"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.
They arrive 24 hours a day in the Mexican border city of Reynosa, groups of men, women and children deported by the United States. Each time, at the edge of the international bridge, Ricardo Calderón Macias and his team get ready.
They put on masks and gloves. They prepare their thermometers and health forms. They wonder, sometimes aloud: Will anyone in this group test positive?
“We’re worried that eventually, with these deportations, we’re all going to get infected,” said Calderón, the regional director of the Tamaulipas state immigration institute.
Since the coronavirus struck the United States, immigration authorities have deported dozens of infected migrants, leaving governments and nonprofits across Mexico, Central America and the Caribbean struggling to respond.
[[Public health experts: Coronavirus could overwhelm the developing world]]
When some countries resisted continued deportations, U.S. officials said they would screen migrants slated for removal. But they did not commit to administering coronavirus tests. In many instances, the screenings, which consist primarily of taking a person’s temperature, have failed to detect cases. Even though overall deportations declined this month, the United States has returned thousands of people across the Western Hemisphere in April.
President Trump said late Monday he would “suspend immigration” to the United States. Even before that announcement, officials in the region were concerned about the deportations. Guatemala’s health minister spoke this month of the worrying number of infected deportees sent from the United States — the “Wuhan of the Americas,” he said.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
Mexicans just deported from the United States walk toward a repatriation building in Matamoros. (Veronica Cardenas/Reuters)
Mexico’s Tamaulipas state, across the Rio Grande from the southern tip of Texas, is receiving roughly 100 deportees per day, officials there say. In some cases, repatriation workers have noticed that deportees are visibly sick as they arrive. Those deportations are blamed for at least one new outbreak in a Mexican migrant shelter.
On Monday, the Mexican government asked the U.S. Department of Homeland Security to test deportees for the virus, but DHS has not committed to doing so, according to a Mexican official with knowledge of the conversations who spoke on the condition of anonymity to describe diplomatic talks.
In Guatemala, at least 50 deportees have tested positive, about 17 percent of the country’s total confirmed cases. Three-quarters of passengers on a deportation flight to Guatemala City last month were infected, according to the country’s Health Ministry. Guatemalan officials said last week they would suspend returns from the United States.
[[Coronavirus outbreaks at Mexico’s hospitals raise alarm, protests]]
In Haiti, the poorest country in the Western Hemisphere, three people sent back from the United States in early April have tested positive, officials said. The country has 62 ventilators for 11 million people. The Trump administration reportedly was planning another deportation flight to Haiti this week.
“Rather than be deported where they face serious harm if they fall ill and risk infecting thousands of others, they should be released from detention into the care of their friends and families so that they may safely quarantine,” a coalition of 164 human rights and religious organizations said in an open letter pleading for suspension of deportations.
Health workers carry supplies delivered by family members to a temporary shelter for Guatemalan citizens deported from the United States in Guatemala City. (Moises Castillo/AP)
In Mexico over the past week, two deportees tested positive for the virus. Calderón’s team spotted a deportee in Reynosa who was visibly ill, with a dry cough, red eyes and a fever. They wondered how the man, who arrived from Atlanta, had made it through U.S. health screenings.
A second man was deported to Nuevo Laredo from Houston “without knowing he was a carrier of the virus,” the Tamaulipas state government said in a statement, and was sent to a migrant shelter in the city.
That case apparently prompted an outbreak in the shelter, Casa del Migrante Nazareth; 14 others have since tested positive.
“The risk we face is bringing a massive contagion into our own country,” said Raúl Cardenas, the city manager of Nuevo Laredo. “We’re mortified that these deportations are continuing.”
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Read the rest of the article at the link.
Not only are Trump’s immigration diversions racist and inappropriate, they are dangerous and threaten unnecessarily to spread the pandemic. Unwilling and unable to address the real needs of the American people during the pandemic (see, e.g., tests, aid to states, speaking truth, encouraging compliance with “best practices”) Trump diverts our resources on controversial and counterproductive measures while diminishing our national humanity and surrendering our world leadership.
This November, Vote ‘Em Out. End The Deadly ☠️ Trump/GOP Clown Show 🤡!
There is a single, overarching reality that President Trump cannot make disappear: Due to his pathological unwillingness to take coronavirus seriously, Trump catastrophically squandered numerous early weeks that could have been used to develop a much more robust federal response, and right now we’re living through the horrible consequences.
Trump’s new suspension on immigration, which he “announced” on Twitter late last night, should be seen through this prism.
The new suspension has two rationales, according to Trump and White House officials: To continue combating coronavirus and to protect U.S. workers amid a crushing economic downturn.
It will do neither of those things in any meaningful sense — which means that it won’t have the impact that Trump himself says it’s designed to.
According to the New York Times, Trump will sign an executive order that temporarily bars “the provision of new green cards and work visas,” which means the administration will “no longer approve any applications from foreigners to live and work in the United States for an undetermined period of time.”
It’s hard to say how much of an impact this will have. As the Wall Street Journal points out:
Administration officials said the order wouldn’t make substantial changes to current U.S. policy. Even without an executive order, the administration has already all but ceased nearly every form of immigration. Most visa processing has been halted, meaning almost no one can apply for a visa to visit or move to the U.S. Visa interviews and citizenship ceremonies have been postponed and the refugee program paused.
Immigration analyst Sarah Pierce notes that a lot will turn on details, such as whether this suspension applies to foreign nationals already here and applying for green cards or trying to renew visas, or if it only applies to people outside the country who want to come here, which is effectively no longer possible already.
“If they want to make official what’s already in place, it would make a flashy statement while having minimal impact,” Pierce told me, adding that if they did apply it to people who are already here as well, it could be a lot worse.
President Trump on April 20 said he will issue an executive order temporarily suspending all immigration into the country. (Reuters)
We’ll see soon enough. But we can say right now that this isn’t a solution to the current problems we face on coronavirus, because those problems are rooted in the spread that already took place here. We are starting to bend the curve through social distancing — which Trump long resisted, and which he then tried to undo prematurely before backing off.
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Yup! You can read the rest of Greg’s article at the link.
Now, in a real democracy, with an independent judiciary, we’d expect immediate and forceful repudiation and perhaps sanctions against the Executive for this latest racist scam.
But, as I have pointed out many times, the “J.R. Five” on the Supremes has a never-ending appetite for putting the law, our Constitution, and simple human decency aside and blindly supporting, enabling, and encouraging the White Nationalist regime in its various immigration scams and shenanigans. They are all as transparently bogus as this one. Trump makes an off the wall political statement out of the White Nationalist playbook and the minions run around trying to engineer and fabricate a legal pretext. The lower Federal Courts often immediately see through the fraud; but, the Supremes step in to rescue the racist agenda, sweep it under the carpet, and in doing so “greenlight” the next extreme step.
Sadly, even regime change won’t be enough to immediately restore courage, integrity, and human decency to our failed highest court. But, it will be a start. Sometimes, “internal rebellion from below” can force change, or at least some integrity and accountability, back into a failing judicial system.
Due Process Forever! White Nationalist Scams Never!
April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonderthe “Chief Clown” needs to shift attention to “the usual suspects.”
Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.
Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.
Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.
Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.
Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.
The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.
According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.
While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.
WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.
House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”
“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.
Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.
Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”
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Read Rebecca’s full article at the link.
Due Process Forever. The White Nationalist Kakistocracy Never!
NEW YORK — Dr. P. has to be reminded to take breaks during her 12-hour emergency-room shifts — to drink water so she doesn’t get dehydrated; to go to the bathroom; even just to breathe for a few minutes alone, unencumbered by layers of sweaty, suffocating personal protective equipment.
It can be hard to remember to pause because there’s too much to do. Too many patients, everywhere, wheezing and gasping for air. Even before the ER was overwhelmed, she had been reluctant to step away. In mid-March, as patients were surging into emergency departments, she requested to cancel some scheduled time off.
“I asked to keep working, rather than just sit at home and do nothing,” she said. “It’s a helpless feeling sitting at home, knowing that things are getting worse at the hospital.”
But if the Supreme Court lets the Trump administration have its way, she might have to stop her lifesaving work, permanently.
[[Full coverage of the coronavirus pandemic]]
P. is a “dreamer,” one of the 825,000unauthorized immigrants brought to the United States as children who have received protection under the Deferred Action for Childhood Arrivals program. (I’m using only her last initial because she fears attracting attention to her family, which is still undocumented.)
DACA, created by the Obama administration in 2012, shields these young immigrants from deportation and allows them to work. An estimated 29,000 are health-care workers like P. and on the front lines of the coronavirus pandemic.
After the Trump administration announced in 2017 that it planned to terminate the program, one of the more prescient outcries came from the medical community. In a Supreme Court filing, a consortium of medical colleges and aligned groups warned that the industry depends heavily on not just immigrant workers but specifically on DACA recipients, and that ending DACA would weaken the country’s ability to respond to the next pandemic.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
For now, those who had DACA protections before the legal battles began are able to continue renewing them while the courts deliberate. For people such as P. — and the patients who rely on her care — this has been a godsend, if an imperfect one given her career choice.
The education and training required to become a doctor are an exceptionally long undertaking, and DACA offers only two years of protections before renewal is required (though it was never guaranteed). There was always a chance she might not be able to actually practice medicine after years of schooling and taking on hundreds of thousands of dollars in student debt.
Still, P. committed herself to finding a way to become a doctor. She applied for and received DACA status, completed college (in three years, to save money) and persuaded a highly ranked medical school to give its first-ever slot to a dreamer.
She’s in her first year of residency in emergency medicine. Each day, after she takes off her protective gear and attempts to wash off both “the virus and the fear,” she goes home and worries about whether she will be allowed to complete her residency. Losing DACA would mean losing her ability to repay her loans, treat desperate patients, even stay in the only country she has ever known. She’s been here since age 2.
She’s on edge, waiting for the Supreme Court to decide whether the way the Trump administration ended DACA was lawful. Tremendous uncertainty surrounds the range of possible outcomes, from no changes at all to every DACA recipient losing protections immediately. In oral arguments last fall, Chief Justice John G. Roberts Jr. suggested terminating DACA would result in dreamers losing their work authorization but that deportation was not at issue; Trump administration officials have since made clear they are, in fact, reopening removal proceedings.
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Read the forested of Catherine’s article at the link.
The lower Federal Courts unanimously did the right thing here by protecting the Dreamers from irrational Executive overreach based on an invidious racially-tainted White Nationalist agenda and a transparently bogus legal rationale. There was no reason for the Supremes to even take the case. Dismissing the Government’s poorly reasoned, bad faith case against the Dreamers should be a “no brainer” for the Supremes. The lower court decisions provide numerous solid reasons for doing so.
Nevertheless, to date, J.R. and his GOP colleagues have yet to find a White Nationalist immigration policy by the Trump regime that they didn’t “greenlight.” If, as expected, they do it again here, the results for both America and the Dreamers will be horrendous.
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
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Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
ENSHRINED IN law for four decades, the system that allows persecuted migrants to seek refuge in the United States has survived sustained assaults since the Trump administration took office. Now Mr. Trump, having weaponized a public health crisis to ignore long-established statutes, rules and procedures, has finally managed to crush it.
For the past three weeks, virtually every category of migrant without papers has been turned back at legal ports of entry along the southern border or expelled immediately upon apprehension by border agents; 10,000 have been thrown out so far in the crisis. They include minors who may have been trafficked and asylum seekers, individually or in families, who may face persecution in their home countries. Immigration courts are suspended, deportation procedures have been ditched, and due process is a thing of the past.
For years, President Trump has disparaged unauthorized migrants as disease carriers, with paltry evidence. Now he justifies the brutal measures, imposed March 21, by insisting that in the midst of a pandemic, migrants could ignite a “perfect storm” of contagion that would endanger border agents, the health-care system and the public. “Left unchecked,” he warned, they could even “cripple our immigration system” — the very immigration system he has tried by every means to dismantle since taking office.
[[Full coverage of the coronavirus pandemic]]
The evidence for that is, so far, scant; a hundred times more people have tested positive for the coronavirus in the United States than in Mexico, El Salvador, Honduras and Guatemala combined — the countries of the overwhelming majority of migrants at the southern border. That adds weight to the suspicion that Mr. Trump, contemptuous of what he calls “the worst immigration laws ever,” is obliterating them through the legally dubious means of a health emergency measure enacted in 1944.
It is reasonable in the face of this pandemic to exercise extreme caution in screening those who are admitted to the United States, and even barring most foreign travelers from Western Europe and China, some of the world’s most ravaged regions. It’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.
Mr. Trump had severely tightened asylum procedures before the pandemic but had not, and could not, expunge the possibility that migrants with reasonable asylum claims could apply and be heard in court. Respecting those asylum procedures, like respecting civil liberties, presents few challenges during prosperity and peacetime. It is more difficult, and requires political courage, when the country is reeling economically, and on what amounts to a war footing, as it is today.
Yet it is precisely in times of emergency that any country faces its most severe tests — ones that call into question the nation’s essential character and values. It shames itself when it fails to live up to those qualities and values, as the United States did when it forcibly imprisoned more than 100,000 Japanese Americans in internment camps during World War II. That is what Mr. Trump is doing now by betraying this country’s long tradition as a beacon to those fleeing oppression.
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Four decades of progress, uneven and imperfect as it was, in implementing the Refugee Act of 1980 undone in less than four years. Notably, Trump obliterated the Act without Congressional participation. Also, he took advantage of the Supremes failure to force the Executive to comply with the letter and spirit of its landmark 1987 decision in INS v. Cardoza-Fonseca establishing a generous, humanitarian reading of the “well-founded fear” standard for asylum seekers under the Refugee Act of 1980. When the Executive can simply eliminate laws he doesn’t like without Congress and without effective resistance from the Supremes, democracy is definitely on the ropes.
The “mainstream media” is finally picking up on what the “New Due Process Army” and Courtside have been saying for the better part of three years. And, the dissolution of American democracy started with the assault on immigration and refugee laws. But, it won’t end there unless we vote the regime out in November and start rebuilding an America that honors Due Process, the rule of law,competency, and the dignity and rights of all humans.
Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!
They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.
In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.
This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.
Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.
The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.
That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.
Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.
“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.
On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.
Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.
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Read the rest of Julia’s report at the link.
The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.
First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.
Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.
Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.
Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.
Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.
The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.
Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.
Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.
All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.
And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”
Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”
No case in the Supreme Court’s current docket has higher stakes for human life in the era of COVID-19 than its upcoming ruling on the fate of so-called Dreamers—young undocumented immigrants brought to the United States as children through no fault of their own, and who remain shielded from deportation thanks to a program President Barack Obama instituted in 2014.
A highly unusual letter made its way to the justices late last month, after the case had already been briefed, argued, and for which a decision is already in the works. Lawyers for a group of beneficiaries of the Deferred Action for Childhood Arrivals program, known colloquially as DACA, wrote to the justices to warn about the dire consequences that a ruling in favor of Trump would have on the roughly 27,000 health care workers who happen to be DACA recipients. Among them are doctors, nurses, paramedics, and others on the front lines of combating the rapid spread of COVID-19 across the country. “Termination of DACA during this national emergency would be catastrophic,” the lawyers wrote.
The letter wasn’t just an appeal to the justices’ humanity and sense of fairness—after all, like the rest of us, they themselves have had to cancel public hearings, practice social distancing, and adjust to telework. But the filing also brought to bear a legal requirement the Trump administration had to weigh, but didn’t, when the Department of Homeland Security first announced the wind-down of DACA: the multitude of “reliance interests” that the government had created when it instituted the program—not just for recipients who have built their livelihoods around it, but the scores of local governments, businesses, and institutions that rely on so-called Dreamers for their own day-to-day functioning. “The public health crisis now confronting our nation illuminates the depth of those interests as borne by employers, civil society, state, and local governments, and communities across the country, and especially by health care providers,” the lawyers wrote in their letter, which also listed examples of health care workers who would be at risk of losing it all if the Supreme Court somehow agreed with the arguments the Trump administration has made in its years-long bid to terminate DACA.
A pair of recent analyses by the Center for Migration Studies and the Center for American Progress broadened the lens and found that the number of DACA recipients who qualify as essential workers during the pandemic could reach hundreds of thousands, as many of them also work in the health industry as food preparers, custodians, or in administrative roles, or otherwise in the fields of education, manufacturing, transportation, food retail, or the hard-hit restaurant industry. Some of these health care professionals, like others in the trenches, have begun to speak up. “I am treating people suspected of having COVID-19, and all I’m asking is to stay in this country and provide that care,” Veronica Velasquez, a 27-year-old physical therapist at a Los Angeles community hospital, told USA Today. “We’re definitely helping them stay alive.” Speaking to the New York Times in the middle of his shift, Aldo Martinez, a 26-year-old paramedic in Florida who was brought to the U.S. when he was 12, seemed to make a direct appeal to the justices. “It’s imperative that the Supreme Court take account of conditions that did not exist back in November,” he said. “It seems nonsensical to invite even more chaos into an already chaotic time.”
The pandemic was unforeseen at the time the justices considered the DACA dispute in November and could well change the calculus for how the Supreme Court ultimately rules in the case. But the issue of “reliance,” which federal agencies promulgating or rolling back policy are required to consider under administrative law, is not new to the case. The words reliance or reliance interests came up dozens of times at the oral argument in November, with some justices appearing rightly concerned that the Trump administration did not engage in the due diligence federal law demands when rescinding a policy on which people’s lives, the economy, and other third parties depend. At the hearing, Justice Stephen Breyer articulated what the law expects in these circumstances. “When an agency’s prior policy has engendered serious reliance interests,” Justice Breyer said, quoting from a decade-old opinion by the late conservative stalwart Justice Antonin Scalia, “it must be taken into account.” Justice Scalia added in his original 2009 opinion “that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” In other words, explain to the public why the current reality doesn’t affect your thinking for what you’re trying to do.
But when one reads the 2017 memorandum that rescinded DACA, or a later one that purported to better explain the termination, there’s no indication anywhere that the Trump administration took into account the human, economic, and social costs of leaving so many people—many of them with jobs, small businesses, American families, and ties to the community—unprotected. Later reporting by the New York Times revealed that a key actor in the deliberations to end DACA, then Acting Homeland Security Secretary Elaine Duke, was herself deeply conflicted with signing her name to the anti-immigrant rationales that the White House, Stephen Miller, and then Attorney General Jeff Sessions advanced for rolling back the program—none of whom, it would seem, took into consideration the myriad harms that would flow from that decision.
Courts in California, New York, and Washington, D.C., took notice of these self-inflicted flaws and allowed DACA to remain in the books. “As a practical matter,” wrote a Brooklyn federal judge in early 2018, “it is obvious that hundreds of thousands of DACA recipients and those close to them planned their lives around the program.” United States District Judge John Bates, an appointee of President George W. Bush, wrote in an opinion leaving DACA in place that the Trump administration showed “no true cognizance of the serious reliance interests at issue here”—and worse, that “it does not even identify what those interests are.”
The Trump administration’s evident failure to own up to the human cost of its policy choices and to spell them out clearly has now given the Supreme Court an opportunity to fix the mess. But as Joe Biden suggested in a statement shortly after the DACA letter was filed, the justices cannot just close their eyes to a reality that was not before them when they first took up the case: a pandemic that has touched every single one of us—and that has fallen hardest on those providing needed medical care. “If the Supreme Court upholds President Trump’s termination of DACA in the midst of a national public health emergency, it will leave a gaping hole in our health care system that is liable to cost American lives,” Biden said.
At the very least, the justices could discard the bare-bones justifications offered by the Trump administration for doing away with DACA and make him and his administration show their work. In the letter filed with the Supreme Court at the end of March, the lawyers suggest a sort of middle ground: a new round of legal arguments in writing addressing “whether remand to the agency for reconsideration of its decision to terminate DACA is appropriate in light of the extraordinary public health emergency.” In an interview, Muneer Ahmad, a Yale law professor who is a signatory to the letter, suggested that New York, where his clients reside, is a kind of ground zero that would be instructive for the justices. “New York is both an epicenter for Dreamers and DACA recipients and an epicenter of the pandemic,” he told me.
Trump may not want to take full responsibility for the federal response to the coronavirus. But the DACA controversy, at its very core, is about political accountability—about how the law requires the president and his government to take ownership of their policy choices, even those that harm others. During the hearing to consider DACA’s fate, Justice Sonia Sotomayor alluded to the realpolitik dimensions of ending the program when she asked Noel Francisco, Trump’s chief Supreme Court lawyer, to articulate the administration’s rationale for trying to end the program. “Where is the political decision made clearly?” she asked. “That this is not about the law; this is about our choice to destroy lives.”
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Read Cristian’s full article at the above link.
And, Cristian is by no means the only one joining me in “calling out” the J.R. Five for their betrayal of America in favor of an anti-democratic, far right political agenda, groveling before a President who has flouted his racism and open disdain for the law and courts who won’t do his bidding.
Linda Greenhouse Contributing Opinion Writer NY Times
Linda Greenhouse in The NY Times flays the “J.R. Five’s” pathetic handling of the recent Wisconsin case that highlighted the GOP’s aggressive program of voter suppression.
Here’s an excerpt from Linda’s analysis of the Supreme mockery of justice in the recent Wisconsin voter case, RNC v. DNC:
In more than four decades of studying and writing about the Supreme Court, I’ve seen a lot (and yes, I’m thinking of Bush v. Gore). But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Let’s think about that. “Ordinarily not alter”?
There are quite a few things that should not ordinarily be happening these days. People shouldn’t ordinarily be afraid of catching a deadly virus when exercising their right to vote. Half the poll-worker shifts in the city of Madison are not ordinarily vacant, abandoned by a work force composed mostly of people at high risk because of their age.
Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open. (Some poll workers who did show up on Tuesday wore hazmat suits. Many voters, forced to stand in line for hours, wore masks.) And the number of requests for absentee ballots in Milwaukee doesn’t ordinarily grow by a factor of 10, leading to a huge backlog for processing and mailing.
I wonder how Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh understand the word “ordinarily.” And I wonder why the opinion was issued per curiam — “by the court.” Did none of the five have the nerve to take ownership by signing his name?
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Read Linda’s full article at the link.
When a case pits the Republican National Committee against the Democratic National Committee do you really have to wonder who’s going to win with the “J.R. Five” in the driver’s seat at the Supremes?
I’ve been warning for some time about the institutional failure of the Article III Courts led by the disgraceful example of Roberts who is afraid to stand up to Trump when it counts. Interesting that in this and other areas, the “professional commentators” are picking up on and reinforcing things I have been saying on Courtside for a long time. And, much of the shabby performance of America’s life tenured judiciary begins with failing to stand up to Trump’s racist assault on migrants and his unconstitutional dismantling of justice in our overtly biased Immigration Courts.
Justice Sotomayor said it very clearly at oral argument in the DACA case:“That this is not about the law; this is about our choice to destroy lives.” The same can be said about much of the J.R. Five’s one-sided immigration jurisprudence in the “Age of Trump.”
David Hernandez Associate Professor for Latino Studies Mount Holyoke College
David Hernandez for The Fulcrum analyzes how President Trump is circumventing Congress on immigration law and policy:
“The Trump administration’s power grab during the new coronavirus pandemic is well underway.
But even before the Covid-19 outbreak, President Trump was out-maneuvering the principal obligations of Congress — funding and providing oversight of the executive branch, and setting policy through legislation — by deploying executive orders, rule changes, fee schedules and international agreements to minimize the power of the legislative branch during his presidency.”
Click the link above for a detailed analysis.
KJ
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Yup. But, readers of “Courtside” already know this.
The LA Times Editorial Board expounded on the same theme today:
The pandemic as pretext
The Trump administration is using COVID-19 as an excuse to advance several controversial initiatives.
The Trump administration has carried out nearly 10,000 summary deportations or “expulsions” since March 21, using emergency public health measures that have given U.S. Customs and Border Protection broad authority to bypass immigration laws, CBP officials said Thursday.
The measures have allowed the agency to quickly turn away most unauthorized migrants —sending them back across the Mexican border. The moves have dramatically slashed the number of detainees held in border stations, where they fear the coronavirus could spread, the officials said. CBP currently has fewer than 100 detainees in custody, down from nearly 20,000 at this time last year during last year’s border crisis, officials said.
[[Under coronavirus immigration measures, U.S. is expelling border-crossers to Mexico in an average of 96 minutes]]
Since the implementation of the rapid expulsions, unlawful border crossings have dropped 56 percent, said acting CBP commissioner Mark Morgan. Morgan also acknowledged that the United States has all but closed its borders to asylum seekers who are fleeing persecution, including those who attempt to enter legally at U.S. ports of entry.
“Those who are undocumented or don’t have documents or authorization are turned away,” Morgan said.
Democratic lawmakers have accused the administration of defying U.S. laws and exceeding the authority of the coronavirus public health order, but Morgan defended the emergency measures as a necessary step to stop the spread of the disease.
“This is not about immigration,” Morgan said. “This is about public health. This is about putting forth aggressive mitigation and containment strategies.”
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
CBP said the number of migrants detained at the border fell to 33,937 in March, down 7 percent from February. Single adults from Mexico accounted for 70 percent to 75 percent of those taken into custody, and most of the remainder were from Central America’s Northern Triangle countries: Guatemala, El Salvador and Honduras.
The Mexican government has agreed to accept the rapid return of migrants from those nations at the border under an agreement reached with the Trump administration last month.
The recent expulsions include children who would otherwise be protected from rapid removal by U.S. anti-trafficking laws. Since the emergency order took effect, the United States has expelled nearly 400 underage migrants, according to the most recent tally by the Reuters news agency. The minors were released into Mexico or boarded onto planes and flown back to Central America without being transferred to the care of the U.S. Department of Health and Human Services.
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Read the rest of Nick’s article at the link.
It’s going to take more than a letter from Sen. Pat Leahy (D-VT) and other Dems to restore the Constitution and the rule of law. Indeed, with the help of J.R. and his Trumpist GOP majority on the Supremes, I would expect that asylum laws, like voting rights, Due Process, and other individual rights will remain a “dead letter” until we get both 1) regime change; and 2) reform in the appointment of Article III Judges.
There is little, if any, data right now to support the view that asylum seekers at the Southern Border have been a significant source for the initial spread of coronavirus in the U.S.; however, their arbitrary removal to other countries might have helped the worldwide spread of the disease.
Moreover, as COVID-19 spreads into the Gulag and the Immigration Courts from the rest of America, infections in those locations could help spread the virus, given the lawyers, Government employees, and contractors exposed at those dangerous locations. Nor were Asian Americans responsible.
We do, however, have some data to show that U.S. citizens and other travelers returning from Europe were inadvertently a source of the virus’s spread in New York, and that Trump’s ineptness and failure to heed early warnings contributed to the spread.
But, science and truth seldom have any meaning for Trump and his toadies. And, we also know that while Trump often falsely claims “victories” that are either fabricated or largely someone’s else’s, he never takes responsibility for his own many mistakes and shortcomings.
Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal). The full article can be downloaded here.
Abstract:
In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.
Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.
Professor Hing’s article echoes one of the themes of some of my speeches and comments, although, of course, he approaches it in a much more scholarly and systematic manner.
Check out my speech here:
“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
As most of the country remains in lockdown to curb the spread of coronavirus, nearly 150 immigrants are fearing for their safety as they fight for their release from a North Dartmouth, Massachusetts, detention facility.
From the few hours of television news they can watch each day, the detainees have learned that social distancing, along with proper sanitation, is the only way that they can protect themselves from infection. But that’s all but impossible at the Bristol County Correctional Center, where the detainees are held together in tight quarters without the protective equipment or sanitation resources necessary to protect themselves, they argue in a class action lawsuit.
They are among the 38,000 immigrants in detention across more than 130 private and state-run detention facilities nationwide. As of April 7, 19 detainees across 11 different facilities had tested positive for the virus — none of them in Bristol, though advocates say it’s only a matter of time before it hits or testing rates improve.
Only after outcry from immigrant advocates did US Immigration and Customs Enforcement recently institute national policies encouraging social distancing in its facilities and provide soap, hand sanitizer, cleaning supplies, and personal protective equipment. The agency also announced Tuesday that it would start releasing detainees who are medically vulnerable to Covid-19, the disease caused by the coronavirus; it has released 60 so far and has identified another 600 who would qualify.
But that’s only a fraction of the detainees nationwide. Unless the agency starts releasing detainees by the thousands, that means most will remain in confinement, despite the fact that they largely have no criminal history. There is, therefore, a national advocacy push for the administration to alter its enforcement priorities to release all detainees, or at least those who haven’t committed serious crimes; while immigrant advocates campaign for their release even in the best of times, their message has become even more urgent amid the outbreak.
In the meantime, those at Bristol remain in conditions that they fear could facilitate the spread of the virus, which can be carried by those who don’t exhibit symptoms.
For the more than 30 detainees with underlying medical conditions that make them vulnerable to complications from Covid-19, it’s an especially scary situation. So far, only 18 detainees have been ordered released as part of the lawsuit, and not all of them qualify as high-risk.
“We suffer from being separated from our families and loved ones,” 47 detainees wrote in a March 20 declaration. “To add on top of this, we are now living in fear.”
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Read the rest of Nicole’s article at the link.
Sheriff Thomas Hodgson claims that there isn’t an adequate“social safety net” for these detainees in the community. But, have he and DHS worked with the advocates seeking release and the community to see what testing and safe placements might actually be available? He has responsibility for the well-being of those in his custody. But, it doesn’t sound like he has anything approaching a rational plan to carry out his legal obligations.
Nearly 400 migrant children intercepted at the U.S.-Mexico border have been deported in the past two weeks under new border restrictions.
WASHINGTON/NEW YORK (Reuters) ― U.S. immigration officials have rapidly deported nearly 400 migrant children intercepted at the U.S.-Mexico border in the past two weeks under new rules billed as seeking to limit the spread of the novel coronavirus in the United States, according to government data seen by Reuters.
President Donald Trump’s administration implemented new border rules on March 21 that scrapped decades-long practices under laws meant to protect children from human trafficking and offer them a chance to seek asylum in a U.S. immigration court. Under the new rules, U.S. officials can quickly remove people without standard immigration proceedings.
Overall, U.S. border officials have expelled nearly 7,000 migrants to Mexico since the new procedures took effect, according to the data and a Mexican government official, who spoke on condition of anonymity. Of those, 377 were minors, the data showed.
The overall number of 7,000 was first published by ProPublica, but the figure for children deported has not previously been reported.
Around 120 of the minors, who arrived at the U.S.-Mexico border without a parent or legal guardian, were quickly sent on planes back to Guatemala, Honduras and El Salvador, according to data from March 27 to April 2. It was not clear whether the remainder of the children intercepted at the border were pushed back to Mexico or returned to their home countries during the preceding week.
U.S. Customs and Border Protection (CBP) declined to comment. The agency in the past has said that all people caught crossing illegally, including minors, could be subjected to the new restrictions, which aim to cut the time migrants arrested at the border are held in U.S. custody.
Before the pandemic of COVID-19, the potentially lethal respiratory disease caused by the novel coronavirus, unaccompanied minors caught at the border were placed in shelters run by the U.S. Department of Health and Human Services (HHS).
Children traveling with adults other than parents or legal guardians would also be classified as “unaccompanied” and put into HHS care, even if the adults they were traveling with were family members. Under the new rules, however, they are now called “single minors” and can be sent back to Mexico, according to a CBP official.
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Read the full story at the link.
Basically, Trump has repealed U.S. asylum and protection laws by unilateral action, with almost no “pushback” from Congress or the courts.
President Donald Trump removed the inspector general set to probe corruption and provide oversight of the government’s massive response to the economic downturn caused by the coronavirus pandemic on Tuesday, the last sign of his disdain for any oversight of his administration.
The $2 trillion coronavirus response law, passed last month, set up a panel of 10 inspectors general to serve as watchdogs as the government tries to limit fraud, wrongdoing and mismanagement. That panel, dubbed the Pandemic Response Accountability Committee, selected Fine — who was the acting Pentagon inspector general and is a former Justice Department inspector general — to lead them.
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Read the full article at the link.
Trump got the GOP’s message loud and clear: Destroy away, we will never hold you accountable for any abuse!
Vote Like Your Life Depends On It this November! Because It Does!
In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.
The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.
What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.
In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.
How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.
As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.
The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6
The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.
Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.
Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.
In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.
Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.
My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.
So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.
The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?
As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.
Notes:
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.
24 I&N Dec. 37 (BIA 2006).
Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
27 I&N Dec. 803 (BIA 2020).
Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.
Matter of Guerra, supra at 40.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!
By Paul Wickham Schmidt
“Courtside” Exclusive
April 6, 2020
Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.
Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.
A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”
Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.
And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequentwillingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!
If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?
Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.
Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent inR-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.
Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.
And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.
That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”
Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA“sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.
Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”
The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.
Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.
