"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: U.N. Convention and Protocol on Refugees
Over the past few months, Attorney General Jeff Sessions has faced fierce criticism for his role in the Trump administration’s family separation policy. But while the White House continues to deal with the fallout from tearing kids away from their parents at the border, Sessions has been busy orchestrating another, much quieter attack on the country’s immigration system.
Tensions have been simmering for months between the attorney general and the hundreds of judges overseeing immigration courts, but they reached a new high in July. The flashpoint was the case of Reynaldo Castro-Tum, a Guatemalan man who was scheduled to appear in a Philadelphia immigration court, but had repeatedly failed to turn up. The judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July. But instead of waiting for that appointment, the Justice Department sent a new judge from Virginia to take over the case. Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.
The move sparked immediate outcry: The National Association of Immigration Judges, a union representing about 350 immigration judges, filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action. “Such interference with judicial independence is unacceptable,” they wrote.
This was just the latest of many accusations that Sessions and his Justice Department were interfering with judicial independence in immigration courts. Since the beginning of the year, the attorney general has severely limited judges’ ability to manage their cases, increased pressure on judges to close cases quickly, and dramatically reshaped how America determines who it will shelter. While Sessions isn’t the first attorney general to exercise these powers, immigration advocates say he’s using his authority in unprecedented ways and as a result severely limiting due process rights for migrants.
Unlike most courts, immigration courts are housed within the executive branch, meaning immigration judges are actually DOJ employees. Sessions is therefore ultimately in charge of hiring judges, evaluating their performance, and even firing them. He can also refer cases to himself and overrule previous judges’ decisions, setting precedents that effectively reshape immigration law.In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent. Attorneys general under the Obama administration used that power only four times over eight years.
“We’re seeing Attorney General Sessions take advantage of the structural flaws of the immigration court system,” says Laura Lynch, the senior policy counsel at AILA, which has joined the judges’ union in asking Congress to make the immigration courts independent of the Justice Department.
Sessions’ changes have been “extremely demoralizing,” says Dana Leigh Marks, president emeritus of the National Association of Immigration Judges. “I’ve been in the field for 40 years, and I have never seen morale among immigration judges so low.”
Here are the biggest ways Sessions is attacking the immigration courts:
It’s now much more difficult to apply for asylum
In June, Sessions overturned a decision granting asylum to a Salvadoran woman, known in court documents as A-B-, who had escaped an abusive husband. He used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence—a catastrophic blow to the tens of thousands of Central American migrants fleeing these dangers.
Sessions’ decision, though, doesn’t just affect how judges can rule. US Citizenship and Immigration Services, the agency that helps process asylum cases, interpreted his decision to mean that survivors of domestic and gang violence usually won’t pass their initial “credible fear” interviews after they cross the border—a first step that determines whether asylum seekers are even allowed to make their case before a judge. As Mother Jones’ Noah Lanard has reported, immigration lawyers say they’ve seen “overwhelming” numbers of migrants denied at the credible fear interview stage since Sessions’ decision.
In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence. “Women and children will die as a result of these policies,” Michelle Brané, the director of the Migrant Rights and Justice program at the Women’s Refugee Commission, toldMother Jones when the decision was first announced.
A group of asylum seekers is now suing Sessions in federal court, arguing that this new policy violates due process rights and contradicts existing immigration law. They say that the policy’s sweeping generalizations ignore the requirement that each case be heard on its own merits.
Making matters even more complicated, in another decision earlier this year, Sessions vacated a 2014 precedent that guaranteed asylum applicants have the right to a full hearing before a judge can decide on their case. “The implications of [the new decision] are tremendous,” says Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of Law and one of the lawyers representing A-B- and the asylum seekers suing Sessions. “It’s basically saying that a judge can decide a case on the papers alone, and not allow an individual the right to present their case in front of that judge.”
Judges have less control over their case loads …
This summer wasn’t the first time Castro-Tum’s case drew national attention. Judge Morley had “administratively closed” the case back in 2016—a common step that judges have used to set aside thousands of cases, oftentimes when immigrants had no criminal background or had been in the US for many years and had family ties. Though the cases weren’t technically closed, they were put on hold and typically never re-opened, usually so judges could focus on higher-priority cases.
Earlier this year, Sessions re-opened Castro-Tum’s case by referring it to himself, and used it to severely restrict when judges could use administrative closure. That sent the case back to Morley, which is how the DOJ ended up replacing the judge and sparking widespread outrage.
The judges union has said that administrative closure is an important and necessary tool for judges to manage their caseloads, and removing it would result in an “enormous increase” in a court backlog that’s already piling up with almost 750,000 cases. Sessions’ decision also noted that cases which had previously been administratively closed, such as Castro-Tum’s, could now be re-opened, potentially adding thousands more cases to the backlog and creating further uncertainty for the defendants.
… and will have to move through them more quickly
In a somewhat related move, in April, Sessions and the Justice Department announced new performance metrics for judges. According to a DOJ memo, judges would now need to complete at least 700 cases a year, as well as close cases within a certain time period, in order to receive a satisfactory performance review. If they fail to receive satisfactory marks, judges could potentially lose their jobs or be relocated. According to the memo, judges currently complete on average 678 cases a year. The new measures will go into effect October 1.
The judges’ union, legal scholars, and other associations have strongly criticized the move, noting that case quotas would place enormous pressure on judges to quickly complete cases and affect their ability to fully hear cases—likely leading to more deportations.
“A tough asylum case takes about three to four hours to complete, but they’re pushing judges to schedule three or four cases a day, which is probably twice as many as most judges could do and do a good job on…It’s basically inviting people to cut corners,” says Paul Schmidt, a retired immigration judge who has been a vocal critic of the Trump administration. “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”
It’s harder for them to reschedule cases
On August 16, Sessions limited the ability for judges to issue continuances, which they did to postpone or reschedule removal cases, often when a defendant was waiting for a visa or another kind of immigration benefit and needed time to resolve their pending applications. Sessions has determined judges can now only issue continuances under a “good cause” standard, such as when an immigrant is likely to succeed in their attempt to stay in the US, either by winning an asylum hearing or receiving a visa.
Several retired immigration judges sent a letter to Sessions the next day, calling his decision on continuances a “blow to judicial independence.” They noted that some judges may receive from 10 to 15 requests for continuances a day—and would now need to spend time writing decisions on them, in addition to hearing their cases. “Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets,” the retired judges wrote. Advocates have also expressed concerns that immigrants could now be deported while waiting for another immigration benefit that would have given them legal status.
And as more judges retire, Sessions gets to staff up
Marks, of the judges union, notes there’s been a “tsunami” of retirements over the past two years. “Members of the association are telling us [that] they are leaving at the earliest possible opportunity or choosing to leave now because of the actions of the current administration,” she says. “They do not feel supported. They do not feel that they are free to make the decisions they need to make.”
Given the retirements, Sessions will have the ability to reshape the courts even further: Since January 2017, the DOJ has sworn in 82new immigration judges, and plans to hire at least 75 more this fall. Sessions has also worked to cut down the time it takes to hire judges.
What’s more, the Justice Department has faced allegations of politicized hiring. In April, House Democrats sent a letter to Sessions expressing concern that the DOJ had blocked several judges’ appointments for ideological reasons. The DOJ said in a statement to CNN that it “does not discriminate potential hires on the basis of political affiliation.”
Finally, while the DOJ has a long history of hiring judges with immigration enforcement backgrounds, the judges union has expressed concern that the DOJ may now be “over-emphasizing litigation experience” in its hiring practices, and “created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds.” As of last year, a little over 40 percent of immigration judges previously worked at the Department of Homeland Security.
Schmidt, the retired immigration judge, says he’s worried that even more new judges will come from prosecutorial backgrounds. “Who would really want to work for Sessions, given his record, his public statements?” he asks.
Under Sessions, he says, the immigration court “has become a deportation railway.”
Sent from my iPad
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Great article, bringing together “all of the threads” of Sessions’s White Nationalist destruction of the U.S. Immigration Courts and his vicious racially-motivated attack on refugees from the Northern Triangle, particularly abused women and children.
For many years, “Gonzo Apocalypto” was a GOP “back bencher” in the Senate. His White Nationalist, restrictionist agenda was too much even for his GOP colleagues. His views were quite properly marginalized.
Suddenly, Trump runs for President on an overtly racist, White Nationalist, xenophobic platform. That’s music to Gonzo’s ears and he becomes the earliest Senate supporter.
Wonder of wonders, Trump wins, makes Sessions clone Stephen Miller his top immigration adviser, and appoints Gonzo as AG. His eyes light up. Suddenly, he’s free to dismember the entire Immigration Court, sack it’s Due Process vision, and attack migrants and refugees of color, particularly women, children, and families in ways that are both life threatening and permanently damaging.
He also gets a chance to dismantle civil rights protections, promote homophobia, disenfranchise minority voters, favor far right Evangelical Christianity, fill up prisons with the poor, black, and Hispanic, encourage police brutality against minorities, screw criminal defendants, disregard facts, harm refugees, and, icing on the cake, protect and promote hate speech. It’s a “dream come true” for a 21st century racist demagogue.
That Trump has mindlessly attacked his most faithfully effective racist, White Nationalist Cabinet Member says more about Trump than it does Sessions. Sessions is going to continue socking it to immigrants and minorities for just as long as he can. The further back into the era of Jim Crow that he can push America, the happier he’ll be when he goes on to his next position as a legal analyst for Breitbart or Fox.
Until then, there will be much more unnecessary pain, suffering, degradation, and even death on tap for migrants and their families.
Join the New Due Process Army — stand up against Session’s White Nationalist Agenda!
Dan De Luce and Julia Edwards Ainsley report for NBC News:
WASHINGTON — The Trump administration has consistently sought to exaggerate the potential security threat posed by refugees and dismissed an intelligence assessment last year that showed refugeesdid not present a significant threat to the U.S., three former senior officials told NBC News.
Hard-liners in the administration then issued their own report this year that several former officials and rights groups say misstates the evidence and inflates the threat posed by people born outside the U.S.
At a meeting in September 2017 with senior officials discussing refugee admissions, a representative from the National Counterterrorism Center came ready to present a report that analyzed the possible risks presented by refugees entering the country.
But before he could discuss the report, Associate Attorney General Rachel Brand dismissed the report, saying her boss, Attorney General Jeff Sessions, would not be guided by its findings.
“We read that. The attorney general doesn’t agree with the conclusions of that report,” she said, according to two officials familiar with the meeting, including one who was in the room at the time.
Brand’s blunt veto of the intelligence assessment shocked career civil servants at the interagency meeting, which seemed to expose a bid to supplant facts and expertise with an ideological agenda. Her response also amounted to a rejection of her own department’s view, as the FBI, part of the Justice Department, had contributed to the assessment.
“She just dismissed them,” said the former official who attended the meeting.
The intelligence assessment was “inappropriately discredited as a result of that exchange,” said the ex-official. The episode made clear that “you weren’t able to have an honest conversation about the risk.”
A current DHS official defended the administration’s response to the intelligence assessment, saying immigration policy in the Trump administration does not rely solely on “historical data about terrorism trends,” but rather “is an all-of-the-above approach that looks at every single pathway that we think it is possible for a terrorist to come into the United States.”
A spokeswoman for DHS said, “If we only look at what terrorists have done in the past, we will never be able to prevent future attacks … We cannot let dangerous individuals slip through the cracks and exploit our refugee program, which is why we have implemented security enhancements that would prevent such violent individuals from reaching our shores, while still upholding our humanitarian ideals.”
The Justice Department did not respond to a request for comment in time for publication.
Following the dismissal of the assessment, anti-immigration hard-liners in the administration clashed with civil servants about how to portray the possible threat from refugees in documents drafted for inter-agency discussions, former officials said. In the end, the president’s decision last year to lower the ceiling for refugee admissions to 45,000 did not refer to security threats, but cited staffing shortages at DHS as the rationale. But once the decision was issued, the White House released a public statement that suggested the president’s decision was driven mainly by security concerns and said “some refugees” admitted into the country had posed a threat to public safety.
An Afghan refugee sleeps on the ground while another looks out a window in an abandoned warehouse where they and other migrants took refuge in Belgrade, Serbia, on Feb. 1, 2017.Muhammed Muheisen / AP file
“President Donald J. Trump is taking the responsible approach to promote the safety of the American people,” said the Sept. 29 statement.
Political appointees in the Trump administration then wrote a new report a few months later that seemed to contradict the view of the country’s spy agencies.
In a press release at the time, DHS Secretary Kirstjen Nielsen said the report showed the need for tougher screening of travelers entering the country and served as “a clear reminder of why we cannot continue to rely on immigration policy based on pre-9/11 thinking that leaves us woefully vulnerable to foreign-born terrorists.”
But the report is being challenged in court by several former officials and rights groups who say it inflates the threat posed by people born outside the U.S. Two lawsuits filed in Massachusetts and California allege the report improperly excludes incidents committed by domestic terrorists, like white supremacists, and wrongfully includes a significant number of naturalized U.S. citizens and foreigners who committed crimes overseas and were brought to the United States for the purpose of standing trial.
Associate Attorney General Rachel Brand speaks during the opening of the summit on Efforts to Combat Human Trafficking at Department of Justice in Washington, on Feb. 2, 2018.Jose Luis Magana / AP file
Mary McCord, former assistant attorney general of the Justice Department’s National Security Division, which prosecutes terrorism charges, said the January 2018 report is “unfortunately both over-inclusive and under-inclusive.”
“The result is a report that presents an inaccurate picture of the threat of terrorism in the United States,” McCord said.
When the report was released in January 2018, Trump tweeted that it showed the need to move away from “random chain migration and lottery system, to one that is merit based” because it showed that “the nearly 3 in 4 individuals convicted of terrorism-related charges are foreign-born.”
But the report only focuses on international terrorism, which is defined as a crime committed on behalf of a foreign terrorist organization. The document excludes domestic terrorism committed by groups such as white supremacists or anti-government militias, which are more likely to be supported by those born in the U.S.
Because of the way the terrorism statute is written, those who support domestic organizations like anti-government or white supremacists groups cannot be charged with terrorism, even if the groups they support have committed crimes. Only supporters of foreign terrorist organizations designated by the State Department can be charged with “material support” of terrorism.
Still, Trump has repeatedly stated that the overwhelming majority of terrorists in the United States came from overseas, even before the 2018 report.
In his first speech to Congress in February 2017, Trump said that the “vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our own country.”
Benjamin Wittes, a senior fellow at the Brookings Institution, MSNBC legal analyst and editor-in-chief of the Lawfare blog, took issue with that statement and sued the Justice Department to provide documents that backed up the president’s claim. But the Department was unable to locate any records.
“There are a lot of domestic terrorism cases, and they are generally not committed by people born abroad. To the extent that those cases were excluded — white supremacist violence, anti-abortion terrorism and militia violence — the inquiry is grossly biased,” Wittes wrote on Lawfare.
Wittes said that almost 100, or about a quarter, of the 402 individuals listed as foreign-born terrorists committed their crimes overseas and were brought to the U.S. to face trial.
White House senior adviser Stephen Miller at roundtable discussion on California immigration policy at the White House on May 16.Evan Vucci / AP file
During her time in government as the chief of the Refugee Affairs Division at U.S. Citizenship and Immigration Services, Barbara Strack said her staff worked diligently to thoroughly vet refugees for any possible terrorist links. But she said there was no information she came across that indicated refugees posed a significant security threat.
“I did not see evidence that refugees presented an elevated national security risk compared to other categories of travelers to the United States,” she told NBC News.
The administration must decide by the end of the month how many refugees to allow in the country in the next fiscal year. Trump’s senior adviser, Stephen Miller, known for his hawkish stance on immigration, has been pushing for a drastic reduction in the ceiling.
The cap was set at 45,000 last year, but the number of refugees allowed in the country has fallen far below that ceiling, with only about 20,000 resettled in the United States since October 2017. Rights advocates and former officials accuse the White House of intentionally slowing down the bureaucratic process to keep the numbers down, overloading the FBI and other government agencies with duplicative procedures.
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This level of total intellectual dishonesty, overt racism, and policy driven solely by a White Nationalist philosophy and political agenda by an Attorney General is unprecedented in my experience at the DOJ.
If you remember, Brand escaped to a “soft landing” in the private sector earlier this year. One of my theories is that she was trying to protect herself and her reputation for a future Federal Judgeship. If and when that happens, I hope that those serving on the Senate Judiciary Committee will remember her completely sleazy role in carrying Sessions’s racist-polluted water on this one. Someone with no respect for facts, the law, humanity, or professional expertise definitely does not deserve to be on the Federal Bench!
And for Pete’s sake don’t credit Sessions with any integrity whatsoever in not resigning under pressure from our “Mussolini Wannabe.” He’s not “protecting” the Mueller investigation or anything else worthy in the DOJ. In fact, he has wholly politicized the DOJ and taken it down into the gutter. The reason he “hangs on” is not because he respects the Constitution or rule of law. Clearly, he doesn’t! No, it’s because he wants to do as much damage to civil rights and people of color as he can during his toxic tenure.
Make no mistake, that damage he has done, as has been reported elsewhere, is very substantial. It has set the goals that Dr. Martin Luther King and others fought for and even gave their lives for back by decades. Despicable!
Sessions’s White-Nationalist driven lies and false narratives about refugees are described above. For the truth about refugees and immigrants and all of the great things they have done and continue to do for our country, see my recent post at https://wp.me/p8eeJm-313.
Trump admin seeks to keep immigrant families in detention indefinitely
By Tal Kopan, CNN
The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.
The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.
The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.
One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.
The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.
“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”
Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.
I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.
These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).
Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!
Quiroz Parada v. Sessions, 9th Cir., 08-29-18, Published
COURT STAFF SUMMARY:
The panel granted Moris Alfredo Quiroz Parada’s petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.
The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother’s assassination, the murder of his neighbor as a result of Quiroz Parada’s own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.
Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family’s government and military service. The panel noted that it was immaterial that the
FMLN’s attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.
The panel held that substantial evidence did not support the agency’s determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN’s rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.
The panel concluded that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief because it ignored pertinent evidence in the record and erred by construing the “government acquiescence” standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.
The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada’s removal.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,* District Judge.
* The Honorable Timothy J. Savage, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION BY: Judge Paez
KEY QUOTES FROM OPINION:
Quiroz Parada applied for asylum5 and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s “leftist wing” form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if “they murder people, or behave badly.”6
5 Because Quiroz Parada applied for asylum prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the one-year bar for asylum applications does not apply.See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).
6 Regrettably, as with many critical pieces of his testimony, Quiroz Parada’s explanation for why he does not believe in the Salvadoran government’s ability or willingness to prosecute former FMLN members who murder or otherwise attack their former enemies is transcribed as “[indiscernible] and [indiscernible].”
Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.
The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.
Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the “police do[] not help, and they even get killed,” and warned that if he were to come back to the country, “history would repeat itself.” Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she “snitched on the barrio” and warned her that if she failed to leave the area by a particular date, her “daughters will suffer the consequences.” His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s home region, and how the rampant violence has forced many families to flee.
The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada’s asylum claim “may be a lost cause.” Nonetheless, despite the IJ’s significant skepticism, he allowed Quiroz Parada’s attorney to present Quiroz Parada’s case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada’s requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.7 The IJ then determined that Quiroz Parada had not shown past persecution, but further concluded that even if he had, DHS had rebutted the presumption with evidence of changed country conditions. The IJ also found that Quiroz Parada had not shown an independent well-founded fear of future persecution. Because the IJ determined that Quiroz Parada had not established eligibility for asylum through either past persecution or a well-founded fear of future persecution, Quiroz Parada necessarily failed to meet the higher bar required to obtain withholding of removal. The IJ also rejected Quiroz Parada’s claim for CAT relief.
7 Although the REAL ID Act governs Quiroz Parada’s claim for cancellation of removal, it does not govern his claims currently on appeal, which were filed prior to May 11, 2005. See Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010).
Quiroz Parada appealed the IJ’s decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ’s determinations on Quiroz Parada’s asylum, withholding, and CAT claims, including the IJ’s alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.
. . . .
As an initial matter, we reject the government’s contention that we lack jurisdiction to consider Quiroz Parada’s CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we have jurisdiction to review the claim.
The agency’s first error was its failure to consider all relevant evidence. CAT’s implementing regulations require the agency to consider “all evidence relevant to the possibility of future torture,” and we have repeatedly reversed where the agency has failed to do so.See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase [that the agency has considered all of the evidence] does not suffice, and the decision cannot stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to consider [relevant evidence] constitutes reversible error.”). Relevant evidence includes the petitioner’s testimony and country conditions evidence. See Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible testimony “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).
Here, the relevant evidence included Quiroz Parada’s credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada’s CAT claim, stating:
Based on the respondent’s testimony and the evidence in the record, the Court finds that the respondent has not shown that he is “more likely than not” to be tortured if he is removed to El Salvador. In addition, to be eligible for CAT relief, the respondent must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306, 1311 (BIA 2000), disagreed with on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003). “Article 3 of the Convention Against Torture does not
extend protection to persons fearing entities that a government is unable to control.” Id.at 1312. The respondent has not alleged that he fears torture inflicted by any governmental entities in El Salvador, nor by any other entity with the acquiescence of any government official. Thus, he has not established eligibility for CAT relief.
This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government “acquiescence[d]” in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis—as the IJ himself found in a section of his decision summarizing the country conditions evidence:
[P]rotection of human rights was undermined by widespread violent crime, rampant judicial and police corruption, intimidation by the ubiquitous violent street gangs, and violence against witnesses. Criminal gangs are a serious, widespread, and pervasive socio-economic challenge to the security, stability, and welfare of El Salvador. Indeed, gangs are blamed for the bulk of crimes and murders in El Salvador. While the government’s fight against the gangs has met with some success in areas, El Salvador remains an exceptionally violent country because of the pervasive gang violence.
Although arbitrary arrest, prolonged detention, and torture are prohibited in El Salvador, Salvadoran security forces apparently continue to participate in such practices on a regular basis. Conditions in detention are degrading and extremely dangerous. Many officials throughout all levels of government engage in corruption with impunity despite a recent increased emphasis on enforcement.
Thus, while the IJ did “consider” the country conditions reports, the significant and material disconnect between the IJ’s quoted observations and his conclusions regarding Quiroz Parada’s CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him.See Cole, 659 F.3d at 771–72 (explaining that indications of the agency’s failure to properly consider all of the relevant evidence “include misstating the record and failing to mention highly probative or potentially dispositive evidence”).
The agency’s second error was its overly narrow construction of the “acquiescence” standard. In a similar case, we reversed and remanded where the agency “erred by construing ‘government acquiescence’ too narrowly,” noting that “acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003)). In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA’s determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.
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The BIA’s and IJ’s fundamental errors included:
Failing to follow their regulations requiring them to consider all the evidence;
Incorrectly finding no “past persecution;”
Incorrectly applying the regulatory presumption of future persecution;
Incorrectly denying asylum and withholding of removal;
Applying an incorrect standard for CAT protection;
Incorrectly analyzing country conditions for CAT.
Wow, what did the BIA and the IJ get right here other than the name and “A#?”
Contrary to the “Sessions myth” about “dirty attorneys” and respondents “gaming the system,” this case presents the perhaps extreme, but certainly not atypical, example where “the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so.”
The respondent, “by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims.”
Moreover, once the hearing finally took place, it was fairly obvious from the IJ’s negative pre-hearing comments that he had already “prejudged’ the case against the respondent.
The court also notes how the phenomenon I call “Aimless Docket Reshuffling” (“ADR”) by the Government, which Sessions has shoved into overdrive, fuels “our previously-expressed concern that ‘constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a “Zeno’s Paradox” where final resolution of the case would never be reached.’”Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration omitted).”
The grossly under-studied phenomenon of “ADR” by the DHS and EOIR/DOJ also requires the respondent and his or her often pro bono attorney to constantly update the record and the evidence to deal with changing conditions, while the DHS often takes the lackadaisical approach they did here, apparently counting on the IJ or the BIA to “fill in the gaps” necessary to “get to a denial of the facially grantable claim.”
Here’s the court’s accurate statement of both the CAT standard for acquiescence and the current conditions in El Salvador:
“In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771″
Compare the above with Sessions’s completely disingenuous description of both the standard for “unwilling or unable to protect” — certainly “acquiescence” would meet or exceed “unwilling or unable to protect” — and the beyond deplorable country conditions in El Salvador in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
This case also illustrates how in the “haste makes waste” world of EOIR, transcripts are often missing or garble testimony critical to the respondent’s case.
Unfortunately, this case is but an example of the deep, ugly hidden truth about our Immigration Courts. Even before Session’s White Nationalist restrictionist moves against asylum seekers, the Immigration Courts were mistreating too many asylum seekers, particularly those from the Northern Triangle fleeing life-threatening violence. Well prepared claims were often shunted to the end of the docket by ADR at both the courts and the DHS Asylum offices. They are often replaced by “prioritized” claims in detention settings or in other unnecessarily rushed situations where individuals have not had adequate time to obtain competent counsel and to prepare the necessary documentation to win a claim.
That’s compounded by the fact that even in the past, statements of politicos within Administrations of both parties and the generally negative tenor of BIA precedents on asylum for the Northern Triangle have encouraged some willing Immigration Judges to either prejudge the cases or give them “short shrift” to discourage such claims in the future and to act as a “deterrent,” as well as to jack up the number of “case completions” by cutting corners. This was happening in some Immigration Courts and on some BIA panels even before Sessions took over.
Certainly, the message from Sessions has been overtly anti-asylum, anti-Hispanic, anti-female, anti-family, anti-Due-Process, anti-scholarship, and anti-deliberation. In essence: “Just rubber stamp ’em, deny ’em, and move ’em out as fast as you can if you want to keep your job. And, don’t forget that your job involves ‘partnership’ with the DHS prosecutors.”
Obviously, our Immigration Court systems had some deep-seated Due Process problems with anti-asylum, anti-Northern Triangle attitudes, as well as fundamentally incorrect views of the asylum law and regulations, by some Immigration Judges and BIA Appellate Immigration judges even prior to Sessions’s advent. That’s one of the key reasons why gross discrepancies in approval-denial rates in similar cases among Immigration Judges and among BIA “panels” (which often can be nothing more than a single Appellate Judge) had no reasonable explanation even during the Obama Administration.
Sessions has made all of this immeasurably worse! Rather than fostering an attitude of judicial independence, courtesy, fairness, respect for both parties, Due Process, and the generous consideration of asylum claims mandated by the Supremes in Cardoza-Fonseca and at least mouthed by the BIA in Matter of Mogharrabi, Sessions has come up with ways of forcing the already broken Immigration Court system to take on even more cases, cut even more corners, and spew forth even more incorrect and unfair decisions, particularly in the area of asylum.
He has shown a simply horrible, outright hostility to working cooperatively with the individual Immigration Judges, the NAIJ, the private bar, the pro bono community, the NGO’s, and the academic community, along with the DHS, to develop methods of improving Due Process, fairness, and timeliness in the asylum adjudication system. Perhaps even worse, by reducing the status of judges to “denial officers,” and upping the stress levels to incredible heights, he’s also made the U.S. Immigration Judge and the BIA Appellate Immigration Judge jobs far less appealing to well-qualified individuals who would fairly, efficiently, correctly, and professionally adjudicate asylum claims. Such individuals also likely would have some of the “creative, yet practical” “think outside the box” approaches necessary to deal with the backlog in a timely manner without compromising Due Process. It’s painfully obvious that the Sessions and the other politicos now futilely trying to micromanage the Immigration Court system are devoid of any such insights.
Frankly, this is the type of case that probably could have been granted back in 1994 when it was first filed. Even by the time it finally got to Immigration Court, it appears to be the type of well-documented, clearly grantable case that could have been set for a “short block hearing” with the understanding that if certain aspects of the respondent’s background and experiences were verified under oath, the DHS would not oppose a grant of asylum.
Instead, this case has been “hanging around” the system for more than 24 years, and still hasn’t been finally resolved! More seriously, after taking five years on the docket to get to the merits hearing, both the IJ and the BIA clearly got it wrong!
The mess that currently exists in the Immigration Court and asylum systems is primarily the product of years of such abuse and mismanagement by a politically-driven adjudication system, aided and abetted by Congressional inaction and failure to provide adequate funding. Cutting more corners, pushing overwhelmed judges to turn out more cases in less time, and punishing asylum applicants by taking away their children, detaining them in substandard conditions, denying them reasonable access to counsel, denying them fairness, Due Process, and the life-saving protection to which many of them are entitled clearly isn’t the answer.
We need regime change (along with an attitude and culture change among some Immigration Judges and among some BIA panels)!
A new report from New American Economy (NAE) shows that immigrants in the City of Alexandria paid $364.6 million in taxes in 2016, including $262.4 million in federal taxes and $102.2 million in state and local taxes. The report was produced in partnership with the City of Alexandria Workforce Development Center and the Alexandria Economic Development Partnership.
In addition to their financial contributions, the new report, New Americans in Alexandria, shows the role that the immigrant population in Alexandria plays in the local labor force, as well as their contributions to the city’s recent population growth. Though they account for 28 percent of the city’s overall population, immigrants represent 32.3 percent the city’s working age population and 30.5 percent of its employed labor force. The report also shows that over half of the city’s population growth in between 2011 and 2016 is attributable to immigrants.
Foreign-born residents paid $364.6 million in taxes in the City of Alexandria in 2016. Immigrant households earned $1.4 billion in income in 2016. Of that, $262.4 million went to federal taxes and $102.2 million went to state and local taxes, leaving them with $998.8 million in spending power.
Immigrants were responsible for 52.0 percent of the total population growth in Alexandria between 2011 and 2016. Over those 5 years, the overall population in the city increased by 10.8 percent, while the immigrant population increased by 22.2 percent.
Despite making up 28.0 percent of the overall population, immigrants played an outsize role in the labor force in 2016. Foreign-born workers represented 32.3 percent of Alexandria’s working-age population and 30.5 percent of its employed labor force that year.
Immigrants are overrepresented among entrepreneurs in the city. Despite making up 28.0 percent of the population, immigrants accounted for 34.2 percent of all entrepreneurs in the city in 2016, generating $79.4 million in local business income.
Immigrants play a critical role in several key industries in the city, including in STEM fields. Foreign-born workers made up 62.2 percent of all workers in construction, 48.3 percent of all workers in hospitality and recreation, and 41.4 percent of all workers in healthcare. They also made up 21.4 percent of science, technology, engineering, and math (STEM) workers.
40 percent of immigrants over the age of 25 had a bachelor’s degree or higher in 2016, and 19.2 percent had an advanced degree.
Over one third of immigrants in the city—36.3 percent, or over 15,000 individuals— were naturalized citizens in 2016.
Over one third—31.2 percent—of refugees aged 25 and above in the city held at least a bachelor’s degree in 2016. 10 percent held an advanced degree.
The US Refugee Resettlement Program — A Return to First Principles:
How Refugees Help to Define, Strengthen, and Revitalize the United States
Donald Kerwin
Center for Migration Studies
EXECUTIVE SUMMARY
The US refugee resettlement program should be a source of immense national pride. The program has saved countless lives, put millions of impoverished persons on a path to work, self-sufficiency, and integration, and advanced US standing in the world. Its beneficiaries have included US leaders in science, medicine, business, the law, government, education, and the arts, as well as countless others who have strengthened the nation’s social fabric through their work, family, faith, and community commitments. Refugees embody the ideals of freedom, endurance, and self-sacrifice, and their presence closes the gap between US ideals and its practices. For these reasons, the US Refugee Admissions Program (USRAP) has enjoyed strong, bipartisan support for nearly 40 years.
Yet the current administration has taken aim at this program as part of a broader attack on legal immigration programs. It has treated refugees as a burden and a potential threat to our nation, rather than as a source of strength, renewal, and inspiration. In September 2017, it set an extremely low refugee admissions ceiling (45,000) for 2018, which it had no intention of meeting: the United States is on pace to resettle less than one-half of that number. It has also tightened special clearance procedures for refugees from mostly Muslim-majority states so that virtually none can enter; cynically slow-walked the interview, screening, and admissions processes; and decimated the community-based resettlement infrastructure built up over many decades (Miliband 2018). At a time of record levels of forced displacement in the world, the United States should model solidarity with refugees and exercise leadership in global refugee protection efforts (Francis 2018a, 102). Instead, the administration has put the United States on pace to resettle the lowest number of refugees in USRAP’s 38-year history, with possible further cuts in fiscal year (FY) 2019.
This report describes the myriad ways in which this program serves US interests and values. The program:
saves the lives of the world’s most vulnerable persons;
continues “America’s tradition as a land that welcomes peoples from other countries” and shares the “responsibility of welcoming and resettling those who flee oppression” (Reagan 1981);
promotes a “stable and moral world” (Helton 2002, 120);
reduces spontaneous, unregulated arrivals and encourages developing nations to remain engaged in refugee protection (Gammeltoft-Hansen and Tan 2017, 42-43); and
promotes cooperation from individuals, communities, and nations that are central to US military and counter-terrorism strategies.[1]
In that vein, the report describes the achievements, contributions, and integration outcomes of 1.1 million refugees who arrived in the United States between 1987 and 2016. It finds that:
the median household income of these refugees is $43,000;[2]
35 percent of refugee households have mortgages;
63 percent of refugees have US-born children;
40 percent are married to US citizens; and
67 percent have naturalized.
Comparing the 1.1 million refugees who arrived between 1987 and 2016 with non-refugees,[3] the foreign born, and the total US population, the report finds:
Refugees’ labor force participation (68 percent) and employment rates (64 percent) exceed those of the total US population (63 and 60 percent respectively).[4]
Large numbers of refugees (10 percent) are self-employed and, in this and other ways, job creators, compared to 9 percent for the total US population.
Refugees’ median personal income ($20,000) equals that of non-refugees and exceeds the income of the foreign born overall ($18,700).
Refugees are more likely to be skilled workers (38 percent) than non-refugees (33 percent) or the foreign born (35 percent).
Refugees are less likely to work in jobs that new immigrants fill at high rates, such as construction, restaurants and food service, landscaping, services to buildings and dwellings, crop production, and private households.
Refugees use food stamps and Medicaid at higher rates than non-refugees, the foreign born, and the total US population. However, their public benefit usage significantly declines over time and their integration, well-being, and US family ties increase.
Comparing refugee characteristics by time present in the United States — from the most recent arrivals (2007 to 2016), to arrivals between 1997 to 2006, to those with the longest tenure (1987 to 1996) — the report finds:
Refugees with the longest residence have integrated more fully than recent arrivals, as measured by households with mortgages (41 to 19 percent); English language proficiency (75 to 55 percent); naturalization rates (89 to 24 percent); college education (66 to 32 percent); labor force participation (68 to 61 percent); and employment (66 to 55 percent) and self-employment (14 to 4 percent).
Refugees who arrived from 1997 to 2006 have higher labor force participation and employment rates than refugees who arrived from 1987 to 1996.[5]
Refugees who arrived between 1987 and 1996 exceed the total US population, which consists mostly of the native-born, in median personal income ($28,000 to $23,000), homeownership (41 to 37 percent with a mortgage), percent above the poverty line (86 to 84 percent), access to a computer and the internet (82 to 75 percent), and health insurance (93 to 91 percent).
Comparing nationals — in 2000 and again in 2016 — from states formerly in the Soviet Union, who entered from 1987 to 1999, the report finds that:
median household income increased from $31,000 to $53,000;
median personal income nearly tripled, from $10,700 to $31,000;
the percent of households with a mortgage increased from 30 to 40 percent;
public benefit usage fell;
English language proficiency rose;
the percent with a college degree or some college increased (68 to 80 percent);
naturalization rates nearly doubled, from 47 to 89 percent;
marriage to US citizens rose from 33 to 51 percent; and
labor force participation rate (59 to 69 percent), employment (57 to 66 percent), self-employment (11 to 15 percent), and the rate of skilled workers (33 to 38 percent) all grew.
The report also finds that refugees bring linguistic diversity to the United States and, in this and other ways, increase the nation’s economic competitiveness and security.
In short, refugees become US citizens, homeowners, English speakers, workers, business owners, college educated, insured, and computer literate at high rates. These findings cover a large population of refugees comprised of all nationalities, not just particularly successful national groups.
Section I of the report describes the nation’s historic commitment to refugees and critiques the administration’s rationale for dismantling the resettlement program. Section II sets forth the Center for Migration Studies (CMS) methodology for selecting the refugee data used in this report. Section III discusses the resettlement, national origins, and years of arrival of the refugees in CMS’s sample. Section IV details the report’s main findings on the achievements, contributions, and integration of refugees over time. It compares the characteristics of refugees, non-refugees, the foreign born, and the total US population; and examines the progress of refugees — measured in 2000 and 2016 — that arrived from the former Soviet Union between 1987 and 1999. This section also references the growing literature on the US refugee program and on the economic and fiscal impacts of refugees. Section V discusses the important role of voluntary agencies in the resettlement process, focusing on the work of Catholic agencies in building community support for refugees and promoting their entrepreneurial initiatives. Section VI identifies the national interests served by the refugee program, recommends ways to address several of the program’s longstanding challenges, and urges the president, Congress, Americans with refugee roots, and other stakeholders to work to strengthen and expand the program.
[1] Brief for Retired Generals and Admirals of the US Armed Forces in Support of Respondents at 19-21, Trump v. Hawaii, No. 1 7-965 (Mar. 30, 2018)http://journals.sagepub.com/doi/pdf/10.11.
[2] This is less than the median household income of the non-refugee population ($45,000), the foreign born ($56,000), and the total US population ($52,800). However, most refugees enter the United States without income, assets, or English language proficiency, and they advance dramatically over time. This report shows, for example, that the median personal income of refugees who arrived between 1987 and 1996 actually exceeds that of the total US population.
[3] The Center for Migration Studies identified non-refugees by removing persons selected as refugees from the population of all foreign born that entered after 1986, by single year of entry. In each year of entry, it then randomly selected the same number as the number of refugees.
[4] The labor force participation rate refers to the percentage of persons age 16 or over who are employed or seeking work, as opposed to out of the labor force entirely.
[5] The higher labor force participation and employment rates of refugees who arrived from 1997 to 2006 can likely be attributed to the older age of those who arrived from 1987 to 1996 (20 percent age 65 or over). Many of those who arrived in the 1987 to 1996 period had likely retired by 2016.
REGISTER FOR THIS FREE WEBINAR:
WEBINAR
The Contributions of Refugees to the Nation and the Importance of a Robust US Refugee Program
September 6, 2018, 1pm EDT
An employee solders a circuit board. (Dominik Osswald/Bloomberg)
President Trump has repeatedly promised to close the borders to stop undocumented migrants from taking American jobs, so far with only minimal success. Which shouldn’t be surprising. For a half-century, the government has been unable to stanch the flow of illegal migrants working for American companies because it continuously misdiagnoses the problem. Unless the government either holds employers responsible or grants undocumented workers legal rights, there will continue to be undocumented immigrants streaming across the border, no matter how harsh enforcement efforts are.
When we think of undocumented workers, we tend to think of farmworkers or those doing menial service jobs like hotel housekeeping. And yet undocumented workers have been foundational to the rise of our most vaunted hub of innovative capitalism: Silicon Valley.
If any industry should be automated, it would be the high-tech world of electronics. In 1984 the iconic Apple even touted its “Highly Automated Macintosh Manufacturing Facility,” bragging that “A Machine Builds Machines.” Yet Apple’s factory, like all the other electronic factories, was shockingly old-fashioned. There were more robots in Detroit’s auto factories than in Silicon Valley. The flexibility of electronics production in Silicon Valley, despite all the technical wizardry, came from workers not machines.
And while these companies employed many high-skilled, highly paid engineers, Silicon Valley became the tech hub of the world thanks to a very different set of workers. Unlike the postwar industries that created a middle class from union wages, electronics expanded in the 1970s and ’80s through low-cost, often subcontracted, often undocumented labor. Instead of self-aware robots or high-dollar professionals, it was women of color, mostly immigrants — hunched over tables with magnifying glasses, assembling parts sometimes on a factory line, sometimes on a kitchen table — who did the necessary but toxic work of semiconductor manufacturing. Many of the undocumented workers were from Mexico, while many of the documented ones were from there and Vietnam.
Consider Ampex, a leading audio manufacturer, whose 1980s assembly room looked like most in Silicon Valley: all women, and mostly women of color. Automation was not an option because the products changed too quickly to recoup the investment in machinery.
The tools these women used were hardly futuristic. In fact, they were one of the most ancient tools in existence — their fingernails. The women grew their nails long on each hand so that they could more easily maneuver the components onto the circuit boards. Tongs were an option, but fingernails worked better.
The high-end audio at Ampex was made possible by low-end subcontracting. In Quonset huts, temporary workers dropped off and collected subcontracted chemical processing that was too dangerous to be done by regular Ampex employees. The front and back doors of the huts were open, some lazily turning fans were on the ceiling, but otherwise there was no ventilation.
The workers stoked fires beneath vats of chemicals, some of which boiled. In the vats, the subcontracted workers dipped metals and printed circuits, which temps collected and returned to Ampex.
And this wasn’t even the bottom rung of the electronics industry. The bottom-rung of the electronics industry was not in a small factory or a Quonset hut, but a kitchen.
Investigators found that somewhere between 10 and 30 percent of electronics firms subcontracted to “home workers.” Like garment workers taking in sewing in the 1880s, electronics workers in the 1980s could assemble parts in their kitchen. A mother and her children gathered around a kitchen table assembling components for seven cents apiece. These little shops put together the boards used by big companies like Ampex.
The catch: the Immigration and Naturalization Service (INS) believed that as much as 25 percent of the Silicon Valley workforce (~200,000 people) was undocumented — which meant this thriving industry was routinely breaking the law. The INS tasked John Senko, an 18-year veteran, with opening the agency’s first office in San Jose and eliminating illegal migrant labor in Silicon Valley. Early raids yielded undocumented workers making between $5.50 and $7.50 an hour ($13.60 and $18.55 in 2018 dollars), which, in the lingering recession of the early 1980s, was good money. Americans out of work might not have wanted to be migrant farmworkers, but they did want factory jobs.
The INS encouraged the large companies to cooperate by offering them lenience for giving up their “illegal aliens.” At Circuit Assembly Corporation in San Jose, the INS asked for the names of its noncitizen employees. Of the 250 names, the company suspected that “20 or 30 of them could be using forged papers.” The actual number was 187.
But in a pattern that would repeat itself, and would reinforce the wrong incentive structures, the company received no sanctions or penalties because it cooperated. It replaced those employees with what Senko dubbed “legal workers,” while deporting the rest. The INS moved onto the next company.
This pattern, however, allowed companies to return to hiring undocumented workers once the heat was off. Papers were easy to forge, and employers had no reason to check them too closely. Senko and the INS were understaffed, growing to only a few dozen employees. And there was no real risk to breaking the law without any potential penalty for the company.
In addition to doing nothing to stanch the flow of undocumented workers, by targeting employees, not employers, the INS provoked a fierce backlash. Senko raided not just workplaces but neighborhoods. In Menlo Park, just near Stanford, INS agent blocked the streets, removed “Hispanic males” from cars and from homes, checking them for proof of citizenship. In Santa Cruz, the INS went door to door checking Hispanic citizenship.
These harsh tactics prompted pushback from local governments. In San Jose, officials fought against INS in the name of defending “chicano citizens” against harassment, passing a resolution against “the unwarranted disruption of the business community.” In December 1985, San Francisco declared itself a “sanctuary” and directed its police and officials not to assist the INS in finding “law-abiding” but “undocumented” migrants.
This resistance forced INS agents to enforce the law more selectively. But reducing these broad sweeps actually exacerbated the root problem. It gave Silicon Valley corporations even more power over their undocumented workforce.
Businesses could selectively check green cards against an INS database, or simply hand over troublemakers. This power made it impossible for unions to organize the electronics factories. The spokesman for the International Association of Machinists explained that whenever they tried to organize, the company “threatened to have anyone who joined the union deported.”
So long as undocumented workers remained cheaper and willing to work in worse conditions than American employees, and the risk of employing undocumented labor was nonexistent, enforcement was doomed to fail.
For John Senko, his time in San Jose was “the worst three years of my life.” He came to believe that if he was actually successful in deporting undocumented workers from Silicon Valley “we’d have a revolution.” He preferred, he said, businesses to cooperate rather than to have to raid them, but that missed the point.
“This economy,” former INS head Leonel Castillo told a newspaper in 1985, “was built on the assumption and reality of a heavy influx of illegal labor.” Castillo was not just referring to the electronics industry but the entire economy of the American West.
And that basic reality remains the same today: countless American businesses in a wide variety of industries thrive solely because they can rely on undocumented employees who will work for less in harsher conditions. If we want to reduce competition for American workers from undocumented foreign workers, we must either truly hold employers accountable (which has never been done) or extend workplace rights to noncitizens. Our current system of punishing the undocumented themselves simply won’t stop the problem — no matter how harsh President Trump’s tactics. When some workers count and others don’t, employers will choose the workers that can work cheaper and more dangerously, which, in turn, makes the rest of our work, citizens or not, more precarious.
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Employer sanctions have now been in effect for more than three decades without effective enforcement. Fact is, they target U.s. employers, rather than their foreign workers. Therefore, not likely to be much “red meat” for the Trump racist base, particularly those who actually employ undocumented individuals. Hypocrisy runs deep in the Trump White Nationalist empire.
‘Suicide,’ ‘catastrophe’: Nicaraguans in US terrified of looming end of protections
By Tal Kopan, CNN
Cassandra has lived and worked in the US over 20 years. Threats to her life have been made to her family and friends back in Nicaragua. It would be “suicide” to move back, she says.
But the Trump administration says she and thousands of other immigrants like her must do so by January.
On Jan. 5, roughly 5,300 Nicaraguans who have lived in the US since at least that date in 1999 will lose their protected status. If they have no other immigration status in the US, they will be forced to either return to the country or risk living in the US illegally.
The decision to end temporary protected status for Nicaraguans last November was overshadowed by similar Trump administration decisions to end such protections for hundreds of thousands more immigrants from neighbors Honduras and El Salvador. Nationals of Nicaragua received the shortest time frame of any of those TPS recipients to get their affairs together: 12 months.
But since that decision was made, Nicaragua has plunged into violence and political unrest, with at least 322 people dying there since mid-April, according to the Inter-American Commission on Human Rights, part of the Organization of American States. By the White House’s own count, the toll is more than 350. The UN Refugee Agency has put out guidance to its member countries asking them to allow Nicaraguans to enter and to apply for asylum once there.
The situation is bad enough that the Trump administration sanctioned three Nicaraguan officials in July for human rights abuses, saying President Daniel Ortega and his vice president “are ultimately responsible for the pro-government parapolice that have brutalized their own people.”
In light of the violence, a bipartisan group of seven bipartisan lawmakers wrote to President Donald Trump, Homeland Security Secretary Kirstjen Nielsen and Secretary of State Mike Pompeo in late July asking the President to either reconsider ending temporary protected status for Nicaraguans or to designate a new status for them.
“It would be, frankly, I think, unacceptable to then send folks back to that same place that we’re sanctioning,” Republican Rep. Mario Diaz-Balart of Florida, one of those who signed the letter, told CNN. “It’s a barbaric regime that’s literally murdering people in the streets. … It would be a catastrophe, and it’s one that can be avoided.”
Diaz-Balart said he has not gotten a response from the administration to the letter, though he remains hopeful it will reverse course.
The Department of Homeland Security ignored repeated requests for comment from CNN about whether it’s considering extending further protections to Nicaraguans.
Hundreds of immigrant kids remain separated from parents
By Tal Kopan, CNN
Hundreds of children separated from their parents at the US-Mexico border remain separated from their parents, including 497 in government custody, according to a new court filing Thursday.
The figure includes 22 children under the age of five still in government care. Six of those are 4 years old or younger whose parents were deported without them.
A total of 1,937 children have been reunified with parents, up only 14 from last week.
The numbers have changed only slightly from last week, as the court filing from the Justice Department and the American Civil Liberties Union case describes a slow and laborious process to try to connect the families that have been separated.
It remains unclear exactly how many parents were deported without their children, though it’s in the hundreds. By the government’s latest count, there are 322 deported parents who have children still in custody.
But the ACLU, which filed the lawsuit on behalf of separated parents, says the administration has previously given it a list of deported parents that includes 70 additional cases. The administration said, according to the ACLU, that some of the discrepancy is due to kids being released from care. It’s not clear what will happen to those families.
US District Judge Dana Sabraw will hold a status hearing on the case Friday.
So, we send good folks who have been contributing to our economy and society back to likely harm at the hands of the repressive leftist Government of Nicaragua basically because they are Latinos. Of course, almost all of them have very plausible asylum, withholding, CAT, or cancellation of removal claims. So, more than 5,000 cases will needlessly be thrown back into our already overwhelmed Immigration Court system. No wonder the backlog continues to mushroom under Sessions’s White Nationalist policies! Racist-driven policies always come at a high cost!
In the meantime, Sessions continues publicly to thumb his nose at Federal Judges, while making less than impressive efforts to comply with their lawful orders. And, families and children continue to suffer from Sessions’s White Nationalist agenda.
The U.S. government expects children as young as 18 months to represent themselves in immigration court. Lawyers in Miami made a coloring book to help kids understand what they’re facing.
The U.S. government expects children, as young as 18 months and unable to speak, to represent themselves in immigration court to fight against their deportation. Lawyers in Miami made a coloring book to help kids understand what they’re facing.Image by Alfredo De Lara
Media coverage of the border crisis has heavily focused on separated parents and children. But migrant children’s nightmares are just beginning once they set foot here, as documented in the video above. Every child that crosses the border without permission has an immigration court case to fight, but there is no right to free counsel in that court.
So children, who sometimes speak only an indigenous language, are going up alone against government lawyers to fight to stay in the United States. If that sounds absurd, that’s because it is. Congress has the power to change this.
After President Trump’s “zero tolerance” policy went into effect, we at Americans for Immigrant Justice began to see an increase in young children needing legal representation. We thought: How do we get toddlers to understand the gravity of their situation?
We created a coloring book to explain to these children their rights. It explains concepts such as what a country is, who is an immigrant and what a judge does. We read the book to separated and unaccompanied children as part of our “know your rights” presentations and have them act out scenarios from the story.
The kids in this video op-ed are the lucky ones. They were released from a children’s shelter run by the Office of Refugee Resettlement to family members in Miami. We are representing them in court free. But for many children we engage with at the shelters, the coloring book is the only legal advice they receive.
The stakes are high: Over half of all children in immigration court are unrepresented. Nine out of 10 of them will be ordered deported. If we as a country are truly invested in protecting children, the bare minimum that we can do is ensure access to a lawyer for immigrant children who cannot afford one.
Jennifer Anzardo Valdes is the director of the Children’s Legal Program at Americans for Immigrant Justice, a nonprofit law firm based in Miami.
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Click the above link and watch the video by Leah Varjacques.
Under Jeff Sessions, intentional child abuse has become a norm and the operation of the Immigration Courts with little or no regard for Due Process, common sense, and human decency is a national disgrace. When will it end? How many will suffer needlessly and be abused to feed Sessions’s White Nationalist myth? Where is justice?
Join the New Due Process Army and fight to hold Jeff Sessions accountable for all of his illegal and immoral actions!
(JTA) — A delegation of Jewish leaders from 17 organizations is visiting detention and migrant facilities on the U.S.-Mexico border.
The 27-person delegation visited detention centers in San Diego on Tuesday and is traveling to asylum-seeker shelters in Tijuana, Mexico, on Wednesday.
The trip, which is being organized by the Anti-Defamation League and the Jewish refugee aid group HIAS, includes meetings with American and Mexican government officials, immigration attorneys and humanitarian workers. Among the participants are representatives from three Jewish movements — Reform, Reconstructionist and Conservative — as well as groups such as the American Jewish World Service, the Jewish Council on Public Affairs and J Street. Mark Hetfield, CEO of HIAS, described the visits to detention centers and courthouses where migrants are being tried on charges that they entered the country illegally.
“It’s heartbreaking to see the way the United States is treating immigrants. It’s not treating them like human beings,” he told JTA in a phone interview from Tijuana.
Hetfield, a former immigration lawyer, said members of the delegation witnessed migrants being tried in a court as a group and that some who pleaded guilty to criminal charges lacked proper understanding of the consequences.
“It’s really troubling in terms of the lack of due process and the lack of understanding that people have as they’re going through and pleading guilty to these criminal proceedings,” he said.Nancy Kaufman, CEO of the National Council of Jewish Women, said visiting a detention center for unaccompanied minors, which held children as young as 6 years old, was “eye opening.”
Though she described the shelter as “clean and decent” and the staff as “very caring,” she had concerns about the conditions.
“I asked if they go to school. They have school there, but I don’t know how you have meaningful educational programs for that kind of range of kids,” she said.
Kaufman referenced the Holocaust in speaking about the importance of the trip.
“As Jewish leaders, we need to bear witness. We all committed after the Holocaust to ‘Never again’ — we meant it,” she said. “I think we all live our lives with the belief that every person is made in the image of God, ‘b’tzelem Elohim,’ and should be treated with dignity and respect.”
Jonathan Greenblatt, CEO of ADL, called the trip “a moral imperative” in a statement to JTA.
“In the face of continued harsh policies by the Administration targeting immigrants and asylum seekers, we’re here to learn more about the crisis at the border, listen to the experiences of migrants and asylum seekers escaping violent conditions, and recommit to our advocacy for humane and compassionate immigration policies,” he said.Many Jewish groups have joined progressives and some conservatives in criticizing President Donald Trump’s immigration policies, including his executive orders banning citizens from some Muslim-majority countries from entering the United States and the since-rescinded policy of separating migrant families at the border.
Last week, HIAS organized a letter to Trump urging him to raise the cap on refugees admitted into the country to at least 75,000. The letter was signed by leaders of 36 Jewish groups. Trump set the cap for 2018 at 45,000, a historic low, and is considering a further decrease, The New York Times reported earlier this month.
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Under Trump, Sessions, Miller, and the White Nationalist cabal running immigration policy in the name of our Government, 1939 is indeed upon us. The stain of how we are treating the vulnerable humans who seek only a fair shot at the legal protections we claim to offer might never be washed away.
Many thanks to my good friend and long time colleague, retired Judge Joan Churchill for sending this item my way.
In a move that advocates say could threaten due process rights for immigrants and lead to more deportations, immigration judges in multiple cities have been instructed to cram more hearings into their daily schedules, according to sources knowledgeable on the matter.
Advocates believe the Trump administration has undercut the independence of judges in order to speed up deportations. Already this year, Attorney General Jeff Sessions restricted the types of cases in which asylum would be granted and limited the ability for judges to indefinitely suspend certain cases.
Judges across the country, in places like San Francisco; Arlington, Virginia; Memphis, and Dallas, recently received the instructions from assistant chief immigration judges, who supervise separate immigration courts, to schedule three merits hearings a day starting Oct. 1, according to sources who did not want to speak publicly on the matter.
An Executive Office for Immigration Review official said that that the assistant chief judges were not directed by the office’s leadership to push the instructions.
Advocates believe the move could be potentially disastrous for immigrants. During merits hearings, immigrants facing deportation provide evidence and call witnesses to back up their claims to remain in the country, such as arguing for asylum. In addition, earlier in the year, the Department of Justice announced that beginning Oct. 1, judges would be expected to complete 700 cases a year.
“The requirement of three merits hearings a day could do more to threaten the integrity of the court system than the 700-case-per-year requirement,” said Sarah Pierce, a senior analyst at the Migration Policy Institute, a Washington think tank. “Requiring immigration judges to schedule three merits hearings a day assumes each case will be a similar or at least comparable length — and that’s just not true.”
Pierce said some hearings, such as asylum hearings, may require detailed testimony that can make the case stretch on for hours. “By mandating three merits hearings a day the court would be placing unrealistic pressures on immigration judges, which will certainly have negative after effects on the due process rights of the foreign nationals in their courtrooms,” she said.
Until now, how many hearings a judge schedules each day has been up to the judges themselves. Often, judges schedule two such hearings a day, experts say.
Jeffrey Chase, a former immigration judge and now an immigration attorney, said the instructions to schedule three could lead to judges feeling forced to speed through hearings.
“If a judge is going to think: ‘let me do [the] right thing and have an eight-hour hearing, or I’ve got my kids’ tuition I have to pay, I’m going to do what they want me to do,’” he said. “It’s the next step in taking away immigration judges’ independence, making them choose between job security and due process.”
Unlike federal judges who are given lifetime appointments, immigration court judges are employees of the Department of Justice. In his role overseeing the court, Sessions has been vocal in cutting down the backlog of deportation cases.
To that end, in March, judges were given benchmarks on how many days they should take to complete certain cases and how many cases they should finish every year beginning on Oct. 1.
Dana Marks, a spokesperson for the National Association of Immigration Judges, told BuzzFeed News that she could not confirm or deny the report. Marks, however, said that their association is “deeply concerned any time” there is an encroachment on judges’ ability to manage their dockets.
“Micro-managing our dockets from afar does not help us to do our job more efficiently and effectively,” she said, “it hinders us.”
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Of course demanding that Immigration Judges schedule additional cases is NOT “mere administration” or “value neutral.” Given the clear anti-immigrant, “blame the victims and the judges” message delivered by Sessions, it’s basically saying “most of the cases are easy denials — get the lead out and move ‘em out.”
A really good Immigration Judge can do a maximum of two full contested cases per day. A thorough job on a “contested merits case” including delivery of oral decision takes 3-4 hours. And, frankly, many Immigration Judges can’t fairly complete two cases.
That doesn’t mean that they aren’t working hard or good judges; it’s just a “fact of life” that judges are human and work at different paces. Also the preparation of the parties and whether or not the case requires an interpreter (obviously, cases in English go more quickly), things over which a judge has no control, enter into it. Indeed, judges purporting to complete more than two full contested cases per day are almost certainly cutting corners, doing a substandard job, or denying Due Process to the respondents.
Sessions, through a toxic combination of ignorance, incompetence, and gross bias is destroying what is left of Due Process in the Immigration Courts. Time for the Article III Courts to step in, oust Sessions from control on ethical grounds (he is a living, breathing, violation of judicial ethics), and appoint a “Special Master” to run the system until Congress steps up and creates an independent US Immigration Court.
Otherwise, one way or another, the Article IIIs will find themselves destroyed by the mess Sessions is intentionally creating in the Immigration Courts. The Article IIIs can’t “run and hide” from the “Sessions Debacle.” Eventually, they are going to be sucked into the legal, ethical, and moral morass Sessions is creating.
In the period leading up to World War II, the German courts not only failed to stand up to Hitler, but actually willingly joined in his racist, anti-semitic program that eventually led to the Holocaust. History didn’t let them off the hook. Where will the Article IIIs stand in the Trump/Sessions White Nationalist assault on the Constitution and the rule of law?
C. Ryan Barber reports for the National Law Journal:
Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation
U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.
A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.
U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.
In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.
“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.
At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”
U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.
After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.
“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”
Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.
“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.
“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.
Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.
Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”
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When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.
No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”
Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!
(Full Disclosure: I am a former partner at Jones Day. I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!)
In July, I left my wife and two little girls and traveled from Denver to Dilley, Texas, to join a group of volunteers helping migrant women in detention file claims for asylum. I am not a lawyer, but I speak Spanish and have a background in social work. Our task was to help the women prepare for interviews with asylum officers or to prepare requests for new interviews.
The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. Although the separations have stopped because of the resulting public outcry, hundreds of families have not been reunited (including more than 20 children under 5), families continue to be detained at higher rates than adults crossing the border alone, and the trauma inflicted on the women and children by our government will have lifelong consequences.
To be clear, this is a policy of deliberately tormenting women and children so that other women and children won’t try to escape life-threatening conditions by coming to the United States for asylum. I joined this effort because I felt compelled to do something to respond to the humanitarian crisis created by unjust policies that serve no purpose other than to punish people for being poor and female ― for having the audacity to be born in a “shithole country” and not stay there.
I traveled with a group of amazing women gathered by Carolina, a powerhouse immigration lawyer and artist from Brooklyn. My fellow volunteers were mostly Latinas or women whose histories connected them deeply to this work. Through this experience, we became a tight-knit community, gathering each night to process our experiences and try to steel ourselves for the next day. Working 12-hour shifts alongside us were two nuns in their late 70s, and it was one of them who best summed up the experience as we entered the facility one morning. “What is happening here,” she said, “makes me question the existence of God.”
It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’
I am still in awe of the resilience I witnessed. Many of the women I met had gone for more than two weeks without even knowing where their children were. Most had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala). They came here seeking refuge from unspeakable horrors, following the internationally recognized process for seeking asylum. For their “crime,” they were incarcerated with hundreds of other women and children in la hielera (“the freezer,” cold concrete cells with no privacy where families sleep on the floor with nothing more than sheets of Mylar to cover them) or la perrera (“the dog kennel,” where people live in chain link cages). Their children were ripped from their arms, they were taunted, kicked, sprayed with water, fed frozen food and denied medical care. Yet the women I encountered were the lucky ones, because they had survived their first test of will in this country.
Woman after woman described the same scene: During their separation from their children ― before they learned of their whereabouts or even whether they were safe ― the women were herded into a room where Immigration and Customs Enforcement officials handed them papers. “Sign this,” they were told, “and you can see your children again.” The papers were legal documents with which the women would be renouncing their claims to asylum and agreeing to self-deport. Those who signed were deported immediately, often without their children. Those who refused to sign were given sham credible-fear interviews (the first step in the asylum process), for which they were not prepared or even informed of asylum criteria.
The women were distraught, not knowing what ICE had done with their children or whether they would see them again. Their interviews were conducted over the phone, with an interpreter also on the line. The asylum officer would ask a series of canned questions, and often the women could reply only, “Where is my child? What have you done with my child?” or would begin to give an answer, only to be cut off midsentence. Not surprisingly, almost all of them got negative results — exactly the outcome this policy was designed to produce. Still, these women persisted.
After a court battle, my clients were reunited with their children and were fortunate enough to have access to free legal representation (many do not) through the CARA Pro Bono Project. The women arrived looking shell-shocked, tired, determined. Some of their children clung to them, afraid to be apart even for a few minutes, making it very hard for the women to recount their experiences, which often included sexual violence, death threats and domestic abuse. Other children stared into space or slept on plastic chairs, exhausted from sleepless nights and nightmares. Still others ran manically around the legal visitation trailer. But some of the children showed incredible resilience, smiling up at us, showing off the few English words they knew, drawing pictures of mountains, rivers, neat little houses. They requested stickers or coloring pages, made bracelets out of paper clips. We were not allowed to give them anything ― no treats or toys or books. We were not allowed to hug the children or their mothers ― not even when they sobbed uncontrollably after sharing the details of their ordeals.
In the midst of this sadness and chaos, the humanity of these women shined through. One of my clients and her son, who had traveled here from Guatemala, took great pleasure in teaching me words in their indigenous language, Mam. She taught me to say “courageous” ― hao-tuitz ― and whenever our work got difficult, we would return to this exhortation. These lessons were a welcome break from reviewing the outline of the experiences that drove them to leave, fleshing it out with details for their interview. They wearied of my pressing them to remember facts I knew the asylum officer would ask about. They wanted only to say that life is very hard for indigenous people, that their knowledge of basic Spanish was not enough to make them equal members of society. Mam is not taught in schools, and almost everyone in Guatemala looks down on those who speak it. They were so happy to have a licenciada (college graduate) interested in learning about their culture. We spent almost an hour finding their rural village on Google Earth, zooming in until we could see pictures of the landscape and the people. As we scrolled through the pictures on the screen, they called out the people by name. “That’s my aunt!” and “There’s my cousin!” There were tears of loss but mostly joy at recognizing and feeling recognized ― seen by the world and not just dismissed as faceless criminals.
A diabetic woman who had not had insulin in over a week dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement.
There were stories of the astonishing generosity of people who have so little themselves. One colleague had a client who had been kidnapped with her daughter and another man by a gang while traveling north from Guatemala. The kidnappers told the three to call their families, demanding $2,000 per person to secure their release. The woman was certain she and her daughter were going to die. Her family had sold, mortgaged and borrowed everything they could to pay for their trip. They had never met the man who was kidnapped with them. She watched as he called his family. “They’re asking for $6,000 for my release,” she said he told them. He saved three lives with that phone call. When they got to the U.S.-Mexico border, they went separate ways, and she never saw him again, never knew his last name.
Not everything I heard was so positive. Without exception, the women described cruel and degrading treatment at the hands of ICE officials at the Port Isabel immigrant processing center, near Brownsville, Texas. There was the diabetic woman who had not had insulin in over a week and dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement. Women reported being kicked, screamed at, shackled at wrists and ankles and told to run. They described the cold and the humiliation of not having any privacy to use the bathroom for the weeks that they were confined. The children were also kicked, yelled at and sprayed with water by guards, then awoken several times a night, ostensibly so they could be counted.
Worse than the physical conditions were the emotional cruelties inflicted on the families. The separation of women from small children was accomplished by force (pulling the children out of their mothers’ arms) or by deceit (telling the women that their children were being taken to bathe or get medical care). Women were told repeatedly that they would never see their children again, and children were told to stop crying because they would never see their mothers again. After the children were flown secretively across the country, many faced more cruelty. “You’re going to be adopted by an American family,” one girl was told. Some were forced to clean the shelters they were staying in and faced solitary confinement (el poso) if they did not comply. Children were given psychotropic drugs to ameliorate the anxiety and depression they exhibited, without parental permission. One child underwent surgery for appendicitis; he was alone, his cries for his mother were disregarded, and she was not notified until afterward.
The months of limbo in which these women wait to learn their fate borders on psychological torture. Decisions seem arbitrary, and great pains are taken to keep the women, their lawyers and especially the press in the dark about the government’s actions and rationales for decisions. One woman I worked with had been given an ankle bracelet after receiving a positive finding at her credible fear interview. Her asylum officer had determined that she had reason to fear returning to her country and granted her freedom while she pursues legal asylum status. Having cleared this hurdle, she boarded a bus with others to be released, but at the last moment, she was told her ankle bracelet needed a new battery. It was removed, and she was sent instead to a new detention center without explanation. A reporter trying to cover the stories of separated families told me about her attempt to follow a van full of prisoners on their way to be reunited with their children so that she could interview them. First ICE sent two empty decoy vans in different directions, and then it sent a van with the detainees speeding down a highway, running red lights to try to outrun her. Every effort is being made to ensure that the public does not know what is happening.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped. The sexual assaults the women described often involved multiple perpetrators, the use of objects for penetration and repeated threats, taunting and harassment after the rape. A Mormon woman I worked with could barely choke out the word “rape,” much less tell anyone in her family or community what had happened. Her sweet, quiet daughter knew nothing of the attack or the men who stalked the woman on her way to the store, promising to return. None of the women I spoke with had any faith that the gang-ridden police would or could provide protection, and police reports were met with shaming and threats. Overwhelmingly, the women traveled with their daughters, despite the increased danger for girls on the trip, because the women know what awaits their little girls if they stay behind. Sometimes the rapes and abuse were at the hands of their husbands or partners and to return home would mean certain death. But under the new directives issued by Attorney General Jeff Sessions, domestic violence is no longer a qualifying criterion for asylum.
Two things I experienced during my time in Dilley made the purpose of the detention center crystal clear. The first was an interaction with an employee waiting in line with me Monday morning to pass through the metal detector. I asked if his job was stressful, and he assured me it was not. He traveled 80 minutes each day because this was the best-paid job he could get, and he felt good about what he was doing. “These people are lucky,” he told me, “They get free clothes, free food, free cable TV. I can’t even afford cable TV.” I did not have the presence of mind to ask him if he would give up his freedom for cable. But his answers made clear to me how the economy of this rural part of Texas depends on prisons. The second thing that clarified the role of the detention center was a sign in the legal visitation trailer, next to the desk where a guard sat monitoring the door. The sign read, “Our stock price today,” with a space for someone to post the number each day. The prison is run by a for-profit corporation, earning money for its stockholders from the incarceration of women and children. It is important to note the exorbitant cost of this cruel internment project. ICE puts incarceration costs at $133 per person per night, while the government could monitor them with an ankle bracelet for $10 to $15 a day. We have essentially made a massive transfer of money from taxpayers to holders of stock in private prisons, and the women and children I met are merely collateral damage.
I have been back home for almost a month now. I am finally able to sleep without seeing the faces of my clients in my dreams, reliving their stories in my nightmares. I have never held my family so tight as I did the afternoon I arrived home, standing on the sidewalk in tears with my 7-year-old in my arms. I am in constant contact with the women I volunteered with, sharing news stories about family detention along with highlights of our personal lives. But I am still waiting for the first phone call from a client. I gave each of the women I worked with my number and made them promise to call when they get released. I even told the Mormon woman that I would pray with her. No one has called.
I comb the details of the Dilley Dispatch email, which updates the community of lawyers and volunteers about the tireless work of the on-the-ground team at Dilley. This week the team did 379 intakes with new clients and six with reunified families. There were three deportations ― two that were illegal and one that was reversed by an ACLU lawsuit. Were the deported families ones I worked with? What has become of the Mam-speaking woman and her spunky son, the Mormon woman and her soft-spoken daughter, the budding community organizer who joked about visiting me? Are they safely with relatives in California, North Carolina and Ohio? In each case, I cannot bear to imagine the alternative, the violence and poverty that await them. I have to continue to hope that with the right advocates, some people can still find refuge here, can make a new life ― that our country might live up to its promises.
Catherine Powers is a middle school social studies teacher. She lives in Colorado with her wife and two daughters.
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Yes, every Administration has used and misused immigration detention to some extent. I’ll have to admit to spending some of my past career defending the Government’s right to detain migrants.
But, no past Administration has used civil immigration detention with such evil, racist intent to penalize brown-skinned refugees, primarily abused women and children from the Northern Triangle, so that that will not be able to assert their legal and Constitutional rights in America and will never darken our doors again with their pleas for life-saving refuge. And, as Catherine Powers points out, under Trump and Sessions the “credible fear” process has become a total sham.
Even in the “Age of Trump & Sessions,’ we still have (at least for now) a Constitution and a democratic process for removing these grotesquely unqualified shams of public officials from office. It starts with removing their GOP enablers in the House and Senate.
Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!
This presentation is really striking, because Board Member Roger Pauley appears to be instructing the IJs not to apply the “categorical approach” when it doesn’t lead to a “sensible result.” The “categorical approach” is mandatory, and the Supreme Court has repeatedly had to reverse the BIA and instruct them to properly apply it. So, it’s definitely disheartening to see this is the instruction the IJs received at their conference this summer on how to apply the categorical approach:
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Can’t say this is unprecedented. I can remember being astounded and outraged by some past presentations that essentially focused on “how to find the respondent not credible and have it stand up in court,” “how to deny claims establishing past or future persecution by invoking ‘no-nexus’ grounds,” and “how to find proposed ‘particular social groups non-cognizable’ under the BIA’s three-part test.”
I also remember a BIA Judge essentially telling us to ignore a previous “outside expert” panel that provided evidence that governments in the Northern Triangle were stunningly corrupt, politically beholden to gangs, and totally incapable of protecting the population against targeted gang violence.
Another colleague gave a stunningly tone-deaf presentation in which they referred to OIL and ICE as “us” and the respondents as “them.”
But, presentations like Judge Pauley’s are particularly troubling in the context of a so-called “training conference” where the “keynote speech” by the judges’ titular “boss” Jeff Sessions touted his decision removing asylum protections from battered women, warned judges to follow his precedents, emphasized increasing “volume” as the highest priority, and otherwise notably avoided mentioning the due process rights of respondents, the need to insure protection for asylum seekers, or the obligation to follow decisions of the Article III Courts (the latter has been, and remains, a chronic problem for EOIR).
Many of the Immigration Judges were recently hired, attending their first national conference. What message do you think they got about how to be successful in the “Age of Trump & Sessions?” What message did they get when a vocal minority of their colleagues improperly “cheered” the removal of protections for vulnerable refugee women? How would YOU like to be a foreign national fighting for your life in a system run by Jeff Sessions?
Right on cue, EOIR provides another powerful example of why Professor Maureen Sweeney was right in her recently posted article: the Article III Courts should NOT be giving the BIA or Sessions “Chevron deference.”
Associate professor at Morgan State University and politics editor for the Root
August 15
Omarosa Manigault Newman — who once declared that “every critic, every detractor will have to bow down to President Trump” — evolved from mentee to frenemy to antagonist before her nonstop media blitz promoting her new post-White House tell-all, during which she’s touted the existence of a recording of Trump using the n-word. It’s all sent the White House scrambling, with the president tweetingMonday that “I don’t have that word in my vocabulary, and never have.” Press secretary Sarah Huckabee Sanders told reporters Tuesday she “can’t guarantee” Americans will never hear audio of Trump using the slur.
It doesn’t matter.
Trump is a racist. That doesn’t hinge on whether he uttered one particular epithet, no matter how ugly it is. It’s about the totality of his presidency, and after 18 months you can see his racial animus throughout his policy initiatives whether you hear it on tape or not.
ADVERTISING
Over the course of his career, well before he took office, Trump’s antipathy toward people of color has been plainly evident. In the ’70s, his real estate company was the subject of a federal investigation that found his employees had secretly marked the paperwork of minority apartment rental applicants with codes such as “C” for “colored.” After black and Latino teenagers were charged with sexually assaulting a white woman in Central Park, he took out full-page ads in New York City newspapers calling for the return of the death penalty. He never backtracked or apologized when the teenagers’ convictions were overturned. He championed birtherism, and wouldn’t disavow the conspiracy theory that President Barack Obama was born in Kenya until the end of his 2016 presidential campaign. As president, he’s targeted African American athletes for criticism, whether it’s ranting, “Get that son of a bitch off the field,” in reference to professional football players silently protesting police brutality or tweeting that:
Calling African American Rep. Maxine Waters (D-Calif.) a “low IQ person” is now a routine bit at his political rallies. He was quoted referring to Haiti, El Salvador and various African nations as “shithole” countries. He announced his campaign in 2015 by referring to Mexican immigrants as “rapists.” Later that year, he called for the United States to implement a “total and complete” Muslim ban.
After taking office, he hired xenophobes such as Stephen Miller — an architect of the ban, whose hostility toward immigrants is so stark, and hypocritical, that his uncle excoriated him this week in an essay for Politico Magazine, writing of Miller and Trump that “they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human.”
I could go on. The point is that Trump’s view of nonwhites is out in the open. As Slate’s Christina Cauterucci notes, there’s every reason “to believe that an n-word tape wouldn’t torpedo Trump’s presidency”; there’s no indication his supporters “will turn against him because he used a racial slur.” Trump’s words and deeds over time have demonstrated his racism — it doesn’t hinge on being outed, Paula Deen-style, by a tape of him using the word. Racism hardly ever does.
I’m not saying it would be okay for Trump to use any variation of the n-word — in jest, in anger, singing along to the lyrics of a song, with or without the hard “R.” But the feverish speculation about whether he ever deployed the term wrongly implies that a verdict on his racist character turns on its use. What matters more about Trump are the positions he’s taken and the policy choices he’s made that harm communities of color. In his first year as president, Trump evolved from mere interpersonal racist to racist enabler when he proclaimed there were “very fine people, on both sides” when white supremacists and anti-racist protesters converged in Charlottesville last year. Jeff Sessions, a senator from Alabama who, three decades ago, was denieda federal judgeship by the Republican-controlled Senate Judiciary Committee over concerns that he was a racist, was installed by Trump as attorney general.
Since assuming that role, Sessions has worked to undermine consent decrees meant to restrain racially abusive police departments and explicitly articulated the administration’s intent to use family separation to deter immigration. The Department of Education, under Secretary Betsy DeVos, is dismissing hundreds of civil rights complaints, supposedly in the name of efficiency. Trump hired Manigault Newman as a liaison to black constituent groups based on their reality TV relationship and, according to him, her willingness to say “GREAT things” about him, despite almost universal criticism of her appointment and subsequent work by African American Republicans and Democrats.
Being a racist — which entails belief in a fixed racial hierarchy and the power to act upon that belief in commerce, government or social spaces — is not now, and never has been, about one word or one slip of the tongue. It is about the ability of those in power to use public and private resources to enforce a racial hierarchy, whether that means having black people arrested for sitting in Starbucks, refusing to hire or promote qualified black job applicants or staffing a presidential administration with people who tolerate or encourage white nationalists. Trump’s statements and his approach to governance suggest he believes in a set racial hierarchy, and the possible existence of a hyped tape doesn’t change that. So far, and as far as I know, no one’s produced audio of white nationalist participants in last Sunday’s Unite the Right 2 rally in Washington using the n-word. Presumably, by the logic of some Trump defenders, that would mean there’s no proof they’re racist, either.
If American public discourse on race continues to revolve around a game of “gotcha,” with sentiments and smoking guns, divorced from an acknowledgment of how racists use their power, we won’t make any progress, during this administration or any other.
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Johnson states a simple truth that some don’t want to acknowledge. But, racist anti-immigrant, anti-Muslim, anti-refugee, anti-Mexican American, xenophobic “dog whistles” were at the heart of Trump’s campaign and remain at the heart of his policies, particularly on immigration, refugees, and law enforcement.
Does that mean that the majority of Americans who don’t endorse racism don’t need to deal with the fact that Trump is President and that Sessions and Miller are exercising outsized control over our justice system? Or that today’s Trumpist GOP isn’t your grandparents’ GOP (in my case, my parents’ GOP) and, although they might occasionally mutter a few insincere “tisk, tisk’s,” are firmly committed to enabling Trump and his racist policies including, of course, voter disenfranchisement. Of course not. Just think of how African-Americans, Hispanics, and liberals had to deal in practical terms with Southern political power in the age of Jim Crow (which is basically the “Age of Jeff Sessions”).
But, it is essential for us to know and acknowledge who and what we are dealing with and not to let political expediency totally obscure the harsh truth. Trump is a racist. And, that sad but true fact will continue to influence all of his policies for as long as he remains in office. Indeed, “Exhibit 1,” is the failure of the GOP to achieve “no-brainer” Dreamer protection over the last two years and the stubborn insistence of Sessions and others in the GOP to keep tying up our courts with bogus attempts to terminate already limited protections for those who aren’t going anywhere in the first place.
THE PROSTITUTION OF EYORE: Founded To Establish Independence, The Immigration Court Agency Puts Out Bogus Statistics To Support Sessions’s White Nationalist Agenda!
By Paul Wickham Schmidt (U.S. Immigration Judge, retired)
The Executive Office for Immigration Review, known as “EOIR” and pronounced “Eyore” as in the sad little donkey from Wininie the Pooh,was founded in 1983 to promote judicial independence and Due Process. Sadly, those have ceased to be the focus, as the beleaguered agency now develops and promotes bogus statistics to advance the White Nationalist xenophobic agenda of chief immigration “enforcer,” Attorney General Jeff Sessions.
Some might have noticed a new way of presenting so-called “asylum statistics.’ Recently, EOIR published the following so-called “statistical tables” on “defensive” asylum applications — that is, those filed by respondents as a defense to removal after they have been placed in proceedings before the Immigration Court. By contrast, applications filed with the USCIS Asylum Office before proceedings are instituted and thereafter “referred” to the Immigration Court if they are not granted are known as “affirmative” applications.
EYORE ROLLS OVER FOR SESSIONS
Here’s the chart:
Executive Office for Immigration Review
DefensiveAsylumApplications Fiscal Year
Filed
Granted
Defensive Receipts : Defensive Grants Ratio
2008
13,213
2,928
4.51:1
2009
12,258
2,458
4.98:1
2010
12,771
2,273
5.61:1
2011
17,988
2,807
6.4:1
2012
19,908
2,891
6.88:1
2013
23,372
2,620
8.92:1
2014
31,046
2,765
11.22:1
2015
45,960
3,388
13.56:1
2016
68,849
4,863
14.15:1
2017
120,094
6,995
17.16:1
2018 (as of 6/30/2018)
83,534
6,946
12.02:1
Anyone familiar with how immigration proceedings actually work immediately would see the problem with this presentation. However, few of those not familiar with EOIR and Immigration court would notice that glaring disconnect.
What’s the problem? This is a classic “apples and oranges”analysis. The number of “applications filed” in a particular year has little, indeed almost nothing, to do with the number granted. That’s because given the dockets at EOIR, applications are very seldom actually decided in the year that they are filed.The minority that are decided in the year filed are almost always applications by detained, usually unrepresented, aliens. Such applications are literally like “shooting fish in a barrel.” Detained unrepresented asylum applicants seldom receive anything even resembling Due Process and are therefore routinely denied asylum.
Moreover, because the system forces respondents to file all possible applications for relief before an “Individual Hearing” is scheduled, respondents who might actually be relying on cancellation of removal, adjustment of status, so-called “stateside waivers,” and other forms of relief must file the “backup” asylum application even if it might well never proceed to a final adjudication. Additionally, even respondents seeking only the lesser relief of withholding of removal or relief under the Convention Against Torture must file on the asylum application, Form I-589, and thus are counted as “asylum applicants” even if they never pursue asylum.
By artificially maximizing the number of “defensive filings,” while taking the grants out of context to minimize them, EOIR artificially creates a bogus picture of only a small number of asylum applications being granted on the merits. Moreover, EOIR compounds the error by presenting a totally bogus and highly pejorative statistic of “filings to grants” without correlating the year filed with the year granted.
No honest professional statistician would participate in such a hoax. The intent obviously is to create a false narrative of overwhelmingly non-meritorious asylum applications to support Sessions’s disingenuous fabricated scenario of “asylum fraud” infecting the system. For example, according the EOIR’s bogus numbers, the ratio of “applications to grants” in FY 2017 was 17 to 1, falsely suggesting very few meritorious asylum applications.
THE “REAL DEAL”
So, what are the only meaningful EOIR asylum statistics. The number of asylum applications granted and denied on the merits in a particular year. And, those statistics present a radically different picture. Let’s look at EOIR’s own Statistical Yearbookthrough 2016 (the last year for which it was published – the 2017 Statistical Yearbookshould have appeared in the spring of 2018 but, for some curious reason hasn’t) the last full year of the Obama Administration:
As recently as 2016, despite the Obama Administration’s ill-advised “Southern Border Initiative” that forced more unprepared individuals into the “defensive” system faster, and notwithstanding the overall politicized slant of asylum law against Central American Asylum seekers (even before Sessions), the grant rate was a very “robust” 31%, essentially one in three, rather than the bogus one out of every 14.5 put forth in EOIR’s Sessions-driven false narrative.
Let’s look a little further into what the real numbers show. Here are the overall grant rates for asylum and withholding of removal (by regulation, all asylum applications are also considered applications for protection under the withholding of removal provisions of the INA) for the five-year period ending in 2016 :
Immigration Court Asylum or Withholding of Removal Grant Rate
Asylum Grants
Withholding of Removal Grants
Denials of Both Asylum and Withholding of Removal
Grant Rate
FY 12
10,575
1,527
6,978
63%
FY 13
9,767
1,493
7,293
61%
FY 14
8,672
1,453
7,888
56%
FY 15
8,184
1,184
7,685
55%
FY 16
8,726
969
10,533
48%
While there is a remarkable drop in approvals in FY 2016, again, likely due to the Obama Administration’s ill-advised “Southern Border Initiative,” in FY 2016, 48% of asylum applicants whose cases were actually adjudicated on the merits received protection – essentially one-half of applicants.Again, this is a far cry from EOIR’s current misleading scenario which compares grants to both asylum applications that were not adjudicated on the merits during the year and asylum applications that have never been adjudicated and might never be adjudicated at all, as a result of Session’s mismanagement of the Immigration Courts.
Let’s dig a little further. Here is what happens to so-called “affirmative applications,” that is those made initially to the USCIS asylum Office, when they are “referred” to the Immigration court for a full hearing:
Immigration Court Affirmative Grant Rate
Grants Denials Grant Rate
FY 12 7,721 2,964 72%
FY 13 7,175 2,589 73%
FY 14 5,925 1,937 75%
FY 15 4,794 1,172 80%
FY 16 3,890 801 83%
As we can see, the overwhelming number of affirmative asylum applications not granted by the Asylum Office are eventually granted by the Immigration Courts – a huge majority, 83% in FY 2016. At a minimum, this suggests that the USCIS Asylum Offices should be granting many more affirmative asylum applications, thereby keeping them out of Immigration Court altogether.
ACCURATE STATISTICS LEAD TO BETTER CONCLUSIONS
Overall, the real numbers lead to some obvious conclusions that refute the bogus picture of asylum abuse being painted by Sessions and his EOIR accomplices:
About 50% of asylum applicants whose cases are decided on the merits by the Immigration Courts gain protection;
Asylum applicants who are given fair access to lawyers and time to prepare, generally those filing “affirmative” asylum applications, succeed at extremely high rates;
The USCIS Asylum Office could grant many more “affirmative applications” than they currently do.
All of this suggests that a much more logical approach to asylum adjudication would be:
Treating all asylum applicants applying at ports of entry or who are apprehended near the border and found to have a “credible fear” of persecution or torture as “affirmative applicants” whose cases can be initially adjudicated, and often approved, on the merits by the USCIS Asylum Office without bothering the already overloaded Immigration Courts;
Insuring fair access to counsel and adequate preparation time, preferably in a non-detained setting, to those seeking asylum at the border (significantly, represented asylum applicants show up for their court hearings at extremely high rates);
Encouraging “priority scheduling” for cases in Immigration Court where the documentation is compelling and the Assistant Counsel and private counsel have worked together to narrow the issues for a likely grantof protection (obviously, there are less likely to be Due Process issues with “expediting” grants as opposed to denials).
Exploring other forms of protection or legal status for those whose cases are now “stuck” in the Immigration Court backlog (many are now married to U.S. citizens and eligible for “stateside processing,” or have or will have viable claims for Cancellation of Removal as a result of the Supreme Court’s ruling in Pereira.)
Restoring a more realistic and generous “prosecutorial discretion” (or “PD”) policy along the line of that followed during the later years of the Obama Administration would also help reduce and restore some order to the Immigration Court dockets.
Of course, under Sessions, EOIR and DHS are moving in the opposite direction: seeking, without any probative evidence to support their claims, to falsely paint asylum applicants as de-humanized “numbers” who are “gaming” the system. There is “gaming” going on; but, it’s by Sessions and his “go alongs” at EOIR who intentionally are using bogus statistics to paint a false picture of our asylum system.
NO JUSTICE UNTIL BOTH SESSIONS AND EYORE RIDE INTO THE SUNSET
Asylum is an important part of our immigration system. It should and could be much more generously granted and with far less red tape and bureaucracy. Granting asylum is not only our legal obligation (with a moral foundation stemming from the disaster of World War II and its aftermath) but also benefits both our country and, of course, the individuals whose lives are saved.
Yes, there is so-called “asylum fraud.” But, by and large, it doesn’t involve those currently applying at our Southern Border. Indeed, the parts of ICE Investigations that perform reallaw enforcement work, in my experience, do an excellent job of taking apart large asylum fraud rings and “undoing” those asylum grants that were based on fraud. Several significant Chinese and Indonesian “rings” and at least one involving Cameroonian claims were exposed and prosecuted in that manner.
The U.N Convention and Protocol relating to refugees, implemented by our Refugee Act of 1980, was intended to inspire “a generous asylum policy”and actually to extend protection
to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition. The generous letter and spirit of the Convention and the Refugee Act of 1980 also are reflected in the leading U.S. Supreme Court case, INS v. Cardoza-Fonseca, implementing the generous “well-founded fear” standard for asylum.
Jeff Sessions and his White Nationalist gang are moving to dismantle refugee and asylum protections at all levels. Part of their strategy depends on de-humanization of refugees, bogus statistics, and false narratives. Shamefully, “Eyore” has now become part of that effort, just proving again that Due Process and the rule of law won’t ever be totally restored to our country until we get an independent Article I U.S. Immigration Court.
My friend and colleague, The Honorable Jeffrey Chase, also contributed to this article. The views expressed are mine, and mine alone.
Honorable Jeff Sessions Attorney General
U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
Dear Attorney General Sessions:
We are scholars and teachers of immigration law and of administrative law. We write to express our alarm about the Department of Justice’s new performance metrics for immigration judges. We believe the Department’s performance metrics are unacceptable and fear they are a part of larger goal to undermine the independence of the immigration courts.
Longstanding problems with immigration adjudication have simmered through both Republican and Democratic administrations.1 These problems have manifested in a tremendous backlog of cases awaiting adjudication: over 700,000 cases.2 The wait for a removal hearing can last years.3 The status quo is not acceptable and actions to reform the system are imperative.
Reforms, however, need to enhance fairness by protecting individual rights. Whether the adjudicating body is the Environmental Protection Agency, the Internal Revenue Service, or the Department of Justice in a removal proceeding, how government power is used against a respondent should be scrutinized. This concern is amplified in immigration law because Congress has eliminated federal court review of some issues. For many, the agency hearing before the Department of Justice is the only opportunity to seek statutory protections.
1 Our comments here focus on the Department of Justice’s proposed performance metrics for immigration judges, but there are other issues facing the immigration adjudication system, including a lack of access to counsel and the many types of diversions used to prevent an individual from reaching immigration court. SeeIngrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1 (2015); Jill E. Family, A Broader View of the Immigration Adjudication Problem, 23 GEO. IMMIGR. L.J. 595 (2009).2 Transactional Records Access Clearinghouse, Backlog of Pending Cases in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.
3 Transactional Records Access Clearinghouse, Average Time Pending Cases Have Been Waiting in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php.
Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, PA 17110
t: 717-541-3911 f: 717-541-3966 e: jefamily@widener.edu w: commonwealthlaw.widener.edu
The concept of fair process in implementing the rule of law is one of the most fundamental American principles. It is a pillar of meaningful democracy. The idea that the government should not deprive any person4 of life, liberty or property without first providing fair process is enshrined in the U.S. Constitution. The repercussions of a lack of fair procedure can be devastating. While it is incumbent on any federal administration to act efficiently, the adjudication process must be fair.
The fair process calculus demands an adjudicator who does not feel compelled to rule in a certain way due to unacceptable influences. The law itself may of course compel an adjudicator, but the scenario becomes very murky very quickly when an adjudicator has a personal stake in the outcome of a case.
Agency adjudicators are not Article III judges and never have had the full independence of federal court judges. Immigration Judges do not have even the job protections that other agency adjudicators enjoy, however.5 Immigration judges are attorney employees of the Department of Justice.6 The Department of Justice sets the conditions of employment, including location of employment and whether employment continues.7 A Department of Justice regulation, nevertheless, tells immigration judges to “exercise independent judgment and discretion” when making decisions.8 Also, the immigration judge position has evolved over time to make it more independent,9 even if it has not reached the ideal level of independence.10
Congress has tasked you, the Attorney General, with the management of the Department of Justice, including immigration adjudication. It is your duty to insist that fairness and independence are a part of the system. Agency adjudicators are by nature more accountable to the executive branch. But that does not mean that agency adjudicators should be mere vessels who fail to apply statutory standards or who apply the law subject
4 The Due Process Clause is not limited to citizens. U.S. CONST. amends. V, IV.
5 See Kent Barnett, Against Administrative Judges, 49 U.C. DAVIS L. REV. 1643, 1647 (2016).
6 8 C.F.R. § 1003.10(a).
7 See Board of Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified at 8 C.F.R. pt. 3).
8 8 C.F.R. § 1003.10(b).
9 Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453 (1988).
10 There are proposals, for example, to recreate immigration adjudication as an Article I court with greater autonomy from the executive branch. Christine Lockhart Poarch, The FBA’s Proposal to Create a Federal Immigration Court, THE FEDERAL LAWYER (April 2014), available at http://www.fedbar.org/Image- Library/Government-Relations/CH16/Proposed-Article-I-Immigration-Court.aspx; American Bar Association,Reforming the Immigration System (2010) at E9, available athttps://www.americanbar.org/content/dam/aba/migrated/media/nosearch/immigration_reform_executive_s ummary_012510.authcheckdam.pdf; American Immigration Lawyers Association, Resolution on Immigration Court Reform (2018), available at https://www.aila.org/File/DownloadEmbeddedFile/74919. See also Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1640 (2010) (recommending that immigration judges become administrative law judges and be relocated from the Department of Justice to an independent tribunal within the executive branch).
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to unfair influence or a conflict of interest. Independence and a lack of bias help to protect individual rights and to secure public confidence in the integrity of the process.
The Department of Justice should not conflate enforcement with adjudication. Immigration judges are not prosecutors. Immigration adjudication is different than other functions of the Department of Justice. Immigration judges hear cases initiated by the Department of Homeland Security.11 The Department of Homeland Security therefore decides who enters the immigration adjudication system. The Department of Justice is tasked not with enforcement, but rather with carefully evaluating another agency’s claims that an individual should be removed from the United States.12
The Department of Justice must adjust and rapidly respond to the work thrust upon it by the Department of Homeland Security. One tool to help improve the efficiency and operations of the immigration courts would be for the Department of Homeland Security to more carefully assess and vet the cases it chooses to bring forward. We urge you to work with the Department of Homeland Security to improve their procedures rather than expecting all management of enormous dockets to fall on the shoulders of the immigration judges.
Instead of providing adequate resources13 or implementing other case management tactics, the Department of Justice has proposed the case completion quotas. 14 We believe that these quotas show disregard for the importance of independence,15 including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump’s
11 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 12 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf.
12 Congress has charged immigration judges with the duty to adjudicate charges of removal. 8 U.S.C. §1229a.13 The Administrative Conference of the United States has recognized the need for additional resources for immigration adjudication. See Administrative Conference Recommendation 2012-3 at 3, 5, available athttps://www.acus.gov/sites/default/files/documents/2012-3.pdf. We recognize that the Department of Justice has been hiring more immigration judges, but the number of judges has not kept pace with the workload. In 2012, there were 264 immigration judges and now there are approximately 330. Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 6 (2012),available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in- Immigration-Removal-Adjudication-Final-June-72012.pdf; (reporting 264 immigration judges in 2012); U.S. Department of Justice, Office of the Chief Immigration Judge, https://www.justice.gov/eoir/office-of-the- chief-immigration-judge (stating that there are approximately 330 immigration judges).
14 EOIR Performance Plan, available at http://cdn.cnn.com/cnn/2018/images/04/02/immigration-judges- memo.pdf.
15 We implore the Department of Justice to promote independence even outside the context of the quotas. A group of former immigration adjudicators recently objected to the Department’s removal of an immigration judge from a particular case and replacement with a supervisory judge who implemented the administration’s preferred outcome. Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Latest Attack on Judicial Independence, July 30, 2018, available at,https://www.aila.org/infonet/retired-ijs-former-bia-mems-attack-on-jud-independ.
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displeasure with the need for process in immigration cases. In response to a Republican proposal to add 375 immigration judges, he said, “We don’t want judges; we want security on the border.”16 He also characterized the Republican proposal as adding five or six thousand more judges (in actuality the legislation proposed adding 375 judges).17 He said that to add that many judges must involve graft.18 He also has claimed that there is something wrong with foreign nationals having lawyers represent them in immigration proceedings.19
Performance metrics for judges are not inherently objectionable. Careful data collection and analysis can be helpful for training adjudicators and for marshalling court resources. Immigration judges already are subject to qualitative evaluations of their work. These new quantitative performance metrics, however, appear to affect conditions of employment20such as salary and location of employment.21 This is unacceptable. These metrics will diminish independence in immigration adjudication as immigration judges will now have a personal stake in the outcome of cases. Meeting the performance metrics will become a powerful influence over immigration decision-making.
The metrics establish case completion quotas for immigration judges at 700 completions per year. This sets up many immigration judges to fail, or perhaps even worse, encourages immigration judges to cut corners to meet the quota.22 As far as we know, the Department has not introduced a case weighting system. Not every immigration court docket is the
16 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
17 Id; GOP Moves to End Trump’s Family Separation Policy, but Can’t Agree How, N.Y. TIMES, June 19, 2018,available at https://www.nytimes.com/2018/06/19/us/politics/trump-immigration-children-separated- families.html.
18 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
19 Id.
20 We are aware of your congressional testimony stating that an immigration judge would not be fired automatically for failing to meet the quota and that the Department of Justice would consider an explanation why a judge did not meet a quota. Department of Justice FY19 Budget: Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies, 115th Cong., available at https://www.c- span.org/video/?444369-1/attorney-general-sessions-testifies-justice-department-budget#&start=1786(testimony of Attorney General Jeff Sessions at 31:20). The Department, however, has not clarified exactly how these performance metrics would be used, and immigration judges believe that a failure to meet a quota would be used punitively. See Letter from A. Ashley Tabaddor, President, National Association of Immigration Judges, to Hon. Jefferson B. Sessions, May 2, 2018, available athttps://assets.documentcloud.org/documents/4452614/NAIJ-Letter-to-the-AG-5-2-2018.pdf.
21 Location of employment is valuable in a system with immigration courts in major cities and in extremely remote detention centers.
22 Russell Wheeler, Amid Turmoil on the Border, New DOJ Policy Encourages Immigration Judges to Cut Corners, June 18, 2018, available at https://www.brookings.edu/blog/fixgov/2018/06/18/amid-turmoil-on- the-border-new-doj-policy-encourages-immigration-judges-to-cut-corners/.
4
same. Deciding 700 claims for asylum is not the same workload as deciding 700 cases where the only issue is whether a foreign national entered the United States without inspection. Asylum cases require careful consideration of evidence about country conditions and an applicant’s experiences in that country. Also, the unique characteristics of a particular judge’s caseload could prevent meeting the case completion goal. Some immigration courts have specialized dockets for vulnerable populations such as those with mental illness or juveniles. Judges assigned to these dockets have additional obligations to ensure minimum standards of fairness.23
The quota motivates judges to come up with coping mechanisms. 24 Efficiencies can come at too great of a cost. For example, what if an immigration judge decides to review paper records and then decide which cases to invite to provide live testimony? If a judge is worried about meeting a quota, a judge might only schedule those matters that could be handled quickly. That would leave more complicated cases to be decided on paper submissions alone.
The quota also sets up an incentive for immigration judges to deny applications for relief. Cancellation of removal provides just one example. By statute, the number of grants of cancellation of removal is limited to 4,000 per year.25 Once the cap is reached, immigration judges may delay a grant to the following fiscal year. If deferring a grant is not considered a completion, then the incentive is to deny the application for relief to earn a completion. This incentive exists even if an immigration judge sincerely believes that the individual is eligible for relief from removal. There are similar issues where the Department of Homeland Security must complete final security checks before a grant of asylum. The immigration judge knows that an asylum case requires multiple steps to complete, but a denial of a case shortens the completion time. Should the judge erroneously deny relief to maintain his or her conditions of employment?
In addition to the case completion quotas, the Department’s proposal calls for certain types of cases to be decided within a certain number of days. This further erodes an immigration judge’s independence to decide what cases need more attention or to allow a continuance to ensure fairness. For example, the plan calls for 95% of all individual merits hearings to take place on the originally scheduled date. The problem here is that there are many forces
23 The federal courts impose obligations on individual immigration judges. For example, in a recent decision on whether a juvenile must be appointed counsel, the Ninth Circuit held that the detailed questioning by the immigration judge was an adequate substitute for appointed counsel. C.J.L.G. v. Sessions, 880 F.3d 1122, 1137-42 (9th Cir. 2018) (noting the obligations of the immigration judge to develop the record). While many of us disagree with the lack of appointed counsel for indigent children, it is clear that federal courts mandate an active and inquisitorial role of immigration judges that requires time and patience.
24 Your own recent decision in Matter of Castro-Tum eliminated a docket management tool known as administrative closure. Now immigration judges must keep these cases active and open on their dockets. 27 I&N Dec. 271 (2018), available at https://www.justice.gov/eoir/page/file/1064086/download.
25 8 U.S.C. § 1229b(e).
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at work that lead immigration judges to issue continuances. Because there is no right to government funded counsel in removal proceedings, foreign nationals may ask for a continuance to find a lawyer, or a newly hired lawyer may need time to prepare. Also, witnesses may not be available on a particular date, or testimony may run long, and the hearing may need to be continued to another day. The 95% goal encourages immigration judges to hold hearings without lawyers even when the foreign national desires one and provides incentive for immigration judges to cut hearings short. Moreover, a study conducted on behalf of the Administrative Conference of the United States revealed a significant percentage of the delays in cases were made at the request of the Department of Homeland Security, not the respondent.26 If the Department of Homeland Security is not ready to proceed and the immigration judge rushes to completion, the government may have to file more appeals. That would simply create more work somewhere else.
As we noted above, the priorities of the Department of Homeland Security directly and at times dramatically impact the work of the immigration courts. The case completion quotas have arrived at the same time that President Trump’s administration has changed its prosecutorial discretion policies to make more foreign nationals priorities for removal.27The administration has announced its plans to open more actions in immigration court.28
Also, the Department of Justice has announced that it is reviewing the Legal Orientation Program, which provides information about the removal process to immigration detainees in a group setting.29 This review is taking place despite previous reviews that have found the program to increase the efficiency of the immigration courts and to save the government money.30 Without an adequate increase in resources, putting more individuals in removal proceedings and/or ending the Legal Orientation Program will only magnify the negative effects of the performance metrics.
26 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 73 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf (reporting that 11% of delays were because a Department of Homeland Security attorney was not ready to proceed and that 14% were because the Department of Homeland Security was missing a file).
27 Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available athttps://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united- states/.
28 See, e.g., US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), available at,https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1- Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.
29 Sessions Backtracks on Pausing Legal Aid Program for Immigrants Facing Deportation, WASH. POST. (April 25, 2018), available at https://www.washingtonpost.com/local/immigration/sessions-backtracks-on-pausing- legal-aid-program-for-immigrants/2018/04/25/c0d27a12-48cb-11e8-827e-190efaf1f1ee_story.html.
30ICE Praised Legal-aid Program for Immigrants that Justice Dept. Plans to Suspend, WASH. POST. (April 17, 2018), available at https://www.washingtonpost.com/local/immigration/ice-praised-legal-aid-program-for- immigrants-that-justice-dept-plans-to-suspend/2018/04/17/c0b073d4-3f31-11e8-974f- aacd97698cef_story.html?utm_term=.8fa7c90bba02.
6
The Department’s performance metrics are a poor fit for the realities of immigration adjudication. Immigration law is extremely harsh and complex, and the consequences of the decisions of immigration judges are weighty. These decisions should not be made too quickly. An immigration judge must apply statutes that rival the tax code in complexity and must ensure the opportunity to be heard to a diverse and often poorly educated pool of respondents. The Supreme Court regularly hears immigration law cases that require it to resolve thorny questions. These Supreme Court opinions often leave many questions unanswered, as the Court only decides issues directly before it. Immigration judges need time to digest new interpretations and to think about how those new interpretations apply in a wide array of factual scenarios. For example, a recent Supreme Court decision holding certain Department of Homeland Security charging documents31 to be ineffective has created motions within the immigration courts to terminate proceedings and to reopen older cases. Finally, immigration judges are deciding cases with grave consequences. If an individual is removed, they may face death upon return to their country of nationality. Or an individual may be separated from children or other close family.
The immigration adjudication system needs more resources. More immigration judges need to be hired to guarantee that we do not sacrifice our cherished American values and our constitutional obligations. We also note that with the hiring of judges it is critical that the agency adequately provide support staff from law clerks to court administration. All immigration judges need more time to work through their cases fairly and efficiently. Immigration judges need to be given independence so that we all have confidence that their decisions are based on their judgment as adjudicators, and not influenced by what the adjudicators think best will guarantee positive conditions of employment.
We appreciate that you want to work to ensure efficiency in immigration adjudication. However, you are also charged with guiding our government to comply with the rule of law and to protect American legal values. Accordingly, we urge you to reconsider the new performance metrics.
Respectfully,
(Institutional affiliations are listed for identification purposes only.)
Jill E. Family
Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School
31 Pereira v. Sessions, 138 S.Ct. 2105, 585 U.S. ___ (June 21, 2018).
7
Lenni B. Benson Professor of Law New York Law School
Matthew Hirsch
Attorney/Adjunct Professor of Immigration and Nationality Law Delaware Law School, Widener University
Huyen Pham
Professor
Texas A&M University School of Law
Jacqueline Stevens
Professor and Director, Deportation Research Clinic Northwestern University
Anju Gupta
Professor of Law and Director of the Immigrant Rights Clinic Rutgers School of Law
William Brooks
Clinical Professor of Law Touro Law Center
Maria Isabel Medina
Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law
Jennifer Moore
Professor of Law University of New Mexico
Dina Francesca Haynes Professor of Law
New England Law
Nickole Miller
Clinical Teaching Fellow
University of Baltimore School of Law, Immigrant Rights Clinic
Estelle M McKee Clinical Professor Cornell Law School
8
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
Marisa Cianciarulo
Professor of Law, Associate Dean for Academic Affairs Chapman University Fowler School of Law
Lucy E. Salyer
Associate Professor
History Department, University of New Hampshire
Deborah M. Weissman
Reef C. Ivey II Distinguished Professor of Law UNC School of Law
Carrie Rosenbaum
Adjunct Professor
Golden Gate University School of Law
Emily Robinson
Co-Director, Loyola Immigrant Justice Clinic Loyola Law School Los Angeles
Fatma Marouf
Professor of Law
Texas A&M School of Law
Karen Musalo Professor U.C. Hastings
Miriam Marton
Assistant Clinical Professor University of Tulsa College of Law
Helena Marissa Montes Co-Director
Loyola Immigrant Justice Clinic
Alan Hyde Distinguished Professor Rutgers Law School
9
Stephen H. Legomsky
John S. Lehmann University Professor Emeritus Washington University School of Law
Erica Schommer
Clinical Associate Professor of Law St. Mary’s University School of Law
Renee C. Redman
Adjunct Professor
University of Connecticut School of Law
Linda Bosniak Distinguished Professor Rutgers Law School
Jonathan Weinberg Professor of Law Wayne State University
Denise Gilman
Clinical Professor
University of Texas School of Law Immigration Clinic
Kayleen R. Hartman Clinical Teaching Fellow Loyola Law School
Lynn Marcus
Director, Immigration Law Clinic
University of Arizona Rogers College of Law
Elizabeth McCormick
Associate Clinical Professor University of Tulsa College of Law
Christopher N. Lasch
Professor of Law
University of Denver Sturm College of Law
John Palmer Tenure-Track Professor Universitat Pompeu Fabra
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Julie Ann Dahlstrom
Clinical Associate Professor Boston University School of Law
Susan Gzesh
Senior Lecturer University of Chicago
Violeta Chapin
Clinical Professor of Law University of Colorado
Jon Bauer
Clinical Professor of Law
Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law
Rachel E. Rosenbloom
Professor of Law
Northeastern University School of Law
Caitlin Barry
Assistant Professor of Law
Villanova University Charles Widger School of Law
Dr. Richard T. Middleton, IV
Adjunct Professor of Law; Associate Professor of Political Science St. Louis University School of Law; University of Missouri-St. Louis
Anna Welch
Clinical Professor
University of Maine School of Law
Charles Shane Ellison
Director of the Immigrant and Refugee Clinic Special Assistant Professor
Creighton University School of Law
Yolanda Vázquez
Associate Professor of Law
University of Cincinnati College of Law
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Claire R. Thomas
Director, Asylum Clinic; Adjunct Professor of Law New York Law School
Laura A. Hernandez Professor of Law Baylor Law School
Kate Evans
Associate Professor of Law University of Idaho College of Law
Stella Burch Elias
Professor of Law
University of Iowa College of Law
Rachel Settlage Associate Professor Wayne State Law School
Hiroko Kusuda
Clinic Professor
Loyola New Orleans University
Sabi Ardalan
Assistant Clinical Professor Harvard Law School
Joshua I. Schwartz
E.K. Gubin Professor of Law
The George Washington University Law School
Florence Wagman Roisman
William F. Harvey Professor of Law and Chancellor’s Professor Indiana University Robert H. McKinney School of Law
Richard J. Pierce Jr.
Lyle T. Alverson Professor of Law George Washington University
12
Michael Sharon
Adjunct Professor of Law
Case Western Reserve University School of Law
Susan Rose-Ackerman
Henry R. Luce Professor of Law and Political Science, Emeritus Yale University
Jaya Ramji-Nogales
I. Herman Stern Research Professor Temple Law School
Michael Asimow
Visiting Professor of Law Stanford Law School
Natalie Gomez-Velez
Professor of Law
City University of New York (CUNY) School of Law
Adell Amos
Associate Dean & Clayton R. Hess Professor of Law University of Oregon
Harold J. Krent
Dean & Professor of Law Chicago-Kent College of Law
Aila Hoss
Visiting Assistant Professor
Indiana University McKinney School of Law
Richard Reuben
James Lewis Parks Professor of Law and Journalism University of Missouri School of Law
Morell E. Mullins, Sr. Professor Emeritus
UALR Bowen School of Law
Bernard W. Bell
Professor of Law and Herbert Hannoch Scholar Rutgers Law School
13
Rose Cuison Villazor Professor of Law Rutgers Law School
Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University
Victor Romero
Maureen B. Cavanaugh Distinguished Faculty Scholar Associate Dean for Academic Affairs & Professor of Law Penn State Law (University Park)
David Baluarte
Associate Clinical Professor of Law Washington and Lee University School of Law
Michelle N. Mendez
Adjunct Professor, Immigrant Rights Clinic University of Baltimore School of Law
Jeffrey A. Heller
Adjunct Clinical Professor Emeritus Brooklyn Law School
Seton Hall University School of Law
Susan M. Akram
Clinical Professor and Director, International Human Rights Law Clinic Boston University School of Law
Laila L. Hlass
Professor of Practice
Tulane University School of Law
Joanne Gottesman Clinical Professor of Law Rutgers Law School
Jennifer Lee Koh
Professor of Law
Western State College of Law
14
Geoffrey Hoffman
Director
Univ. of Houston Law Ctr. Immigration Clinic
Ingrid Eagly Professor of Law UCLA School of Law
Jason A. Cade
Associate Professor of Law University of Georgia School of Law
Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in Law Ohio State University
Anna Williams Shavers
Cline Williams Professor of Citizenship Law University of Nebraska College of Law
Stewart Chang
Professor of Law
UNLV Boyd School of Law
Margaret H. Taylor
Professor of Law
Wake Forest University School of Law
Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Columbia Law School
Michael J. Churgin
Raybourne Thompson Centennial Professor in Law The University of Texas at Austin
Kathleen Kim
Professor of Law
Loyola Law School Los Angeles
15
Ming H Chen
Associate Professor
University of Colorado Law School
Anil Kalhan
Professor of Law
Drexel University Kline School of Law
Shruti Rana
Professor
Indiana University Bloomington
Hilary Evans Cameron Instructor
Trinity College
Fernando Colon
Professor
Thurgood Marshall School of Law
Shoba Sivaprasad Wadhia
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law – University Park
Blake Close Nordahl Clinical Professor McGeorge Law School
Kaci Bishop
Clinical Associate Professor of Law
The University of North Carolina School of Law
Craig B. Mousin Adjunct Faculty DePaul University
16
Joel A. Mintz
Professsor of Law Emeritus
C. William Trout Senior Fellow in Public Interest Law Nova Southeastern University College of Law
Raquel E Aldana
Associate Vice Chancellor for Academic Diversity and Professor of Law UC Davis
Lindsay M. Harris
Assistant Professor of Law
Co-Director of Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law
Sheila Hayre
Visiting Associate Professor Quinnipiac University School of Law
Andrew Moore
Associate Professor of Law
University of Detroit Mercy School of Law
Krista Kshatriya Lecturer
UC San Diego
David B. Thronson
Professor of Law
Michigan State University College of Law
Mary Holper
Associate Clinical Professor Boston College Law School
Amelia McGowan
Adjunct Professor
Mississippi College School of Law Immigration Clinic
17
Maryellen Fullerton Professor of Law Brooklyn Law School
Renée M. Landers
Professor of Law and Faculty Director, Health and Biomedical Law Concentration Suffolk University Law School
Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law UC Berkeley
Alexander Vernon
Director, Immigration Law Clinic Detroit Mercy School of Law
Irene Scharf
Professor of Law
University of Massachusetts School of law
Seymour Moskowitz Senior Research Professor Valparaiso Law School
Veronica T. Thronson
Clinical Professor of Law
Michigan State University College of Law
Elissa Steglich
Clinical Professor
University of Texas School of Law
Mariela Olivares
Associate Professor of Law Howard University School of Law
Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law
18
Richard T. Middleton, IV
Associate Professor of Political Science Adjunct Professor of Law
University of Missouri-St. Louis
St. Louis University School of Law
Deborah Gonzalez
Director of the Immigration Clinic Associate Clinical Professor Roger Williams University School of Law
Alizabeth Newman
Int. Dir. Alumni Engagement & Initiatives CUNY School of Law
Juliet Stumpf
Robert E. Jones Professor of Advocacy & Ethics Lewis & Clark Law School
Bijal Shah
Associate Professor of Law
Arizona State University, Sandra Day O’Connor College of Law
Niels W. Frenzen
Sidney M. and Audrey M. Irmas Endowed Clinical Professor of Law Univ. of Southern California, Gould School of Law
Jon Michaels Professor of Law UCLA School of Law
Kit Johnson
Associate Professor of Law
University of Oklahoma College of Law
Nina Rabin
Director, UCLA Immigrant Family Legal Clinic UCLA School of Law
Karen E. Bravo
Professor
IU McKinney School of Law
19
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Not likely to make any difference with Sessions & Co. But, Sessions is rapidly driving an already crippled and demoralized system into collapse. If Congress doesn’t fix it soon, which almost nobody thinks will happen, the Article III Federal Courts will eventually have to sort out (not for the first time — witness child separation, sanctuary cities, Travel Ban 1&2, violation of stays of removal, DACA termination, etc.) this self-inflicted mess created by the Department of Justice under the last three Administrations and accelerated by Sessions and his White Nationalist agenda.
And, NO, the answer isn’t to blame the victims: the respondents, their courageous, hard-working counsel, and the judges and their dedicated staff. The answer is to hold the “perps,” in this case Sessions and his gang, accountable and place them under strict judicial supervision until Due Process and order are restored to our Immigration Courts.