Executive Order – Page 57 – immigrationcourtside.com

YOUR TAX DOLLARS AT WORK: Trump, DHS Promise, “Reign Of Terror” Directed At Families In Ethnic Communities — “Orphaning” U.S. Citizen Children And/Or Feeding Them & Other Vulnerable Kids To MS-13 & Other Gangs As “Fresh Meat” America’s New Objectives! — But, The Law & Reality Could Be Problems For Trump & His Sycophants @ ICE!

https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removals-of-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb-74e6b2b46f6a_story.html

Nick Miroff & Maria Sacchetti report in WashPost:

President Trump said in a tweet Monday night that U.S. immigration agents are planning to make mass arrests starting “next week,” an apparent reference to a plan in preparation for months that aims to round up thousands of migrant parents and children in a blitz operation across major U.S. cities.

“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” Trump wrote, referring to U.S. Immigration and Customs Enforcement. “They will be removed as fast as they come in.”

Large-scale ICE enforcement operations are typically kept secret to avoid tipping off targets. In 2018, Trump and other senior officials threatened the mayor of Oakland, Calif., with criminal prosecution for alerting city residents that immigration raids were in the works.

Trump and his senior immigration adviser, Stephen Miller, have been prodding Homeland Security officials to arrest and remove thousands of family members whose deportation orders were expedited by the Justice Department this year as part of a plan known as the “rocket docket.”

In April, acting ICE director Ronald Vitiello and Homeland Security Secretary Kirstjen Nielsen were ousted after they hesitated to go forward with the plan, expressing concerns about its preparation, effectiveness and the risk of public outrage from images of migrant children being taken into custody or separated from their families.

Vitiello was replaced at ICE by former FBI and Border Patrol official Mark Morgan, who had impressed the president with statements on cable television in favor of harsh immigration enforcement measures.In his first two weeks on the job at ICE, Morgan has said publicly that he plans to beef up interior enforcement and go after families with deportation orders, insisting that the rulings must be carried out to uphold the integrity of the country’s legal system.

“Our next challenge is going to be interior enforcement,” Morgan told reporters June 4 in Washington. “We will be going after individuals who have gone through due process and who have received final orders of deportation.

“That will include families,” he said, adding that ICE agents will treat the parents and children they arrest “with compassion and humanity.”

[New ICE chief says agency plans to target more families for deportation]

U.S. officials with knowledge of the preparations have said in recent days that the operation was not imminent, and ICE officials said late Monday night that they were not aware that the president planned to divulge their enforcement plans on Twitter.

Executing a large-scale operation of the type under discussion requires hundreds — and perhaps thousands — of U.S. agents and supporting law enforcement personnel, as well as weeks of intelligence gathering and planning to verify addresses and locations of individuals targeted for arrest.

The president’s claim that ICE would be deporting “millions” also was at odds with the reality of the agency’s staffing and budgetary challenges. ICE arrests in the U.S. interior have been declining in recent months because so many agents are busy managing the record surge of migrant families across the southern border with Mexico.

The family arrest plan has been considered even more sensitive than a typical operation because children are involved, and Homeland Security officials retain significant concerns that families will be inadvertently separated by the operation, especially because parents in some households have deportation orders but their children — some of whom are U.S. citizens — might not. Should adults be arrested without their children because they are at school, day care, summer camp or a friend’s house, it is possible parents could be deported while their children are left behind.

[Before Trump’s purge at DHS, top officials challenged plan for mass family arrests]

Supporters of the plan, including Miller, Morgan and ICE Deputy Director Matthew Albence, have argued forcefully that a dramatic and highly publicized operation of this type will send a message to families that are in defiance of deportation orders and could act as a deterrent.

In this file photo from 2015, a man is detained by Immigration and Customs Enforcement agents in Los Angeles. New raids could target a large number of immigrants in major cities. (John Moore/Getty Images)

According to Homeland Security officials, nearly all unauthorized migrants who came to the United States in 2017 in family groups remain present in the country. Some of those families are awaiting adjudication of asylum claims, but administration officials say a growing number are skipping out on court hearings while hoping to live and work in the United States as long as possible.

Publicizing a future law enforcement operation is unheard of at ICE. Trump administration officials blasted Oakland Mayor Libby Schaaf last year for warning immigrants about an impending raid, saying she endangered agents’ safety.

“The Oakland mayor’s decision to publicize her suspicions about ICE operations further increased that risk for my officers and alerted criminal aliens — making clear that this reckless decision was based on her political agenda with the very federal laws that ICE is sworn to uphold,” then-ICE Deputy Director Thomas D. Homan said at the time.

Homan later retired, but last week Trump said Homan would return to public service as his “border czar.” On Fox News, Homan later called that announcement “kind of premature” and said he had not decided whether to accept the job.

Schaaf responded late Monday to the president’s tweet teasing the looming ICE roundups.

“If you continue to threaten, target and terrorize families in my community . . . and if we receive credible information . . . you already know what our values are in Oakland — and we will unapologetically stand up for those values,” she wrote.

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The pain, terror, racism, and disregard for human rights is real. But, the ability to summarily remove the “millions” of our fellow humans Trump claims as his objective might be limited by both reality (lack of resources) and the law.

Many of those with so-called “final orders” were tried “in absentia.” Many of those never received legal notice of their hearings. (All reputable studies show that asylum applicants who actually understand the system, have fair access to pro bono lawyers, and receive legally sufficient hearing notices appear at rates close to 100% of the time, even if they lose their cases).

If that is the case, and they can get lawyers, they can file a “motion to reopen” for lack of legal notice and receive a statutory stay of removal while both the Immigration Judge, and if denied, the Board of Immigration Appeals rule on the motion. And, the Immigration Courts are totally screwed up and backlogged due to Trump’s and the DOJ’s “malicious incompetence.” So, good luck with that.

Large numbers of deportees would also further destabilize the already “failed states” of the Northern Triangle thus insuring a continuing outward flow. Indeed, some of those deported might well “head north” again — only this time they won’t be dumb enough to entrust themselves to the U.S. legal system.

They will just disappear into the interior where their chances of being found again are probably less than their chances of being harmed in the Northern Triangle. No amount of authoritarian militarization of our internal police force is going to locate and remove 10-11 million people, most of them residing quietly and productively in our communities throughout America.

But, Trump has never been about results. (Nor has DHS for that matter). He’s all about White Nationalist hatred, racism, and appealing to a “base” that long ago abandoned the rest of America (the majority of us) and human values.

And let’s not forget the responsibility of Congress and the Article III Courts who for years have mostly overlooked the glaring Constitutional defects and clear incompetence and bias evident in the Immigration Court system as administered by the Department of Justice. It has taken the Article IIIs’ complicity in a legally defective system to produce these so-called “final orders” in the first place.

Every dead kid, broken family, and new forced gang recruit should be on their collective consciences. And, the primary result of the “New Reign of Terror” will undoubtedly be fear of cooperating with local police in solving crimes, thus making ethnic Americans “perfect victims” who have been abandoned by those who are failing in their legal duties to insure “equal justice for all.”

2020 might be our last chance to save our country and humanity. Don’t blow it! Who knows, the life you save might be your own!

PWS

06-18-19

JUSTICE BY OMAR THE TENTMAKER: Already A Circus, Trump & Barr Plan To Turn What’s Left Of America’s Immigration Courts Into A Traveling Tent Show!

https://apple.news/AAfRRMBVoRdSDB3MNFh7__w

Priscilla Alvarez & Geneva Sands reort for CNN:

Trump admin considers temporary courts along the southern border

5:44 PM EDT June 17, 2019
Washington

The Trump administration is considering building temporary courts along the southern border as part of an effort to expand its policy of returning some asylum seekers to Mexico for the duration of their immigration proceedings, according to two administration officials.

The US recently struck an agreement with Mexico that included expanding the policy, which, the administration argues, serves as a deterrent since it keeps migrants waiting in Mexico, instead of within the US.

Site assessments have been completed for almost all the ports of entry to determine where such temporary immigration courts, described by sources as “soft-sided,” would be needed, according to an administration official.

The facilities could be used to conduct hearings via video teleconference, which has previously been used by immigration courts elsewhere in the country, the official said.

The deal to expand the “Remain in Mexico” program across the border earlier this month came amid threats to impose tariffs on Mexico if it didn’t bolster enforcement.

Mexico, the joint declaration said, would authorize the entrance of asylum seekers, and offer jobs, health care and education to those individuals. In return, the US must expedite the asylum adjudication process. Consideration to erect immigration courts, which are overseen by the Justice Department, appears to be a step in that direction.

Migrants who are sent to Mexico to await their court hearings return to the US through a port of entry along the southern border to then be transported to their hearing. The temporary courts would allow migrants to have their hearings near or at the port, rather than being bussed miles away, said the official.

It also would likely help alleviate the caseload at San Diego and El Paso immigration courts, which have been taking these cases.

The Justice Department’s Executive Office of Immigration Review referred questions about the so-called Migrant Protection Protocols program to the Department of Homeland Security. A DHS official confirmed that the temporary structures are being considered, adding that the crisis has strained the immigration courts along the border. The administration has repeatedly requested additional immigration judges to chip away at a massive backlog that’s led to cases being scheduled years down the road.

The “Remain in Mexico” policy began in January and immediately received pushback back from immigrant advocates and lawyers who argue that it puts migrants who are predominantly from Northern Triangle countries of Guatemala, Honduras, and El Salvador and seeking asylum in the US in harm’s way.

As of May, the US had returned around 6,000 people to Mexico to await their court hearings. The number of migrants falling under the policy appears to be doubling over time, but it is unclear how many additional people have been added to the program since the agreement with Mexico was struck.

One of the locations actively working toward implementing the program is the Rio Grande Valley region in Texas, the busiest sector for arrests of people illegally crossing the border, a senior Border Patrol official told CNN.

Before the program can get underway in the region, officials need to first have the infrastructure in place, including logistics for court hearings. The US also needs to engage with Mexico and ensure its government is willing to receive migrants across the border, said the official.

Like other administration immigration policies, returning migrants to Mexico has also been challenged in court.

In May, a federal appeals court allowed the Trump administration to continue returning some asylum seekers to Mexico for the time being. A panel of the 9th US Circuit Court of Appeals, while split on some issues, listed a number of factors that went into the decision, including risk of injury in Mexico and negotiations between the US and Mexico.

© 2019 Cable News Network, Inc. A WarnerMedia Company. All Rights Reserved.

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Not surprisingly, no mention of guaranteeing attorney access, effective notice, or reasonable access to legal resources for those retuned to Mexico. Trump is emboldened by a dysfunctional Congress under Mitch McConnell and complicit Article III Courts like the 9th Circuit, unwilling to put an end to this grotesque perversion of our statutory laws, our Constitution, and human rights. It’s also a recipe for more “Aimless Docket Reshuffling” and bigger backlogs in Immigration Courts. But undoubtedly, Trump will blame others for the problems he has created.

PWS

06-18-19

POLITICS: Dems Should Not Go “Trump Lite” — Trump’s Highly Unsuccessful White Nationalist Restrictionist Approach Is Unpopular Outside His Base — There’s “no strong argument for Democrats to abandon their moral principles and practical stances to try to win more votes.”

https://apple.news/AAOOjWWx8TW-dG6_ahR4T6Q

Zack Beauchamp writes in Vox:

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 historic highs 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 put many 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 on Trump’s irrational xenophobia to appeal to the “better angels” of American voters with smarter, better, practical, and humane ideas.

PWS

06-18-19

HUMAN RIGHTS FIRST: Trump/Pence Scheme To Declare Guatemala A “Safe Third Country” Is “Ludicrous” – An Affront To Human Rights & Honest Government!

https://reut.rs/2Kk259M

Eleanor Acer
Senior Director for Refugee Protection, Human Rights First

Sophia Menchu reports for Reuters:

GUATEMALA CITY (Reuters) – A U.S. plan to make asylum seekers from Honduras and El Salvador seek refuge in Guatemala instead of the United States would endanger, not protect, refugees, a prominent rights group said on Friday as U.S. negotiators met Guatemalan officials.

U.S. rights group Human Rights First said it was “simply ludicrous” for the United States to assert that Guatemala was capable of protecting refugees, when its own citizens are fleeing violence.

“The Trump administration is doubling down on its efforts to block, bar and punish refugees for attempting to seek asylum in the United States,” said Eleanor Acer, senior director for refugee protection at Human Rights First.

“These policies put the lives of refugees in great danger.”

Guatemala, like its neighbors Honduras and El Salvador, suffers high levels of violence, driven largely by transnational street gangs including MS-13, which operate across borders in all three countries. Many asylum seekers cite gang threats as the reason they come to the United States for refuge.

Tens of thousands of people have left Guatemala to seek U.S. asylum this year. Nearly 150,000 undocumented Guatemalan families have reached the U.S. border since October, according to U.S. Customs and Border Protection, many of them citing fear of violence in their home country for seeking asylum.

U.S. Vice President Mike Pence said this week the two nations had a deal under which Guatemala would take asylum seekers from neighbors. “They ought to be willing to apply for asylum in the first safe country in which they arrive,” he said.

Details of the plan have not been made public, and Guatemala has not publicly confirmed talks that the U.S. State Department said were taking place in Guatemala on Friday.

The talks were about a range of initiatives aimed at reducing illegal immigration, including “improved asylum processing,” a State Department spokeswoman said on Friday in response to a Reuters question about the Guatemala asylum plan.

The emerging plans flow from a U.S.-Mexican deal struck to avert tariffs threatened by U.S. President Donald Trump to push Mexico to do more to stem immigration through its territory.

That deal included sending 6,000 members of Mexico’s National Guard to the border and expanding a separate asylum program under which U.S. asylum seekers are sent back to Mexico to await U.S. court hearings.

If those measures fail, Mexico has agreed to consider becoming a “safe third country” where all asylum seekers passing through the country would have to apply for refuge, instead of the United States

Mexico’s Foreign Minister Marcelo Ebrard said other countries should share the load, including Guatemala.

Guatemala, one of the poorest countries in the Americas, has little experience receiving large numbers of asylum seekers and a large wave of refugees would strain limited resources. Just 262 people applied for refugee status in Guatemala between January and November 2018, according to data from the U.N. rights agency UNHCR.

By comparison, nearly 155,000 families from El Salvador and Honduras have been apprehended at the U.S. border since October, with many of them requesting asylum.

Guatemala holds presidential elections on Sunday, after a campaign that has highlighted the lack of rule of law in the country, including the influence of drug traffickers on politics in the country.

Trade and immigration between Mexico and the United States – tmsnrt.rs/2Khd82D

Editing by Bill Berkrot

Our Standards:The Thomson Reuters Trust Principles.

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As pointed out in the article, Guatemala is one of the most dangerous countries in the world for its own citizens. It doesn’t even have a functioning asylum system. So, how could it provide access to a “full and fair” asylum adjudications to non-citizens as required by our law. The answer is simple – it can’t, by any stretch of the imagination. After all, living long enough to apply, even if there were a functional asylum adjudication system, would be a prerequisite to a legitimate “Safe Third Country” process.

Seems like clear abuses of authority like this by Trump and Pence that should be enough to remove both of them from office forthwith in a functioning democracy. But, that’s not going to happen before 2021, if then.

In the meantime, Dems should make a note that when responsible Government returns at some point in the future, the law should be amended to require at least Senate ratification of any future “Safe Third Country Agreement” to prevent future Executive abuses like this. Indeed, the failure of this Congress to revoke Trump’s authority to enter into these clearly bogus and ill-intended “Safe Third Country” agreements is an indelible stain upon its reputation.

“Safe Third Country” was intended to be about refugee burden sharing among countries with substantially comparable due process systems for adjudicating claims under the Refugee Convention. It was never intended to allow the U.S. to “outsource” asylum adjudication to dangerous, major human rights violators with dysfunctional asylum adjudication systems. What Trump and Pence are proposing is little more than outright murder and human rights abuses inflicted on asylum seekers in violation of both international and U.S. laws.

PWS

06-17-19

DUE PROCESS: 9th Cir. Might Be Afraid Of Trump, But U.S. Immigration Judge Scott Simpson Isn’t!

https://www.sandiegouniontribune.com/news/immigration/story/2019-06-14/judge-orders-dhs-to-keep-man-in-u-s-for-immigration-hearings-instead-of-returning-to-mexico

Kate Morrissey reports for the San Diego Union-Tribune and LA Times:

Judge orders U.S. to hold asylum seeker

Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.

By Kate Morrissey

SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.

Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”

“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.

This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.

The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.

A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.

“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”

At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.

Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.

Each time, the government attorney responded that the man should continue in MPP.

Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.

“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.

Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.

The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.

Philabaum said that fact was significant.

“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.

“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”

DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.

Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.

He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.

“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”

“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”

“I cannot understand you,” the man responded.

In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.

ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.

Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.

Morrissey writes for the San Diego Union-Tribune.

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Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure!

Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.

Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?

PWS

06-17-19

DERELICTION OF DUTY: 4th Cir. Exposes BIA’s Incompetence & Anti-Asylum Bias, Yet Fails To Confront Own Complicity — SINDY MARILU ALVAREZ LAGOS; K.D.A.A., v. WILLIAM P. BARR

http://www.ca4.uscourts.gov/opinions/172291.P.pdf?fbclid=IwAR0V6wyNPGePFSgscsU5Qw-PQxasjIHuwnGXYQr4RraWbpMse6GOc4bAJqY

DIAZ, 4th Cir., 06-14-19, published

PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.

OPINION BY: PAMELA HARRIS, Circuit Judge

KEY QUOTE:

Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.

Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.

We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.

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It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.

How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”

This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.

The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here! So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.

An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.

Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?

You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!

History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.

PWS

06-17-19

CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!

https://apple.news/Au_bQMKN3QxmsBKokkqyP3w

Sarah Ruiz’s-Grossman reports for HuffPost:

U.S. NEWS

06/12/2019 05:25 PM EDT

Cages With ‘Kids’ Pop Up Around NYC To Protest Immigrant Detention

The art installations were meant to bring awareness to the horrific conditions children and other migrants face at the southern U.S. border.

Some people in New York City were confronted with an alarming image as they walked down the street on Wednesday morning: a chain-link cage on the sidewalk containing a child-size mannequin wrapped in a foil blanket, with audio playing of migrant children crying.

More than 20 cages were placed around Manhattan and Brooklyn ― from Union Square to the Barclays Center sports arena ― as part of a campaign called #NoKidsInCages by immigration nonprofit RAICES and ad agency Badger & Winters.

It was meant to draw Americans’ attention to the children and other migrants being held in alarming conditions at the U.S.-Mexico border.

Speakers in the cages played the viral recording released by ProPublica last summer of kids wailing for their “mamá” and “papá” after having been separated from them at the border as a result of the Trump administration’s “zero tolerance” immigration policy.

“We want to bring this back to the consciousness of the American people,” RAICES CEO Jonathan Ryan told HuffPost. “One of the many unfortunate consequences of the repeated traumatic stories coming from the border is that, as horrified and angry as people have been, we also become desensitized. It’s important for people … to be confronted with the reality that this is about children, human beings, whose lives are forever affected.”

“This is being done in our name by people who we elected,” he added. “And if we don’t do something to stop this, this will become who we are.”

About two dozen cages were dropped around the city from about 4 a.m. to 5 a.m., Ryan said. By midafternoon most of them had been taken down by police or city employees, with three remaining around 2 p.m., per Ryan. The New York Police Department confirmed to HuffPost that more than half a dozen cages had been removed around Manhattan, but did not respond to questions as to why.

The online campaign associated with the installations recalls the family separations under President Donald Trump’s hard-line zero-tolerance policy, which led to the separation of thousands of children from their parents last year. The policy sparked protests nationwide and was reversed by executive order in late June. But a January report from the Department of Health and Human Services found the administration may have separated thousands more kids from their families than was previously known, and it did not know how many or whether they were reunited.

RAICES also wants people to become aware of other issues migrants face, Ryan said.

He noted undocumented immigrant families are still separated “routinely” at the border, including when migrant kids are split from other guardians like uncles and aunts or older siblings. Separations occur inside the country too, he said, when a child’s undocumented mom or dad is arrested by immigration agents, for instance in a workplace raid.

U.S. Customs and Border Protection apprehended over 109,000 people at the border in April ― more than double the number of migrants detained during that month last year. A majority of the migrants apprehended were either families traveling together or unaccompanied kids.

A Department of Homeland Security watchdog, reporting on Border Patrol facilities in El Paso, Texas, found last month that detained migrants were kept in dirty and extremely crowded conditions, forcing some people to stand on toilets to get some breathing room.

Last week, Trump said he reached an agreement with Mexico that includes “rapidly” returning to Mexico anyone who crosses the border seeking asylum in the U.S. Advocates are concerned about the dangerous conditions in cities such as Tijuana and Ciudad Juárez, where more migrants will now be forced to wait as their claims are processed.

“When the American people hear stories of this problem being fixed by the ‘remain in Mexico’ policy, it hasn’t been fixed, it’s just further from their view,” Ryan said. “The suffering will only increase.”

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Ah, life in the ivory tower of the Article III Federal Judiciary, where you seldom are confronted with the human faces or ugly reality of your abuses and failures to protect the human rights of others.

The “Remain in Mexico” Program is an ongoing affront to our Constitution, the rule of law, and simple human decency for which the judges of the Ninth Circuit Court of Appeals who are enabling this ongoing humanitarian outrage and giving it “legal cover” should be held fully morally and historically accountable!

PWS

06-13-19

9TH CIRCUIT JUDGES COMPLICIT IN HUMAN RIGHTS & LEGAL VIOLATIONS INFLICTED ON TERRIFIED TEEN ASYLUM APPLICANTS: Reuters Study Exposes How Disingenuous Article III Judges Are Letting Trump Administration “Get Away With Potential Murder” Under Clearly Illegal, Unconstitutional, & Incompetently Administered “Remain In Mexico” Abomination!

https://www.reuters.com/article/us-usa-immigration-returns-exclusive/exclusive-asylum-seekers-returned-to-mexico-rarely-win-bids-to-wait-in-u-s-idUSKCN1TD13Z

(Reuters) – Over two hours on June 1, a Honduran teenager named Tania pleaded with a U.S. official not to be returned to Mexico.

Immigration authorities had allowed her mother and younger sisters into the United States two months earlier to pursue claims for asylum in U.S. immigration court. But they sent Tania back to Tijuana on her own, with no money and no place to stay.

The 18-year-old said she told the U.S. official she had seen people on the streets of Tijuana linked to the Honduran gang that had terrorized her family. She explained that she did not feel safe there.

After the interview, meant to assess her fear of return to Mexico, she hoped to be reunited with her family in California, she said. Instead, she was sent back to Mexico under a Trump administration policy called the “Migrant Protection Protocols”(MPP), which has forced more than 11,000 asylum seekers to wait on the Mexican side of the border for their U.S. court cases to be completed. That process can take months.

Tania’s is not an unusual case. Once asylum seekers are ordered to wait in Mexico, their chances of getting that decision reversed on safety grounds – allowing them to wait out their proceedings in the United States – are exceedingly small, a Reuters analysis of U.S. immigration court data from the Executive Office for Immigration Review (EOIR) shows.

. . . .

*********************************

Read the full description of the Trump Administration’s judicially enabled all out assault on the legal, Constitutional, and human rights of vulnerable asylum seekers at the above link.

A complicit panel of 9th Circuit Judges vacated a proper lower court injunction that was preventing this type of intentional child abuse by the Trump Administration. Here’s that panel’s “head in the sand” opinion in Innovation Law Labs. https://immigrationcourtside.com/wp-content/uploads/2019/05/Innovation-Law-Lab-19-15716.pdf.

It’s worth noting that almost every “ameliorating exception” described in the first paragraph of the panel’s opinion is demonstrably untrue — children and those clearly in danger are being returned and the “discretionary parole” is largely a fraud that seldom is granted — according to the Government’s own data (which likely is also falsified or manipulated to some extent to mask or distort abuses). In other words, a “three-reporter panel” of Reuters is more interested and capable of getting to truth than a panel of life-tenured judges.

Oh, that it could be these judges’ kids or grandkids separated from family and sent to live on the mean streets of Tijuana while pursuing their legal rights under US law. Really, how do these child abusers and human rights scofflaws hiding in judicial robes sleep at night?

Guess the can’t hear the screams and moans of those whose rights they are failing to protect and whose human dignity they reject. I’ve heard eyewitness accounts and seen video evidence from the pro bono lawyers courageously (and sometimes at the risk of their own health and safety) trying to protect the lives and rights of asylum seekers at the Southern Border from these abuses of human rights that are enabled by “Remain in Mexico” (a/k/a the disingenuously named “Migrant Protection Protocols”). The truth is no secret for those who actually seek it rather than to ignore it.

Complicit Article III Judges and Government lawyers are keys to Trump’s “dehumanization” program. History must hold them accountable for their abuses of humanity.

PWS

06-13-19

AMERICA’S SHAME: Congress Dithers, Life-Tenured Article III Circuit Judges & Supreme Court Justices Shirk Their Duty, While Trump’s “False Courts” Violate Constitutional, Statutory, Treaty, & Human Rights On A Daily Basis With Impunity! — History Will Remember Those Who Are Complicit In & Who Are Morally Responsible For Unlawful Killings & Other Unspeakable Acts Committed Against Those Most Vulnerable Who Are Merely Seeking Fairness Under Our Broken & Fraudulent Justice System!

NEW REPORT EXAMINES WEAPONIZATION OF IMMIGRATION COURT SYSTEM

Advocates Launch Immigration Court Watch App to Ensure Greater Accountability, Transparency.

No, American institutions aren’t “standing up” to Trump. From the Supremes legally wrong , immoral, and unconstitutional decision in Jennings, to their licensing of blatant racial and religious bias in Travel Ban 3.0, to the Ninth Circuit’s complicity in the mocking of legal, statutory, and Constitutional rights under the fraudulent and illegal “Remain in Mexico,” which they now “own” lock stock, and barrel, to the Eleventh Circuit’s refusal to stop the “law, asylum, justice, and human dignity free zone” in the Atlanta Immigration Courts, Article III Judges are ignoring their oaths of office and turning blind eyes to immigration outrages that are transparent on the records they review and have been building in plain sight for years.

Those in positions of power who fail to fulfill their Constitutional duty to prevent abuse of the most vulnerable among us deserve to be condemned by public opinion and by history. And that goes for Article III Judges, as well as legislators, politicos, and bureaucrats.

PWS

06-12-19

PWS

06-12-19

NATIONAL FRAUD: IMMIGRATION COURTS ARE NOT “COURTS” — New Scholarship Shows How Immigration “Courts” Are Actually Hierarchical Bureaucracies Masquerading As Courts, Incorporating The WORST Features Of Both!

Bureaucrats in Robes final

BUREAUCRATS IN ROBES: IMMIGRATION “JUDGES” AND THE TRAPPINGS OF “COURTS”

AMIT JAIN*ABSTRACT

As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts—often the first-line adjudicators of deportation—are “courts” at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by in-depth interviews with twelve former IJs and three former supervisory officials, I argue that immigration courts present with superficial hallmarks of adversarial courts, but increasingly exhibit core features of a tightly hierarchical bureaucracy. Although not all features of an immigration bureaucracy are inherently unde- sirable, masking a bureaucracy with judicial trappings results in a deceptive facade of process that likely limits scrutiny from federal courts and calms public discontent with harsh immigration laws. In light of this phenomenon, enhancing IJ independence through the creation of an Article I immigration court would solve some problems with immigration adjudication but risk papering over others. Instead, achieving a fair system will require both procedural and substantive reforms.

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Read Amit’s full article at the above link.

Yes, I recognize that Amit undercuts my arguments for an immediate halt of this system and change to Article I without waiting for other reforms to “humanize” immigration law and put them more in line with the actual national perception of immigrants (which, as Amit points out, is nowhere near as racist and inhuman as Trump’s White Nationalist restrictionist abomination now being peddled by Trump, Pence, many in the GOP, at DHS, and most disturbingly, at DOJ. For example, most Americans would favor taking care of “Dreamers” now, without all the restrictionist “poison pills” attached). I agree that other practical and humanizing reforms are necessary; but without immediate Immigration Court intervention and reform every other immigration reform becomes meaningless and innocent people will continue to die, be tortured, and be abused “on our watch.”

Immigration Court reform can’t wait! Every day, the statute, our Constitution, international treaties, our national values, and human dignity are being mocked and destroyed by what is happening in our Immigraton Courts under the “Minister of Injustice” Bill Barr and his lawless and spineless sycophants in EOIR Management.

It’s past time for the Article III Courts to stop screwing around, do their Constitutional duty, and put a screeching halt to this abomination and blot on our national conscience. Stop these “Fake Courts” in their tracks!

No more “removal orders” until Congress creates an independent Immigration Court system that passes legal and Constitutional muster and complies with our treaty obligations. And, until that happens, the DOJ should be forbidden from any further meddling in the Immigration Courts. If the Immigration Court System is to continue to operate on an interim basis, it should be under an “Order of Supervision” from Article III Circuit Judges just as was done with Constitutionally deficient and defiant school systems in the South following Brown.

Either that or the Article III Courts should appoint an active or retired Article III Judge as a “Special Master” with authority to insure fair, impartial, and legal operation until Congress corrects these flaws.

Allowing human beings to be “degraded and railroaded” back to life threatening situations, often after having been abused, humiliated, threatened and mistreated by so-called “judges” and their White Nationalist overlords is no laughing matter! It’s a national disgrace, the elimination of which should be our highest national priority!

PWS

06-12-19

FRANZ KAFKA’S AMERICA: At the “Jena Gulag” Everyone’s A Criminal Including Attorneys Committing The “Crime” Of Representing Their Clients!

https://lawprofessors.typepad.com/immigration/2019/06/guest-post-m-isabel-medina.html

From ImmigrationProf Blog:

Escobedo v. Illinois(1964) – I remember the case from law school and it is one of those cases that stay with you. It’s a case that spoke so firmly to our profession and the constitutional right that our profession guards – the right to counsel.   It’s the case where the attorney is trying to see the client, and the client keeps asking to see the attorney, and they are both at the police station, but the police continue to deny both the ability to meet and talk before the person is interrogated by police. The case fascinated me because the situation seemed so remarkable, really, incredible, and, of course, the Supreme Court, at that time, gave what I thought the correct response. I still think it is the correct response but what I missed then, and sometimes now, is how many of us think, then and now, it was not. But Escobedo is a Sixth Amendment case that applies in the context of criminal prosecutions so although I have thought of it often in the past three weeks, it is uncertain precedent to rely on in the context of immigration proceedings. It also strikes me now who Escobedo is, and I remember when we first discussed this case in law school, the complete absence of a discussion about his race and national origin, in the classroom.

I also think often of Fong Yue Ting v. United States (1893) and the U.S. Supreme Court’s reasoning that “The order of deportation is not a punishment for crime,” And what this reasoning means in a world where persons are incarcerated, prevented from touching, hugging and kissing their closest relatives, including their children, simply because they are immigrants in removal proceedings (a civil process, the Court continues to tell us – not a criminal process) and where persons are not allowed to meet with their attorneys in a room in which they can go over documents or testimony together, but instead meet only in cubicles that are completely separated from each other except for a quarter inch slit at the bottom of a plastic/glass divider. So it is literally physically impossible to point at a statement in a document and ask the client a question about that statement. And it is in fact physically impossible for a client to hand over to their attorney documents. They have to be taken apart and slipped across through that quarter inch slit. It took a client over an hour to slip over to me part of the file.

This is the world at La Salle Detention Center in Jena, Louisiana, one of the Geo owned and managed detention centers in Louisiana that currently houses only immigrant detainees. But the guards at La Salle know better – they are housing criminals at La Salle and the guards think of them as criminals, call them criminals, and treat them like criminals. Criminals, apparently, are undeserving of any kind of protection. The reason for the cubicle, I am told, is to make impossible the passing of contraband. I ask what contraband. I ask further, by attorneys? Attorneys are bringing in contraband? I ask amazed. And the answer I am given is yes, you’d be surprised. And I persist, What? What kind of things are attorneys bringing in? And the answer I get eventually is things like food.

At La Salle, inmates are separated and designated by clothing of different colors into different groups based on their alleged “dangerousness” or “security.” Inmates are written up for asking questions or making requests or complaining about things like missed mail or failures to deliver mail. Inmates are also restricted in accessing outside time, private time, and so many of the things those of us who are free take for granted, and those of us who are committed to serve a criminal sentence are denied. But these “inmates” aren’t serving a criminal sentence, as I remind the guards. They are civil detainees – they are not supposed to be treated like criminals serving a criminal sentence.

At La Salle, civil detention is criminal detention.   I have had greater physical access to persons convicted of murder or persons who’ve been accused of criminal offenses. I’m somewhat nonplussed by the restrictions on meeting with someone who is facing removal from this country; and the impact of those restrictions on their right to counsel.

But I am even more nonplussed when those restrictions start being applied directly to me. In order to see a client, I have to turn my car keys in to the facility. I cannot take my bag or purse with me. This is for my safety I am told. Every time I visit a person at La Salle, I ask for access to the person. I know there is a room at La Salle in the visiting area that allows for that. I know that the facility has made this room available to consular officials visiting persons in the facility. But the facility refuses to make this room available for attorney-client visits. I ask every time and am refused every time. I leave multiple phone messages for the Warden but no one ever calls me back and no one with authority ever agrees to talk to me.

When I come for the hearing at La Salle Immigration Court with the family of a person I am representing, the guard refuses to allow the children of the person into the courtroom. I ask why not. Federal policy is that children 12 and older can attend court proceedings. There are signs in the waiting room at the facility that state this. But when I come with six law students and the family, the officer says no they have to be 15 and older (after looking the children over). So I ask why again. I explain that I’ve checked with the Court administrator and federal guidelines and the ICE–ERO on the case and the Court administrator said the children were allowed to attend. No one had indicated otherwise. So the officer goes off to check with someone. When she returns she says the ICE officer in charge of the facility has determined that the children cannot go in. I ask why? She says that’s what he’s decided. I say may I speak to him. That is not consistent with the federal policy and the court administrator approved it. I’d like to speak to him. She goes out again and comes back a bit later. Then a person not in uniform comes in waves to me and takes me into a bigger office. There he proceeds to threaten me with arrest – first, it sounds like he is going to arrest me himself but then he threatens that he is going to call the sheriff and have the sheriff arrest me. I ask him why he would do that.  I am just trying to find out why the children can’t attend the hearing, given that it’s federal policy and I’ve gotten approval of the court administrator. He is physically shaking with anger as he tells me again he is going to call the sheriff and have me arrested. I agree to be arrested but remind him that the facility operates by force of law and regulation – it can’t operate as if law doesn’t apply here. I am an attorney, I explain, I have to be able to assert my client’s interests.

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Who are the “real criminals” here?

It takes lots of corruption, cowardice, and complicity to make this happen: A Congress that doesn’t care, a Supreme Court that disingenuously manufactures ridiculous legal fictions and turns a blind eye to glaring Constitutional violations, Article III Courts who can see that the results are inherently biased, coercive, and unfair but look the other way, a thoroughly corrupt Attorney General who has no interest whatsoever in justice, complicit politicos and bureaucrats at DOJ, EOIR, and DHS willing to violate ethical standards and their oaths of office, and those minions at the “bottom of the pyramid” who glory in the chance to exercise power in an arbitrary and abusive way.

Thanks goodness for dedicated, courageous lawyers like Isabel who are members of the “New Due Process Army,” fight for the legal rights of the most vulnerable among us, refuse to give in to the oppressors, and document and expose the vileness and lawlessness of the Trump Administration and its many enablers and retainers like Geo and its guards.

Your tax dollars at work!

PWS

06-11-19

ANALYSIS: Trump Lays Another Egg On Immigration — Everybody Loses, But It Could Have Been Much, Much Worse

By Paul Wickham Schmidt for immigrationcourtside.com

Alexandria, VA, June 9, 2019. After a week of petulance, threats, and self-created drama, Trump produced a resounding trade and immigration dud. Faced with advisors telling him that he was endangering the economy, the only thing propping up his sagging popularity, a potential rebellion among GOP legislators, and an unexpectedly tough and resolute Mexico, Trump backed off of his insane and blatantly illegal plan to ignore U.S. asylum obligations and thereby rocket the U.S. to the upper echelons of international scofflaws and human rights violators.

The latter scheme, known as “safe third country,” would have mis-designated Mexico and, incredibly, Guatemala, two clearly “unsafe” countries to do the U.S.’s job by processing tens of thousands of asylum applications from those fleeing the Northern Triangle. Neither of the two countries has a viable, fair, and effective asylum adjudication system and both have major safety and human rights issues.

Instead, Trump accepted a vague compact by which Mexico and the U.S. basically agreed to do what they had already been doing without taking any decisive or effective action to address the actual humanitarian crisis in the Northern Triangle that Trump and his flunkies have consistently mischaracterized as a “law enforcement emergency.” Indeed, the New York Times reported that most of Mexico’s “unprecedented steps” had already been worked out in secret with deposed DHS Secretary Kirstjen Nielsen months ago. https://www.nytimes.com/2019/06/08/us/politics/trump-mexico-deal-tariffs.html. Those interested can read the summary of the agreement prepared by Trump’s own State Department here. https://www.latimes.com/politics/la-na-pol-us-mexico-tariffs-declaration-20190607-story.html.

To be sure, desperate and vulnerable asylum seekers, particularly women and children, will continue to abused, raped, beaten, extorted, obscenely tortured, and killed with impunity and little if any recourse as a result of this week’s actions. But, at least for now, the U.S. and Mexico are maintaining much of the basic framework of domestic and international protection laws.

Contrary to the lies and false narratives spread by Trump and his DHS cronies, U.S. law is not filled with “loopholes.” Rather, it is a fairly straightforward implementation of the international protection regime and treaties that have been in effect since World War II to prevent another holocaust from occurring on our watch.

If anything, since the enactment of the Refugee Act of 1980, the U.S. has watered down its asylum commitment somewhat by adding a legally tenuous “credible fear” process to “pre-screen” arriving asylum applicants in mass migration situations. However, to date, the DHS under Trump has been too incompetent, misdirected, and frankly downright stupid to utilize this streamlined screening process fairly and efficiently.

By treating a somewhat predictable humanitarian refugee flow as a bogus “law enforcement problem” and mindlessly shoving cases into a “captive” court system that they already had abused, mismanaged, and destroyed, the Administration lost effective control. In panic, they have tried to blame the refugees, Democrats, Mexico, Obama, judges, the media, and even the truly hapless failed states of the Northern Triangle for their largely self-created human and operational disaster.

The first of the “unprecedented steps,” involves Mexico sending approximately 6,000 National Guard troops to the Guatemalan border to control illegal crossings. Never mind that the Mexican National Guard is a recent creation that exists largely on paper. Also, forget that Mexico has a questionable record of controlling corruption and systematic human rights abuses among its existing police and military forces.

The U.S., a much larger, better organized, and more prosperous country than Mexico, has resorted to militarizing the border, mass incarceration, family concentration camps, kids in cages, malicious criminal prosecutions, family separations, walls, fences, overt political interference in the asylum adjudication system, and violating international protection norms. These “gonzo” enforcement efforts not only failed to stem the tide, but have actually aided smugglers and traffickers and increased the flow of migrants.

Will newly minted, untrained Mexican troops succeed where the might of the U.S. has failed miserably? Don’t count on it.

Also, the last time I checked, it appeared that most of the Mexican coast and some parts of the U.S. are reasonably accessible by boat from the Northern Triangle. So, assuming that the Mexicans could “shut down” their land border with Guatemala, why wouldn’t smugglers “take to the sea?” How’s that Mexican Navy?

The second “unprecedented step,” is a continuation and expansion of the existing “Remain in Mexico Program.” This toxic gimmick punishes those who have been legally determined to have a “credible fear” of persecution by making them remain in some of the most dangerous locations in the world where they are intentionally and illegally impeded in many ways from pursuing their U.S. asylum claims from Mexico. To date, this program has only been implemented in a few locations, like San Diego where it has been an unmitigated failure according to a report from Kate Morrissey of the San Diego Union-Tribune. https://immigrationcourtside.com/2019/06/06/cruel-yet-really-stupid-trumps-remain-in-mexico-policy-denies-due-process-while-creating-court-chaos-enfeebled-judges-fume-as-aimless-docket-reshufflin/.

The results of this ill-advised effort by Trump to circumvent U.S. asylum laws reads like a “legal toxicology report:” “Aimless Docket Reshuffling,” mass confusion, lack of information, insufficient and deficient hearing notices, massive violations of the statutory right to be represented by counsel, no opportunity to fairly prepare, document, and present asylum claims, interference with the attorney-client relationship by DHS, and few actual case completions to name just a few of the many abuses. And, how will an already dysfunctional EOIR deal with yet another round of “new priorities” and more “Aimless Docket Reshuffling?”

A Federal District Judge actually enjoined this circus before it could get rolling. But, a “tone-deaf panel” of the Ninth Circuit allowed Trump’s assault on the rule of law to go forward, at least for now.

Nevertheless, the case remains pending with the Ninth Circuit. As EOIR’s rushed and sloppy work product starts to accumulate on their docket and the bodies and horror stories start to pile up in Mexico, more responsible Circuit Judges might actually force the Administration to comply with the law and the Constitution, not to mention simple human decency.

Mexico has pledged to “accept and protect” those sentenced to remain there. But, the Mexican border locations to which individuals are forced to return are dangerous for a reason. Presumably, if Mexican can’t maintain safety and order for its own citizens, it won’t do any better for vulnerable asylum seekers.

Finally, in third “unprecedented step,” Mexico and the U.S. agreed to promote the “Comprehensive Development Plan launched by the government of Mexico in concert with the governments of El Salvador, Guatemala and Honduras” to create “prosperity, good governance and security in Central America.” This part of the agreement makes the most sense. But “promoting” in this case appears limited to using development funds that were “already in the pipeline” in both countries. In other words, nothing really new here.

This was a golden opportunity for the U.S. to show real leadership by dramatically increasing its investment in bringing stability and prosperity to Mexico and Central America. Additionally, we could have created incentives (rather than threats) and benchmarks for Mexico to improve its asylum adjudication system and human rights performance. Partnering with non-governmental-organizations and legal assistance groups on both sides of the border also would bring much needed expertise in resolving asylum issues to the table.

But, that would have taken a President with vision, empathy, compassion, courage, competency, intelligence, and creative problem solving ability. Trump is the exact antithesis of all of these qualities.

Consequently, sooner or later we can expect Trump’s “latest egg” to fail, like all of his other gimmicks and maliciously incompetent schemes on immigration. Our “child president” will undoubtedly then embark on a new barrage of lies, false narratives, idiotic tweets, idle threats, blame shifting, insults, racist dog whistles, and general nonsense aimed at diverting attention from his own failures as a leader and more critically, as a human being.

Innocent people will be harmed and die, America and Mexico will be embarrassed and diminished, and the world will be a worse place. But, until America figures out how to use its democratic institutions to remove the kakistocracy, the disaster will continue. That it could have been worse, is only small consolation.

Why not strive to be the “best that we can be,” rather than just “not as bad as we might have been?”

ABUSE OF POWER: Eleanor Acer Of Human Rights First Blasts Administration’s Latest Scheme Promoting A Massive Hemispheric Violation Of Human Rights!

https://www.humanrightsfirst.org/press-release/mexico-border-deal-avoid-tariffs-would-endanger-lives

June 06, 2019

Mexico Border Deal to Avoid Tariffs Would Endanger Lives

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Refugee Protection

New York City—In response to reports that the Mexican government is planning to make a deal with the United States to avoid tariffs threatened by President Trump, Human Rights First’s Eleanor Acer issued the following statement:

President Trump is trying to bully another country into endangering the lives of vulnerable men, women, and children, who want nothing more than to live in freedom and safety. Mexico and Guatemala are not—in a legal or practical sense—safe countries for many refugees. In Mexico too many refugees face kidnapping, assault, and murder.

People seeking refuge are not required to seek asylum in the first country they set foot in. In fact, many face grave dangers in neighboring countries, as well as serious risks that they will be returned to their country of persecution.

Such a plan would not only makes a mockery of U.S. law and treaty commitments, but would also return refugees to places where their lives are in danger. It is yet another abdication of leadership, setting an abysmal example for other countries around the world.

Instead of more attempts to block and punish people seeking refuge, the United States needs real solutions that restore order and uphold America’s refugee laws and treaty commitments, including:

Tackle the root causes pushing people to flee the Northern Triangle countries through a targeted strategy that leverages both diplomacy and aid, focusing on effective programs that reduce violence, combat corruption, strengthen rule of law, protect vulnerable populations and promote sustainable economic development.

Launch a major initiative to enhance the capacity of Mexico and other countries—which are already hosting growing numbers of refugees—to provide asylum, host, protect, and integrate refugees, along with a robust regional resettlement initiative that provides orderly routes to the United States and other countries while safeguarding asylum.

Immediately end the dysfunction at the border, and instead launch a public-private humanitarian initiative and a long overdue case management system to actually manage asylum cases.

Fix the asylum and immigration court adjudication systems to provide fair, non-politicized and timely decisions.

For more information see Human Rights First’s blueprint: The Real Solution: Regional Response Rather than Border Closures, Mass Incarceration, and Refugee Returns. To speak with Acer contact Corinne Duffy atDuffyC@humanrightsfirst.org or 202-370-3319.

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As usual, Trump’s outrageously illegal and immoral proposal relies on:

Bullying weaker countries;
A gullible public;
A cowardly GOP Congress;
Complicit courts.

A simple perusal of the country condition materials publicly available on the EOIR and Department of State websites shows that the idea that either Mexico or Guatemala are “safe” countries where refugees “would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,” as required by U.S. law, is preposterous.

Mexico’s asylum adjudication system is plagued by bribery, corruption, and incompetence. It adjudicated only about 10, 000 cases in the last reported period, denying the overwhelming majority. Moreover, gangs and cartels operate freely throughout the Northern Triangle countries and Mexico. Our State Department Report acknowledges that the same organized gangs who force people to leave the Northern Triangle can also harm them in Mexico.

Guatemala is a highly corrupt country basically without a functioning asylum adjudication system. It is a major sender of asylum applicants to other countries. The Guatemalan Government is unable to maintain order and protect its own citizens, let alone refugees from nearby countries.

Also, we are encouraging Mexico and Guatemala to use troops and military force against asylum seekers — something our own laws do not permit.

Essentially, the Trump Administration seeks to “get away with murder.” In two years they have turned the U.S. from a leading defender of human rights to a major international human rights violator. So, why are we allowing our Government to get away with such dishonest, morally bankrupt, and illegal proposals?

Even if these corrupt proposals go into effect, it seems doubtful that they will stem the follow of refugees in the long run. While there might be a short term downturn, eventually smugglers will adjust to the new policies and desperate individuals will find different routes to the United States. They will be more dangerous, so more will die.

Perhaps we will see “Central American Boat People” and more deaths at sea. Maybe there will be more “Golden Ventures.” More deaths at the border will be inevitable as smugglers seek to evade the Border Patrol and get to the interior. Perhaps the human smuggling action will switch to the even longer U.S. Canada border. How about a “Northern Wall” from the Atlantic to the Pacific?

As long as the U.S. stubbornly refuses to acknowledge and address the causes of migration it will continue, in extralegal channels as necessary and as the market “push pull factors” determine. More focus on barring refugees means less focus on drug smugglers and others who present a real threat to our safety and security.

Also, smugglers will be able to change a premium — so those who are willing to take the risk and outsmart the new system will reap even higher profits than the increased ones Trump has already conferred upon them with his maliciously incompetent policies to date. Finally, walls, jails, cages, abuses, family separations, prosecutions, racist rhetoric, armed violence, tariffs, exploitation, massive violations of our Constitution and international laws, or whatever won’t stop desperate refugees from coming. But we will eventually convince refugees to give up on the U.S. legal system and just find ways to get beyond the border and lose themselves in the interior. No enforcement system, no matter how cruel, repressive, expensive, and lawless will be able to get rid of more than a fraction of those who don’t want to be found after reaching the interior.

Moreover, if Trump’s actions succeed in destabilizing Mexico, then Mexican migration, which has actually been a negative flow recently, will resume in large numbers, also adding to the pressure on our borders. The worse things get in Mexico, the less likely that the Mexican Government will stop their citizens from heading north. So, there is every reason to believe that Trump’s “malicious incompetence” will make things even worse for everyone — but particularly for those who are most vulnerable — desperate asylum seekers!

Another future possibility to ponder: Tired of being publicly bullied, humiliated, and dealing with a dishonest unreliable idiot and his incompetent sycophants, Mexico and Canada will “wise up” and cut a trade deal with China that really gives them leverage and puts the squeeze on the U.S. And, why wouldn’t China love a chance to establish factories just across our Northern and Southern borders that could also serve as “listening posts” and repositories for hijacked U.S. technology? Maybe the EU and India could also be cut into the deal.

We are diminishing ourselves as a nation, but it won’t stop human migration!

PWS

06-07-19

THE GIBSON REPORT — 06-03-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 06-03-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

Trump Is Considering Denying Asylum To Immigrants Who Travel Through A Third Country

Buzzfeed: The Trump administration is considering a proposal that would bar asylum for those who transit through a third country, a potential major escalation in the administration’s attempts to deter asylum-seekers, according to sources close to the administration.

Trump says U.S. to impose 5 percent tariff on all Mexican imports beginning June 10 in dramatic escalation of border clash

WaPo: The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action. See also White House Releases Statement from President Trump Regarding Emergency Measures to Address the Border Crisis.

BIA: IJ can dismiss proceedings where meritless asylum used as path to cancellation

BIA: An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.

Vermont Service Center (VSC) no longer entertains requests for supervisory review

VSC: Generally speaking, the Vermont Service Center (VSC) no longer entertains requests for supervisory review of requests for evidence (RFEs), via this email hotline or any other method. If your client disagrees with the RFE or believes that the requested evidence has already been submitted, they may wish to indicate this in their response to the RFE. They may also wish to resubmit the requested evidence. Any information submitted will be reviewed by the adjudicating officer.

Trump Memo Requires Immigrants’ Sponsors to Reimburse Government for Welfare

U.S. News: President Donald Trump on Thursday signed a memorandum that will direct federal agencies to enforce a longstanding rule requiring the sponsors of legal immigrants to reimburse the government for any public benefits the immigrant uses, such as Medicaid and food stamps.

ICE Uses Solitary Confinement on Immigrants Who Are Transgender, Suicidal

AIC: Immigration and Customs Enforcement officials regularly place detained immigrants into prolonged solitary confinement, despite findings that such confinement is a form of torture.

U.S. Requiring Social Media Information From Visa Applicants

NYT: Visa applicants to the United States are required to submit any information about social media accounts they have used in the past five years under a State Department policy that started on Friday.

Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question

NYT: Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats.

State Department to launch new human rights panel stressing ‘natural law’

Politico: The Trump administration plans to launch a new panel to offer “fresh thinking” on international human rights and “natural law,” a move some activists fear is aimed at narrowing protections for women and members of the LGBT community.

TSA sending up to 400 workers to southern border, but says it won’t slow air travel

USA Today: The Transportation Security Administration is preparing to send up to 400 workers to the southern border to assist with the rising number of Central American migrants, but officials say the move shouldn’t affect air travel as the summer travel season gets underway.

Trump administration to send DHS agents, investigators to Guatemala-Mexico border

WaPo: The Department of Homeland Security personnel will work as “advisers” to Guatemala’s national police and migration authorities, and they will aim to disrupt and interdict human smuggling operations, the officials said, speaking on the condition of anonymity to describe a plan that has not been made public. U.S. authorities hope that the effort will cut off popular routes to the United States and deter migrants from beginning their journeys north through Mexico.

Hundreds Of Immigrants Detained At Southern Border Brought To NYC-Area Jails

Gothamist: Hundreds of immigrants detained at the southern border have been transferred to jails in the New York City area in the last few weeks, as the Trump administration takes unprecedented steps to manage a growing number of migrants seeking entry to the United States.

Trump Administration Separates Some Migrant Mothers From Their Newborns Before Returning Them to Detention

Rewire: Advocates also report that some asylum seekers in the Western District of Texas who have given birth in USMS custody were forced to hand over their newborns to the Texas Department of Family and Protective Services (DFPS). Reuniting with their newborn hinges on their release from federal custody, and whether they can access legal help to navigate the child welfare system.See also ‘He Started Calling Me Papa Again’: A Separated Migrant Father and Son Reunite After 378 Days Apart; Over 200 Allegations of Abuse of Migrant Children; 1 Case of Homeland Security Disciplining Someone; and Customs and Border Protection is buying 2.2 million baby diapers for its new migrant tent city

Trump’s Crackdown on Illegal Immigration: 11 Employers Prosecuted in the Past Year

NYT: The Trump administration’s crackdown on unauthorized immigration has resulted in the prosecution of tens of thousands of people entering the country illegally. But new data suggests that the government has not prioritized the prosecution of employers, whose jobs represent the biggest lure for those crossing the southern border to reach the United States.

LITIGATION/CASELAW/RULES/MEMOS

Immigration in the Supreme Court: Cert Petition in DACA Rescission Case, Cert Granted in Border Shooting Case

ImmProf: The Trump Administration is seeking Supreme Court review of a Fourth Circuit decision rejecting the administration’s attempt to rescind DACA. Here is the cert petition. In addition, the Supreme Court has granted cert in Hernandez v. Mesa, which asks whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can sue the officer for damages (case page at this link).

AG Refers Two BIA Cases to Himself and Solicits Amici on Judicial Alteration of a Criminal Conviction or Sentence

The AG invites amici on whether judicial alteration of a criminal conviction or sentence should be taken into consideration in determining the immigration consequences of the conviction. Comments due by 7/12/19. Matter of Thomas and Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019) AILA Doc. No. 19052900

Daughter of immigration detainee who died in custody sues Hudson County, its jail

NorthJersey: The daughter of a man who died while in immigration custody filed a wrongful death lawsuit Thursday against Hudson County and its jail, where he was held before he died of internal bleeding at a local hospital.

Documents Related to Lawsuit Seeking to Make Unpublished BIA Decisions Publicly Available

NYLAG filed a memo in support of its motion for summary judgment. (NYLAG v. BIA, 5/24/19) AILA Doc. No. 18102232

Matter of ANDRADE JASO and CARBAJAL AYALA, 27 I&N Dec. 557 (BIA 2019)

An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.

BIA Remands to IJ to Consider Continuance Request by Respondent with Pending U Visa Petition

Unpublished BIA decision vacates denial of continuance where IJ did not make preliminary determination whether respondent was prima facie eligible for U visa. Special thanks to IRAC. (Matter of Gomez-Alfaro, 7/31/18) AILA Doc. No. 19052995

BIA Holds Criminal Judgment Entered In Absentia Not a Conviction for Immigration Purposes

Unpublished BIA decision holds that an administratively entered judgment of guilt due to the respondent’s failure to appear in court does not qualify as a conviction for immigration purposes. Special thanks to IRAC. (Matter of Davies, 7/30/18) AILA Doc. No. 19052895

BIA Affirms IJ’s Decision to Terminate Removal, Finding Fraud Conviction Not a CIMT

In an unpublished BIA decision, the BIA affirmed the Immigration Judge’s decision to terminate removal proceedings, finding that the crime of fraud under $5,000, in violation of section 380(1)(b) of the Criminal Code of Canada is not a CIMT. Courtesy of Richard Hanus. AILA Doc. No. 19052834

BIA Reopens and Terminates Proceedings Sua Sponte in Light of Intervening Ninth Circuit Decision

Unpublished BIA decision reopens and terminates proceedings sua sponte in light of holding in United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), that assault under Wash. Rev. Stat. 9A.36.021 is not a crime of violence. Special thanks to IRAC. (Matter of Ibrahim, 8/7/18) AILA Doc. No. 19052896

BIA Holds Making False Statement to Firearms Dealer Not a Firearms Offense

Unpublished BIA decision holds that making false statement to firearms dealer under 18 USC §924(a)(1)(A) is a not a firearms offense because it applies to dealers who falsify their own records. Special thanks to IRAC. (Matter of Lopez, 8/17/18) AILA Doc. No. 19053135

BIA Holds Texas Online Solicitation of a Minor Not an Aggravated Felony

Unpublished BIA decision holds that online solicitation of a minor under Tex. Penal Code 33.021 is not aggravated felony sexual abuse of a minor or attempted sexual abuse of a minor because it does not require a victim under 16 years of age. Special thanks to IRAC. (Matter of Adeeko, 8/14/18) AILA Doc. No. 19053132

K-D-T-, AXXX XXX 140 (BIA May 2, 2019) (unpublished)

BIA: Vacates order rescinding LPR status because respondent was not given opportunity to cross-examine ex-spouse or USCIS officer who took her statement

CA1 Rejects Procedural Due Process Challenge of Petitioner Removed to Ireland in 2018

The court found that the petitioner, a citizen of Ireland who had entered the United States as a child and had overstayed his visa, was not entitled to a presumption of prejudice, and that he could not make a particularized showing of prejudice. (O’Riordan v. Barr, 5/22/19) AILA Doc. No. 19052831

CA2 Finds Immigration Detainees Released from Custody Without Discharge Planning Adequately Stated a Fourteenth Amendment Claim

The court vacated the district court’s dismissal of the plaintiffs’ complaint alleging that the defendants’ failure to engage in discharge planning for the plaintiffs’ serious medical needs prior to release violated their substantive due process rights. (Charles v. Orange County, 5/24/19) AILA Doc. No. 19053130

CA4 Finds BIA Distorted Record in Denying Asylum to Salvadoran Woman Abused by Partner

The court held that the BIA had disregarded and distorted significant portions of the record when it found that the petitioner had failed to establish that the Salvadoran government was unwilling or unable to protect her from persecution. (Orellana v. Barr, 5/23/19) AILA Doc. No. 19052832

CA5 Upholds Asylum Denial to Ex-Law Enforcement Official from Honduras

The court held that substantial evidence supported the BIA’s determination that petitioner, who had been a police officer in Honduras, had failed to show a nexus between the alleged persecution he suffered and his membership in a particular social group. (Martinez Manzanares v. Barr, 5/24/19) AILA Doc. No. 19052833

CA7 Finds DHS’s Failure to Include Date and Time in NTA Was Not a Jurisdictional Flaw

The court held that DHS’s failure to include the time and date of the petitioner’s hearing in the Notice to Appear (NTA) was a failure to follow a claim-processing rule, not a jurisdictional flaw, and that petitioner did not timely object to DHS’s misstep. (Ortiz-Santiago v. Barr, 5/20/19) AILA Doc. No. 19052803

CA9 Says NTA That Is Defective Under Pereira Cannot Be Cured by a Subsequent Notice of Hearing

The court held that a Notice to Appear (NTA) that is defective under Pereira v. Sessions cannot be cured by a subsequent Notice of Hearing, and therefore does not terminate the residence period required for cancellation of removal. (Lorenzo Lopez v. Barr, 5/22/19) AILA Doc. No. 19052872

CA9 Finds Petitioner’s Continuous Residency Did Not Commence with Grant of Parole

The court held that petitioner had failed to show that his 1997 parole constituted an “admission in any status,” and thus found he had not obtained the requisite seven years of continuous residency in the United States to be eligible for cancellation of removal. (Alanniz v. Barr, 5/20/19) AILA Doc. No. 19052871

D.C. District Court Vacates a Portion of USCIS’s July 2017 MAVNI Policy

The district court held that USCIS’s policy of declining to naturalize Military Accessions Vital to the National Interest (MAVNI) applicants until the Defense Department and the Army had determined they were suitable for service violated the Administrative Procedure Act. (Nio v. DHS, 5/22/19) AILA Doc. No. 19052839

EOIR Issues Memo on Its Strategic Caseload Reduction Plan

EOIR issued a redacted version of its strategic caseload reduction plan pursuant to an AILA FOIA request. AILA Doc. No. 19021932

U.S. Border Patrol Creates New Position to Support Border Patrol Agents

CBP announced the creation of a new Border Patrol Processing Coordinator position designed to perform administrative tasks related to the intake and processing of individuals apprehended by Border Patrol agents and brought back to stations. AILA Doc. No. 19052837

USCIS to Close All International Offices By 2020

USCIS will close its international offices, starting with Ciudad Juarez, Mexico and Manila in the Philippines. All offices, including the main district offices for the separate regions, are scheduled to close by March 10, 2020. Watch this page as AILA tracks which offices are closed. AILA Doc. No. 19053131

RESOURCES

Updated Credible Fear Lesson Plans Comparison Chart

USCIS Releases 2018 Statistical Annual Report Report Highlights Agency Programs, Workload, and Accomplishments

American Immigration Council and NIP Practice Advisory: Reinstatement of Removal

AILA Submits Comments on USCIS Policy Manual, Volume 1, Part A: Public Services

Bite-Sized Ethics: Asylum and Adult Mental Impairment

Ethical Considerations in Declining Representation

DHS OIG Issues Redacted Report on El Paso Del Norte Processing Center

CRS Report on “Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico

Withdrawal of Representation in Immigration Practice

CRS Releases Legal Sidebar on DHS’s Reported “Metering” Policy

An Attorney’s Ethical and Legal Obligations to Pereira-Affected Clients

AILA and ASISTA Send Letter to USCIS Requesting an Extension of Grace Period for New Edition of Form I-918

CBP Releases Officer’s Reference Tool Documents

Practice Alert: EOIR Policy Memo, No Dark Courtrooms

PEW: U.S. unauthorized immigrants are more proficient in English, more educated than a decade ago

EVENTS

6/4/19 Maintaining Permanent Residence While Abroad: Keep Your Options Open

6/11/19 Immigrants Will Teach Free ‘Open Air University’ In Prospect Park This Summer

6/12/19 Stories That Move Us: A night celebrating the stories of immigrant women

6/17/192019 AILA/GMS Annual Global Immigration Forum

6/19/19teach-in on the idea of universal representation in immigration proceedings

7/2/19 Introduction to Immigration Law Practice: A Course for New Practitioners

7/9/19 Foreign Students Not Picked in the H-1B Lottery: Options and Strategies

7/30/19 The I-864 and the Changing World of Public Charge Inadmissibility

8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue

ImmProf

Monday, June 3, 2019

U.S. Government Affords Amish Canadian LPR Status Without a Photo

Administration of Immigration Law Research Roundtable (June 4-5, 2019 in Washington, DC)

Immigrant Heritage Month Video

Sunday, June 2, 2019

Today in Immigration History

Ruben Navarette Jr.: Trump’s Skills-Based Immigration Proposal is Un-American

DHS Inspector General Report Notes Overcrowding, Health and Safety Concerns at Border Processing Center

Another Democratic Presidential Candidate Takes Immigration Position, Calls for Reversal of Trump Policies

Immigration Article of the Day: Withholding Protection by Lindsay Muir Harris

Saturday, June 1, 2019

Trump’s Crackdown on Illegal Immigration: 11 Employers Prosecuted in the Past Year

Immigration Article of the Day: Sexual Violence and Future Harm: Lessons From Asylum Law by Shawn Fields

Friday, May 31, 2019

Statement of ABA President Bob Carlson, Re: Improper Detention of Immigrant Children

UCLA Law Fellowship Announcement

USCIS Releases 2018 Statistical Annual Report Report Highlights Agency Programs, Workload, and Accomplishments

U.S. Court of Appeals for the Third Circuit: Driving Under Influence of Marijuana is a Removable Offense

Campaign 2020: The Lack of Immigration Policy Alternatives

President to Impose Tariffs on Mexico: Statement from the President Regarding Emergency Measures to Address the Border Crisis

Medical school graduates first “undocumented” student (DACA Recipient) in its history

The Opportunity Agenda: #LoveYourBorderlands, a Photo Essay

Immigration Article of the Day: Quieting the Court: Lessons from The Muslim-Ban Case by Avidan Cover

Thursday, May 30, 2019

Challengers Allege in Census Lawsuit Filing US Government Witnesses Provided False Testimony About Citizenship Question

Wednesday, May 29, 2019

Detainees Moved from Southern Border to NYC

Immigration Article of the Day: Reparations for Central American Refugees by Sarah Sherman-Stokes

Campaign 2020: Beto O’Rourke Issues Immigration Policy Statement

Tuesday, May 28, 2019

Immigration in the Supreme Court: Cert Petition in DACA Rescission Case, Cert Granted in Border Shooting Case

NPR: In Mexico, New Groups Offer Aid To A Young Generation Of Deported DREAMers

A New Family Separation Policy?: Trump Administration Separates Some Migrant Mothers From Their Newborns Before Returning Them to Detention

Citizenship Studies Call for Papers

From the Bookshelves: Race, Criminal Justice, Migration Control edited by Mary Bosworth, Alpa Parmar, and Yolanda Vazquez

From the Bookshelves: Defending Latina/o Immigrants in Era of Trump by Alvaro Huerta

Monday, May 27, 2019

Happy Memorial Day!

Citizenship and Migration events at Law and Society Meeting in Washington DC: May 30-June 2

A Migrant Family Takes a Greyhound Across America

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Thanks Elizabeth.

PWS

06-07-19

CRUEL, YET REALLY STUPID: TRUMP’S “REMAIN IN MEXICO POLICY” DENIES DUE PROCESS WHILE CREATING COURT CHAOS — Enfeebled Judges Fume As “Aimless Docket Reshuffling” Bloats Backlogs! — Article IIIs Complicit! — “The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=e1be401d-5763-4c8b-abee-151232bd287e

Kate Morrissey reports in the LA Times:

SAN DIEGO — The San Diego immigration court has been overwhelmed by the number of cases judges are hearing under a Trump administration program that returns asylum seekers to Mexico while they wait for hearings in the U.S.

Normally, asylum seekers coming to the California border would be distributed to immigration courts across the country, either because they would be held somewhere in the federal government’s national immigration detention system or because they would be released to reunite with family and friends already in the U.S.

Now, the increasing number of people picked for the administration’s Migrant Protection Protocols, known widely as the Remain in Mexico program, across the California border are all being sent to immigration court in downtown San Diego.

“Other than wallow through it, I don’t know what we can do,” said Immigration Judge Lee O’Connor shortly before walking out of his courtroom at 6:21 p.m. one evening last week after hearing a string of MPP cases. Court staff, including security, had left the building long before.

Immigration judges are already working under performance quotas set by the Trump administration to reduce the immigration court backlog, which has grown nationally to nearly 900,000 cases, according to data from the Transactional Record Access Clearinghouse of Syracuse University.

The San Diego court has more than 5,700 cases pending, up from 4,692 cases in fiscal 2018, a 22.4% increase. Nationally, the backlog has grown about 16.2% in fiscal 2019.

“This is a reflection of the constant doublespeak we’ve been highlighting. The agency has internally conflicting priorities,” said Ashley Tabaddor, speaking in her capacity as head of the National Assn. of Immigration Judges. “It creates chaos.”

On a given day, three of San Diego’s seven judges generally have afternoons full of MPP cases. On a recent Tuesday afternoon, 82 people were scheduled to appear before three judges, 28 of those before O’Connor.

“The judges have no control in terms of how many cases are being scheduled,” Tabaddor said.

Border officials who initially receive migrants either requesting protection at a port of entry or after they’re apprehended crossing illegally are responsible for scheduling the first court appearance for returnees.

Customs and Border Protection did not respond to a request for comment. The Department of Homeland Security was unable to respond to questions in time for publication.

Several of the judges assigned to hear cases in San Diego have pushed back on the government for a laundry list of issues that could be violations of the government’s due process responsibilities under immigration law.

Tabaddor said she’s heard a number of concerns from her union members who are trying to make sure “all of the T’s are crossed and all of the i’s are dotted” in implementation of the new program. “That’s what the oath of office is,” Tabaddor said. “You’re supposed to make sure all the rules are followed.”

One that has come up over and over again is the address put down initially on each asylum seeker’s case documents by border officials. Along the California border, Customs and Border Protection and Border Patrol have written some version of “Domicilio conocido,” or “known address.”

Some have “Tijuana, Baja California, Mexico.” Others simply say “Baja California” without the city or the country noted.

Having an accurate address on file is key to showing that immigrants were given proper notice of their court hearings. That proof of notice is a crucial part of a judge’s decision to proceed “in absentia” and order a person deported if he or she doesn’t show up for a hearing.

“This whole program, I don’t understand it,” said Immigration Judge Jesús Clemente on his first day of hearing MPP cases. “How are we ever going to tell this person that he has a hearing?”

Similarly, when an government attorney suggested that it was the asylum seeker’s responsibility to provide an accurate address, Immigration Judge Scott Simpson responded with incredulity. “Are you saying the respondent provided this address?” he asked, referring to the asylum seeker. “Are you saying every respondent in the MPP program provided this address?”

“I can’t speak to that,” the attorney representing ICE responded. “In my experience, the address the respondent provides is what is put down.”

“That’s how it usually works,” Simpson replied. “But I’m not convinced that’s what’s happening now.”

When asked about the address issue recently, San Ysidro Port of Entry Director Sidney Aki said that migrants don’t often know where they will be staying when they’re first returned.

To prevent any miscommunication, Aki said, they’re told to return to the port of entry at a particular date and time.

Normally, if a judge believes that the government violated an asylum seeker’s due process rights, the judge can terminate immigration proceedings against that person, said attorney Lindsay Toczylowski, executive director of Immigrant Defenders Law Center. Then the asylum seeker can apply for protection outside of immigration court in a process that is less adversarial.

For returnees who are ultimately hoping for asylum in the U.S., termination won’t help them because they’ll be returned to Mexico with no access to the U.S. asylum system, she said.

“It essentially removes their ability to vindicate their due process rights,” Toczylowski said.

Among other issues, the dates on instructions given to returnees that explain when to come back to the San Ysidro Port of Entry to be taken to court don’t always match the dates on their hearing notices. Or, the government fails to file the preliminary paperwork in the case and the immigration court doesn’t have a hearing scheduled for the person when he or she shows up.

“I’m sure you’re frustrated,” Simpson said to a man whose paperwork had not properly been filed by the government, resulting in a delay in the start of his case. “I share your frustration.”

Asylum cases typically have several preliminary hearings, known as “master calendar hearings,” before the “merits hearing,” where evidence is presented for the judge to make a decision on the person’s claim. During those master calendar hearings, asylum seekers are given time to look for attorneys, are told their rights in immigration court, and are given applications to fill out and submit.

Juan, a doctor who fled Honduras after facing threats for his participation in political protest, filed his asylum application in mid-May. His merits hearing was scheduled for November.

Where to live and how to sustain themselves in Tijuana is becoming a larger and larger issue as more asylum seekers are returned. Despite its promises at the program’s outset, Mexico has not given many of the returnees permission to work while they wait.

Tijuana’s migrant shelters are already at or near capacity, and most of the people staying in them are not returnees from the program.

One returnee who had become homeless and tried crossing illegally only to be returned again to Tijuana said he was planning on going back to his country in the coming days. It would be better to die there, he said, than to continue living as he’s been living in Tijuana.

Juan is one of the lucky ones. He is staying at a shelter near the border. Still, he’s worried about the long wait ahead.

“The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico,” he said.

Morrissey writes for the San Diego Union-Tribune.

****************************************

The Ninth Circuit had an opportunity to put at least a temporary halt to this blatant denial of the statutory right to counsel and the constitutional right to adequate notice and Due Process. They “swallowed the whistle.” Eventually, these feckless and complicit Article III courts will find their own dockets overwhelmed with the results of their inaction in the face of a Due Process, operational, and human rights disaster of gargantuan proportions in the U.S. Immigration Courts as mal-administered by the DOJ.

Of course, the real culprit is Congress, which has failed to act to require an independent, constitutional U.S. Immigration Court. But, the word “feckless” doesn’t begin to describe a body that under Mitch McConnell has intentionally ceded its constitutional power to govern and oversee in the overall public interest to an unqualified, scofflaw President who respects neither democratic institutions nor the rule of law.

PWS

06-06-19

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