United Nations – Page 151 – immigrationcourtside.com

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Washington Post: U.S. & Mexican Officials Allegedly Flout U.S. Asylum Law (And International Treaties) At Southern Border!

https://www.washingtonpost.com/world/the_americas/us-border-officials-are-illegally-turning-away-asylum-seekers-critics-say/2017/01/16/f7f5c54a-c6d0-11e6-acda-59924caa2450_story.html?utm_term=.4f9b23834fc7

Joshua Partlow writes in the Washington Post:

“I am fleeing my country,” the policeman later recalled telling the guards, explaining that he had survived two attempts on his life. “I am being persecuted in a matter of life and death.”

The policeman said he was told he needed to see Mexican immigration authorities, who would put him on a waiting list to make his case to U.S. officials. But Mexican authorities refused to add him to the list, the policeman said, and he has been stuck in northern Mexico.

The Guatemalan is one of hundreds or perhaps thousands of foreigners who have been blocked in recent months from reaching U.S. asylum officials along the border, according to accounts from migrants and immigration lawyers and advocates.

The details of their cases vary. At the U.S. border crossing between Tijuana and San Diego, numerous asylum seekers from Central America and Mexico have been referred to Mexican authorities for an appointment with U.S. officials — but Mexican authorities often turn them down, according to migrants and immigration lawyers. In other places, migrants have been told by U.S. border agents that the daily quota for asylum cases has been reached or that a visa is required for asylum seekers, a statement that runs contrary to law, immigration advocates say.”

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The law is very clear: “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 such alien’s status, may apply for asylum . . . .” 8 U.S.C. 1158(a).

Also, without getting too much into the particular facts, it appears that the former Guatemalan policeman described in the quote above could have a strong case for asylum under the BIA’s long-standing precedent decision Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988), finding that “former policeman” could potentially be a “particular social group” for asylum purposes.

Part of the problem here is that the U.S. does not have a meaningful “overseas refugee program” for the Northern Triangle. If the present, quite restrictive, program were expanded in both numbers and scope, and if the processing were more timely, more people would probably apply and be screened abroad, rather than coming directly to the border to apply. The U.S. could actually do Northern Triangle refugee processing in Mexico.

Additionally, the U.S. could encourage the Mexican Government to establish a program of temporary protection, similar to our “Temporary Protected Status,” so that individuals from the Northern Triangle who faced death or danger upon return could remain in Mexico even if the did not satisfy all of the technical requirements for refugee status.

Moreover, like the U.S., Mexico is a signatory to the U.N. Convention and Protocol on Refugees, but apparently has not done a particularly effective job of carrying it out. Why not work with the Mexican Government not just on law enforcement initiatives, but also on training adjudicators to provide fair hearings to individuals seeking protection under the Convention?

It might also be possible to work with other “stable” democratic governments in the Americas to share the distribution of those from the Northern Triangle who need protection.

Last, but certainly not least, as the incoming Secretary of Homeland Security, Gen. John Kelly, has suggested, it is important for a more permanent solution to work with governments in the Northern Triangle to provide stability and the rule of law in those “sending countries.”

We know that just throwing more money, personnel, walls, sensors, helicopters, detention centers, moats, etc. at the problem won’t effectively address the continuing flow of “desperate people fleeing desperate circumstances.” And, as our law provides, whether they come to our borders and turn themselves in or enter, legally or illegally, they actually have a right to seek asylum in the United States.

Isn’t it time to try some “smart strategies,” rather than just doubling down on the same old “enforcement only” approaches that have failed in the past and will continue to do so in the future?

PWS

01/17/17

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

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From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him. I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.” To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t. But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views. I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.” That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions. It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned. In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws. And, throwing them in detention isn’t going to deter them either — that’s been proved. But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important. It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations. But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle. Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow. It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about. They also won’t satisfy those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach. To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

Human Rights First Chief Critiques Obama Administration On Human Rights!

https://www.washingtonpost.com/posteverything/wp/2017/01/09/obamas-human-rights-failures-could-pave-the-way-for-trumps-excesses/

Kenneth Roth, Executive Director do Human Rights First writes in this Washington Post op-ed:

“As President-elect Donald Trump prepares to take office, many understandably fear a new hostility to human rights. One area of particular concern will be his approach to fighting terrorism: Nearly a year ago, he declared that “torture works”; he has expressed admiration for various dictators; and at one point during the campaign, he said, “When you get these terrorists, you have to take out their families.”

Sadly, Trump’s ability to disregard human rights norms will be made easier by President Obama’s inability to fully roll back and confront President George W. Bush’s abuses.”

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Roth doesn’t even touch on the important issue of immigration. Overuse of immigration detention, poor detention conditions, hijacking of the U.S. Immigration Court’s due process mission to achieve enforcement objectives, and purposely wooden and underclusive interpretations of the Convention Against Torture and “particular social group” protections for refugees were largely left unaddressed or arguably even aggravated under the Obama Administration.

PWS

01/09/17

From Haven to Hell: Venezuela On The Verge Of Collapse After Years Of Bad Government — Neighbors Brace For Humanitarian/Refugee Crisis!

http://lawprofessors.typepad.com/immigration/2017/01/hungry-venezuelans-flood-brazilian-towns-as-threat-of-mass-migration-looms.html

“Oil-rich Venezuela has been an immigrant destination for much of its history. Now it is a place to flee. Chronic food shortages, rampant violence and the erratic and often paranoid behavior of President Nicolás Maduro have turned the country’s border crossings and beaches into escape valves.”

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I’ve blogged about this unfolding humanitarian disaster before. Go over to ImmigrationProf Blog and the Washington Post at the link to read more.

PWS

01/04/17

With “Peacekeepers” Like These, Who Needs War? The UN Has a BIG Problem!

https://www.washingtonpost.com/world/africa/they-served-an-abusive-government-the-un-made-them-peacekeepers-anyway/2016/12/23/05c0a5ad-108f-46b9-b6f7-5f2303f6cdfe_story.html?utm_term=.c36afbf0c92e

“The three officers had received blue badges and slipped blue covers over their helmets. They were now U.N. peacekeepers, sent from Burundi to help protect victims of a brutal war in the Central African Republic.

But each of them had a past the United Nations was unaware of. When the deployments became public, Burundian activists were aghast.

One of the officers had run a military jail where beatings and torture occurred, according to civil-society groups and former prisoners. Another had committed human rights violations when anti-government demonstrations erupted in Burundi last year, U.N. officials would eventually learn. The third had served as the spokesman for the Burundian army, publicly defending an institution accused of abuses.

They set out for the Central African Republic in different U.N. deployments over the past year. In each case, U.N. officials soon determined that the allegations against the soldiers and their units were credible enough to send them home.”

Apparently, according to this article in the Washington Post, well-paying UN Peacekeeper jobs have become spoils that autocratic rulers hand out to their cronies for helping them stay in power. Bad system.

PWS

12/26/16

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