"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.
Citing little-known power given to the CDC to ban entry of people who might spread disease and ignoring the Refugee Act of 1980, an internal memo has ordered Border Patrol agents to push the overwhelming majority of migrants back into Mexico.
For the first time since the enactment of the Refugee Act in 1980, people who come to the U.S. saying they fear persecution in their home countries are being turned away by Border Patrol agents with no chance to make a legal case for asylum.
The shift, confirmed in internal Border Patrol guidance obtained by ProPublica, is the upshot of the Trump administration’s hasty emergency action to largely shut down the U.S.-Mexico border over coronavirus fears. It’s the biggest step the administration has taken to limit humanitarian protection for people entering the U.S. without papers.
The Trump administration has created numerous obstacles over recent years for migrants to claim asylum and stay in the United States. But it had not — until now — allowed Border Patrol agents to simply expel migrants with no process whatsoever for hearing their claims.
The administration gave the Border Patrol unchallengeable authority over migrants seeking asylum by invoking a little-known power given to the Centers for Disease Control and Prevention, the U.S. public health agency, to ban the entry of people or things that might spread “infectious disease” in the U.S. The CDC on March 20 barred entry of people without proper documentation, on the logic that they could be unexamined carriers of the disease and out of concern about the effects if the novel coronavirus swept through Customs and Border Protection holding facilities.
U.S. immigration law requires the government to allow people expressing a “well-founded” fear of persecution or torture to be allowed to pursue legal status in the United States. The law also requires the government to grant status to anyone who shows they likely face persecution if returned to their homeland.
“The Trump administration’s new rule and CDC order do not trump U.S. laws passed by Congress and U.S. legal obligations under refugee and human rights treaties,” Eleanor Acer, of the legal advocacy group Human Rights First, told ProPublica. “But the Trump administration is wielding them as the ultimate tool to shut the border to people seeking refuge.”
Two weeks ago, the Trump administration hastily put in place a policy, which the internal guidance calls Operation Capio, to push the overwhelming majority of unauthorized migrants into Mexico within hours of their apprehension in the U.S.
The Trump administration has been publicly vague on what happens under the new policy to migrants expressing a fear of persecution or torture, the grounds for asylum. But the guidance provided to Border Patrol agents makes clear that asylum-seekers are being turned away unless they can persuade both a Border Patrol agent — as well as a higher-ranking Border Patrol official — that they will be tortured if sent home. There is no exception for those who seek protection on the basis of their identities, such as race or religion.
Over 7,000 people have been expelled to Mexico under the order, according to sources briefed by Customs and Border Protection officials.
The guidance, shared with ProPublica by a source within the Border Patrol, instructs agents that any migrant caught entering without documentation must be processed for “expulsion,” citing the CDC order. When possible, migrants are to be driven to the nearest official border crossing and “expelled” into Mexico or Canada. (The Mexican government has agreed to allow the U.S. to push back not only Mexican migrants, but also those from Guatemala, Honduras and El Salvador; the four countries account for about 85% of all unauthorized border crossings.)
Under the Refugee Convention, which the U.S. signed onto in 1968, countries are barred from sending someone back to a country in which they could be persecuted based on their identity (specifically, their race, nationality, religion, political opinion or membership in a “particular social group”).
The Trump administration has taken several steps to restrict the ability of migrants to seek asylum, a form of legal status that allows someone to eventually become a permanent U.S. resident. Until now, however, it has acknowledged that U.S. and international law prevents the U.S. from sending people back to a place where they will be harmed. And it has still allowed people who claim a fear of persecution to seek a less permanent form of legal status in the U.S. (In the last two weeks of February, 2,915 people were screened for humanitarian protection, according to the most recent statistics provided by U.S. Citizenship and Immigration Services.)
The Border Patrol guidance provided to ProPublica shows that the U.S. is acting as if that obligation no longer applies.
Customs and Border Protection, the agency that oversees the Border Patrol, said it would not comment on the document provided to ProPublica. Asked whether any guidance had been provided regarding people who expressed a fear of persecution of torture, an agency spokesperson said in a statement, “The order does not apply where a CBP officer determines, based on consideration of significant law enforcement, officer and public safety, humanitarian, or public health interests, that the order should not be applied to a particular person.”
That language does not appear in the guidance ProPublica received. Instead, it specifies that any exception must be approved by the chief patrol agent of a given Border Patrol sector. One former senior CBP official, who reviewed the guidance at ProPublica’s request, said that because there are so many levels of hierarchy between a chief patrol agent and a line agent, agents would be unlikely to ask for an exemption to be made.
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Read the rest of the article at the link.
Shows how fragile our legal system and our democratic institutions are. Contrary to “popular liberal myth” they have not “been holding up well” in the age of Trump.A GOP Senate, of course, deserves much of the blame. But, it’s not like the Democrats have exactly put protecting the rule of law and Constitutional Due Process for the most vulnerable among us at the forefront.
We can also trace the disintegration of the legal system under Trump directly to the the failure of Roberts and the GOP majority on the Supremes to stand up for separation of powers, racial and religious justice, and Executive accountability. By ignoring a very clear record of invidious racial, religious, and political bias behind Trump’s Executive actions, and allowing a transparently contrived “national security” rationale to be used, in the so-called “Travel Ban Case” the Supremes’ majority basically signaled they had no intention of halting a White Nationalist assault on our Constitution and the rights of vulnerable minorities, particularly migrants. In other words, Roberts & Co. said: “It’s OK to ‘Dred Scottify’ away, we’ll never stand in your way.” And, true to their word, the “J.R. Five” have been more than happy to ignore the law and “green light” the White Nationalist nativist immigration agenda.
So, four decades of painstakingly hard cooperative work by “good government” advocates, NGOs, the private sector, and the international community to reach an imperfect, yet basically workable, consensus that saved countless lives and helped fuel our economic success, the Refugee Act of 1980 lies in tatters. Decades of progress destroyed in a little over three years. That’s “institutional failure” on a massive scale!
Don’t look for the Refugee Act or the rule of law to be resurrected any time soon. Under Trump and his would-be authoritarian kakistocracy, the “emergencies,” real and fabricated, will never end until democracy and human decency are dead and buried. And, don’t count on Mitch McConnell or John Roberts to stand in the way.
This is exactly how democracies die. But, we do have the remaining power to remove the kakistocracy at all levels of our government and start rebuilding America. Yes, Roberts and his gang have life tenure. But, with “regime change,” we can start appointing better judges who will aggressively push back against the far-right, anti-democracy judicial agenda! Folks who believe in Due Process, fundamental fairness, the rule of law, racial equality, human decency, and equal justice for all! Vote to save our nation in November!
Interviews with 10 workers at immigration courts around the country reveal fear, contradictory messages and continuing perils for the employees.
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On Tuesday night — over a day after several Bay Area counties issued shelter-in-place orders barring most people from leaving their homes — the San Francisco immigration court sent an email to staff: Hearings were being postponed nationwide for most immigrants, so the court would be closed starting Wednesday. (The text of the email was provided to ProPublica.)
On Wednesday, however, employees were directed to get onto a conference call, according to two participants. There they were told the Tuesday night email was wrong. The court wasn’t closed. They would have to come into the office — or use their vacation time to stay home. When staff asked about the shelter-in-place orders, the response was that the Department of Justice, which runs immigration courts, took the position that those were local laws and didn’t apply to federal employees.
The Trump administration has reduced immigration court operations in the past week, by postponing hearings for non-detained immigrants and closing a handful of courts to the public. Those actions came after the unions representing immigration prosecutors and judges issued a rare public call for courts to close.
The reduced court operations came after weeks of employees raising concerns privately and, they say, receiving few and unhelpful answers. And because the closures are determined solely by whether a court is hearing cases of detained immigrants, rather than by the level of health peril, employees still feel they’re putting their health at risk every time they come into the office as instructed.
That’s the picture that emerges from interviews with 10 federal employees who work at immigration courts across the country. Most spoke on the condition of anonymity. Many said they had raised concerns internally about their exposure to COVID-19 to their managers or hadn’t been informed of potential exposures.
“When I signed up for this job, I thought it might be morally compromising at times,” one immigration court employee told ProPublica, “but I never thought it would be compromising of my health and safety.”
The Executive Office for Immigration Review, the DOJ agency that oversees immigration courts, told ProPublica that agency headquarters was responsible for deciding when courts closed, but it did not confirm or deny specifics of the employees’ allegations, saying, “We do not comment on internal communications or internal personnel operations.”
In Denver, one prosecutor interviewed by ProPublica was alarmed by a judge’s frequent coughs during a hearing last Friday. “Don’t mind my coughing,” the judge said, according to the prosecutor. “I don’t think it’s coronavirus.” The following Tuesday, the prosecutor noticed that the judge was out for the rest of the week and emailed a court staffer in concern: Was it the coronavirus? Should she be taking precautions? The staffer’s reply: For privacy reasons, the prosecutor’s questions couldn’t be answered.
Only after news broke to the public on Tuesday night that a judge at the Denver immigration court had been diagnosed with COVID-19 (the disease caused by the new coronavirus) did court officials follow up with the prosecutor and confirm her suspicions. Other attorneys the judge had been in close contact with were notified the next day. The court remained open through Thursday, when the entire building it was housed in was shut down for deep cleaning by the General Services Administration. (It’s currently set to reopen Monday.)
In New York, legal aid groups sent a letter to immigration court officials saying that two of their attorneys had symptoms of COVID-19 and a third had been exposed to someone who’d tested positive. All three attorneys had appeared in court the past week, and all had hearings scheduled the following day. The courts didn’t say anything to their employees about the letter, according to multiple sources.
Since taking office, the Trump administration has pressured the immigration courts to process as many immigrants as quickly as possible — pressuring judges to hear more cases and complete them within a year, and making it harder for immigrants or attorneys to postpone hearings. Now, they face a public health crisis that requires everyone to reduce person-to-person contact.
Immigration court workers have two concerns. The first is that the courts are often crowded and require close contact with members of the public. The second is that, like most employees of any type, especially those who take public transit, they are exposed every time they leave their homes to work.
Employees remain concerned about their exposure over the past few weeks, while courts were running as usual. Employees in New York and California — the states hardest hit by the pandemic to date — told ProPublica that their requests for “deep cleaning” were rejected by managers, and that they were bringing their own Clorox wipes and disinfectant spray to the office.
Most immigration court business happens in person. Even trying to postpone an immigration hearing (for example, due to illness) requires an attorney to file a paper form with a clerk. And if an immigrant doesn’t show up for a hearing, they’re at risk of getting ordered deported in absentia. In at least one New York court, according to two people who work there, the chief judge told employees Monday to issue absentia deportation orders if immigrants weren’t showing up, even if the coronavirus was the suspected cause.
Policies the Trump administration introduced before the COVID-19 pandemic put considerable pressure on judges and prosecutors not to allow immigrants to postpone their hearings. Judges face a “performance standard” of completing 80% of their cases within a year — a standard over 90% of judges don’t meet, according to the National Association of Immigration Judges. But the more than 150 judges who have been hired in the past two years are still in their probationary period, where they could be fired for failing to meet performance standards.
While many judges have been lenient in granting coronavirus-related postponements, others have not. Last week, according to one California immigration court employee, a judge took a break from a hearing to tell colleagues that the immigrant’s attorney claimed to be sick, but because he wasn’t coughing, the hearing would move forward.
One email sent by the chief prosecutor at the Miami court Tuesday, read to ProPublica, told prosecutors that if an immigrant or her attorney claimed to be sick, any postponement should be counted against the immigrant (preventing them from requesting another postponement). If the immigrant didn’t want to postpone, and the judge wasn’t willing to hold the hearing by phone, the prosecutor was instructed to contact her manager — who would assess the claim of illness himself before deciding what to do. (A call to the chief prosecutor in Miami was not immediately returned.)
Most communication, though, has been oral. In at least two courts, chief judges were asked to put policies in writing and declined.
Employees have been in the dark about who, exactly, is making the decisions about which courts are open and when employees are allowed to work from home or take leave to stay home. “The word is that it’s out of their hands. Everything is out of everybody’s hands,” Fanny Behar-Ostrow, president of the union representing immigration prosecutors, told ProPublica Wednesday. “I don’t know who’s making the calls, but they’re wrong.”
An email obtained by the Miami Herald, written by the assistant chief immigration judge in charge of the Miami immigration court on Wednesday, said that closure decisions were ultimately being made by “the White House” — something that employees at other courts also said their managers had suggested. But chief judges gave conflicting explanations about which decisions were subject to White House approval; one chief judge told employees that the White House had to be involved in decisions about remote work, while other chief judges made those decisions themselves.
It’s not clear who at the White House is involved or how. Immigration officials told the Herald that the ultimate decision was made by the Office of Management and Budget. However, according to the employees ProPublica spoke to, some immigration court officials used “White House” to refer to policies set by the Office of Personnel Management. The assistant chief immigration judge (the judge in charge of a given immigration court location) for one California court told employees on March 12 that they’d had a phone call with staff for Vice President Mike Pence, who’s running the official coronavirus task force.
But to many employees, the specter of “White House” involvement raised concerns that the administration’s immigration policy priorities were getting in the way of its public health obligations.
. . . .
Read Dara’s full article at the link.
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The confusion engendered by politicized immigration enforcement in support of a White Nationalist agenda doesn’t end with the Immigration Courts. Despite, or perhaps because of, a number of public statements by DHS political hacks, there’s still plenty of uncertainty and angst about DHS’s enforcement and detention policies. Chloe Hadavas over at Slate sets out what happens when politicos take over law enforcement and justice.
Immigration and Customs Enforcement announced on Wednesday that it will halt most arrests and deportations, focusing only on individuals who are “public safety risks” and who are “subject to mandatory detention based on criminal grounds,” as the coronavirus sweeps across the U.S. and public health officials scramble to limit the virus’ spread.
Undocumented immigrants are often afraid to seek medical care for fear of deportation. And even as state and local officials encouraged anyone who needed medical treatment to seek help, ICE officers continued to make arrests, including in areas hit hard by the virus. But in the temporary change in enforcement, ICE also said that it won’t carry out operations near health care facilities, including hospitals, doctors’ offices, and urgent care facilities, “except in the most extraordinary of circumstances,” the agency said in a statement. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”
Immigration experts said ICE’s decision was somewhat unexpected, though they remain cautious about how to interpret it. “I’m always surprised to hear that they’re going to scale back on their efforts,” said Jennifer M. Chacón, a UCLA law professor who focuses on immigration. ICE’s statement marks a distinct shift from the agency’s operations under the Trump administration. Both Chacón and Karla McKanders, a law professor who directs the Immigration Practice Clinic at Vanderbilt University, said that it reminded them of the “felons, not families” immigration policy of the Obama administration. “You read it and it basically looks like the Obama-era enforcement priority statement, and you just wonder why it takes a pandemic to get ICE to think about prioritizing resources and focusing efforts on public safety,” said Chacón.
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You can read the rest of Chloe’s article at the link.
“I don’t know who’s making the calls, but they’re wrong.” Kind of “says it all” about how the regime treats its own employees and the public good.
Meanwhile, Article III Courts, which have had more than ample opportunity to put an end to the constitutional farce taking place in Immigration Court and also to direct the DHS to take overdue steps to release non-dangerous (that is, most) immigration detainees before the epidemic sweeps chronically health-endangering immigration prisons in their New American Gulag (“NAG”), have once again “swallowed the whistle.” The Gulag, where kids are caged and put in “iceboxes,” families separated, and folks sometimes left to die, all for no reason other than “we can do it and nobody’s going to stop us” will haunt not only those corrupt public servants who established and operated it, but also those like legislators, judges, and public health officials who failed in their duties to end the human rights abuses.
Perhaps the Article IIIs are “running scared” because without the ongoing clown show in the U.S. Immigration Courts, the Article IIIs would be in line for the title of “Americas’s Most Dysfunctional Courts.”
Also, I think it’s time for Slate to take “Intern” off Chloe Hadavas’s title and ink this “up and coming talent” to a full time contract covering immigration and justice issues.
Due Process Forever. Dysfunctional Courts That Endanger The Public, Never!
🤡☠️
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
PWS
03-21-20
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UPDATE: Gullible, complicit U.S. Judges in their ivory tower bubbles with plenty of hand sanitizers might be willing to believe DHS’s claims that everything is “hunky dory” in the New American Gulag, but the truth is stark, ugly, and predictable for anyone familiar with the regime’s immigration antics, lies, and cover-ups:
“The cells stink. The toilets don’t flush. There’s never enough soap. They give out soap once a week. One bar of soap a week. How does that make any sense?”
Read the latest from Vice News, as hunger strikes break out in three New Jersey detention facilities:
Meanwhile, Courtside has been receiving reports from multiple sources in New Jersey about rapidly deteriorating conditions in Immigration Courts and the Gulag, failure to follow Federal health guidelines, possible positive coronavirus tests among ICE employees, and efforts by the the regime to keep the truth about about the growing health risks for detainees, judges, lawyers, and other personnel forced to deal with this dangerous, broken, and totally dysfunctional system “under wraps.”
I have also received disturbing, yet credible, reports of continuances for “at risk” attorneys being denied by some Immigration Judges, while other judges have received “no assurances” from their management “handlers” that the regime’s due-process-mocking “production quotas” will be waived during the health emergency! ☠️☠️☠️☠️☠️
HERNANDEZ ET AL. v. MESA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 17–1678. Argued November 12, 2019—Decided February 25, 2020
Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert sep- arating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investi- gated, concluded that Agent Mesa had not violated Customs and Bor- der Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.
Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The Dis- trict Court dismissed their claims, and the United States Court of Ap- peals for the Fifth Circuit affirmed. After this Court vacated that de- cision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to rec- ognize a Bivens claim for a cross-border shooting.
Held: Bivens’ holding does not extend to claims based on a cross-border shooting. Pp. 4–20.
(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover claims under the Fifth and
2
HERNANDEZ v. MESA Syllabus
Eighth Amendments. See Davis v. Passman, 442 U. S. 228; Carlson v. Green, 446 U. S. 14. But Bivens’ expansion has since become “a ‘disfa- vored’ judicial activity,” Abbasi, supra, at ___, and the Court has gen- erally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request in- volves a claim that arises in a “new context” or involves a “new cate- gory of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, at ___. Pp. 4–8.
(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the con- text—a cross-border shooting—is significantly “different . . . from pre- vious Bivens cases.” Abbasi, supra, ___. It involves a “risk of disrup- tive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___. Pp. 8–9.
(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9–19.
(1) The expansion of a Bivens remedy that impinges on foreign re- lations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross- border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those inter- ests through diplomacy. Pp. 9–12.
(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for pre- venting the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chap- pell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlaw- fully employed by a border agent. Pp. 12–14.
(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside
Cite as: 589 U. S. ____ (2020) 3 Syllabus
S. borders. For example, recovery under 42 U. S. C. §1983 is avail- able only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Tor- ture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Con- gress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch of- ficials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14–18.
(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the an- swer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19–20.
885 F. 3d 811, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion, in which GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
Key Quote From Justice Ginsburg’s dissent:
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court held that injured plaintiffs could pursue claims for damages against U. S. officers for conduct disregarding constitutional constraints. The in- stant suit, invoking Bivens, arose in tragic circumstances. In 2010, the complaint alleges, a Mexican teenager was playing with friends in a culvert along the United States- Mexico border. A U. S. Border Patrol agent, in violation of instructions controlling his office and situated on the U. S. side of the border, shot and killed the youth on the Mexican side. The boy’s parents sued the officer for damages in fed- eral court, alleging that a rogue federal law enforcement of- ficer’s unreasonable use of excessive force violated the Fourth and Fifth Amendments. At the time of the incident, it is uncontested, the officer did not know whether the boy he shot was a U. S. national or a citizen of another land. See Hernández v. Mesa, 582 U. S. ___, ___–___ (2017) (per curiam) (slip op., at 5–6).
When the case first reached this Court, the Court re- manded it, instructing the Court of Appeals to resolve a threshold question: Is a Bivens remedy available to noncit- izens (here, the victim’s parents) when the U. S. officer acted stateside, but the impact of his alleged wrongdoing
2 HERNANDEZ v. MESA GINSBURG, J., dissenting
was suffered abroad? To that question, the sole issue now before this Court, I would answer “yes.” Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plain- tiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. for- eign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the applica- tion of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders. I would therefore hold that the plaintiffs’ complaint crosses the Bivens threshold.
* * **
Regrettably, the death of Hernández is not an isolated in- cident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing indi- viduals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal deci- sions, no action was taken. D. Martínez, G. Cantor, & W. Ewing, No Action Taken: Lack of CBP Accountability in Re- sponding to Complaints of Abuse, American Immigration Council 1–8 (2014), americanimmigrationcouncil.org/sites/
14 HERNANDEZ v. MESA GINSBURG, J., dissenting
default/files/research/No%20Action%20Taken_Final.pdf. Ac- cording to amici former Customs and Border Protection of- ficials, “the United States has not extradited a Border Pa- trol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross- border shooting.” Brief for Former Officials of U. S. Cus- toms and Border Protection Agency as Amici Curiae 4. These amici warn that, “[w]ithout the possibility of civil li- ability, the unlikely prospect of discipline or criminal pros- ecution will not provide a meaningful deterrent to abuse at the border.” Ibid. In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.
***
I resist the conclusion that “nothing” is the answer re- quired in this case. I would reverse the Fifth Circuit’s judg- ment and hold that plaintiffs can sue Mesa in federal court for violating their son’s Fourth and Fifth Amendment rights.
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This case is straightforward. Mesa a CBP Agent standing in the United States shot Hernandez, an unarmed 15-year-old Mexican standing in Mexico without justification. This violated Hernandez’s Fourth and Fifth Amendment rights. Had the lower Federal Courts and the Supremes applied the law on “Constitutional torts” correctly, Mesa would have been found liable. The Government probably would have settled with the Hernandez family.
Instead, nearly of decade of unnecessary litigation ensued during which all three levels of the U.S. Court System failed the Hernandez family and distorted our system of justice. Dissenting Fifth Circuit Judge (now Ambassador) Ed Prado summed up this legal farce in a single powerful phrase: “[the majority has been] led astray from the familiar circumstances of this case by empty labels of national security, foreign affairs, and extra- territoriality.” For the record, Ambassador Prado is a lifelong Republican. I worked with him on immigration litigation during the Reagan Administration.
Hey, just “business as usual” for a GOP Supremes’ majority that has checked the Constitution and their humanity at the door in their haste to “deconstruct America” and reconstitute it as the White Nationalist authoritarian state that the Trump regime embodies. Heck, corporations and guns have more rights that dead Mexican kids and their families under the majority‘s view. “Not their kids” as I’ve noted before. I do suspect that if members of their own families were being shot and killed by CBP, we would have a different result in cases like this. But, out of sight, out of mind. Wow, think of the potential foreign relations nightmare of CBP Agents stopped killing unarmed Mexican kids from our side of the border!
Not to be outdone by the majority’s legal gibberish cloaking moral abdication, Justices Gorsuch and Thomas wrote separately to signal Trump that they would like to do away with Bivens entirely while in the process of rewriting the laws in Trump’s image. Apparently recognizing that the GOP has effectively stymied Congress and that Trump intends to inflict many more legal and Constitutional abuses on the unfortunate non-white population, they would like to eliminate all restraints on the regime’s constant violations of law and abuses of individual rights. Obviously, from their exalted and privileged positions above the Constitutional, legal, and societal chaos affecting less fortunate individuals under the Trump regime, they haven‘t fully thought through want happens when Trump or the next White Nationalist demagogue comes for them and there is neither a rule or law nor anyone left to enforce it in a fair an impartial manner.
I’m not the only one who understands the ugly truth about the future of all of our individual rights and the lives of nonwhite individuals (citizens or not) that the Trump majority on the Supremes are attempting to hide with their opaque, yet lethal, legal gobbledygook. Ian Millhiser over at Vox News also sees though the smokescreen at what’s really happening here: “The Supreme Court just held that a border guard who shot a child will face no consequences” https://apple.news/AWWSBpk_aR6uAlmxmQIvZkw
As we’re finding out anew every day, the law and fair, impartial, and courageous judging is for suckers!
Central American immigrant families depart ICE custody, pending future immigration court hearings on June 11, 2018 in McAllen, Texas. John Moore/Getty Images
President Donald Trump has often claimed that the only way to ensure that migrants show up for their court hearings rather than vanish into the US is to keep them in detention or else make sure that they never step foot on American soil in the first place.
But the president’s theory doesn’t hold up: About 99 percent of asylum seekers who were not detained or who were previously released from immigration custody showed up for their hearings over the last year, according to new data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, a think tank that tracks data in the immigration courts.
Studies from previous years have also disproven the idea that most migrants will choose to live in the US without authorization rather than see their immigration cases through. But it’s nevertheless central to Trump’s immigration policies, including those that aim to keep migrants in Mexico rather than letting them walk free in the US.
The latest data from TRAC shows that nearly every asylum seeker showed up for their court hearings over the course of 2019. That’s even though the vast majority of asylum seekers — about 4 in 5 — were not detained at all or had been released from US Immigration and Customs Enforcement custody before their court date.
Migrants can end up in immigration court in one of two ways: turning themselves in to immigration agents or getting caught while trying to cross the border without authorization. In both cases, officials will initiate deportation proceedings against them and give them a date to appear in court, where they can ask a judge for asylum and other protections that would allow them to remain in the US with legal status, or else be ordered deported.
On average, immigrants with currently pending cases have been waiting almost two years for their court hearings, and cases take even longer to complete. Under previous administrations, a migrant who came into contact with immigration agents would have typically been released from custody into the US during that waiting period, unless they were found to be likely to flee or a risk to public safety.
But Trump has repeatedly maligned that practice, dubbing it “catch and release,” a concept that predates his presidency but that became a rallying cry during his 2016 campaign. He has falsely claimed that most asylum seekers who are allowed to walk free while their immigration cases are pending will not show up for their court hearings, instead absconding into the US to live as unauthorized immigrants.
In an address last January, Trump asserted that as few as 2 percent of asylum seekers who aren’t in detention show up for their court hearings:
Tell me, what percentage of people come back? Would you say 100 percent? No, you’re a little off. Like, how about 2 percent? And those people, you almost don’t want, because they cannot be very smart… Those two percent are not going to make America great again, that I can tell you.
But data from both TRAC and the Department of Justice clearly refutes Trump’s claim: the rate at which non-detained migrants showed up for their court hearings still far exceeded 2 percent even in the years prior to 2019, in which attendance rates were unusually high. About 75 percent showed up for their hearings in fiscal year 2018, similar to rates over the previous five years.
It’s not clear why migrants skipped out on their hearings at significantly lower rates in 2019, but it’s possible that Trump’s hardline rhetoric on immigration and large-scale immigration raids have discouraged migrants from choosing to live in the US without authorization.
Meanwhile, the rate at which migrants’ asylum claims have been denied has steadily grown over the last seven years from just 42 percent in 2012 to 69 percent in 2019.
Trump has called for the end of “catch and release”
Trump has made efforts to end catch and release, instead keeping migrants in detention or else sending them back to Central America. To do so, he has increased funding for immigration detention, despite Congress’s attempts to rein him in.
Congress had sought to decrease the number of migrants in detention to just over 40,000 in its 2019 appropriations bill. But in August, Trump transferred $271 million in Department of Homeland Security disaster relief funds to ICE to pay for more detention capacity — about 50,000 migrants daily — and temporary immigration courts along the southern border.
Trump has also rolled out a series of policies that allow immigration agents to send migrants back to Mexico and Guatemala.
Under his “Remain in Mexico” policy, officially known as the Migrant Protection Protocols, he has sent about 56,000 migrants back to Mexico to await decisions on their asylum cases in the US. The administration consequently announced that it had ended catch and release for families arriving at the southern border with some limited exceptions, instead sending them all back to Mexico under MPP.
And he’s brokered agreements with the countries in Central America’s “Northern Triangle” region — Guatemala, Honduras, and El Salvador — that would allow his administration to send migrants back to those countries to seek protection there rather than in the US. Only the agreement with Guatemala is in effect so far, but the agreement with Honduras is weeks away from implementation.
There are comparatively low-cost alternatives to keeping immigrants in detention or sending them abroad, including the now-defunct Obama-era Family Case Management Program. Under that program, which Trump ended in June 2017, families were released and assigned to social workers who aided them in finding attorneys and accommodation and ensured that they showed up for their court hearings.
The program was small in scale, with no more than 1,600 people enrolled at any one time, but appeared to be successful in ensuring that 99 percent of participants showed up for their court appearances and ICE check-ins.
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Thanks, Nicole, for your your clear, articulate, accessible reporting on perhaps America’s most misunderstood area of public discourse.
Intentionally lying and creating false narratives to dehumanize and denigrate the most vulnerable among us. It doesn’t get much more cowardly and depraved than than that. Yet, as Trump knows, millions in his “cult” will uncritically accept any lie or myth that he and his toadies throw out there.
Falsified “no-show rates” was one of the specialties of “Big Mac With Lies” McAleenan. It’s “not OK” for public officials like “Big Mac” to lie and urge policies to be based on “knowingly false narratives” and White Nationalist myths. And, it’s “not OK” to treat Big Mac, Nielsen, Kelly, Homan and other departed DHS toadies like “regular retired Government Senior Executives.” Their dishonesty, bias, and cowardice in the face of tyranny should never be forgotten.
That’s why honest, nonpartisan statistical analysis like that from TRAC and honest, professional reporting like Nicole’s are so important. So many intentional lies and misrepresentations are out there on the net and flowing from the regime on a regular basis.
One reason for the increase in the already very high rate of appearance for asylum seekers, noted by Nicole, might be the relatively high representation rate for those not in detention. Thanks to the many dedicated members of the New Due Process Army, approximately 85% of non-detained asylum seekers are represented. Represented individuals actually understand the system and the importance of reporting to court in an intentionally confusing and opaque process run by bureaucrats in a way that is often openly hostile to the public and Due Process of law.
Clearly, the expanded “New American Gulag” is based on false premises and lies. What would really work for everyone is reprogramming the time, money, and effort wasted on gross overuse of immigration detention into grants to resettlement agencies and legal aid organizations to insure adequate care, representation, and an understanding of our legal system leading to nearly “100% attendance” in Immigration Court. But, ignoring truth and sound public policy is certainly nothing new for the Trump regime.
Undoubtedly, a fair and impartially administered Immigration Court system would result in more asylum grants. That’s why the White Nationalists driving policy under the Trump regime don’t want it to happen.
Carmen del Thalia Mallol holds her daughter Lia, 4, after becoming a new US citizen during a naturalization ceremony inside the National September 11 Memorial Museum on July 2, 2019, in New York City. Drew Angerer/Getty Images
The adult children of immigrants, almost universally, show more upward economic mobility than their peers whose parents were born in the United States. Indeed, a new working paper by Stanford University’s Ran Abramitzky; Princeton University’s Leah Platt Boustan and Elisa Jácome; and the University of California Davis’ Santiago Pérez finds that this is especially true for the lowest-income immigrants and remains true for the most recent cohorts for which data is available.
Drawing from census data, publicly available administrative data, and federal income tax data, they traced the income levels of millions of fathers and sons over time dating back to 1880. The children of immigrants climbed higher in the income rankings than those born to US natives across history and in 44 of the 47 sending countries they studied.
The paper contradicts President Donald Trump’s rhetoric suggesting that immigrants drain the social safety net rather than pulling themselves up and that immigrants from a select few countries are more desirable than others. On that basis, the president has pursued numerous policies aimed at preventing low-income immigrants, particularly those from what he has referred to as “shithole countries,” from entering and settling in the US.
Even poor immigrants’ kids achieve success
Prior research has shown that immigrants who start out earning less than their US-born peers are unlikely to catch up in their lifetimes. And among more recent immigrants, that initial income gap is growing bigger and harder to close.
But the new study shows that, even if immigrants start out with low income levels, most are not only catching up eventually but surpassing their US-born peers — even if it takes a generation.
The typical explanation offered for this kind of immigrant achievement is some inherent quality resulting from cultural differences, such as a strong work ethic or placing a value on education. But the working paper offers a more tangible explanation for the mobility gap: Immigrants tend to settle where there is more economic opportunity and take jobs that are below their true skill level.
“We don’t even have to reach for these cultural explanations,” Boustan said in an interview. “A lot of it has to do with immigrants being willing to move anywhere and choosing locations where there are growing industries and a good set of job opportunities for their kids. Those are choices that immigrants are making that are different from the US-born and that could be a feature of immigrant success.”
It makes sense why immigrants choose to move to areas of higher economic opportunity as compared to the US-born. Without social and professional networks anchoring them to one place, they are more “footloose” and flexible in where they ultimately settle, Abramitzky said. Historically, that has meant that foreign-born populations tend to cluster in urban areas.
The first generation arriving in the US, however, might also have difficulty finding work at income levels that reflect their true talents and abilities due to a variety of factors: limited English skills, lack of an established professional network in the US, and discrimination, Boustan said.
A classic scenario might be a Russian scientist who comes to the US and works as a cab driver. In that case, the second generation might be able to move up more quickly than their father’s income ranking would suggest.
“What might matter for the kids is what their father’s true talents and abilities were, rather than where he gets placed in the labor market,” Boustan said.
The economic mobility gap, the paper finds, is particularly stark when examining the children of those on the lowest rungs of the income ladder, ranked below the 25th percentile. In that category, the children of immigrants climb three to six percentile rank points higher than the children of natives.
The gap narrows, however, when examining families from the top income levels. And it even reverses slightly when comparing children growing up in the same geographic area.
The paper, while expansive, has some limitations: It relies on federal income tax records that likely do not capture unauthorized immigrants, the primary target of the president’s ire as he attempts to make the southern border all but impenetrable to migrants from Central America attempting to cross illegally.
But it’s reasonable to speculate that unauthorized immigrants would also settle in areas of economic opportunity and take jobs below their skill level, potentially resulting in similar rates of economic mobility as compared to other immigrants, the researchers said. The only caveat could be that unauthorized immigrants and their children experience more discrimination in the US, limiting their access to higher-paying jobs.
All kinds of immigrants move up the ladder
Boustan said the paper pushes back on the idea of “model minorities”: that minorities from certain ethnic or racial backgrounds tend to find more socioeconomic success than others. It’s typically been used to describe Asians in contrast to Hispanics and African Americans. But regardless of race or ethnicity, children of immigrants from the overwhelming majority of the countries they studied performed better than the US-born.
The paper’s findings also challenge Trump’s ideas about who should be allowed to immigrate to the US.
In January 2018, he reportedly derided immigrants from what he considers “shithole countries,” including El Salvador and African nations, while simultaneously calling for “more people from Norway.” And he infamously maligned Mexican immigrants when launching his campaign for president in 2015.
“When Mexico sends its people, they’re not sending their best,” he said. “They’re sending people that have lots of problems, and they’re bringing those problems with us.”
In fact, immigrants from Mexico, El Salvador, and African nations such as Nigeria are all performing better than the US-born. And in past waves of immigration, immigrants from Norway actually performed worse than the US-born.
“We take it as a warning against taking a nostalgic view of immigration,” Abramitzky said.
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Trump’s (and his fellow White Nationalists’) racist-inspired false narratives are harming America and preventing us from becoming even greater. Obviously, a smarter, more decent Administration would cut the xenophobic nonsense, legalize the law-abiding migrants already here, and propose ways to expand legal immigration across the board.
Those actions, not expensive, mean-spirited, and ultimately futile “enforcement only” gimmicks, would address the “immigration issue” in a fair, humane, and mutually beneficial manner. Also, by reducing the “unnecessarily undocumented population” and providing more realistic opportunities for future legal immigration and integration into our society, immigration enforcement would become far more focused, efficient, and effective.
Instead of treating needed workers and legitimate refugees like “bank robbers” (often actually ignoring the real criminals), the DHS could concentrate on a smaller number of individuals attempting to evade a more reasonable and realistic system. Additionally, with real lines for legal immigration, rather than imaginary ones the Trump crowd often disingenuously references, being sent “to the back of the line” would be more of a deterrent than it is now.
Although, as Nicole points out, the study didn’t specifically cover undocumented individuals, the findings of this study certainly match my “real life” experiences in Immigration Court. The overwhelming majority of those coming before me on the non-detained docket were basically decent, law abiding folks performing productive functions in our communities. For a short time at the end of the Obama Administration, ICE actually recognized the futility of removing such individuals and exercised “prosecutorial discretion” (“PD”) through “administrative closing” in many cases where removal would actually diminish our nation while wasting limited court time.
Those very few individuals who ”flunked out” of the “PD program by getting in trouble were returned to court, usually on the detained docket, and in most cases removed. The others formed a “natural core” for a future legislative legalization program that a smarter, kinder, braver Administration would have proposed.
Naturally, one of the first things the Trump White Nationalists tried to do was end two of the most successful programs ever instituted within DHS: DACA and PD. The results of these mean-spirited and short sighted actions have been highly problematic for the individuals involved as well as our country.
House Democrats are calling for investigations into two temporary immigration courts that opened along the southern border last month where migrants who have been waiting in Mexico are fighting to obtain asylum in the US, according to a letter sent Thursday.
The courts — located in tent complexes near US Customs and Border Protection ports in Laredo and Brownsville, Texas — were built to hear cases from migrants who have been sent back to Mexico under President Donald Trump’s “Remain in Mexico” policy, officially known as the Migrant Protection Protocols.
Unveiled in January, the policy has affected over 50,000 migrants found to have credible asylum claims, including those who present themselves at ports of entry on the southern border and those who are apprehended while trying to cross the border without authorization.
The tent courts, which opened in early September with no advance notice to the public, have the capacity to hold as many as 420 hearings per day in Laredo and 720 in Brownsville conducted exclusively by video. Immigrants and their attorneys video conference with judges and DHS attorneys appearing virtually, streamed from brick-and-mortar immigration courts hundreds of miles away.
Democratic leaders, led by Congressional Hispanic Caucus chair Joaquin Castro, raised concerns Thursday that the tent facilities have led to violations of migrants’ due process rights by restricting their access to attorneys and relying on teleconferencing. They also expressed alarm that asylum seekers processed in the facilities are being returned to Mexico even though they are in danger there and that the public has largely been barred from entering the tent facilities, shrouding their operations in secrecy.
“Given the lack of access to counsel and the limitations of
, we are concerned these tent courts do not provide full and fair consideration of their asylum claims, as required by law,” the lawmakers wrote, urging the Department of Homeland Security and Department of Justice’s inspectors general to investigate. “The opening and operations of these secretive tent courts are extremely problematic.”
Few have been allowed to enter the courts
Acting Department of Homeland Security Secretary Kevin McAleenan had assured that members of the public and the press would be permitted to access to the facilities so long as they do not “disrupt proceedings or individuals’ privacy.”
In practice, however, that’s not how they have operated, and as House Democrats pointed out Thursday, preventing the public from viewing immigration court proceedings violates federal regulations.
“We are concerned that the administration has intentionally built these tent court at Customs and Border Protection ports of entry to justify limited public access to these facilities, and that this lack of transparency may allow DHS to hid abuse and due process violations that may occur in the tents,” their letter said.
Laura Lynch and Leidy Perez-Davis, attorneys with the American Immigration Lawyers Association who visited the port courts shortly after they opened in September, said they and other lawyers from the National Immigrant Justice Center, Amnesty International, and the Women’s Refugee Commission were barred from observing proceedings in the courts absent a document showing that they were representing one of the migrants on site.
The few attorneys that had such agreements were allowed to enter the facility a little more than an hour before their clients’ hearings to help them prepare — insufficient time given that, for many, it is their first opportunity to meet in person, Perez-Davis said.
In the first few days that the courts were open, the only people allowed in the hearing rooms were immigrants and their attorneys — but critically, not their translators, Lynch said. There were few attorneys representing asylum seekers in proceedings at the port courts, and even fewer spoke fluent Spanish and could have conversations with their clients.
Officials have since allowed translators into the hearing rooms, Lynch said, but neither DHS nor the DOJ have issued any formal clarification of their policy.
Attorneys are also not allowed to attend “non-refoulement interviews” at the tent facilities, in which an asylum officer determines, usually over the phone, whether a migrant should be sent back to Mexico or qualifies for an exemption allowing them to go to a detention facility in the US.
Limiting access to the port courts also inhibitslegal aid groups’ ability to conduct presentations for migrants informing them of their rights in immigration proceedings, as they typically do in immigration courts.
Perez-Davis said that she observed one hearing from San Antonio — where some of the remote immigration judges handling cases in the ports courts are based — in which a young migrant woman was confused about what “asylum” means. That kind of knowledge would have previously been provided in presentations by legal aid groups.
Videoconferencing doesn’t facilitate a fair proceeding
The use of video conferencing in immigration court proceedings has long been a subject of controversy. In theory, teleconferencing would seem to make proceedings more efficient and increase access to justice, allowing attorneys and judges to partake even though they may be hundreds of miles away.
But in practice, advocates argue that teleconferencing has inhibited full and fair proceedings, with some even filing a lawsuit in New York federal court in January claiming that it violates immigrants’ constitutional rights.
Immigrants who appear in court via teleconference are more likely to be unrepresented and be deported, a 2015 Northwestern Law Review study found. Reports by the Government Accountability Office and the Executive Office of Immigration Review have also raised concerns about how technical difficulties, remote translation services, and the inability to read nonverbal communication over teleconference may adversely affect outcomes for immigrants.
Yet despite such research, the immigration courts have increasingly used video as a stand-in for in-person interaction.
In the port courts in Laredo and Brownsville, video substitutes for that kind of interaction entirely — but it has not been without hiccups so far.
Lynch, Perez-Davis, and Yael Schacher, a senior US advocate at Refugees International, said they all observed connectivity issues. For migrants who must recount some of the most traumatic experiences of their lives to support their asylum claims, video conferencing makes their task harder, Perez-Davis said.
“I have been asking myself what happens if you’re in the middle of the worst story you’ve ever had to tell, and the video cuts out?” she said.
These courts are sending immigrants back to danger in Mexico
Migrants are required to travel in the dark and show up for processing before their hearings at the port courts early as 4:30 in the morning.
That puts them at increased risk, with recent reports of violence and kidnappings in Nuevo Laredo, which is directly across the border from Laredo, and Matamoros, which is adjacent to Brownsville. The State Department has consequently issued a level four “Do Not Travel”warning in both Nuevo Laredo and Matamoros.
Lynch and Perez-Davis said that attorneys are also increasingly afraid of crossing the border into Mexico in light of those safety concerns. Where they used to cross over the border to deliver presentations informing migrants of their rights and the US legal process in Mexican shelters, that is no longer happening to the same degree.
“It has chilled any sort of ability to provide legal representation,” Perez-Davis said.
DHS purports to exempt “vulnerable populations” from the Remain in Mexico policy and allow them to remain in the US, but in practice, few migrants have been able to obtain such exemptions in non-refoulement interviews.
The advocacy group Human Rights First issued a report earlier this month documenting dozens of cases in which inherently vulnerable immigrants — including those with serious health issues and pregnant women — and immigrants who were already victims of kidnapping, rape and assault in Mexico were sent back under MPP after their interviews.
With attorneys barred from advocating for migrants in these interviews, migrants will likely continue to be sent back to Mexico even if they should qualify for an exemption under DHS’s own guidelines.
“These interviews are a basic human rights protection to ensure that no one is returned to a country where they would face inhumane treatment, persecution or other harm,” Democrats wrote Thursday. “We are concerned that DHS is returning asylum seekers to harm in Mexico.”
This situation persists as a direct and predictable consequence of the Ninth Circuit’s atrocious decision staying the District Court’s properly issued injunction in Innovation Law Lab v. McAleenan!
As I told the US District Court, District of Rhode Island, 2019 District Conference on “Independence & the Courts” today:
Constantly Confront Complicit Courts 4 Change.Make the guys in the ivory tower “own” the deaths, human rights abuses, unrelenting human misery, and mockeries of justice that their intransigence and failure to carry out their oaths to faithfully support and defend the Constitution of the U.S. is causing to the most needy and vulnerable among us — that is, to those who have the audacity to assert their legal rights under our laws.
What good are “independent” courts who won’t stand up for our individual rights under the Constitution? “Independence” does not entitle judges to use their privileged positions to be complicit or complacent in the face of great tyranny and the human misery and irreparable harm it causes!
And, thanks to Nicole for “keeping on” this horrifying chronicle of calculated and premeditated human rights abuses by an Executive Branch “gone rogue,” and the disastrous real life human consequences of ivory tower appellate judges failing to perform their Constitutional duties. They will not escape the judgment of history for their unwillingness to stand up to the abuses of a White Nationalist regime carrying out a predetermined agenda totally unrelated to governing in the public interest or complying with the rule of law.
Also, many thanks too Laura and Leidy for having the courage and dedication to put themselves “on the line” to let us know exactly what’s happening as a result of the massive failure of all three branches of our Government.
Join the New Due Process Army and take the fight to preserve our American values and our Constitution to all three branches of Government until they do their duties and stop the illegal and unconstitutional abuses of asylum seekers!
Democratic presidential candidates have mostly been able to avoid a substantive discussion of what immigration policy should look like. Expressing outrage over President Donald Trump’s policies has sufficed for debate soundbites.
That might be politically expedient; immigration is one of the top issues on voters’ minds, but also one of the most divisive. Being vague is a way to put off alienating various wings of the party until the primaries are over.
The candidates have tended to speak in platitudes, like when Amy Klobuchar said in the first debate, “Immigrants do not diminish America. They are America.” Beto O’Rourke and Cory Booker got mixed reviews for answering questions about immigration in Spanish in an attempt to show solidarity with Latino voters.
There was one moment that spurred numerous immigration think pieces. During the first debate in June, Julián Castro asked fellow candidates onstage to commit to repealing Section 1325 of the Immigration and Nationality Act, a provision in federal law that makes crossing the border without authorization a crime. But that moment stood out because it was unusually specific.
If a Democratic president makes “comprehensive immigration reform” a priority, as virtually all of the candidates have vowed, voters do not have much information about what that means. With a (mercifully) smaller pool of 10 candidates taking the stage for Thursday night’s upcoming debate, there might finally be more room to elaborate.
Here are five questions that moderators should ask to get a more expansive view of the candidates’ positions:
1. What immigration-related executive actions could we expect from your administration in your first 100 days?
The US Supreme Court has historically recognized the president’s broad powers over immigration, but Democrats have accused Trump of overstepping his executive authority with his unilateral, sweeping changes to immigration policy.
In the wake of Trump’s travel ban, when the president issued an executive order banning individuals from seven countries, Democrats in the House and Senate proposed a bill that would rein in the executive authority of all future presidents such that they could not issue any similar ban. House Democrats also filed a lawsuit challenging Trump’s declaration of a national emergency on the southern border, claiming that he could not invoke his emergency powers simply to circumvent Congress’ refusal to fully fund his border wall in its 2019 budget deal.
But limiting executive authority over immigration is a double-edged sword for Democrats. If Republicans retain control of the Senate as expected in 2020 and gridlock in Congress continues, a Democratic president’s only means of reversing the Trump administration’s immigration policies would be by executive fiat.
For that reason, candidates including Bernie Sanders, Kamala Harris, and Cory Booker rely heavily on executive actions in their immigration plans. For example, Booker would order the Department of Homeland Security on day one in office to bring detention centers into compliance with federal detention standards, and Sanders has said that his first executive action would be closing privately operated immigration detention centers.
Others have suggested executive actions they will pursue, but haven’t nailed down a timeline: Elizabeth Warren says she will first “work with Congress to pass broad-reaching reform” but is “prepared to move forward with executive action if Congress refuses to act.”
Joe Biden and Pete Buttigieg, meanwhile, have not made formal commitments to use executive authority to reverse Trump’s immigration policies.
While all of the candidates have promised wide-reaching, progressive change in immigration and across other issues, presidents only have so much time and political capital. After pushing through sweeping health care reforms with the Affordable Care Act, former President Barack Obama failed to pass a comprehensive immigration reform package in 2013.
So, asking the Democratic candidates to elaborate on their immigration priorities for their first 100 days will help determine whether the issue is actually a top priority for them.
2. What would your overall approach be to immigration enforcement on the US-Mexico border?
Republicans have accused Democrats of pushing for open borders. In reality, few go that far; some just think that crossing the border without authorization should not be a crime, as it is currently under Section 1325 of the Immigration and Nationality Act. Historically, most immigrants who cross the border illegally have never been prosecuted, but the Trump administration has begun doing so under its “zero tolerance” policy and cited those prosecutions as the basis of family separations.
Polls show that a majority of Americans oppose Trump’s border wall, but not all forms of border security: About three-quarters of the public support hiring “significantly more” border patrol agents and a third say that immigration levels should be decreased overall.
If voters’ attitudes toward border security are nuanced, Democrats’ border security plans should reflect that. To start, they will have to answer questions about how they will detain immigrants (if at all), what kinds of unauthorized immigrants might be targeted with limited enforcement resources, how much funding immigration enforcement agencies will get, and how they will reduce the backlog of cases in immigration court.
Democrats can agree that Trump’s method, which includes separating families in immigration detention and sending Central American migrants back to Mexico, is abhorrent. But how they would go about securing the border is a tricky question, and previous Democratic administrations have not exactly provided a good model.
Obama struggled to balance humanitarian concerns with border enforcement. As Trump has repeatedly noted, it is true that Obama did separate families in immigration detention, albeit on a much smaller scale than the current administration. Immigrant rights groups labeled him as the “deporter in chief” because he deported more immigrants than any other president — over 385,000 in fiscal years 2009 to 2011 and peaking at 409,849 in fiscal 2012 (though former Obama officials have defended that the administration only targeted recent arrivals and violent criminals).
Five years later, Democrats are still wrestling with how they will approach immigration enforcement, tackling it piecemeal for now.
The idea of abolishing US Immigration and Customs Enforcement has gained the most attention in advocacy circles. Elizabeth Warren has endorsed the “Abolish ICE” movement, and Kamala Harris has also pushed for major changes to the agency, suggesting that the federal government should “probably think about starting from scratch.” Castro has backed the decriminalization of unauthorized border crossings, challenging his opponents to do the same during a Democratic debate in June.
3. How many refugees should the US aim to resettle?
This is a simple, numerically based question that can help voters gauge the candidates’ commitment to reestablishing the US’s reputation as a world leader in protecting the most vulnerable immigrant populations. So much of the conversation around refugees and asylees in the debates so far has been dominated by denouncing Trump’s policies, so it would be useful to force the candidates to commit to hard numbers of how many they would admit.
Historically, the US has taken in more refugees, about 3 million since 1980, than any other nation. But the US has scaled back its refugee program under Trump, lowering the cap on refugees admitted to the US from 110,000 in fiscal year 2017 to 30,000 in fiscal year 2019 — the lowest number since the Refugee Act was signed into law in 1980. And the Trump administration is expected to cut refugee admissions even further.
Some Democratic presidential candidates have proposed elevating the refugee cap as part of their immigration plans. Booker and Castro have proposed reverting to the pre-Trump refugee cap of 110,000, but Elizabeth Warren would go even further, setting the cap at 125,000 initially and increasing it to 175,000 by the end of her first term.
4. How would you work with governments in Central America to reduce factors driving migrants away from their home countries?
In light of declining migrant arrests, Trump may claim that he is delivering on his promise to secure the southern border, but it’s not so clear that his policies have done anything to address the underlying problem: unprecedented numbers of migrants fleeing Central America. This question would illuminate how Democrats would reduce push factors and think not just about a border crisis but a regional crisis.
Previously, migrants arrested at the southern border were primarily single adult males from Mexico. But since the summer of 2018, there has been a fundamental change in migration patterns: Now, it is primarily Central American children and families.
Castro and Booker have proposed significant aid packages, but Democrats would also likely need to smooth over political tensions with Mexico and the “Northern Triangle” countries of Guatemala, Honduras, and El Salvador in Trump’s wake.
In June, Trump had threatened to impose tariffs on all Mexican goods if it did not step up its immigration enforcement efforts.
And acting US Customs and Border Protection Commissioner Mark Morgan told reporters Monday that Trump is pressuring Northern Triangle countries to adopt agreements that would effectively cut off migrants before they reach the US. The so-called Safe Third Country agreements would make any migrant who passes through those countries ineligible to apply for asylum in the US.
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Nice, very timely, analysis, Nicole!
Also, many, many congrats on your new home over at the vox.com Immigration Desk!
The Mexican government is finally pushing back against the controversial Trump policy of forcing some asylum-seekers to wait in Mexico while their immigration cases play out in court, according to an internal Department of Homeland Security Briefing obtained by BuzzFeed News.
More than 35,000 migrants have been returned to Mexico under the Migrant Protection Protocols, colloquially referred to as the Remain in Mexico policy, since its start in January, according to the DHS document. That’s put migrants in danger and strained resources in Mexican Border Communities. Now, Mexican officials have reportedly begun limiting the days and times U.S. immigration agencies can send asylum-seekers back to Mexico and have cracked down on which migrants can be returned.
Mexican officials in El Paso, for example, have stopped accepting migrants after 1 p.m., even though some migrants have to return to Mexico after crossing into the U.S. for court hearings, according to the memo. As a result, Customs and Border Protection has had to detain more than half of the migrants who came to the city for hearings in August. The Mexican government has also occasionally refused to accept migrants who have been issued deportation orders but are fighting their cases, the memo says..
The Mexican government has attempted to alleviate the strain by busing migrants to cities further from the border, like Monterrey and Tapachula, the later of which is close to the country’s border with Guatemala. That has only complicated things further, since migrants have to return to the U.S. for their court hearings.
Being forced to wait in Mexico has also had legal consequences for migrants, many of whom struggle to find lawyers. A recent report by the Transactional Records Access Clearinghouse at Syracuse University found that less than 1% of migrants who have been forced to wait in Mexico as part of the MPP have lawyers.
Cover image: A security guard accompanies a group of U.S. asylum-seekers out of Mexican immigration offices after they were returned by U.S. authorities to wait in Mexico under the so-called Remain in Mexico program, in Ciudad Juarez, Mexico, Wednesday, July 17, 2019. (AP Photo/Christian Chavez
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As I’ve been saying all along, the bogus “Migrant Protection Protocols” (a/k/a “Return to Mexico,” a/k/a “Let “em Die In Mexico”) are nothing more than a very transparent scheme to deprive asylum applicants who have passed “credible fear” of their statutory, regulatory, and Due Process Constitutional right to be represented by counsel of their choice.
DHS has intentionally made it functionally impossible for U.S. pro bono groups to effectively represent those asylum seekers returned to Mexico. As we all know, without counsel, applicants have little, if any, realistic chance of succeeding on asylum claims, particularly under Trump’s restrictionist, openly anti-asylum regime.
For some reason, a complicit 9th Circuit Court of Appeals is allowing this legal travesty to proceed. Vulnerable asylum applicants are being abused by Trump on the 9th Circuit’s watch with impunity.
Democrats don’t need to tack right on immigration to win
Pundits like David Frum and Andrew Sullivan want Democrats to move right on immigration. They’re wrong.
In the years since Donald Trump’s victory, a cottage intellectual industry has sprung up arguing that Democrats and European center-left parties need to move right on immigration if they want to win.
Its proponents include anti-Trump conservative writers like David Frum and Andrew Sullivan (themselves both immigrants to the United States), center-right academics like Oxford’s Paul Collier and University of London’s Eric Kaufmann, and even a few leftists like essayist Angela Nagle. The basic argument is pretty consistent: There’s a rising populist revolt against mass immigration in the West, and liberals need to adjust to this reality rather than try to fight it.
This industry has gone into overdrive in recent weeks, driven largely by the results of Denmark’s early June election. Denmark’s center-left Social Democratic Party (SDP), which had tacked hard right on immigration in recent years, defeated the conservative incumbent and won the most seats in parliament, while the far-right populist Danish People’s Party (DPP) lost more than half of its support. This, the immigration skeptics argue, is proof that they are right: Democrats and other center-left parties can co-opt Trump and the European far right simply by leaning into their anti-migrant bona fides.
“Imagine if [Elizabeth] Warren were to model her campaign on the newly elected social democrats in Denmark,” Sullivan writes. “A Democratic adoption of tighter immigration policies and less stridently leftist cultural stances could dominate” among many voters.
The reality of Denmark’s election is much more complicated than Sullivan’s morality play. The Danish campaign debate focused heavily on climate change and welfare state issues, with immigration playing less of a role than some external observers believe. Only a small percentage of DPP voters seemed to switch to the SDP. Perhaps most importantly, the SDP won only one more seat than it had in the 2015 election — an election it lost. Instead, the SDP benefited from a surge in support for smaller, relatively pro-immigration left-wing parties that could support it in a coalition.
The problems with the anti-immigration analysts’ view of Denmark mirror problems with their broader thesis. Political scientists have studied whether center-left parties benefit from tacking right on immigration, and the best evidence strongly suggests that they don’t.
What’s happening is an example of what my colleague Matt Yglesias calls “the pundit’s fallacy”: a writer’s conviction that their preferred policy ideas must be popular, and that a party who adopts their views will win because of it. But there’s substantial reason to think moving further right on immigration would hurt the center left, and no strong argument for Democrats to abandon their moral principles and practical stances to try to win more votes.
What do we know about the center left and immigration?
After the Danish election, Harvard PhD student Sophie Hill put together a Twitter thread summarizing the leading research on European social democratic parties and immigration. Her read of the literature is clear: “Should centre left parties ‘get tough’ on immigration? No!”
Hill, following an influential 2010 paper, argues that there’s a trade-off inherent to center-left parties’ positioning on the issue. If they maintain their traditional liberal positions, they lose ground with culturally conservative and less educated voters in the working class. If they move right, they risk alienating their cosmopolitan base on the left. (A third option is ignoring and downplaying immigration, but that can be tricky given how important the issue is in public debate.)
Two major questions follow: Does moving to the right on immigration win over a significant number of working-class voters? And, if so, is it enough to offset the losses among the left-wing base?
Research by German scholar Kai Arzheimer, whose work I’ve looked at before, suggests the answer to the first question is no. Arzheimer studied 16 European center-left parties with varying approaches to immigration, developing a model that attempts to estimates the effect of immigration positions on working-class vote share. He found that parties that tacked to the right on immigration did no better with the working class than those that maintained their traditional pro-migrant stances.
When it comes to the working class, he concludes, “it does not make a difference whether the Social Democrats stick to their traditional positions on immigration or whether they try to toughen up their policies.”
This makes intuitive sense. If you’re someone who really cares about immigration restrictionism, and you have a choice of a far-right party that’s long been obsessed with that issue or a liberal Johnny-come-lately, why would you vote for the latter?
Center-left parties “shouldn’t be purely focused on winning back the voters who went to the radical right, because when push comes to shove, a significant part of that electorate is deeply nativist,” Cas Mudde, a scholar of the European far right at the University of Georgia, told me in a 2017 interview. “They want a party that is nativist; the only way to win them back is pretty much by becoming radical right or radical right-light.”
If that’s true, then it should follow that tacking right hurts these parties overall: With no gains in the working class, it’s likely that the losses in support from culturally liberal voters wouldn’t be offset. That’s exactly what research by Tarik Abou-Chadi, a political scientist at the University of Zurich, suggests.
The following chart from Abou-Chadi’s work maps European social democratic parties’ immigration positions on a scale of 3 to 7; the higher the number, the more anti-immigrant they are. The trend lines at the top clearly suggest that the more anti-immigrant a party is, the less likely people in their country are to vote for them.
Another study from two scholars at Sweden’s University of Gothenburg took a look at how this played out on a granular level.
Using data from a survey sent out to roughly 13,000 local Swedish politicians, they tried to identify what happened when social democratic parties moved to the right on immigration. It turns out that in regions where that happened, support for far-right parties actually went up. Rather than stealing votes from the far right, they argue, the center left was legitimizing their positions, making it morally acceptable for voters to act on their anti-immigrant sentiments.
All this data points to a clear conclusion: Even if the 2019 Danish elections do turn out to be a story of the left winning based on a rightward shift on immigration, which doesn’t seem likely, there’s little reason to believe that this strategy would work elsewhere — and good reason to think it might backfire.
Europe’s lessons for the Democrats
Obviously, you can’t draw one-to-one lessons from European social democratic parties to the American Democratic Party. But much of the same logic applies: Democrats depend on high turnout from their educated, culturally liberal white voters, and likely won’t benefit by being seen as “Republican-lite” on a key cultural issue.
What’s more, Democrats get backing from several voting constituencies composed of both naturalized and native-born citizens who have a real stake in the issue. Latinx people are the obvious example, but so are Asian Americans and Jewish voters: people who identify with immigrants due to their own family stories of coming to the United States, and would see a move toward restrictionism as a threat and a betrayal.
And, once again, there’s statistical support for this line of thinking.
One paper compared data on Barack Obama’s campaign in 2008, which had a comparatively generic outreach program to Latinos, to its 2012 campaign, which focused heavily on turning out Latino voters by emphasizing pro-immigration positions like the Deferred Action for Childhood Arrivals (DACA) program. The data concluded that “Obama’s Latino targeted outreach was (1) remarkably effective at winning over Latino voters; and (2) it had coattail effects for Democratic Senate candidates.”
There’s reason to believe this could be even more true in the Trump era. While Trump has mobilized a vocal minority of anti-immigrant voters in the Republican Party, survey after survey has shown that this has led to a backlash among the rest of the population, with numbers of Americans expressing support for immigration reaching historichighs in tracking polls.
There’s another reason to believe moving toward immigration restrictionism would be counterproductive for Democrats: New citizens themselves are an important Democratic constituency.
A study by three economists tried to study how the changes in America’s population wrought by mass immigration — more Latino voters, for example — were changing American politics. They found that “immigration to the U.S. has a significant and negative impact on the Republican vote share,” largely because “naturalized migrants [are] less likely to vote for the Republican party than native voters.” Why spit in this group’s face by adopting restrictionist positions, which seem to be unpopular with the majority of Americans, on the off chance that they might win over some Trump voters?
Look, it’s possible that all of this data is incorrect. Social science is tricky, and it’s possible the experts are measuring things wrong (or measuring the wrong things). Maybe the US is nothing like Europe, and Latinos will turn out for Democrats regardless of what they say about immigration. Maybe being Trump-lite on immigration really would help Democrats.
But there’s no reason to take that gamble given that the best evidence goes the other way — unless you already believe that mass immigration is bad for the United States.
If you’re a Democratic politician who believes believe that immigrants depress native-born wages, or undermine the social cohesion necessary to maintain liberal democracy, then you’re probably willing to gamble that all the research is wrong. But that’s not what most Democrats believe, for very good substantive reasons. There’s no real political case for them go back on those convictions now.
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Due process, a functional independent U.S. Immigration Court, expanded legal immigration and refugee programs that putmany more would-be migrants through pre-screening and into legal channels while addressing American’s need for economic growth, international cooperation, smart development, and reprogramming money misallocated to ultimately futile and inhumane “civil enforcement” to real law enforcement activities is a winning program.
By contrast, Trump’s program of hate, fear, and oppression divides America, wastes money right and left, and is ineffective.Dems should not be afraid to take onTrump’s irrational xenophobia to appeal to the “better angels” of American voters with smarter, better, practical, and humane ideas.
In February 2019, 66,450 migrants crossed the US/Mexico border between official border crossings and were apprehended by US Border Patrol agents, committing the misdemeanor of illegal entry.
It’s a sharp increase from January and marks an 11-year high. But the number reflects an ongoing trend: record numbers of families coming to the US without papers.
The Trump administration reported that 76,103 people tried to enter the US without valid papers in February. That number combines people who came to official border crossings and migrants who were caught by Border Patrol after crossing illegally.
The total has alarmed conservatives; President Donald Trump has taken it as validation of his decision to declare a national emergency and appropriate more funding to build “a wall” along the border. (Construction of the wall would take months or years.)
But while current apprehension levels are higher than they’ve been in the last decade, they’re still way below pre-recession levels.
What is truly unprecedented is who the migrants are.
Almost two-thirds of Border Patrol apprehensions are of parents and their children. While we don’t have complete historical data, it seems likely that more families are coming to the US without papers than ever before. Additionally, a large share of migrants (both families and single adults) are expressing a desire to seek asylum.
Both groups are overwhelmingly coming from the Central American countries of Guatemala, Honduras, and El Salvador.
The US immigration enforcement system was designed to swiftly detain and deport migrants who attempted to sneak into the US illegally. Asylum-seekers and families don’t fit that mold.
Border Patrol agents aren’t equipped to deal with large groups of families who travel through Mexico by bus and then turn themselves in at the border. This has arguably contributed to the deaths of multiple children in Border Patrol custody in recent months, and spurred Customs and Border Protection to expand medical care.
Some of those migrants, either intentionally or accidentally, do not complete the asylum process or lose their cases, and live in the US as unauthorized immigrants. For many Trump officials, this is the heart of the crisis. Officials have spent the last year working on regulations and pushing Congress to expand family detention and reduce asylum protections.
Trump critics continue to insist that migration isn’t at crisis levels. To them, the more urgent issue is the administration’s treatment of families, children, and asylum seekers. They are urging the administration to allow more asylum seekers to present themselves at ports of entry legally. They are calling attention to the conditions in which migrants are being held in custody.
Asylum seekers cannot be barred from entry. The question is whether they should be treated as vulnerable migrants who the US is obligated to treat with kindness, or as deportable migrants until (if at all) they win legal status.
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It’s really a question of whether we honor our legal and international obligations by fairly processing refugees, or choose to dehumanize and further victimize them. The totally disingenuous performance by Administration officials testifying before Congress on Tuesday tells you all you really need to know. This Administration has shown a slavish devotion to failed policies, dumb gimmicks, and just downright cruelty in a vain attempt to stop people from fleeing danger zones. Not surprisingly, their “built to fail” policies, scofflaw behavior, and malicious incompetence has made things worse rather than better.
What if we had an honest Administration that admitted that this is a refugee flow that we had a significant role in creating? What if we used the existing law and legal mechanisms to take as many refugees as we could and worked with the UNHCR and the international community to help the others find viable resettlement alternatives? Wow, that would be making government work for the common good. something that’s just not in the “White Nationalist playbook.”
THE GIBSON REPORT – 12-03-18 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group – Learn About Trump’s Self-Created “Bogus Border Crisis!”
Vox: Before 2016, and in some cases as recently as six months ago, they would have had no problem and no delay. But for the last several months, the Trump administration has made a practice of limiting the number of asylum seekers allowed to enter the US each day — a policy it calls “metering.”
Politico: The new Mexican government of Andrés Manuel López Obrador will press the United States to invest least $20 billion in Central America and, reportedly, faster asylum processing in exchange for allowing migrants to remain in Mexico while they seek refugee status in the U.S.
Politico: A group of migrant women in the caravan announced Thursday that it would begin a hunger strike to protest the slow pace at which the women are being allowed to apply for asylum, as officials from the United States and Mexico are set to meet this weekend to negotiate a plan to process their claims.
Pew: The number of unauthorized immigrants in the U.S. fell to its lowest level in more than a decade, according to new Pew Research Center estimates based on 2016 government data. The decline is due almost entirely to a sharp decrease in the number of Mexicans entering the country without authorization.
Quartz: Mexican immigration authorities are even less prepared than the US to process them. The Mexican agency charged with helping refugees, COMAR by its Spanish acronym, only has four offices, and none near the border. Earlier this year, Mexico’s National Human Rights Commission warned of the “possible collapse” of the country’s refugee protection system as COMAR’s backlog grew to 60% of applications. It also identified “situations of risk of torture and abuse” in immigrant detention centers, which it found had no adequate living conditions or access to medical attention.
NBC: The federal agency’s threat came a day after the New Jersey attorney general announced new restrictions on local law enforcement cooperation with ICE.
Vera: The Vera Institute of Justice is excited to announce that we are expanding our Safety and Fairness for Everyone (SAFE) Network – currently a diverse group of a dozen cities and counties across America dedicated to providing publicly funded universal representation for people facing deportation.
WaPo: A key Senate committee postponed a vote Wednesday on President Trump’s pick to lead the main agency handling immigration enforcement as a coalition of unions raised “serious concern” about Ronald D. Vitiello’s ability to effectively oversee the agency.
CBS: The American Civil Liberties Union, which has filed more than 50 immigrants’ rights lawsuits against the Trump administration, recorded its most successful #GivingTuesday in years. That wasn’t just the case just for the ACLU. This year’s day for charitable giving was the biggest ever, raking in nearly $400 million in donations online in the U.S. alone, according to the 92nd Street Y.
Guardian: Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
In what appears to be a new development, Page 71 of the USCIS FY 2019 budget indicates that USCIS wants to transfer “$207.6 million in Immigration Examinations Fee Account (IEFA) fees to ICE to support immigration investigation and enforcement.”
WaPo: New York’s highest court boldly ruled Tuesday that deportation may be a more severe consequence than even a few months behind bars. The divided decision created a situation in which two individuals charged with the same low-level offense have vastly different trial rights — a noncitizen is entitled to a jury trial, while a U.S. citizen is not. [Note: This is obviously being appealed.]
WaPo: The lawsuit alleges that the Trump administration’s expanded definition of “public charges” has had a chilling effect on the city’s immigrant community, which Baltimore officials see as key to its revival. Legal immigrants have stopped using school programs, food subsidies, housing vouchers and health clinics for which they are eligible, the lawsuit says, hurting the city’s mission to welcome immigrants and creating long-term expenses as Baltimore deals with a sicker and less-educated community.
AP: Juarez’s lawyers said Mariee developed a respiratory illness while she and her mother were detained at the South Texas Family Residential Center in Dilley, Texas. They accused U.S. Immigration and Customs Enforcement of releasing the pair while Mariee was still sick.
Approved National Vetting Center Privacy, Civil Rights, and Civil Liberties Working Group Charter, established pursuant to National Security Presidential Memorandum-9, “Optimizing the Use of Federal Government Information in Support of the National Vetting Enterprise,” dated February 6, 2018. AILA Doc. No. 18112870
CBP Commissioner Kevin McAleenan conducted a call with media and released his opening remarks, “We will continue to monitor the situation closely. And while we seek to maintain lawful trade and travel to the maximum extent, we will be prepared to close San Ysidro again if….”AILA Doc. No. 18112762
DHS Secretary Nielsen issued a statement after CBP closed the San Ysidro port of entry on 11/25/18, stating “As I have continually stated, DHS will not tolerate this type of lawlessness and will not hesitate to shut down ports of entry for security and public safety reasons.” AILA Doc. No. 18112734
USCIS provided Q&As from a 11/15/18 teleconference on the continued expansion of the implementation process of the 6/28/18 NTA memorandum. AILA Doc. No. 18110836
I draw your attention to Elizabeth’s “Item 2” which is a lengthy, outstanding article by Dara Lind of Vox News on the fake, self-created “Trump Border Crisis.”
The only quibble I have with Dara’s article is the suggestion that there might be a need for more detention space. I say BS! Unquestionably, by working together with the UNHCR, the Mexican Government, and NGOs such as the ACLU, KIND, and the ABA, the DHS could find suitable placements for individuals waiting for credible fear interviews once they had passed a basic screening and background check.
Indeed, one of the key findings of a recent TRAC Report on Immigration Court Asylum Decisions is that 98.6% of asylum seekers appear in court for their decisions, win or lose! http://trac.syr.edu/immigration/reports/539/This stands in sharp contrast to the false claims by the Administration and its “bureaucratic mouthpieces” that asylum seekers “bolt” once they get into the country.
When given access to competent legal assistance and a chance to understand both the system and their obligations, almost all appear. Clearly, the Administration should be working with the private sector to get asylum seekers represented rather than undertaking cruel and overall futile and wasteful efforts to detain, deter, and punish them.
And how about some truthful narratives, rather than the bogus ones taken right out of the right-wing restrictionist playbook? Again, it’s past time for some Congressional oversight and accountability for the many falsehoods about immigration purveyed not only by the Trump politicos (like Sessions, Nielsen, Miller, et al.) but also by career officials who should know better. Indeed, in many cases, such as TPS and the Travel Ban, the Administration’s bogus narratives directly and demonstrably contradict the Government’s own information and recommendations by career officials with expertise in the areas. This shameful abuse of our civil service system and its expertise by biased, prejudiced, and unqualified politicos must stop.
And, as always, thanks Elizabeth for all you do for the New Due Process Army!
As many as 1,000 parents separated from their children are getting a second chance to stay in the US
In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.
A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.Mario Tama/Getty Images
The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.
The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.
If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.
And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.
The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.
If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.
Separating families made it much harder for parents to seek asylum
Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.
If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.
Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.
“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”
By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.
So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)
None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.
The government is agreeing to give reunited families the same chance they’d had if they’d never been separated
Here is what the agreement proposed by the government would actually do, if approved:
Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.
It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.
The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.
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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?
Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.
Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:
Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
to establish a viable overseas refugee screening program in the Northern Triangle;
working with other countries to share resettlement responsibilities;
and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.
Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).
Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.
Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.
Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!
Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?
The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.
DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.
Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.
And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.
So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.
A precedent for a solution
Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.
We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.
How our two-track asylum system works
To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.
A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.
Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.
That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.
Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”
For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).
Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)
In the 1990s the system was also overwhelmed. We brought it back under control.
Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.
That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.
Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.
Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.
Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.
But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).
To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).
Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.
These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.
Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.
The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.
With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.
A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.
Concrete steps to fix the problems
Undocumented immigrants released in El Paso, Texas pending an asylum hearing, June 24. All had been separated from their children.Joe Raedle/Getty Images
There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:
1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.
But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-outscheduling five months ago, and affirmative claims have already dropped by 30 percent.
This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.
This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.
2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.
Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.
In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)
Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.
The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.
Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.
Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.
To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.
3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.
A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.
The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.
But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.
Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.
But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.
US Vice-President Mike Pence (L) and Guatemalan President Jimmy Morales at a joint press conference in Guatemala City on June 28 — a stop on the vice president’s recent Central American trip. The asylum crisis was high on the agenda.Orlando Estrada/AFP/Getty Images
4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.
It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.
In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.
That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.
These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.
The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.
Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.
Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.
MY RESPONSE TO PROFESSOR DAVID A. MARTIN’S MOST RECENT ASYLUM PROPOSAL
By Paul Wickham Schmidt
As I tell my law students, my good friend Professor David A. Martin is undoubtedly one of the most brilliant legal minds of our era. I first met David in the Carter Administration when I was the Deputy General Counsel of the “Legacy INS,” and he was the Special Assistant to the Assistant Secretary of State for Humanitarian Affairs, Patt Derian. David, Alex Aleinikoff, who then was in the DOJ’s Office of Legal Counsel, the late Jack Perkins, who was then Legislative Counsel at the DOJ, the late Jerry Tinker, Legislative Assistant to Sen. Ted Kennedy, and I, along with many others, worked closely together on the development and passage of the Refugee Act of 1980.
David and I have remained friends and kept in close touch ever since. Later, during the Clinton Administration, David appeared before me in the famous Kasinga case when I was Chair of the BIA. He invited me to be a guest lecturer at his class at UVA Law on a number of occasions, and I used the textbook that he, Alex, and others authored for my Refugee Law and Policy Class at Georgetown Law.
David has been a “life saver,” particularly for refugee women. The position that he took for the INS in Kasinga helped me bring a near unanimous Board to protect women who faced the horror of female genital mutilation (“FGM”).
Later, the famous “Martin brief,” written while David was serving as the Deputy General Counsel of DHS in the Obama Administration, urged the recognition of domestic abuse as a form of gender-based persecution. It saved numerous lives of some of the most deserving asylum applicants ever. It also supported those of us in the Immigration Judiciary who had been granting such cases ever since the BIA’s atrociously wrong majority decision in Matter of R-A-was vacated by Attorney General Reno.
The “Martin brief,” of course was the forerunner of Matter of A-R-C-G-, recognizing domestic violence as a form of gender based- persecution. Sadly, as noted by many commentators, Attorney General Jeff Sessions has recently attacked refugee women by overruling Matter of A-R-C-G-and reinstating the long-discredited bogus reasoning of the R-A-majority!
With that bit of history in mind, Here are my reactions to David’s proposal for another “bureaucratic rescue” of the asylum system.
Don’t Blame The Victims.
With acknowledgement and credit to my good friend retired Judge Carol King, we need to stop blaming the refugees who are fleeing the human rights disaster in the Northern Triangle (that we helped cause). They are actually the victims. There is no “crisis” except the one caused by the cruel and incompetent policies of the Trump Administration directed at refugees compounded by the gross mismanagement of the U.S. Immigration Court system over the last three Administrations including, of course, this Administration.
Let Judges Run The Courts.
The idea that bureaucrats sitting in Washington and Falls Church, no matter how well-intentioned (and I’m not accusing anyone in the Trump Administration of being “well-intentioned”) can keep redesigning the Immigration Court System and manipulating dockets without any meaningful input from the judges actually hearing the cases is absurd. It’s a big part of the reason that the Immigration Court system is basically in free fall today. The key to running any good court system is to have judges in charge of the system and their own dockets. Judges should hire bureaucrats, when necessary, to work for the judges and help them, not the other way around. A court system run as a government agency, such as EOIR, is “designed to fail.” And, not surprisingly, it is failing.
Protection Not Rejection.
Refugee and asylum laws are there to protect individuals in harm’s way. But, you wouldn’t know it from most recent BIA asylum precedents and the disingenuously xenophobic and racist statements of this Administration. No, from the BIA and the bureaucrats one would think that the purpose of asylum law was to develop ever more creatively inane and nonsensical ways NOT to protect those in need – hyper-technical, often incomprehensible requirements for “particular social groups;” bogus “nexus” tests that ignore or pervert normal rules of causation; “adverse credibility” findings that are more like a game of “gotcha” than a legitimate evaluation of an applicant’s testimony in context; denial of representation; coercive use of detention; politicized “country reports” often designed to obscure the real problems; misuse of the in absentia process; hiring judges who have little or no understanding of asylum law from an applicant’s standpoint; intentionally unrealistic and overwhelming evidentiary standards; misapplications of the one-year deadline; cultural insensitivity, etc. That’s not the direction the Supreme Court was pointing us to when they set forth a generous interpretation of the “well-founded fear” standard for asylum in INS v. Cardoza-Fonseca back in 1987.
Gender-Based Claims Fit Squarely Within “Classic” Refugee Law.
No, claims based on domestic violence and/or resistance to gangs aren’t “non-traditional.” What might be “non-traditional” is for largely male-dominated bureaucracies, legislatures, courts, and law enforcement authorities to recognize the true situation of women. In fact, gender is clearly immutable/fundamental to identity, particularized, and socially distinct. Moreover, there is a clear political element to gender-based violence in patriarchal societies. And in countries like those of the Northern Triangle where gangs have infiltrated and intimidated the governments and in many areas are the “de facto” government, of course resistance to gangs is going to be viewed as a political statement with harsh consequences. As Sessions recently proved in Matter of A-B-and the Third Circuit confirmed in S.E.R.L. v. Att’y Gen., it takes pages and pages of legal gobbledygook and linguistic nonsense to avoid the obvious truths about gender-based violence and how it is, in fact, a “classic” form of persecution well within international protections.
Detention Isn’t The Answer.
Civil immigration detention is the problem, not the answer. How perverse is this: Under Sessions’s “zero tolerance” policy, hapless asylum applicants are “prosecuted” for “misdemeanor illegal entry.” The “criminal penalty?” One or two days in jail.
Then, they can apply for asylum as they are legally entitled to do under our laws. The civil penalty for exercising their legal rights? Potentially indefinite detention in substandard conditions that in many cases would be illegal if they were applied to convicted criminals.
I’ve been involved with immigration detention for most of my professional career, primarily from the Government side. I’ve witnessed first-hand its coercive, de-humanizing effect on those detained, mostly non-criminals.
But, that’s not all. Immigration detention also corrodes, corrupts, and diminishes the humanity of those officials who participate in and enable the process. It also is wasteful, expensive, and ineffective as deterrent (which it’s not supposed to be used for anyway). It diminishes us as a nation. It’s time to put an end to “civil” immigration detention in all but the most unusual cases.
No, I Don’t Have All the Answers.
But, I do know that it’s time for us as a country to begin living up to our national, international, and moral obligations to refugees and asylum seekers. We owe these fellow human beings a humane reception, a fair processing and adjudication system that complies completely with Due Process, a fair and generous application of our protection laws, and thoughtful and respectful treatment regardless of outcome. We haven’t even begun to exhaust our capacity for accepting refugees and asylees. Studies show that refugees are good for the United States and vice versa.
But, if we really don’t want many more here, then we had better get busy working with UNHCR and other countries that are signatories to the 1952 Refugee Convention to solve the problems driving refugee flows and to provide durable refuge in various safe locations. And, a great start would be to reprogram the huge amounts of money we now waste on purposeless, ineffective, and inhumane immigration enforcement, needless immigration detention, inappropriate prosecutions, scores of government lawyers defending these counterproductive policies, and more bureaucratic “silver bullet” schemes that won’t solve the problem. We could put that money to far better use assisting and resettling more refugees and developing constructive solutions to the problems that cause refugees in the first place.
It’s high time to put an end to “same old, same old,” repeating and doubling down on the proven failures of the past, and “go along to get along” bureaucracy and judging. We need a “brave new regime” (obviously the polar opposite of the present one) focused on the overall good and improvement of humanity, not promoting the biased and selfish interests of the few! And, who knows? We might find out that by working collectively and cooperatively and looking out for the common interests, we’ll also be improving our own prospects.
The Department of Justice, under Attorney General Jeff Sessions, is drafting a plan that would totally overhaul asylum policy in the United States.
Under the plan, people would be barred from getting asylum if they came into the US between ports of entry and were prosecuted for illegal entry. It would also add presumptions that would make it extremely difficult for Central Americans to qualify for asylum, and codify — in an even more restrictive form — an opinion written by Sessions in June that attempted to restrict asylum for victims of domestic and gang violence.
Vox has confirmed that the regulation is in the process of being evaluated, and has seen a copy of a draft of the regulation.
When the regulation is ready, it will be published in the Federal Register as a notice of proposed rulemaking, with 90 days for the public to comment before it’s enacted as a final regulation.
The version Vox saw may change before it’s finalized, or even before the proposal is published in the Federal Register. (The Department of Justice declined to comment.)
But as it exists now, the proposal is a sweeping and thorough revamp of asylum — tightening the screws throughout the asylum process.
One source familiar with the asylum process but not authorized to speak on the record described the proposed changes as “the most severe restrictions on asylum since at least 1965” — when the law that created the current legal immigration system was passed — and “possibly even further back.”
The Immigration and Nationality Act gives the attorney general, along with the Department of Homeland Security, discretion over asylum standards — saying that the government “may grant asylum” to an applicant who they determine meets the definition of a refugee. But the proposed regulation would make it nearly impossible for Central Americans, including families, to earn the government’s approval.
It would eliminate the path that thousands of Central Americans, including families, take every month to seek asylum in the US: entering between ports of entry and presenting themselves to Border Patrol agents. It would make it all but impossible for victims of domestic or gang violence to qualify for asylum — going even further than a June decision from Sessions that sought to limit asylum access for those groups. It would create a presumption against Central Americans who travel through Mexico on their way to the US.
Anyone convicted of entering the US illegally would become ineligible for asylum
What happens under current policy: Under the Trump administration’s “zero tolerance” initiative, all migrants who cross between ports of entry and are apprehended by Border Patrol are supposed to be criminally prosecuted for illegal entry.
That arrest can delay a person’s claim of asylum, but it doesn’t derail it. An asylum-seeker may not get their initial screening interview, which determines whether they’ll be allowed to file an asylum application and get a hearing, until after they’ve been prosecuted and convicted. And they definitely won’t get approved for asylum before their criminal conviction.
But the conviction for illegal entry doesn’t affect the asylum claim; as Customs and Border Protection puts it, the two are on “parallel tracks.”
What would happen under the new plan: The proposed regulation would bar anyone from getting asylum if they’d been convicted of illegal entry or illegal reentry. That means people who asked for asylum when they were apprehended at the border, but were prosecuted first, would get denied asylum.
In effect, under this new regulation, combined with the zero-tolerance prosecution initiative, no one would be able to come to the US and get asylum unless they presented themselves at a port of entry. Many asylum-seekers simply don’t have that option. Smugglers often prevent asylum-seekers from using official ports of entry, and many of those who do come to ports of entry are being forced to wait days or weeks, after being told there’s no room to process them right now. And asylum-seekers who come to ports of entry are often required to stay in immigration detention without bond until their case is complete.
The administration would almost certainly get sued over this provision if it ended up included in the finalized regulation. The Department of Justice (DOJ) has the power to bar people from getting asylum (or other forms of relief from deportation) if they’ve committed “particularly serious crimes.” While there’s no definition of seriousness in the law, lawyers and immigration advocates would likely challenge the idea that illegal entry, a misdemeanor, is “particularly serious.”
But even if that provision is struck down or eliminated by the courts, another proposal in the draft regulation could have much the same effect. It would instruct immigration judges to consider how the asylum-seeker got into the US, and treat it as a significant factor in whether or not to grant asylum (since asylum-seekers have to show they deserve “favorable discretion” from the judge). So even if people who crossed between ports of entry weren’t officially banned from getting asylum, they would have a very hard time winning their cases in practice.
If adopted, the regulation, combined with the zero tolerance initiative, would allow the administration to set up assembly-line justice for asylum seekers, including families, entering the US. People who entered between official ports would be held by the Department of Homeland Security, prosecuted for illegal entry, convicted, then have their asylum applications denied and get deported.
While the Trump administration is currently trying to win the power to detain families for more than 20 days, if this regulation were enacted, they might not even need to. They could deny most asylum claims and deport the claimants within that time.
Victims of domestic or gang violence would be all but banned from asylum
What happens under current policy: US law limits asylum to people who are persecuted because of their race, religion, political opinions, nationality, or membership in a particular social group.
The government has been wrestling for decades with that last classification — what exactly counts as a “particular social group”? — and with whether someone is “persecuted” if they’re victimized by someone other than the government. These questions are key to the fate of many of the Central Americans (including children and families) who have come to the US to seek asylum in recent years, many of whom are claiming asylum based on domestic violence or gang victimization in their home countries.
In June, with a sweeping ruling overturning a case from the Board of Immigration Appeals, Sessions attempted to narrow the circumstances in which someone fleeing domestic or gang violence could qualify for asylum in the US — saying that, generally, victims of domestic or gang violence wouldn’t be eligible for asylum based on their victimization.
As I reported last week, though, US Citizenship and Immigration Services (USCIS) has been cautious in implementing Sessions’s opinion. Most notably, while Sessions decreed that his ruling overturned any precedent that contradicted it, USCIS only told asylum officers to stop using the one precedent decision Sessions explicitly named as moot.
It looks like the DOJ may be trying to use regulation to accomplish the same goal — with even narrower definitions of “persecuted” and “particular social group.”
What would happen under the plan: The proposed regulation would add several restrictions to what could constitute a particular social group: a family, for example, wouldn’t be a social group unless the family had a visible national presence. Interpersonal violence or crime victimization, similarly, wouldn’t be the basis for social group membership unless they were happening on a national scale. Having been recruited by a gang would be explicitly prohibited as grounds for an asylum claim.
To qualify for asylum, an applicant would have to show that the people who persecuted her were also persecuting others on the same basis. Human-rights lawyers worry this could disqualify many legitimate asylum claims. One lawyer raises the example of a gay man in Russia who suffers a violent homophobic attack: Under the proposal, “this would not be persecution on account of sexual orientation unless you could prove that these attackers had previously persecuted other gay men.”
An asylum-seeker would be required to provide an exact definition of her “particular social group” when she was applying for asylum. And she wouldn’t be allowed to appeal a denial, or reopen a claim, on the basis of any group she hadn’t originally named.
It’s extremely difficult for anyone other than a trained immigration lawyer to know exactly what does and doesn’t count as a particular social group eligible for asylum. Under the proposed regulation, however, an asylum-seeker who didn’t know the precise nature of the basis for her persecution would be assumed to not really be a victim of persecution at all.
This standard wouldn’t just apply to final approvals or denials of asylum. The initial step for an asylee is what’s called a “credible fear” screening, during which an asylum officer decides whether the person has a credible fear of going back to their home country. The proposed rule would tighten standards for those, too.
Immigration lawyers and border advocates were already extremely concerned that Sessions’s May ruling would cause asylum officers to radically hike the standards for passing the screening interview (though the USCIS memo posted by Vox suggests that might not be the case just yet). If this regulation were finalized, however, it seems very possible that many people who are currently given the opportunity to apply for asylum would be turned away before they got the chance.
Central Americans would be penalized for not seeking asylum in Mexico
What happens under current policy: Many asylum seekers are Central Americans who come through Mexico to seek asylum in the US. The US is not allowed to simply turn them back and force them to seek asylum in Mexico instead. (The Trump administration is trying to get Mexico to sign a “safe third country” agreement that would allow them to do this, but Mexico appears unenthusiastic.) But the proposed regulation would make it a lot easier to deny their asylum claims based on not having sought asylum in Mexico first.
What would happen under the plan: Under the proposed rule, the government would generally withhold “favorable discretion” (and, therefore, deny the asylum claim) for anyone who had spent more than two weeks in another country en route to the US without seeking asylum there, or who had traveled through more than one country on the way to the US.
Many Central Americans, especially if they take the train through Mexico or travel on foot, take more than two weeks to travel through Mexico. And asylum-seekers from Honduras and El Salvador cross through Guatemala and Mexico to get to the US — meaning that they would almost certainly not earn the “favorable discretion” required to get their asylum claim approved.
Tightening the screws on the entire asylum process
The proposed regulation is extremely broad, with a lot more provisions — all of which would make it much harder for people to seek and get asylum. Some of the remaining ideas in the proposed draft include:
Limiting appeals for asylum-seekers who fail their screening interviews. Under current law, if an asylum-seeker fails her initial “credible fear” interview with an asylum officer, she can appeal for a judge to review her claim with fresh eyes — ignoring the fact that the asylum officer hadn’t found it a credible claim. Under the proposed regulation, judges would only be able to approve a credible-fear claim on appeal if there was clear evidence that the asylum officer had screwed up.
Rejecting incomplete applications first and letting them get completed later. Instead of returning incomplete asylum applications to the applicant and asking her to complete it, the government would reject the application. The applicant would still have 60 days to complete and resubmit the application before it was officially denied, but it’s not clear how applicants would be told about that — or whether they’d read beyond the word “rejected.”
Allowing judges to put evidence into the record on their own. The proposal would allow immigration judges considering asylum cases to unilaterally insert any information from credible sources into the record (as long as both the prosecutor and defense were informed). This provision would make it much easier for judges to insert information claiming that an asylum-seeker’s home country isn’t as dangerous for him as he claims — since asylum cases often hinge on whether there’s anywhere safe in the home country the asylum-seeker could live instead of the US.
Immigrants could be barred from asylum based on traffic offenses… In addition to the new prohibitions on asylum for immigration-specific crimes, the regulation would ban any applicant who’d been convicted of two or three misdemeanors (depending on what they were) from getting asylum.
This would have the biggest impact on unauthorized immigrants living in the US who get arrested and put in deportation proceedings, but ask for asylum to avert their deportation. (Under asylum law, someone can ask for asylum at any point within their first year of living in the US.)
In immigration policy, traffic offenses like driving without a license often don’t count as misdemeanors because in many states unauthorized immigrants aren’t allowed to get licenses. But the draft regulation makes clear that if driving without a license is a misdemeanor in the jurisdiction in question, it counts toward ineligibility.
…and blue states can’t fix eligibility by expunging immigrants’ records. Some Democratic state officials (most notably Gov. Jerry Brown in California) have started to use the pardon power to clear the criminal records of immigrants facing deportation. This regulation would do an end-run around that strategy.
Convictions that had been expunged or otherwise modified after the fact would still count as convictions if there was any evidence that the criminal record had been altered for immigration purposes. In other words, if Brown tried to expunge a record to make someone eligible for asylum, the fact that that’s why he did it would prevent it from stopping their deportation.
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WOW!
WHO WOULD HAVE THOUGHT THAT ADOLF HITLER WOULD LOSE WORLD WAR II, YET HAVE HIS DIRECT IDEOLOGICAL DESCENDANTS IN CONTROL OF THE UNITED STATES OF AMERICA 73 YEARS LATER?
Seems to me that we’re witnessing the end of the U.S. as a democratic republic and the beginning of a Nazi-style, White Nationalist, racist authoritarian regime that, with the help of a complacent Supreme Court led by a spineless Chief Justice and his group of GOP appointed sycophants, is basically tearing up our Constitution, spitting on it, and dismantling our democratic institutions before our eyes.
I do have to admit, however, that becoming a neo-Nazi, White Nationalist totalitarian state is likely to diminish our attractiveness as a destination for immigrants and anyone else: The “Stalin theory” of immigration control. And, I suppose that once the kids have been disposed of by returning them to death in the Northern Triangle, Trump & Sessions will use the cages to keep the rest of us in.
The New Due Process Army might be the last defender of our Constitution and human values!
Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case.
But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.
That could be very good news for parents separated from their children, who will have to face an asylum screening to be allowed to stay in the US in immigration detention after they are criminally charged and convicted under the Trump administration’s “zero tolerance” policy.
The memo obtained by Vox was written by John L. Lafferty, the head of the Asylum Division for US Citizenship and Immigration Services, on Wednesday, June 13, two days after Sessions’s ruling in Matter of A- B- was released. It’s labeled “Interim Guidance” for asylum officers — the people in charge of conducting interviews for asylum and “credible fear” screening interviews for migrants at the border that determine whether they’ll be allowed to stay in the US and pursue an asylum claim.
As the “Interim” label suggests, Lafferty’s memo makes it clear that USCIS will be issuing more directives to asylum officers as it continues to analyze Sessions’s ruling. But in the meantime, it doesn’t dictate sweeping changes to asylum standards.
Michael Bars, a spokesperson for USCIS, told Vox, “Asylum and credible fear claims have skyrocketed across the board in recent years largely because individuals know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country. This exacerbates delays and undermines those with legitimate claims. USCIS is carefully reviewing proposed changes to asylum and credible fear processing whereby every legal means is being considered to protect the integrity of our immigration system from fraudulent claims — the Attorney General’s decision will be implemented as soon as possible.”
But the initial implementation doesn’t appear to be quite as aggressive as that rhetoric implies.
“While the Attorney General made some very sweeping assertions in Matter of A-B-, including as to what he thinks would happen to the claims of different kinds of asylum seekers under this ruling, the legal holding of this case is considerably narrower,” said Anwen Hughes, a lawyer for the advocacy group Human Rights First, when sent the text of the memo. “This guidance focuses on what the AG’s decision actually held.”
Sessions’s ruling declared, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” That language isn’t replicated in the memo — which urges officers to deal with claims on a case-by-case basis.
The only specific change the memo mandates to asylum policy is for officers to stop citing a past Board of Immigration Appeals precedent, Matter of A-R-C-G-, which found that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group — allowing some domestic violence victims to claim asylum based on their persecution as members of that group.
But while A-R-C-G- was the only precedent Sessions explicitly overturned, his ruling also said that “any other” precedent from the Board of Immigration Appeals was also moot if it had defined “particular social group” more broadly than Sessions did last week.
The initial implementation memo from USCIS doesn’t mention any such rulings. It emphasizes that officers should make decisions based on two precedents Sessions held up as gooddecisions — both of which denied asylum claims based on gang violence — but doesn’t identify any decisions that are too broad under Sessions’s standards.
That means that for the moment, at least, asylum officers would be able to determine that a victim of domestic or gang violence still deserves asylum — or deserves to plead her asylum case — if there’s another precedent decision that they think fits the case.
The USCIS memo does emphasize that people seeking asylum based on gang violence or any other “private crime” need to demonstrate that the government in their home country “condoned the behavior or demonstrated a complete helplessness to protect the victim.”
Before Sessions’s ruling, immigrants could claim asylum if they were persecuted by a nonstate group and the government was “unable or unwilling” to prevent it. Technically, that’s still the standard. But Sessions’s formulation about condoning or “complete helplessness” could set the bar higher for what counts as unable or unwilling — especially because his ruling emphasized (in a passage quoted by the implementation memo) that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim.
This guidance could be very good news for parents separated from children
The implementation of Sessions’s asylum ruling has real and immediate impacts for asylum seekers — including the thousands of parents who have been separated from their children at the border and prosecuted in recent weeks.
After being prosecuted and sentenced (usually to “time served”), asylum seekers are returned to the custody of Immigration and Customs Enforcement (ICE) for deportation. They face “expedited” deportation, without a full immigration court hearing, unless they can demonstrate that they have a “credible fear” of persecution and should stay in the US to pursue an asylum claim.
At the moment, the overwhelming majority of people are passing their “credible fear” screenings. Sessions sees this as a sign of widespread fraud and lax standards, and his ruling last week was explicitly written to raise the bar not only for eventual approvals or denials of asylum, but for the initial screenings as well.
If Sessions’s ruling were being interpreted as broadly as possible by USCIS, many parents would likely find it impossible to pass their screening interviews, and would find themselves deported without their children and with little time to locate or contact them. But because USCIS appears to be relatively cautious in its implementation, parents in custody — at least for the moment — appear to have a better shot of staying in the US to pursue their asylum case and reunite with their children.
Of course, asylum claims and initial screenings are both partly up to the discretion of individual asylum officers. It’s totally possible that some asylum offices will interpret this memo as an instruction to get much harsher. But the memo doesn’t force them to do that, at least in its interim form.
The text of the memo obtained by Vox is below.
From: Lafferty, John L
Sent: Wednesday, June 13, 2018 5:20 PM
To: [redacted by Vox]
Subject: Asylum Division Interim Guidance – Matter of A- B-, 27I&N Dec. 316 (A.G. 2018)
Asylum Division colleagues:
I’m sure that most of you have heard and/or read about the decision issued by Attorney General Sessions on Monday in Matter of A- B-, 27I&N Dec. 316 (A.G. 2018).
Below is our Office of Chief Counsel’s summary of the AG’s decision, which is followed by Asylum’s summaries of two 2014 decisions – Matter of M-E-V-G and Matter of W-G-R- – that were cited by the AG in support of his decision. While we continue to work with our OCC colleagues on final guidance for the field, we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF/RF [credible fear/reasonable fear] screening determinations:
Matter of A-R-C-G- has been overruled and can no longer be cited to or relied upon as supporting your decision-making on an asylum case or in a CF/RF determination.
Effective upon issuance of this guidance, no affirmative grant of asylum or positive CF/RF screening determination should be signed off on by a supervisor as legally sufficient, or issued as a final decision/determination, that specifically cites to or relies upon Matter of A-R-C-G- as justification for the result. Instead, it should be returned to the author for reconsideration consistent with the next bullet.
All pending and future asylum decisions and CF/RF screening determinations finding that the individual has shown persecution or a well-founded fear of persecution on account of membership in a particular social group must require that the applicant meet the relevant standard by producing evidence that establishes ALL of the following:
A cognizable particular social group that is 1) composed of members who share a common immutable characteristic; 2) defined with particularity, and 3) socially distinct within the society in question;
Membership in that PSG;
That membership in the PSG was or is a central reason for the past and/or future persecution; and
The harm was and/or will be inflicted by the government or by non-governmental actors that the government is unable or unwilling to control.
When the harm is at the hands of a non-governmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. This new decision stresses that, in applying this standard, “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” A-B- at 337-338. (See RAIO Lesson Plan – Definition of Persecution and Eligibility Based on Past Persecution, Section 4.2 “Entity the Government Is Unable or Unwilling to Control”, for further guidance).
The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
Every asylum decision and CF/RF screening determination must consider and analyze whether internal relocation would be reasonable, as provided for at 8 CFR 208.
If you have questions on this interim guidance, please raise them up your local chain of command so that they can be brought to the attention of HQ Asylum QA Branch.
Sure, the BIA has worked hard to reject almost every gang-related formulation in the past. But, that’s often 1) without effective representation; 2) without the respondent presenting the necessary specific and voluminous evidence; and 3) by intentionally misconstruing facts — more or less along the lines of Sessions in A-B-.
Keep it simple:
“Women in El Salvador” actually fits well within the BIA’s three PSG criteria and is “at least one central for persecution” in many cases.
“Public opponents of gangs in X Country” also should be a pretty straightforward fit with a proper factual record and specific legal arguments. It also fits the “political” ground if the accurate factual basis is presented and documented effectively.
The reality is that gender is a major reason for persecution all over the world — one of the largest, in fact — and is well within the 1952 Convention’s ambit!Likewise, in countries where all real experts say gangs have infiltrated or in many cases are actually acting in concert with the Government, public opposition represents fundamental values that are limited to a readily identifiable segment of the population for which the punishment is immediate and severe. Likewise, it’s a rather clear case of political persecution, just like “whistleblowers” and “union activists.”
For years, the advocacy community has been willing to cooperate with the Government’s highly restrictive “incremental approach” to protection, because it was showing signs of real, if slow, progress and other viable alternatives such as “prosecutorial discretion” and “Special Immigrant Juvenile Status” were often available. Now, Sessions has intentionally reversed almost all of that progress and “returned us to the Dark Ages” as one expert put it.
So, no more “Mr. Nice Guy!” If it’s war that Sessions & Co. want, why not give it to them? Now is the time to simply “blow the roof off” of the Executive’s overly restrictive, unjustifiable, often disingenuous, confusing, contradictory, and clearly biased misinterpretation of what’s really happening in the Northern Triangle and elsewhere and how international protection laws must and should be applied if they are to have any meaning in the 21st century.
And, forget the bogus “floodgates” arguments. “Christians,” Jews,” “Muslims,” “Blacks,” “Pentecostals” are all potentially huge groups that have been recognized for asylum purposes.
Sure, maybe if forced to interpret the asylum and CAT laws properly Congress with withdraw from all of our international obligations so that nobody gets in. I doubt it. But if it happens, it happens.
At least it will then be out in the open that we are a “bogus” democracy that spreads false myths about our values, but won’t actually live up to them when the going gets tough (which, incidentally and not surprisingly, is also a symptom of “False Christianity”).
Then, maybe when folks figure out that “we aren’t who we say we are,” they will stop coming! Or, we could simply set up machine gun nests along the border and gun down all the unwanted women and children before they can become a burden on our “justice” system. In the end, the results of that might not be lots different from using our asylum and “court” systems as a “deterrent” to those fleeing for their lives. Just more honest about who we really are deep down, when it counts.
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