health and Human Services, which was taking custody of children who had been separated from their parents. We noticed early that CBP and ICE weren’t providing HHS with proper records to allow families to be reunited or pursue their immigration cases jointly. We recommended that officials tell parents promptly and clearly where their children were going, how they could be reached and how family members could get them out of government custody while the parents were detained. Perhaps most urgently, we tried to ensure that children with serious disabilities were not thrown into a system unprepared to care for them. As allegations emerged of chaotic separations and deliberate lies — parents being told that their children were headed to a shower when they were instead placed in another agency’s custody — we started drafting guidelines and training for the Border Patrol agents on the ground. Above all, we tried to ring the alarm that the legal, strategic and human dimensions of the policy hadn’t been thought through, needed fast improvement and posed a massive liability for the government.
My colleagues and I learned while reviewing internal DHS documents through April and May that CBP had, the previous fall, undertaken a pilot project of prosecuting parents with small children who crossed the border illegally near El Paso, leading to a wave of separated families. But when we asked the acting second-ranking CBP official about it, he denied having any information.
That was also false. The formal memo to Nielsen from CBP, ICE and USCIS recommending the family separation policy had justified it on the basis of this same El Paso project, including misleading statistics that had already been debunked by Vox when DHS tried to pass them off to reporters.
Every attempt to raise civil rights concerns led nowhere: a lengthy staff memo to my boss, the top civil rights official; efforts to explain in meetings the toll on our staff from investigating complaints of children and parents who had been separated, without any communication to get back together; multiple efforts to schedule, and reschedule, a briefing that James McCament, the head of the DHS Office of Policy, had promised near the start of the crisis but never convened. Civil servants advanced recommendations for mitigating the worst of the harm; we suggested improving record-keeping, giving separated parents and children better information, and permitting more regular phone calls among families.
After hundreds of complaints filed by migrant children, parents and advocates on their behalf, my office finally managed to arrange a meeting in June with CBP managers to understand how they were separating families and to present ideas about how to do it in a more humane way, if they insisted on doing it. My notes from the meeting record my boiling frustration with the absurd answers we received. Border Patrol agents dismissed our offer to train them on how to speak to children after ripping them from their families. “No,” we were told, “many of our agents are parents themselves. They are very empathetic to the child’s needs and will know what to do.” Had officials in Washington directed agents to record family members’ names and information, so they could later be reunited? “I think we sent an email.” Can we see the email so we know what agents were directed to do? “Um, I’d have to find it.” (The official never did.) Is there a written policy on how to determine whether children have suffered trauma or have some other condition that would mean separating them from their parents would do too much harm? “No, we have no need for written policy. It’s simply ingrained in law enforcement culture.”
The culture ingrained at CBP, though, is one where the Border Patrol’s union opened its podcast (“The Green Line”) with the oath of the Night’s Watch from “Game of Thrones” — the pledge of a band of warrior monks to protect a magical kingdom from an army of ice zombies. If federal law enforcement agents see Central American children as the moral equivalent of the frozen undead, we can’t expect them to understand intuitively how to detain and process them humanely without training, guidance and leadership. That’s why my colleagues and I were pushing for record-keeping, communication and other policies that Trump appointees ignored. (Representatives of the Border Patrol union did not immediately return requests for comment from The Post.)
A U.S. Border Patrol agent acknowledges a family that had illegally crossed the Rio Grande from Mexico in Fronton, Tex., on Oct. 18. (Adrees Latif/Reuters)
It would be easy to see all this as part of the federal sausage-making, the usual intentional delays and risk-managing memos that bureaucrats deploy. But this level of dishonesty and subterfuge was unusual. This month, the DHS inspector general released a report making clear that the incompetence in managing family separation was pervasive, from a lack of planning, to “information provided to alien parents [that] resulted in some parents not understanding that their children would be separated from them,” to false public claims of having a “central database” of parents and children.
The Department of Homeland Security is filled with excellent, dedicated public servants. But it also has enormous authority and the power to enforce thousands of laws well or badly. Its leaders have a responsibility to give their people orders that they can competently and ethically execute, and the tools and guidance to do so. The family separation crisis represented a new frontier in weaponizing DHS’s authority, and its borderline competence, to disastrous effect. Front-line officers weren’t given enough guidance, and their managers in the field didn’t do enough to help them figure it out. Only the administration’s naivete in failing to predict the bipartisan public outrage kept it from being worse.
But most culpable were the high-level appointees, unwilling to take ownership of what they’d decided to do; lying to their staffs in the expectation that nobody really cared what happened to poor Central American kids; cynical about the notion that most of us who swear an oath to uphold the Constitution actually mean it. I cast about for more to do, but within a month of that June meeting, I realized there was no way to keep my oath and my job.
Scott Shuchart was a senior adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties from 2010 to 2018. He is a non-resident senior fellow at the Center for American Progress. Follow @scottshuchart
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Seems like these are precisely the type of knowingly lawless, extra-legal actions that personal liability under the “Bivens doctrine” is supposed to discourage and prevent. It remains to be seen whether the Federal Courts, particularly the Supremes, will have the backbone to hold scofflaw Government officials like Sessions, Nielsen, Miller, & co. personally accountable for their intentional perversions of the rule of law. Recently, the Supremes have indicated that a majority would like to narrowly limit or even abolish Bivens liability. Just when the country needs it most to rein in an out of control Administration!
The United States has the dubious honor of maintaining the world’s largest immigration detention system. Other countries may house more refugees and temporarily displaced persons, but we lock up the most people whose right to stay in the country is in dispute. Tens of thousands of people a day are held until they’re deported or granted permission to stay by an immigration judge (or at least released on bond or into a sponsor’s custody pending a further hearing).
It is a shameful aspect of U.S. immigration enforcement that the government denies liberty to so many people who have neither been accused nor convicted of a crime. To be sure, every nation has a right to control its borders and determine who gets to come in, for what reasons, and through what legal mechanism. We don’t believe that the U.S. should maintain open borders, but the government’s historic reliance on detention as a tool for dealing with people accused of arriving or staying here illegally is needlessly expensive, grossly inhumane and unjust to people exercising their legal right to seek asylum
While the current administration has embraced and expanded the practice, this is not a creation of President Trump. Such detentions date to the Immigration Act of 1882, and current detention policies are rooted in the 1952 Immigration and Naturalization Act. More recently, Cuban and Haitian migrants arriving by boat in the 1970s and ’80s were placed in detention centers, in part to deter their countrymen from similarly setting off to sea on rickety boats. Congress eventually mandated detention for migrants convicted of certain crimes that made them ineligible for admission.
ICE spends nearly $3 billion a year on immigration detention.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 greatly expanded the immigration detention system through contracts with local jails and state and privately run prisons. In fact, most of the 39,000 people incarcerated on any given day in the U.S. for immigration reasons — more than 350,000 pass through the system each year — are held in prison-like conditions in more than 200 locations around the country.
Some local governments have expanded their jails so they can house, for a daily fee, migrants that Immigration and Customs Enforcement wants detained. Meanwhile, the U.S. Department of Agriculture has granted $360 million in low-interest loans since 1996 to help rural communities build jails often larger than they need, so local officials can use detainees and the federal fee payments they bring to cover operating expenses, according to a recent report by the nonprofit Vera Institute of Justice.
ICE spends nearly $3 billion a year on immigration detention, according to the Government Accountability Office. About two-thirds of that goes to private prison corporations to operate detention centers and to local jails to reimburse them for housing detainees. Through those efforts the government has expanded an incarceration industry costing an exorbitant amount of tax dollars to deny freedom of movement of people who, in the vast majority of cases, pose no threat to us.
And notably, at least 77% of migrants facing deportation proceedings show up for their hearings, according to reports. Rates are highest among those who find legal help or receive support from community groups, which suggests there are better methods for handling thisthan detention.
There may, of course, be valid reasons for detaining some migrants, such as newly arrived asylum-seekers whose identities have yet to be verified, people facing imminent court-ordered deportation who the government has reason to fear might disappear, or violent felons who pose a realistic threat to public safety.
One of the largest contributors to no-shows is the government’s failure to keep current contact information for migrants during proceedings that can stretch out for years. One approach would be to match migrants to community service groups or sponsors to better keep track of the individuals and ensure they appear for court hearings; sadly, Trump killedan experimental Obama program that did just that.
This administration has chosen instead to double down on detention, and now it reportedly is considering reviving a version of the vile family separations. If family separation and detention worked as a deterrent, the president wouldn’t be tweeting so furiously these days about the current caravan of Central American migrants moving northward through Mexico. Detention-as-deterrence is not only an inhumane approach, it’s a failed one.
The government can neither detain nor deport its way out of this problem. It must find a better way. The fact that it has failed to do so for so long, regardless of which party controlled Congress or the White House, is an embarrassment.
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Doubling down on the worst, most ineffective, wasteful, and expensive policies. That’s the mantra of the Trump Administration on immigration. What if our Government spent the same amount of time, money, personnel, and effort on solving problems, rather than intentionally and cynically aggravating them?
The only solution is to find a way to process their asylum applications outside of the United States.
In July 2014, I suggested a way to do this to deter unaccompanied alien children from making the perilous journey from Central America to seek asylum in the United States. I proposed working with United Nations High Commissioner for Refugees (UNHCR) to set up refugee centers in Central America for children to make it unnecessary for them to travel to the United States.
A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.
Trump could establish such a program that would be open to adults too.
He also should be able to persuade UNHCR to process asylum seekers who come to the United States at a location outside of the United States if processing is limited to aliens who enter without inspection.
Notwithstanding claims to the contrary, undocumented aliens do not have a right to apply for asylum in the United States. Asylum is a discretionary form of relief. The asylum provision in the Immigration and Nationality Act just states that eligible aliens “may” be granted asylum.
The United States, however, is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
This obligation could be met by arranging for UNHCR to process their persecution claims in some other country with the understanding that an agreed upon number of them would be accepted by the United States as refugees.
It would have to be a very large number to make the program politically feasible.
Aliens who enter without inspection would be placed in expedited removal proceedings. The ones who fear persecution would be transferred to UNHCR. Asylum seekers also could go directly to the processing centers without having to make the journey to the United States.
The alternative is to accept the fact the that our 2,000-mile border is open to anyone who is willing to cross it illegally and ask for asylum.
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Go on over to The Hill at the above link to read Nolan’s complete article.
I disagree with Nolan’s statement that because asylum is, in the end, discretionary, there is no right to apply for asylum at the border or in the United States. The statute, 8 USC 1158(a)(1), specifically states that: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of status, may apply for asylum in accordance with this section or . . . .”
It couldn’t be clearer that ANY MIGRANT, whether documented or not and whether applying at a port of entry or not, who reaches the U.S., including the border, is legally entitled to apply for asylum. While the ultimate granting of the application might be discretionary (I note, however, that current Article III Court decisions restrict the grounds for discretionary denial), the right to apply is clear. Moreover, in light of the obvious care and comprehensiveness that Congress used in insuring that EVERYONE at the border or in the U.S. could at least apply for asylum, I doubt that “blanket denials,” based solely on nationality and/or method of arrival would be proper exercises of discretion.
However, Nolan is correct in that the Supreme Court has held that the INA.s right to apply for asylum does not apply extraterritorially to individuals stopped before they can reach U.S. territory (such as interdiction).
Nolan and I agree on a major point: The Trump Administration should be using the overseas refugee processing provisions of the Refugee Act, the auspices of the UNHCR, and cooperation with other countries who have signed the UN Convention & Protocol to address forced migration issues abroad, closer to the sending country, wherever possible.
However, this Administration has shown little interest in doing that. Threats of sanctions, welshing on our own obligations to take overseas refugees under the Act, false characterizations of the refugees as “criminals and terrorists,” and threats to reduce or eliminate foreign aid aimed at solving the very infrastructure and societal problems that produce refugee flows are certainly not ways to show leadership and to inspire international cooperation in solving refugee problems.
Finally, for “Nolan’s Fan Club,” here’s a link to all 162 of his published articles:
Trump administration considers travel ban-like order for Mexican border
By Tal Kopan
WASHINGTON — The Trump administration is considering an executive action that could use travel ban-like authority to block certain asylum seekers at the Mexican border, sources familiar with the discussions said Thursday.
The proposal is not yet finalized and could ultimately be cast aside, said the sources, who spoke on condition of anonymity because the plan is in the formative stages. If President Trump approved such a plan, it would represent a dramatic escalation in border enforcement as a migrant caravan works its way north through Mexico.
The administration is working rapidly to draft the possible executive action, which could effectively use the same legal authority that Trump invoked last year in imposing a ban against people from several mainly Muslim countries from traveling to the U.S., said a government source who has seen a working version of the plan and several sources who had it described to them.
“The administration is considering a wide range of administrative, legal and legislative options to address the Democrat-created crisis of mass illegal immigration,” a White House official said on condition of anonymity when asked about the effort. “No decisions have been made at this time. Nor will we forecast to smugglers or caravans what precise strategies will or will not be deployed.”
Forget Nukes, Star Wars, terrorist attacks, or cyber wars. All it takes to bring the “brave” leaders of the (formerly) most powerful nation on earth to their knees is a few thousand unarmed folks walking over a thousand miles desperately seeking justice under American law.
I knew we’d all live to regret it when the Supremes let Trump off the hook in the Travel Ban case. While some of the mealy-mouthed Justices who voted to unleash Trump from the Constitution might have thought that their spineless pleas for reason and prudence and their obsequious deference to the Executive would have a restraining effect, truth is it just emboldened him by showing that the GOP-Justices were afraid to cross him in a showdown case.
So, now Trump can just suspend any law that proves inconvenient for his White Nationalist agenda by invoking a transparently bogus “national security” rationale! Wonder whose rights will be next to go? Wonder what the Supremes will do when he comes to get them using their own misguided jurisprudence against them?
For more than 15 years, nonprofit groups have helped hundreds of asylum-seeking migrants journey through Central America to the United States, traveling together in a caravan to make the journey safer and their plight more visible. Thousands of Central American migrants currently walking to the U.S. border are doing the same, fleeing deadly violence on a trek that has drawn international focus.
As many as 7,000 migrants, according to one local estimate, have now joined the caravan that started on Oct. 13 in Honduras, many wearing flip flops and carrying their children on a journey that will be at least 1,500 miles long, depending on which part of the U.S. border they reach.
President Donald Trump — who has long critiqued U.S. immigration policies and denigrated immigrants since the start of his presidential campaign — has made numerous baseless claims about the caravan in recent weeks, spreading alarm and touting it as a “Great Midterm issue for Republicans!” Trump has claimed, without evidence, that the group included “criminals and unknown Middle Easterners” and falsely suggested that Democrats funded the caravan. He also blamed Democrats for the current immigration laws, though Republicans currently control both chambers of Congress and the White House.
“I have alerted Border Patrol and Military that this is a National Emerg[enc]y,” Trump tweeted early Monday, threatening to cut off foreign aid to Guatemala, Honduras and El Salvador for not “stopping people from leaving their country and coming illegally to the U.S.”
But videos and reporting from journalists traveling with the caravan of migrants show weary families making an arduous journey because of violence or lack of opportunity in their home countries, and no evidence that there are “unknown Middle Easterners” among the group.
“The migrants are ordinary people from Central America. They’re joining the caravans because the migration routes through Mexico are perilous for them and highly expensive,” says Elizabeth Oglesby, an associate professor of Latin American studies at the University of Arizona, who has studied Central America and human rights issues. “The more that the border has become militarized between the U.S. and Mexico, the more perilous and the more expensive the journey has become for Central Americans. So that’s why we see people coming together in the caravans.”
She says the caravan, which is larger than many of its annual predecessors, has grown because of how word spread on social media and because of worsening conditions in Honduras, where the murder rate is among the highest in the world and where the government has cracked down on political protestersfollowing last year’s disputed presidential election.
Oglesby says just a fraction of migrants who begin the trek make it to a U.S. point of entry each year, as many turn back or peel off if they can find work or safety in Mexico instead.
While no specific group has said it’s responsible for organizing the current caravan, Pueblo Sin Fronteras, founded in 2010, has led asylum-seeking migrants through Central America for more than 15 years, most recently in April — another caravan that drew ire from Trump. The group aims to “provide shelter and safety to migrants and refugees in transit, accompany them in their journey, and together demand respect for our human rights.” Some Pueblo Sin Fronteras leaders and organizers are involved in the current caravan.
Trump has lashed out at the caravan as an example of illegal immigration, threatening to deploy U.S. military force to “close our Southern border” and stop what he has described as a crisis. But illegal border crossings have been declining overall for more than a decade, though the number of border apprehensions fluctuates month-to-month. And under U.S. law, it is legal to petition for asylum at the border, though the process may be lengthy and ultimately unsuccessful.
“These migrant caravans are not a border crisis,” Oglesby says. “People are doing this openly and visibly, and they plan to show up at the U.S. port of entry and petition for political asylum, and that is exactly how our laws are supposed to function. The crisis comes about when U.S. border officials discourage people from political asylum, leave them on the bridges or threaten them that if they go forward with a political asylum claim, they might lose their children.”
Katie is hardly the only informed observer to note that Trump is even more full of BS, fabricated facts, and bogus scare techniques than usual on this one.
Washington (CNN)President Donald Trump, in a series of tweets on Monday, claimed he would declare a “national emergency” over an issue that has frequently piqued his attention — migrant caravans moving toward the United States through Central America and Mexico.
His tweets come just weeks ahead of the 2018 midterm elections and he has emphasized immigration as a key issue, without evidence accusing Democrats of pushing for overrun borders in what appears to be a naked fear campaign aimed at turning out his supporters. Immigration was a key issue in the 2016 presidential race.
Crowds of migrants, estimated to be in the thousands on Monday, resumed their long journey north on Sunday into Mexico as part of a migrant caravan originating in Central America.
Currently migrants are at the Central Park Miguel Hidalgo in the center of Tapachula. Organizers plan for them to begin moving north, reaching the northern city of Huixtla, which is about 20 miles north, and resting there.
The President, in his tweets, also made several questionable claims concerning immigration and the caravan. Among them: that “unknown Middle Easterners” are “mixed” in with the caravan, that he would be cutting off foreign aid over the caravan, and that Mexican authorities failed to stop migrants from coming into Mexico.
Asked later Monday about his assertion about “unknown Middle Easterners” in the caravan, Trump said: “Unfortunately, they have a lot of everybody in that group.”
“We’ve gotta stop them at the border and, unfortunately, you look at the countries, they have not done their job,” he said. “They have not done their job. Guatemala, Honduras, El Salvador — they’re paid a lot of money, every year we give them foreign aid and they did nothing for us, nothing.”
Here’s what we know:
Are there “unknown Middle Easterners” “mixed” into the migrant caravan?
Trump tweeted “criminals and unknown Middle Easterners are mixed” into the migrant caravan moving toward the United States. He called this a “national emergy” (sic).
It’s unclear what “unknown Middle Easterners” Trump appears to be referring to in his tweet, since there have been no reports, in the press or publicly from intelligence agencies, to suggest there are “Middle Easterners” embedded in the caravan.
A senior counterterrorism official told CNN’s Jessica Schneider that “while we acknowledge there are vulnerabilities at both our northern and southern border, we do not see any evidence that ISIS or other Sunni terrorist groups are trying to infiltrate the southern US border.”
White House press secretary Sarah Sanders said Monday afternoon that the administration “absolutely” has evidence of Middle Easterners in the caravan, “and we know this is a continuing problem.”
However, she did not provide the specific evidence supporting that claim.
During a White House conference call with surrogates regarding the caravan, a Homeland Security official said the administration is looking into a claim from Guatemalan President Jimmy Morales that his country has been able to capture around 100 terrorists. However, the official did not offer any evidence of the Middle Eastern people who Trump claims are hiding among migrants in the caravan.
“We are looking into that claim from the President Morales on the numbers,” Jonathan Hoffman, the DHS official, said. “It is not unusual to see people from Middle Eastern countries or other areas of the world pop up and attempt to cross our borders.”
Earlier this month, Morales claimed foreign individuals linked to terrorism were captured in the country during his administration, which began in January 2016.
“We have arrested almost 100 people highly linked to terrorist groups, specifically ISIS. We have not only detained them in our territory, they have also been deported to their countries of origin. All of you here have information to that effect,” Morales said during a Conference on Prosperity and Security in Central America event attended by Secretary of State Mike Pompeo.
There’s no direct link or correlation between Morales’ statement and Trump’s assertion about the caravan on Twitter.
The Department of Homeland Security also did not provide any evidence to bolster the President’s claim about “unknown Middle Easterns” in the caravan when asked for it by CNN on Monday.
A department official told CNN that in fiscal year 2018, Customs and Border Protection “apprehended 17,256 criminals, 1,019 gang members, and 3,028 special interest aliens from countries such as Bangladesh, Pakistan, Nigeria and Somalia. Additionally, (Customs and Border Protection) prevented 10 known or suspected terrorists from traveling to or entering the United States every day in fiscal year 2017.”
The Department of Homeland Security did not specify any Middle Eastern countries.
Pressed about the President’s assertion that there are “unknown Middle Easterners” mixed in with the caravan, a State Department spokesperson said they understand there are several nationalities in the caravan and referred us to Department of Homeland Security for more information.
Will the administration cut off foreign aid? Can they?
Trump tweeted that because “Guatemala, Honduras and El Salvador were not able to do the job of stopping people from leaving their country and coming illegally to the U.S.,” the United States “will now begin cutting off, or substantially reducing, the massive foreign aid routinely given to them.”
It’s unclear where the administration will propose to make the cuts the President appears to be talking about, and CNN has reached out to the White House and the DHS for further information.
However, the Congressional Budget and Impoundment Control Act prohibits the President from withholding — or impounding — money appropriated by Congress.
New York Rep. Eliot Engel, the top Democrat on the House Committee on Foreign Affairs, said Monday that his office has reached out to the Government Accountability Office to ensure that the President does not violated the act.
“Fortunately, Congress — not the President — has the power of the purse, and my colleagues and I will not stand idly by as this Administration ignores congressional intent,” Engel said in a statement.
Trump has made the threat of cuts to foreign aid going to Latin American countries over migrant caravans several times over the last year.
Under the Trump administration, and with the approval of the Republican-controlled Congress, there have already been significant cuts to foreign aid to Guatemala, El Salvador and Honduras — the three countries he mentioned Monday — and the administration plans to continue making cuts in fiscal year 2019.
Were authorities from Mexico unable to stop the migrant caravan from heading into the US?
Trump tweeted Monday that “Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States.”
There are some 7,500 people marching north as part of a migrant caravan through Mexico, caravan organizer Dennis Omar Contreras told CNN. He said the organizers did a count of participants Monday morning.
He said the migrants will leave Mexico’s Tapachula for the town of Huixtla, which is located more than 20 miles northwest of their Monday morning location.
While Mexican authorities said before the caravan’s arrival that anyone who entered the country “in an irregular manner” could be subject to apprehension and deportation, many migrants from the caravan appear to have circumvented authorities.
It’s unclear how authorities will respond to the thousands of other migrants who are marching north.
Will the President declare a national emergency over the caravan?
It’s unclear exactly what executive action, if any, the President will take following his tweet saying that he has “alerted Border Patrol and Military that this is a National (emergency).”
Previous administrations have ordered troops to the US southern border, and Trump issued a similar memorandum earlier this year ordering National Guard troops to be deployed to the US-Mexico border. The memo came around the same time another, smaller migrant caravan was moving toward the US through Central America.
Lieutenant Colonel Jamie Davis, a spokesman for the Defense Department, told CNN that “beyond the National Guard soldiers currently supporting the Department of Homeland Security on our southern border, in a Title 32, U.S. Code, section 502(f) duty status under the command and control of the respective State Governors, the Department of Defense has not been tasked to provide additional support at this time.”
The Department of Homeland Security, which oversees Customs and Border Protection, referred questions about the national emergency to the White House, which did not answer to several questions for comment.
Doris Meissner, a senior fellow at the Migration Policy Institute and the former commissioner of the Immigration and Naturalization Service, told CNN that the President’s use of the term national emergency, and his potential subsequent declaration, is “a subjective judgment.”
“It is certainly true that the numbers that have been reported in this group are larger than anything that we’ve seen before this from these countries concentrated in one group,” she said.
However, she added that the reaction is “disproportionate to what’s happening.”
“I’m not saying it’s not a genuine problem, but it’s not like this is organized insurrection, in the way that its been characterized,” she added.
CNN’s Catherine Shoichet, Sarah Westwood, Ryan Browne, Jennifer Hansler, Geneva Sands, Dakin Andone, Patrick Oppmann, Natalie Gallón, Kevin Liptak and Jessica Schneider contributed to this report.
This story has been updated.
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And, here’s the ever-wonderful Tal from her “new home” over at the SF Chronicle:
Here’s what happens when the migrant caravan arrives at U.S. border
By Tal Kopan
WASHINGTON — President Trump ratcheted up his rhetoric Monday about a caravan of thousands of Central Americans making its way toward the U.S., even as uncertainty grew over what will happen to the migrants if they reach the border.
Trump has seized on the caravan as a key talking point heading into the midterm elections. The president has been pointing to the growing group of migrants as justification for his aggressive immigration proposals.
“Sadly, it looks like Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States. Criminals and unknown Middle Easterners are mixed in. I have alerted Border Patrol and Military that this is a National Emergy. Must change laws!” Trump tweeted Monday.
A source familiar with the government’s information on the caravan said there was no evidence Middle Easterners were mixing into it. It’s unclear whether Mexico will allow the group to continue the remaining 1,000-plus miles to the U.S. border without interfering.
Actually, contrary to the false narrative put out by Trump, Sessions, Nielsen, and others, our legal system is set up to handle this situation:
USCIS could move additional Asylum Officers to ports of entry along the Southern border, particularly given the substantial advance notice;
Arriving migrants could be promptly and fairly screened for “credible fear;”
Those who pass could be matched with available pro bono lawyers and released to those locations where their lawyers and community support are located, thus insuring a high rate or appearance for asylum hearings in Immigration Court;
Those who fail credible fear could be returned to their home countries in a humane manner, perhaps working with the UNHCR;
If the Administration wants these cases to be “prioritized” in a backlogged Immigration Court system, they could remove an equal number of “low priority” older cases from the docket, thus preventing growth in the backlog and largely avoiding “Aimless Docket Reshuffling;”
The Refugee Act of 1980 could be used to establish a robust program for screening and resettlement of refugees directly from the Northern Triangle, thus both reducing the incentive to make the land journey to apply for asylum and setting a leadership example for other countries in the hemisphere to take additional refugees from the Northern Triangle;
We could work cooperatively with the UNHCR and other countries to establish shared resettlement programs for those who flee the Northern Triangle and can’t return;
We could invest more foreign aid in infrastructure, and job creation programs in the Northern Triangle which would deal with the causes of the continuing outward migration.
We do know from experience and observation what won’t work: incarceration, prosecutions, threats, family separation, child abuse, misconstruing asylum law against applicants, tirades directed against sending and transit countries, saying “we don’t want you,” etc.
ALFREDO MARQUEZ-MARTINEZ v. U.S. ATTORNEY GENERAL, 11th Cir., 10-17-18, Per Curiam, Unpublished
KEY QUOTE:
When reviewing an agency decision for abuse of discretion, we evaluate whether the agency’s exercise of its discretion was arbitrary or capricious. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005), overruled on other grounds by Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013). The arbitrary- and-capricious standard is “exceedingly deferential”—we are not authorized to substitute our judgment for an agency’s so long as its conclusions are rational. Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009) (citations omitted).
That being said, we may nonetheless find an agency action arbitrary and capricious where an agency has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (citing Ala.–Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)).
Here, Marquez-Martinez has demonstrated that the denial of his motion to reopen was arbitrary and capricious. As indicated by the BIA, the IJ’s decision rested solely on two “negative” grounds: (1) Marquez-Martinez’s delay in filing the motion to reopen and (2) Marquez-Martinez’s prior relationships. Neither the IJ nor the BIA, however, provided any reason why these factors counted against Marquez-Martinez—indeed, the IJ explicitly discounted the only reason for which either factor could support a denial of Marquez-Martinez’s motion.
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Recently, Jeff Sessions has made it clear that he wants everyone to know just how deeply, deeply offended and totally outraged he is that Federal Judges (unlike his captive “Immigration Judges”) have, on some occasions, had the absolute audacity to insist that he and the Trump Administration comply with the law. Normally, the 11th Circuit is pretty willing to “go along to get along” with whatever the Government wants to do to migrants. So, you know that the BIA and Sessions were totally out of control for the court to assert itself in this manner, even in an unpublished case.
Obviously, Trump and his GOP buddies like McConnell are counting on appointing lots of wimpy right-wing judges who will be loath to intervene to stop the Government from pillaging the individual rights of ordinary Americans for the benefit of rich GOP “fat cats” and religious and social extremists. It will be interesting to see what these judges do if and when the Government again becomes controlled by Democrats who want to act in the overall public interest, rather than just protecting White privilege.
U.S. Department of Justice Office of the Attorney General
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012).
The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.
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Here’s the BIA headnote a link to Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018):
(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.
(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.
Remains to be seen whether Session’s November 16, 2018 “deadline for brief submission” will exceed his job tenure! But, don’t kid yourself: this decision has already been written, maybe with input or assistance from a “restrictionist” organization. And, even if Sessions departs shortly after the midterms, as most expect, I’m sure Trump will be able to find another “restrictionist patsy” to do his “immigration dirty work” for him.
Want to know how ludicrous Sessions’s action is: This case has been pending before the Immigration Court, the BIA, the Supreme Court, and now the Attorney General for nearly 15 years, with no end in sight. After Sessions rules against Negusie, the case will go back to the Court of Appeals, and then, perhaps, back to the Supremes, assuming Mr. Negusie lives long enough to see it through to its conclusion. When it comes to removing folks without Due Process, “time is of the essence” for guys like Sessions; but, when it comes to screwing asylum seekers, “time has no essence” — whatever it takes, no matter how long it takes.
Additionally, this is a great illustration of the absurd dereliction of duty in the Supreme’s so-called “Chevron doctrine.” It’s a purely judge-created device that enables the Supremes to avoid deciding important and potentially controversial legal issues by, in effect, “shuffling them off to Buffalo” (a/k/a the Executive Branch). Once in “Buffalo,” sometimes dysfunctional and often biased Executive Branch agencies can exercise their (often purely imaginary) “expertise” in construing ambiguous statutes (which is, after all, a question of law that constitutes the only function of the Article III Courts). And, does anybody (other than Jeff Sessions) really think that a politico like Jeff Sessions has any real “expertise” in immigration adjudication?
Interestingly, Justice Gorsuch, like his conservative predecessor the late Justice Scalia, has been openly skeptical of the Chevron doctrine. Perhaps ironically, he, along with the outlandish actions of the Administration that appointed him, could ultimately spell the well-deserved end or limitation of “Chevron deference.”
As we say in the business, stay tuned. But, please, please, don’t “hold your breath” on this one!
New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen
American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.
The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.
“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.
Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”
“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”
Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”
Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”
The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.
American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.
The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.
“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.
Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”
“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”
Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”
Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”
The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.
It’s a strange system where the victims of law violations are punished while the “perps” — folks like Sessions, Nielsen, Miller, etc — walk free and are allowed to continue their lawless behavior.
Even stranger: A guy like Sessions — a scofflaw “Jim Crow Throwback” if there ever was one — has the absolute audacity to whine, complain, and even threaten when occasionally Federal Judges intervene in relatively limited ways to force him and even Trump to comply with our country’s laws and our Constitution. But, I suppose that’s what free speech is all about. Nevertheless, Sessions’s freedom to express his opinions that mock, distort, and mischaracterize our laws doesn’t necessarily entitle him to act on those opinions in a manner inconsistent with those law.
Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.
Why?
That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”
The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”
The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.
This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.
“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”
Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.
It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.
Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.
“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”
Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.
Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.
Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.
The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.
The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.
“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.
Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.
In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”
The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.
And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.
This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.
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While immigration advocates might look forward to the day of Session’s departure from DOJ just as much as Donald Trump does, in the case of immigration the wonton damage and carnage he has inflicted on our justice system, particularly in the area of immigration, won’t easily be repaired. And, the repairs can’t even begin until after we get “regime change.”
On 6 April 2018, the US attorney general, Jeff Sessions, issued a memoto federal prosecutors along the US-Mexico border directing them “to adopt immediately a zero-tolerance policy” for violations of a federal law barring “improper entry” into the country. “You are on the front lines of this battle,” Sessions wrote, as if rallying his troops against an invading army.
Over the next six weeks, the collateral damage of the Trump administration’s policy was revealed: some 2,654 children were taken from their parents or guardians in order to fulfill the mandate that they be prosecuted for a criminal misdemeanor. As of 27 September, 219 children whose parents had already been deported remained in government custody.
Zero tolerance pushed serious fraud, drugs and weapons trafficking offences out of the courtroom to make way for the flood of people whose only crime was crossing the border. Between March and June, federal prosecutions referred by Customs and Border Protection (CBP) in the five districts along the south-west border rose by 74%, from 6,368 to 11,086.
I don’t think this is really about justice anymore Cesar Pierce, defense attorney
Today the Guardian publishes analysis of documents from more than 3,500 criminal cases filed by border district federal prosecutors during a single week of the zero tolerance policy: 13-19 May.
The three-month investigation, the most comprehensive analysis to date of the experiences of thousands of migrants entering the US during that period, shows how:
Zero tolerance churned thousands of migrants through an assembly-line justice system with copy-and-paste criminal complaints converted to hastily accepted guilty pleas.
Just 12.8% of the criminal cases filed by federal prosecutors were the kind of serious crimes – corruption, fraud and trafficking – that citizens expect federal prosecutors to pursue.
Sentence lengths for migrants charged with the same crimes varied dramatically depending on the state where they were arrested.
The court documents shine a spotlight on the migrants’ perilous journeys and the extreme lengths immigration enforcement goes to intercept them. They also reveal the lack of documentation created when children were torn away from families at the point of arrest – a shocking omission.
Four months after thousands were charged, only 23 individuals continue to fight their cases. The overwhelming majority have pleaded guilty, and only one case has actually gone to trial, where the defendant was found guilty.
“I don’t think this is really about justice anymore,” said Cesar Pierce, a defense attorney in Las Cruces, New Mexico, who represented 18 of the individuals in our sample.
“Justice really factors very little into it.”
The week was dominated by low-level immigration charges
Of the cases that we examined, 3,121, or 87.2%, were low-level immigration offences. Only 12.8% of cases were serious crimes like corruption, fraud, and drug or weapons trafficking, or more significant immigration offenses, such as human smuggling.
The majority of prosecutions are for first-time crossers
Of the 3,121 people charged with low-level immigration crimes, the vast majority were accused of illegal entry, a misdemeanor, while 31% were accused of illegal re-entry, a felony. The rest were caught using false immigration documents.
The long, perilous journey
José G left El Salvador for the United States on 3 May. The 43-year-old father had previously been deported from the US and was working as a bus driver, but when a gang threatened his 16-year-old son, Marco, he decided to take the risk of traveling to America again.
“It’s his age,” José said of his son. “It makes me afraid.”
It took six days for father and son to traverse Mexico by car. They were walking across the Rio Grande under a bridge linking Juárez with El Paso, about a mile from the official port of entry, when they were spotted by border patrol and arrested. Even though José had no other criminal record, his “illegal re-entry” after a previous deportation triggered a felony prosecution under zero tolerance.
‘I’ve been separated from my son for four months. I don’t understand why we are still separated’ José G
José was locked up in El Paso county jail to await his criminal case. Marco was sent to a children’s shelter.
“I’ve been separated from my son for four months,” José told the Guardian in mid-September. “I don’t understand why we are still separated.”
José is one of the 3,121 migrants in our sample who risked crossing the border to seek a better life. Just over half were Mexican nationals, closely followed by Guatemalans, Hondurans and Salvadorans. The vast majority are men.
Having made the long, perilous journey from their home countries, some cross at official ports of entry to claim asylum, while others attempt to conceal themselves in trunks of cars, trucks and freight trains.
Many are opting to trek across the border in more remote, dangerous desert and mountain regions. Others wade, raft or swim across the Rio Grande, which defines nearly the entirety of the Texas-Mexico border.
Most came from Latin America
With Mexico dominating, followed by Guatemala, Honduras and El Salvador. There were also a small number of migrants from China (three), India (nine), Chile (one), Peru (three) and Canada (one).
Number of migrants by country of origin
1
400
800
1200
1600+
In cases where a migrant’s country of origin was not recorded, we used the country to which the individual had previously been deported. We were not able to determine country of origin for another 58 people.
Far more men were arrested than women
Court documents do not record gender so we made educated guesses based on individuals’ first names and the pronouns used in the documents.
Previous deportation is not a deterrent
Of those who have been previously deported, many attempt to come back within a year or two, with 28 attempting the crossing within a matter of days.
Arrest location: a third were caught crossing the Rio Grande
In criminal complaints detailing the river crossings, Border Patrol recorded that 33% crossed by wading, 34% by rafting and 4.6% by swimming.
Number of arrests by county
1
100
200
300
400+
Extreme tactics at the border
The documents reveal the lengths to which the US Border Patrol and Immigration and Customs Enforcement (Ice) go to capture migrants.
Border Patrol uses an armory of technology including “seismic intrusion devices” (sensors that send an alert when they detect the vibrations created by footstep), giant towers packed with cameras and sensors, and mobile video surveillance systems – trucks that have extendable masts fitted with an array of cameras, radar and laser range finders, frequently referred to as “scope trucks”.
At least six migrants were arrested during “immigration inspections” of commercial passenger buses at a border patrol checkpoint in Texas – a practice that has been harshly criticized as unconstitutional by the American Civil Liberties Union, which is calling on Greyhound buses to stop allowing border patrol agents on board. All six have pleaded guilty; three received prison sentences ranging from 64 days to four months; the other three are still awaiting sentencing.
Others were arrested at motels, based on anonymous tips or pro-active surveillance. In one case, border patrol agents were surveilling the Cotton Valley Motel in Clint, Texas. After observing “two individuals wet and muddy from the knees down” enter, the agents obtained consent from the motel manager to search the room, where they found six people hiding in the bathroom.
It was a shock for everyone. You had 75 people in chains Daniela Chisolm, El Paso attorney
In some cases, migrants end up turning themselves in. On 16 May, Marin M, a migrant from Guatemala, called 911 from the desert in Otero county, New Mexico, when he and his traveling companions found they could walk no farther.
“Please come get us,” the men can be heard asking in the 911 call, which the Guardian obtained through a public records request. They ask repeatedly for water.
The Otero county sheriff’s department dispatched Border Patrol agents who transported the men to a local hospital for treatment. Marin was then taken to the Alamogordo Border Patrol station for processing, and charged with felony re-entry. He pleaded guilty and was sentenced to 57 days in federal prison.
Many of those arrested try to claim asylum because they are fleeing from gang violence, corruption, political instability and natural disasters. Those opting to seek asylum the “legal” way, by presenting themselves at a US port of entry, have been thwarted by officials who say they don’t have the capacity to process them. Border Patrol has started blocking anyone without a US passport from stepping onto US soil, leaving a backlog of asylum seekers camping on international bridges between the US and Mexico for weeks as they wait to be processed.
This crackdown on legal asylum is pushing some desperate migrants to enter illegally, say attorneys.
One Tucson-based lawyer, who did not wish to be named, described a client who crossed illegally only after being blocked from seeking asylum at a US port of entry.
“The mafia said if my client didn’t work for them they’d rape his six-year-old son,” she said. “So his only decision was to get to the US. Am I going to leave my child? No, I’m going to bring my child. Anybody would.”
“People were panicking,” recalled Carlos Quinonez, a defense attorney in El Paso, Texas. “I’ve never seen so many people.”
“It was a shock for everyone,” said Daniela Chisolm, another El Paso attorney. “You had 75 people in chains: 18-year-old girls from Guatemala, 70-year-old men from Honduras … The first day, I had 15 clients, and nine of them had children taken from them.”
Defense attorneys spoke of an “exponential” increase in the number of cases they were assigned, made all the more challenging by their clients’ anxiety after losing their children. “I spent a lot of time having to refocus my clients,” said Quinonez. “They were focused on where their kids were.”
While federal public defenders usually represent indigent defendants charged with felonies, the task of representing the thousands of misdemeanor illegal entry cases often fell to private defense attorneys like Quinonez and Chisolm, whose fees the government pays. Pierce, the Las Cruces defense attorney, said he came to consider those payments “blood money”. “We get paid to do this, but it’s not really what we signed up for,” he said. “You want to defend people in a criminal case, not because someone crossed the border looking for work.”
Maxine Dobro, a defense attorney in San Diego, was one of several defense attorneys to express disgust with what she called “a misguided decision by a misguided administration: the mass scooping up of minnows will go down as one of the darkest hours of our nation.”
“The sharks swim away and the minnows are prosecuted,” she added. Indeed, an analysis by the Transactional Records Access Clearinghouse found that between March 2018 and June 2018, federal prosecutions of non-immigration crimes fell in the five border districts, both as a percentage of total prosecutions and in absolute terms.
Some defense attorneys, including Jose Troche, an El Paso attorney who represented 11 clients in our sample, were supportive of zero tolerance. “Look, I represent them, but some of these parents need to be prosecuted for child endangerment,” Troche said. “They brought these kids through Mexico, through that pigsty, and dumped them here.” As for the children themselves: “The centers are the safest place these kids have ever been,” he said.
While defense attorneys were struggling to represent the thousands of newly criminalized migrants, federal prosecutors had challenges of their own. In at least 15 cases, the criminal complaints charging migrants with illegal entry included obvious errors suggesting that whoever had filled them out had failed to complete a prepared template.
Ananias B, a migrant from Honduras, was charged with entering the country by “wading the Rio Grande River near, #PLACE OF ENTRY#”. Angel A, from El Salvador, was charged with a crime that “took place on #DATE OF ENTRY#”. Perhaps most egregiously, seven migrants in Arizona were charged based on complaints that included the phrase, “Agents observed the Defendant #DOING WHAT? PICK ONE DELETE THE REST#”, followed by a list of apparently common behaviors.
The Guardian made numerous attempts to contact the federal prosecutors responsible for prosecuting the cases in our sample. None agreed to speak either on or off the record.
Cosme Lopez, a spokesman for the US attorney’s office in Arizona, said by email that one of the incomplete complaints had been filed with Pacer “due to an apparent error in the uploading process”. Lopez said that a “hard copy” was used in court “that included all the necessary information.” Lopez declined to provide a copy of this hard copy, and neither responded to questions regarding the uploading error nor explained how the document in Pacer came to be signed by a judge.
One federal magistrate judge who has handled zero tolerance cases and who spoke to the Guardian on condition of anonymity said that the incomplete complaints certainly represented “shoddy work”, but added that he would not “ascribe to it any sinister motives”.
The mass scooping up of minnows will go down as one of the darkest hours of our nation Maxine Dobro, defense attorney
He compared the criminal justice system to a boa constrictor that can open its mouth wider and wider to swallow increasing numbers of defendants, but cannot increase its capacity to digest those cases. “Historically, the government puts lots of resources into the law enforcement mouth, but the judicial resources to address that lump of new cases don’t get increased correspondingly,” he said.
That judge, like others who spoke with the Guardian, described a dramatic increase in misdemeanor and petty offenses in his courtroom. William P Johnson, the chief US district judge of New Mexico, shared with the Guardian a letter he had sent seeking authorization to fill a vacant magistrate judge position in which he highlighted the “drastic increase” of 1,100% in misdemeanor illegal entry cases from 2017 to 2018.
Within the pages of the more than 6,000 court documents the Guardian examined there is a striking omission: the fact that many migrants were travelling with children at the time of their arrests was recorded in only 10 of the 3,121 cases we examined.
José G is one of those 10. When he appeared in court on 14 May, five days after his apprehension by Border Patrol, the criminal complaint against him included a reference to his child. The fact that his son was in the US, and by then was being kept in a shelter for migrant children in El Paso, was not referenced in the prosecution’s motion asking a judge to deem José a flight risk and detain him without bond – a request that the judge in the case granted.
José spent two months in the El Paso county jail before the case against him was simply dropped. The prosecution’s motion for the case to be dismissed states only that “the government does not wish to prosecute at this time”. José was moved to an immigration detention center to start the separate process of immigration court. He did not pass the “credible fear” interview that would have allowed him to seek asylum.
He is yet to be reunited with Marco.
Assembly-line justice
The right to a fair trial, enshrined as the sixth amendment in the Bill of Rights, is as American an ideal as the Statue of Liberty.
But of the 3,121 migrants whose cases we examined, only one has gone to trial so far. Prosecutors dismissed the charges against 70 defendants – a few times because no translator was available or after a defense attorney filed a motion challenging the prosecution’s case, but largely without providing any explanation. Four migrants were found not competent to stand trial and were committed to mental institutions. Nine cases were terminated without any record of the outcome that we could find.
Over the summer, many migrants pleaded not guilty and remained incarcerated while awaiting trial. That number has dwindled to just 23 as of the end of September, however, as more and more holdouts change their pleas to guilty.
The vast majority – 3,014 – have now pleaded guilty.
Some judges defended the rate of guilty pleas, noting that it is difficult to mount a defense against a charge of improper entry if the defendant is found in the US. But many defense attorneys argued that it was impossible for defendants to make “knowing and voluntary” pleas when they had such limited access to legal advice or were preoccupied with worry for their children.
For those who pleaded guilty, the sentences they received ranged widely. The median time spent incarcerated for those who pleaded guilty to misdemeanor improper entry was five days, but it was significantly longer for those in California (16 days) than in Arizona (two days). Those charged with felony re-entry received a median sentence of 2.5 months (75 days). Here again the length of sentence varies by state, however, with those sentenced in the southern district of Texas receiving a median sentence of 4.3 months (130 days), compared to 1.4 months (43 days) in New Mexico.
As of 30 September, when we completed our data analysis, 266 migrants remained incarcerated, awaiting sentencing. Some were not scheduled to see a judge again until 2019.
Case outcomes: almost all pleaded guilty
Though as of 30 September, 23 continued to pursue their cases.
Most judges sentenced first-time entrants to time served
This meant that the time defendants spent incarcerated varied according to how quickly the court could process cases. For the vast majority, this resulted in less than 30 days in prison.
Those who had previously been deported received longer sentences
The longest sentences went to those with other criminal convictions.
First-time migrants in the southern district of California spent the longest time incarcerated
This is likely because California was not yet using a “fast track” system of prosecuting migrants, resulting in a longer wait for sentencing. California began using the new system, “Operation Streamline”, in July.
The southern district of Texas hands outs the longest sentences for re-entry cases
This data is incomplete, however, because almost all of the 266 migrants still awaiting sentencing were charged with felony re-entry.
Families still separated
After José’s criminal case was dismissed, he was transferred to an Ice immigration detention facility in Sierra Blanca, about 90 miles south-east of El Paso.
Immigration detention is the likely next step for most of the other 3,120 migrants once they complete their criminal sentences, though some are deported immediately after release from prison. For those who are transferred to Ice custody, they can either attempt to claim asylum, mount a case in immigration court that they should be allowed to stay, or be deported. But the paper trail ends with the criminal cases: immigration courts produce no comparable record of their proceedings.
José is allowed visitors, but only from behind a thick plate of glass. He is diminished; his weight has dropped from 180lbs to 152lbs while he has been incarcerated, he says.
“The stress is enormous,” he said, fighting back tears. He has not been allowed to see his son, and though he is allowed to speak to Marco by phone, he lacks the funds to do so. A 20-minute call to a US number from the detention facility costs about $10, with a $3 service fee.
José doesn’t have an immigration attorney and doesn’t know the status of his immigration case. “About a month ago I signed a form saying I want deportation,” he said. “But Ice hasn’t said anything to me about when I will be deported.”
Marco was eventually released to José’s brother in North Carolina, a fact that has both assuaged and increased his anxiety. The Trump administration has begun requiring family members to submit their fingerprints in order to receive family members – potentially placing them at risk of Ice themselves.
“My brother and my sister-in-law are both here without papers,” said José. “They gave up their fingerprints with their consent and in good faith to take in Marco.
“But I’m still here in detention. I haven’t seen Marco and that’s why it’s so bad here. All the time I have spent crying here about the separation,” he added, his voice trailing off.
“Nobody tells us anything. There’s no light at the end of the tunnel.”
Median sentence length for felony illegal re-entry0 days204060801001201401600 días20406080100120140160California southern60 daysArizona60 daysNew Mexico43 daysTexas western105 daysTexas southern130 days
Credits
ReportersJulia Carrie Wong, Olivia Solon, Margaret Katcher and Patrick Timmons
Reporting assistantSimon Campbell
Data AnalysisPamela Duncan
Design and developmentSam Morris
IllustrationKatherine Lam
Copy EditingCharlotte Simmonds
TranslationKatie Schlechter
Special thanks toFrancisco Navas and Chris Taylor
Methodology
One unintended consequence of zero tolerance was to create the means for greater transparency. US immigration courts are notoriously opaque, but proceedings in federal criminal courts are filed in Pacer, an electronic database. By insisting on criminalizing migrants prior to seeking to deport them, zero tolerance created a vast paper trail that sheds light on the mechanics and malfunctions of the policy.
To perform our data analysis for this article, we searched Pacer for all criminal cases filed by the US government in the five border districts during the first six weeks of zero tolerance, 7 May-25 June, the period during which family separations were taking place. The five districts are the southern district of Texas, the western district of Texas, New Mexico, Arizona, and the southern district of California.
The nearly 25,000 criminal cases filed during that period were more than we had capacity to investigate, so we decided to limit our analysis to one calendar week: 13-19 May. This resulted in a sample of 3,579 cases.
We divided that sample into two groups: those who were charged with low-level immigration offenses and everyone else. The charges that we considered low-level immigration offenses are: 8 USC § 1325; 8 USC § 1326; 9 USC § 1459; 18 USC § 1028, 1544 and 1546.
Because of the way that Pacer works, our sample includes two sets of cases: those that were originally filed during the week in question, and a smaller set of cases that were re-filed in criminal court during that week.
This distinction is the result of the way federal courts handle their workload. Low-level immigration offenses are usually filed in magistrates court where they are overseen by magistrates judges, whose job it is adjudicate minor or petty offenses, while felonies are handled in criminal court by district judges. In many cases, illegal re-entry charges are originally filed in magistrates court, then transferred to criminal court for sentencing.
We decided to keep these transfer cases in our sample because they represent a portion of the caseload that was burdening the courts overall during the week we examined.
We worked with PacerMonitor to download the criminal complaints and judgments for all of the cases in our sample, then used optical character recognition technology to convert as many of the documents as possible into a machine readable format. We then built our own database of the cases and all the information we could glean from the documents, such as demographic information about the migrants themselves, where and how they were arrested, who prosecuted them, and what the outcome of their court cases were. We are referring to migrants by their first names and last initials, and have changed the name of a minor.
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Go to the original article at the link to get the charts in their proper format.
No amount of doubletalk and false narratives by the Trump Administration will change the reality of what they are doing, its intentional cruelty, and its utter failure to deter migration. Sadly, it’s quite possible, but not necessarily inevitable, that Trump, Sessions, Miller, and the others who have formulated these travesties will escape legal judgement in the present. But, they won’t escape the judgment of history; nor will those who have enabled, or worse yet, actively supported them.
We can can diminish (and are diminishing) ourselves as a nation, but it won’t stop human migration!
But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.
Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.
The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.
The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”
In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.
If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.
According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.
There was an uproar – and some backtracking – over detaining children for even relatively short periods. How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?
. . . .
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Go on over to The Hill at the above link to see Nolan’s complete article.
It’s likely that “Our Gang” of retired Immigration Judges will be weighing in on this issue in the near future. So, stay tuned for further developments.
TORNILLO, Texas — Having immigrant teens live in the “tent city” in Tornillo, Texas, was always supposed to be a temporary solution, after the Trump administration’s policy of separating immigrant families at the border meant the government didn’t have enough beds in the shelter system.
It opened in June, and the contractor running the site had a 30-day contract. At that time, 326 children were being housed there.
But four months after its opening, the shelter 30 miles outside of El Paso has grown into a bustling town. It now holds nearly five times its initial population — roughly 1,500 teens — and its contract has been extended until at least Dec. 31.
The tent city’s purpose has changed as well. Officials at the Department of Health and Human Services, the federal agency responsible for the care of unaccompanied child immigrants, say none of the teens currently housed there were detained as a result of family separations. It now holds immigrant children who crossed the border without an adult, in theory as a last stage of their stay in the vast US shelter bureaucracy.
And as the shelter expands, administrative issues have cropped up concerning legal representation and FBI background checks — extending many teens’ stays longer than what HHS says is the average.
Tornillo now has a new football field, math and English classes, and more than 100 tent structures. Staffers zipped around in carts between dozens of portable offices offering mental health services, emergency medical care, legal services, and even a barber. A huge emergency tent has been turned into a sleeping hall for 300 teenage girls, decorated with paper chains and lanterns.
BuzzFeed News toured the Tornillo facility for the second time on Friday, as part of a group of reporters. Like the first and only other tour, instructions were strict. No photographs or recording devices were allowed, and reporters were not permitted to use the names of employees or speak with the teens living at the camp — though HHS was more lenient on the last rule during Friday’s tour. The only photos were provided by the government.
HHS
The facility in Tornillo, Texas.
“I frankly thought we were done here in July,” the facility’s incident commander, who works for the contractor BCFS, told reporters Friday. He spoke from a new command center that is nearly triple the size of the office he occupied in June.
“I’m still here, ’cause otherwise, where are these kids going?” the commander said.
Only children between ages 13 and 17 stay at the Tornillo facility, which is now the largest in the HHS’s nationwide system. Pregnant teens, and teens requiring behavioral medication, are not allowed — “we’re too big, too high-profile,” the incident commander explained.
Officials said the average length of time that teens spend at Tornillo is 25 days. Yet many of the teens living at the camp have spent weeks or even months in HHS shelters before arriving at Tornillo. In order to clear out those other facilities, teens are sent to the tent shelter to await final processing before they are released to a sponsor in the US.
“This is a last stop, if you will,” said Mark Weber, a spokesperson for HHS.
Ten teens in Tornillo BuzzFeed News encountered had spent between three to five months in government detention — significantly more than the 59 days that HHS says is the average stay for an unaccompanied immigrant minor in its care. That average is up from 48 days in 2017, and around 30 days during the Obama administration.
Christopher Smith / HHS Photo Christopher Smith
And even after arriving in Tornillo, the young occupants find themselves facing a fresh final set of administrative hurdles that threaten to complicate or delay their stay in the US shelter system.
One of the teens BuzzFeed News spoke with last week, a 16-year-old girl from Guatemala, told reporters that she’d been in Tornillo exactly one month on Saturday. Before being transferred to Texas, she had spent four months in an HHS shelter in Miami, meaning she’d already spent five months in HHS care. She was uncertain how much longer she’d remain there.
Her brother, who lives in Texas and had been in the US for a decade, is trying to sponsor her, which should secure her release. But he is undocumented, and he told her that her caseworker is not sure if he will be able to act as a sponsor.
She didn’t want to go back to Guatemala, where her parents are. “I suffered a lot in the journey [to the United States], and what, for nothing?” she said.
Another teenage girl standing next to her told reporters she’d also come to Tornillo from the Miami shelter at the same time, and that she’d crossed the border four months earlier.
The delays stem in part from a new requirement — that the FBI perform a fingerprint background check — imposed by the Trump administration on family members and other adults who wish to sponsor an unaccompanied immigrant minor.
Those changes are delaying how long kids are staying in care, and have created the ongoing need for Tornillo to operate as a temporary shelter to handle the overflow from permanent HHS shelters, said the incident commander. He added that more than half of the children at the Tornillo shelter are there because of FBI delays.
Christopher Smith / HHS Photo Christopher Smith
“It is the extra precaution that HHS has put in place for sponsors,” said the incident commander on Friday. “That is absolutely what has caused this, without any question whatsoever.”
While he applauded the extra care HHS has taken to ensure the safety of unaccompanied minors, the incident commander criticized the length of time the FBI takes to do fingerprint checks. On Friday, 826 of the kids in Tornillo were still awaiting the results of fingerprint checks, the final step needed before they are released, he said.
“I think it should be done quickly,” the incident commander said. “I don’t understand why it’s taking so long. It seems like a system issue. … That is frustrating to me.”
He noted that it takes time to do background checks, but said that HHS is “working through the process [with the FBI] and working to speed it up.” He did not provide further details.
Asked if the teens who end up in Tornillo spend longer than the average stay in the shelter system, Weber replied: “I don’t think that’s [true]. … These kids are very close to being released.”
Weber also argued that the need for the Tornillo facility is “driven by the number of kids crossing the border” — which this year, he said, is set to be the third highest on record. Around 50,000 unaccompanied minors are expected to cross the border this year.
Christopher Smith / HHS Photo Christopher Smith
On Thursday, BuzzFeed News visited the juvenile immigration proceedings in downtown El Paso. Eleven teenage boys from the Tornillo facility, aged between 15 and 17, had been given notice to appear in court on that day.
The boys were dressed in new, matching navy and white polo shirts, denim jeans or khakis, and black, braided leather belts. They had fresh haircuts.
The judge asked the boys if they had copies of their Notices to Appear, a charging document issued by US Immigration and Customs Enforcement informing them of removal proceedings, and read the date on which each NTA had been issued. Dates ranged from June 6 until July 1, meaning the teenagers had been in HHS care for a minimum of over three months — longer than the average stay.
None of the boys had legal representation at the court hearing — they were just accompanied to court by a BCFS employee. All of them asked the judge to delay their cases so they could find an immigration lawyer. They were given until late January to do so.
The HHS spokesperson said it’s just not his agency’s job. “Yes, children are appearing in court, but that is not part of HHS’s responsibility,” Weber told reporters on Friday. “Those legal options are pursued basically after they are released from us.”
Juveniles facing immigration proceedings do not have the right to a government-appointed lawyer. Weber said the children who appeared in court would absolutely have received legal help beforehand.
Everyone in HHS care receives a “Know Your Rights” training, Weber said, and upon arrival to Tornillo, the teenagers are again reminded that they are able to speak with a lawyer. Ten legal representatives — a combination of lawyers and social workers from different legal organizations — are on hand on weekdays in Tornillo to meet with children.
But those lawyers don’t formally represent them. They offer advice to the children.
And those representatives only meet with detainees if the teen specifically asks to see a lawyer, the incident commander said. He estimated that of the approximately 3,100 teens who have been housed at Tornillo since it opened, only about 400 had requested and received a meeting with a legal representative.
Christopher Smith / HHS Photo Christopher Smith
Moreover, to organize a meeting with the lawyers, the children must fill out a form — a difficult task for many of the children at Tornillo. The incident commander said most of the facility’s residents are at a fourth-grade learning level.
Asked how children in the care of HHS with very little education were supposed to be able to navigate the legal system alone, or even the process of arranging and interacting with a lawyer, Weber acknowledged that “negotiating the legal system is incredibly difficult.”
Although the incident commander is hopeful the facility will close on Dec. 31, Weber didn’t commit to that deadline. “It depends how many kids come,” he said.
The facility — its population peaked at 1,637 on Sept. 28 — has 1,400 beds on standby in two giant tents. This is in case the Homestead shelter in Florida — another temporary facility that opened during the family separation crisis — needs to evacuate due to a hurricane.
In immigration court Thursday, Judge Robert S. Hough, who oversees all juvenile immigration proceedings in El Paso, asked the BCFS employee assisting the children before him about Tornillo’s supposed Dec. 31 closing date.
“Hurry up and wrap it up before you get any bigger,” suggested the judge.
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Once the smokescreen of all the Trump lies and racism clears, how could we ever explain to future generations what we have done to the most vulnerable among us and to children, young people, and young families that are our world’s future? I guess it will go along with explaining how have we let Trump and his grifter buddies destroy, pollute, and poison the universe that also belongs to future generations.
Elsa, a Guatemalan living in Southern Mexico, knew something was wrong. Her husband began traveling a lot without explanation, and physically abusing her and their two kids. When she eventually figured out that he’d gone to work for a cartel, she left him. But in 2016, the gang came after her to collect on debts the ex-husband had skipped out on. She fled to other Mexican towns, but the cartel men tracked her down. Then she went back to Guatemala, but they found her there, too. Finally, in September, Elsa decided to gamble on Uncle Sam — but the foot of the Reynosa-Hidalgo bridge was as far as she would get.
The Trump administration has repeatedly insisted that asylum-seekers should follow the rules by turning themselves in at ports of entry. Elsa tried to do just that. As a legal Mexican resident, she even had proper documentation for herself and her two children. Still, a Mexican customs agent stopped her at the turnstile and told her she couldn’t pass. He yelled at her that they were abusing their Mexican status by seeking asylum in the United States, and he threatened to tear their papers to shreds. Scared, the family slunk back into narco-ravaged Reynosa, and into total uncertainty.
The story of Elsa, whose name the Observer has changed for her protection, was included in a petition filed last week with the Inter-American Commission on Human Rights, a 59-year-old organization based in Washington, D.C., that investigates abuses in the Americas and issues recommendations to offending nations. The petition, filed by immigration attorneys working in the Rio Grande Valley, describes a systematic conspiracy between U.S. and Mexican customs agents to prevent asylum-seekers from requesting protection. The attorneys are asking the commission to tell both nations to stop stonewalling the law-abiding migrants.
U.S. customs agents blocking entry at the international boundary line on the Gateway International Bridge, Brownsville, July 2. COURTESY/FILING WITH THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Since June, the lawyers allege, Mexican customs officials along the Texas-Mexico border have been doing something virtually unprecedented: stopping asylum-seekers from entering the bridge, and if the migrants lack proper Mexican travel documents, the Mexican agents detain and even deport them. If an asylum-seeker makes it onto the bridge, U.S. customs officials call their Mexican counterparts to retrieve them; the Observerdocumented this phenomenon in a June story cited in the petition. In Nuevo Laredo, according to sworn affidavits from two Central American asylum-seekers, Mexican agents have demanded bribes of $500 per person to get onto the bridge. And in September, in Reynosa, they also started rejecting people, like Elsa, with Mexican papers.
“This petition highlights the reality of the U.S. working hand in glove with the Mexicans to completely shut down bridges, in violation of a number of human rights prohibitions,” said Jennifer Harbury, a longtime Rio Grande Valley attorney. Harbury has spent months documenting problems at the bridges and provided the majority of the information in the filing. According to Harbury and an affidavit from longtime Brownsville activist Mike Seifert, the international collaboration began after public outcry over long lines of asylum-seekers baking in the sun for weeks on the U.S. side of the bridges.
Harbury says in the filings that numerous Mexican agents at the Reynosa bridge have privately told her that the two governments are working together, and they’ve expressed frustration at doing the United States’ “dirty work.” Two other witnesses — a journalist and an activist — wrote similar affidavits. But U.S. customs agents have told Harbury that the Mexicans are acting alone, and a September letter she sent to Homeland Security Secretary Kirstjen Nielsen has gone unanswered. The United States began pressuring Mexico to stop migration at its southern border in 2014, and last month, Trump signaled he would redirect $20 million in foreign aid to beef up Mexico’s deportations. Neither U.S. nor Mexican immigration officials responded to Observer requests for comment.
The United States is unlikely, Harbury said, to heed the eventual request from the human rights commission. For one, the U.S. government rejects the authority of the commission’s enforcement arm, the Inter-American Court of Human Rights in San José, Costa Rica. (The same court recently ruled that many Latin American countries must recognize same-sex marriage.) But Harbury has higher hopes for Mexico, which is subject to the court and has an incoming leftist president in Andrés Manuel López Obrador. “I think the new president of Mexico is not going to want the commission saying they’re running dogs for Uncle Sam,” she said.
If Mexico stops its collaboration, then the United States would have to do its own “dirty work” of stopping asylum-seekers, and hold all liability for the potentially illegal actions. In California, a lawsuit was filed last year after border agents briefly turned away asylum-seekers all along the U.S.-Mexico border on the false premise that Trump’s inauguration had abolished asylum. That suit continues to play out.
In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals.According to Attorney General Jeff Sessions, the point of the “zero tolerance” policy was to force families to use official ports of entry instead of crossing illegally. But U.S. customs agents started stonewalling asylum-seekers at the bridges. Now, with the threat of separation gone and the bridges still a dicey proposition, families have responded accordingly: More are crossing the river illegally to turn themselves in to Border Patrol. Immigration officials, in turn, are using this apparent spike to sound the alarm about another border crisis.
Meanwhile, many asylum-seekers from Central America, Africa and the Caribbean remain stranded, paralyzed by uncertainty in dangerous Mexican border towns where gangsters prey on refugees. In an affidavit, one would-be asylum-seeker wrote that she hears “shooting day and night” in Reynosa; another simply wrote, “many people die here.” As Harbury, the attorney, put it, “they’re like a snowball in Hell down there.”
Gus Bova reports on immigration, the U.S.-Mexico border and grassroots movements for the Observer. He formerly worked at a shelter for asylum-seekers and refugees. You can contact him at bova@texasobserver.org.
Jeff Sessions is a key part of this legal charade and scofflaw behavior. He disingenuously asserts that individuals should be using the legal system while doing everything in his power to make it impossible for individuals to present their asylum claims at ports of entry and have them fairly heard by fair and unbiased judges in Immigration Court.
The results of these shortsighted, cruel, illegal, and ultimately ineffective policies are to: 1) enrich smugglers, 2) make the trip more dangerous for asylum seekers, virtually insuring that more will die or be abused during the journey, and 3) to enlarge and promote the already robust “extralegal system” for immigrants and refugees. When orderly processing and the legal system for immigration are shut down or made less “user friendly,” the result is unlikely to be less overall immigration; just less immigration through legal channels and more “extralegal immigration” driven by Trump, Sessions, and their fellow White Nationalists.
Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!
Many thanks to Dan Kowalski over at LexisNexis Immigration Community for forwarding to me this timely and excellent reporting.
