Executive Order – Page 79 – immigrationcourtside.com

TRUMP LAUNCHES PREDICTABLE LARGELY FACT FREE TIRADE AGAINST DESPERATE MIGRANTS – They Aren’t A Threat To Our National Security – But, Trump & His White Nationalist Policies Of Hate & Xenophobia Are!

http://time.com/5430940/donald-trump-migrant-caravan-false-claims

Katie Reilly reports for Time:

For more than 15 years, nonprofit groups have helped hundreds of asylum-seeking migrants journey through Central America to the United States, traveling together in a caravan to make the journey safer and their plight more visible. Thousands of Central American migrants currently walking to the U.S. border are doing the same, fleeing deadly violence on a trek that has drawn international focus.

As many as 7,000 migrants, according to one local estimate, have now joined the caravan that started on Oct. 13 in Honduras, many wearing flip flops and carrying their children on a journey that will be at least 1,500 miles long, depending on which part of the U.S. border they reach.

President Donald Trump — who has long critiqued U.S. immigration policies and denigrated immigrants since the start of his presidential campaign — has made numerous baseless claims about the caravan in recent weeks, spreading alarm and touting it as a “Great Midterm issue for Republicans!” Trump has claimed, without evidence, that the group included “criminals and unknown Middle Easterners” and falsely suggested that Democrats funded the caravan. He also blamed Democrats for the current immigration laws, though Republicans currently control both chambers of Congress and the White House.

“I have alerted Border Patrol and Military that this is a National Emerg[enc]y,” Trump tweeted early Monday, threatening to cut off foreign aid to Guatemala, Honduras and El Salvador for not “stopping people from leaving their country and coming illegally to the U.S.”

But videos and reporting from journalists traveling with the caravan of migrants show weary families making an arduous journey because of violence or lack of opportunity in their home countries, and no evidence that there are “unknown Middle Easterners” among the group.

“The migrants are ordinary people from Central America. They’re joining the caravans because the migration routes through Mexico are perilous for them and highly expensive,” says Elizabeth Oglesby, an associate professor of Latin American studies at the University of Arizona, who has studied Central America and human rights issues. “The more that the border has become militarized between the U.S. and Mexico, the more perilous and the more expensive the journey has become for Central Americans. So that’s why we see people coming together in the caravans.”

She says the caravan, which is larger than many of its annual predecessors, has grown because of how word spread on social media and because of worsening conditions in Honduras, where the murder rate is among the highest in the world and where the government has cracked down on political protestersfollowing last year’s disputed presidential election.

Oglesby says just a fraction of migrants who begin the trek make it to a U.S. point of entry each year, as many turn back or peel off if they can find work or safety in Mexico instead.

While no specific group has said it’s responsible for organizing the current caravan, Pueblo Sin Fronteras, founded in 2010, has led asylum-seeking migrants through Central America for more than 15 years, most recently in April — another caravan that drew ire from Trump. The group aims to “provide shelter and safety to migrants and refugees in transit, accompany them in their journey, and together demand respect for our human rights.” Some Pueblo Sin Fronteras leaders and organizers are involved in the current caravan.

Trump has lashed out at the caravan as an example of illegal immigration, threatening to deploy U.S. military force to “close our Southern border” and stop what he has described as a crisis. But illegal border crossings have been declining overall for more than a decade, though the number of border apprehensions fluctuates month-to-month. And under U.S. law, it is legal to petition for asylum at the border, though the process may be lengthy and ultimately unsuccessful.

“These migrant caravans are not a border crisis,” Oglesby says. “People are doing this openly and visibly, and they plan to show up at the U.S. port of entry and petition for political asylum, and that is exactly how our laws are supposed to function. The crisis comes about when U.S. border officials discourage people from political asylum, leave them on the bridges or threaten them that if they go forward with a political asylum claim, they might lose their children.”

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Katie is hardly the only informed observer to note that Trump is even more full of BS, fabricated facts, and bogus scare techniques than usual on this one.

Here’s Maegan Vasquez over at CNN:

https://www.cnn.com/2018/10/22/politics/donald-trump-migrant-caravan-fact-check/index.html

Washington (CNN)President Donald Trump, in a series of tweets on Monday, claimed he would declare a “national emergency” over an issue that has frequently piqued his attention — migrant caravans moving toward the United States through Central America and Mexico.

His tweets come just weeks ahead of the 2018 midterm elections and he has emphasized immigration as a key issue, without evidence accusing Democrats of pushing for overrun borders in what appears to be a naked fear campaign aimed at turning out his supporters. Immigration was a key issue in the 2016 presidential race.

Crowds of migrants, estimated to be in the thousands on Monday, resumed their long journey north on Sunday into Mexico as part of a migrant caravan originating in Central America.

Bolton and Kelly get into heated shouting match sparking resignation fears

Currently migrants are at the Central Park Miguel Hidalgo in the center of Tapachula. Organizers plan for them to begin moving north, reaching the northern city of Huixtla, which is about 20 miles north, and resting there.

The President, in his tweets, also made several questionable claims concerning immigration and the caravan. Among them: that “unknown Middle Easterners” are “mixed” in with the caravan, that he would be cutting off foreign aid over the caravan, and that Mexican authorities failed to stop migrants from coming into Mexico.

Asked later Monday about his assertion about “unknown Middle Easterners” in the caravan, Trump said: “Unfortunately, they have a lot of everybody in that group.”

“We’ve gotta stop them at the border and, unfortunately, you look at the countries, they have not done their job,” he said. “They have not done their job. Guatemala, Honduras, El Salvador — they’re paid a lot of money, every year we give them foreign aid and they did nothing for us, nothing.”

Here’s what we know:

Are there “unknown Middle Easterners” “mixed” into the migrant caravan?

Trump tweeted “criminals and unknown Middle Easterners are mixed” into the migrant caravan moving toward the United States. He called this a “national emergy” (sic).

It’s unclear what “unknown Middle Easterners” Trump appears to be referring to in his tweet, since there have been no reports, in the press or publicly from intelligence agencies, to suggest there are “Middle Easterners” embedded in the caravan.

A senior counterterrorism official told CNN’s Jessica Schneider that “while we acknowledge there are vulnerabilities at both our northern and southern border, we do not see any evidence that ISIS or other Sunni terrorist groups are trying to infiltrate the southern US border.”

White House press secretary Sarah Sanders said Monday afternoon that the administration “absolutely” has evidence of Middle Easterners in the caravan, “and we know this is a continuing problem.”

However, she did not provide the specific evidence supporting that claim.

During a White House conference call with surrogates regarding the caravan, a Homeland Security official said the administration is looking into a claim from Guatemalan President Jimmy Morales that his country has been able to capture around 100 terrorists. However, the official did not offer any evidence of the Middle Eastern people who Trump claims are hiding among migrants in the caravan.

“We are looking into that claim from the President Morales on the numbers,” Jonathan Hoffman, the DHS official, said. “It is not unusual to see people from Middle Eastern countries or other areas of the world pop up and attempt to cross our borders.”

Earlier this month, Morales claimed foreign individuals linked to terrorism were captured in the country during his administration, which began in January 2016.

“We have arrested almost 100 people highly linked to terrorist groups, specifically ISIS. We have not only detained them in our territory, they have also been deported to their countries of origin. All of you here have information to that effect,” Morales said during a Conference on Prosperity and Security in Central America event attended by Secretary of State Mike Pompeo.

There’s no direct link or correlation between Morales’ statement and Trump’s assertion about the caravan on Twitter.

The Department of Homeland Security also did not provide any evidence to bolster the President’s claim about “unknown Middle Easterns” in the caravan when asked for it by CNN on Monday.

A department official told CNN that in fiscal year 2018, Customs and Border Protection “apprehended 17,256 criminals, 1,019 gang members, and 3,028 special interest aliens from countries such as Bangladesh, Pakistan, Nigeria and Somalia. Additionally, (Customs and Border Protection) prevented 10 known or suspected terrorists from traveling to or entering the United States every day in fiscal year 2017.”

The Department of Homeland Security did not specify any Middle Eastern countries.

Pressed about the President’s assertion that there are “unknown Middle Easterners” mixed in with the caravan, a State Department spokesperson said they understand there are several nationalities in the caravan and referred us to Department of Homeland Security for more information.

Will the administration cut off foreign aid? Can they?

Trump is threatening foreign aid over the new migrant caravan. Here’s what’s at stake.

Trump tweeted that because “Guatemala, Honduras and El Salvador were not able to do the job of stopping people from leaving their country and coming illegally to the U.S.,” the United States “will now begin cutting off, or substantially reducing, the massive foreign aid routinely given to them.”

It’s unclear where the administration will propose to make the cuts the President appears to be talking about, and CNN has reached out to the White House and the DHS for further information.

However, the Congressional Budget and Impoundment Control Act prohibits the President from withholding — or impounding — money appropriated by Congress.

New York Rep. Eliot Engel, the top Democrat on the House Committee on Foreign Affairs, said Monday that his office has reached out to the Government Accountability Office to ensure that the President does not violated the act.

“Fortunately, Congress — not the President — has the power of the purse, and my colleagues and I will not stand idly by as this Administration ignores congressional intent,” Engel said in a statement.

Trump has made the threat of cuts to foreign aid going to Latin American countries over migrant caravans several times over the last year.

Under the Trump administration, and with the approval of the Republican-controlled Congress, there have already been significant cuts to foreign aid to Guatemala, El Salvador and Honduras — the three countries he mentioned Monday — and the administration plans to continue making cuts in fiscal year 2019.

Were authorities from Mexico unable to stop the migrant caravan from heading into the US?

Migrant caravan resumes march north from Mexico-Guatemala border

Trump tweeted Monday that “Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States.”

There are some 7,500 people marching north as part of a migrant caravan through Mexico, caravan organizer Dennis Omar Contreras told CNN. He said the organizers did a count of participants Monday morning.

He said the migrants will leave Mexico’s Tapachula for the town of Huixtla, which is located more than 20 miles northwest of their Monday morning location.

While Mexican authorities said before the caravan’s arrival that anyone who entered the country “in an irregular manner” could be subject to apprehension and deportation, many migrants from the caravan appear to have circumvented authorities.

CNN crews witnessed migrants jumping off a bridge at the Mexico-Guatemala border and riding rafts to reach Mexican soil.

Mexican authorities say more than 1,000 Central American migrants officially applied for refugee status in Mexico over the past three days.

It’s unclear how authorities will respond to the thousands of other migrants who are marching north.

Will the President declare a national emergency over the caravan?

It’s unclear exactly what executive action, if any, the President will take following his tweet saying that he has “alerted Border Patrol and Military that this is a National (emergency).”

Previous administrations have ordered troops to the US southern border, and Trump issued a similar memorandum earlier this year ordering National Guard troops to be deployed to the US-Mexico border. The memo came around the same time another, smaller migrant caravan was moving toward the US through Central America.

Lieutenant Colonel Jamie Davis, a spokesman for the Defense Department, told CNN that “beyond the National Guard soldiers currently supporting the Department of Homeland Security on our southern border, in a Title 32, U.S. Code, section 502(f) duty status under the command and control of the respective State Governors, the Department of Defense has not been tasked to provide additional support at this time.”

The Department of Homeland Security, which oversees Customs and Border Protection, referred questions about the national emergency to the White House, which did not answer to several questions for comment.

Doris Meissner, a senior fellow at the Migration Policy Institute and the former commissioner of the Immigration and Naturalization Service, told CNN that the President’s use of the term national emergency, and his potential subsequent declaration, is “a subjective judgment.”

“It is certainly true that the numbers that have been reported in this group are larger than anything that we’ve seen before this from these countries concentrated in one group,” she said.

However, she added that the reaction is “disproportionate to what’s happening.”

“I’m not saying it’s not a genuine problem, but it’s not like this is organized insurrection, in the way that its been characterized,” she added.

CNN’s Catherine Shoichet, Sarah Westwood, Ryan Browne, Jennifer Hansler, Geneva Sands, Dakin Andone, Patrick Oppmann, Natalie Gallón, Kevin Liptak and Jessica Schneider contributed to this report.

This story has been updated.

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And, here’s the ever-wonderful Tal from her “new home” over at the SF Chronicle:

Here’s what happens when the migrant caravan arrives at U.S. border

By Tal Kopan

WASHINGTON — President Trump ratcheted up his rhetoric Monday about a caravan of thousands of Central Americans making its way toward the U.S., even as uncertainty grew over what will happen to the migrants if they reach the border.

Trump has seized on the caravan as a key talking point heading into the midterm elections. The president has been pointing to the growing group of migrants as justification for his aggressive immigration proposals.

“Sadly, it looks like Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States. Criminals and unknown Middle Easterners are mixed in. I have alerted Border Patrol and Military that this is a National Emergy. Must change laws!” Trump tweeted Monday.

A source familiar with the government’s information on the caravan said there was no evidence Middle Easterners were mixing into it. It’s unclear whether Mexico will allow the group to continue the remaining 1,000-plus miles to the U.S. border without interfering.

More:

https://www.sfchronicle.com/politics/article/Here-s-what-happens-when-migrant-caravan-13327887.php#photo-16376169

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Actually, contrary to the false narrative put out by Trump, Sessions, Nielsen, and others, our legal system is set up to handle this situation:

USCIS could move additional Asylum Officers to ports of entry along the Southern border, particularly given the substantial advance notice;
Arriving migrants could be promptly and fairly screened for “credible fear;”
Those who pass could be matched with available pro bono lawyers and released to those locations where their lawyers and community support are located, thus insuring a high rate or appearance for asylum hearings in Immigration Court;
Those who fail credible fear could be returned to their home countries in a humane manner, perhaps working with the UNHCR;
If the Administration wants these cases to be “prioritized” in a backlogged Immigration Court system, they could remove an equal number of “low priority” older cases from the docket, thus preventing growth in the backlog and largely avoiding “Aimless Docket Reshuffling;”
The Refugee Act of 1980 could be used to establish a robust program for screening and resettlement of refugees directly from the Northern Triangle, thus both reducing the incentive to make the land journey to apply for asylum and setting a leadership example for other countries in the hemisphere to take additional refugees from the Northern Triangle;
We could work cooperatively with the UNHCR and other countries to establish shared resettlement programs for those who flee the Northern Triangle and can’t return;
We could invest more foreign aid in infrastructure, and job creation programs in the Northern Triangle which would deal with the causes of the continuing outward migration.

We do know from experience and observation what won’t work: incarceration, prosecutions, threats, family separation, child abuse, misconstruing asylum law against applicants, tirades directed against sending and transit countries, saying “we don’t want you,” etc.

PWS

10-22-18

APPROXIMATELY 700,000 TRANSGENDER HUMAN BEINGS LIVE IN THE U.S. – The Trump Administration Seeks To “Define” Them Out Of Existence!

https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html

Erica L. Green, Katie Benner and Robert Pear report for the NY Times:

WASHINGTON — The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.

A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.

“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

Several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from a 2020 census survey and a national survey of elderly citizens.

For the last year, the Department of Health and Human Services has privately argued that the term “sex” was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.

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, now at the Department of Health and Human Services, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity.CreditAaron P. Bernstein/Getty Images

Roger Severino, the director of the Office for Civil Rights at the department, declined to answer detailed questions about the memo or his role in interagency discussions about how to revise the definition of sex under Title IX.

But officials at the department confirmed that their push to limit the definition of sex for the purpose of federal civil rights laws resulted from their own reading of the laws and from a court decision.

Mr. Severino, while serving as the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity, which he called “radical gender ideology.”

In one commentary piece, he called the policies a “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”

“Transgender people are frightened,” said Sarah Warbelow, the legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.” After this article was published online, transgender people took to social media to post photographs of themselves with the hashtag #WontBeErased

The Department of Health and Human Services has called on the “Big Four” agencies that enforce some part of Title IX — the Departments of Education, Justice, Health and Human Services, and Labor — to adopt its definition in regulations that will establish uniformity in the government and increase the likelihood that courts will accept it.

The definition is integral to two proposed rules currently under review at the White House: One from the Education Department deals with complaints of sex discrimination at schools and colleges receiving federal financial assistance; the other, from health and human services, deals with health programs and activities that receive federal funds or subsidies. Both regulations are expected to be released this fall, and would then be open for public comment, typically for 60 days. The agencies would consider the comments before issuing final rules with the force of law — both of which could include the new gender definition.

Civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed definition, which has divided career and political appointees across the administration. Some officials hope that health and human services will at least rein in the most extreme parts, such as the call for genetic testing to determine sex.

After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say. If the Justice Department decides that the change is legal, the new definition can be approved and enforced in Title IX statutes, and across government agencies.

The Justice Department declined to comment on the draft health and human services proposal. The Justice Department has not yet been asked to render a formal legal opinion, according to an official there who was not authorized to speak about the process.

But Attorney General Jeff Sessions’s previous decisions on transgender protections have given civil rights advocates little hope that the department will prevent the new definition from being enforced. The proposal appears consistent with the position he took in an October 2017 memo sent to agencies clarifying that the civil rights law that prohibits job discrimination does not cover “gender identity, per se.”

Harper Jean Tobin, the policy director of the National Center for Transgender Equality, an advocacy group, called the maneuvering “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”

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A transgender flag outside a bar in Brooklyn. The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with.CreditAnnie Tritt for The New York Times

Health and human services officials said they were only abiding by court orders, referring to the rulings of Judge Reed O’Connor of the Federal District Court in Fort Worth, Tex., a George W. Bush appointee who has held that “Congress did not understand ‘sex’ to include ‘gender identity.’”

A 2016 ruling by Judge O’Connor concerned a rule that was adopted to carry out a civil rights statute embedded in the Affordable Care Act. The provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

But in recent discussions with the administration, civil rights groups, including Lambda Legal, have pointed to other court cases. In a legal memo presented to the administration, a coalition of civil rights groups wrote, “The overwhelming majority of courts to address the question since the most relevant Supreme Court precedent in 1998 have held that antitransgender bias constitutes sex discrimination under federal laws like Title IX.”

Indeed, the health and human services proposal was prompted, in part, by pro-transgender court decisions in the last year that upheld the Obama administration’s position.

In their memo, health and human services officials wrote that “courts and plaintiffs are racing to get decisions” ahead of any rule-making, because of the lack of a stand-alone definition.

“Courts and the previous administration took advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws,” the memo states. Doing so “led to confusion and negative policy consequences in health care, education and other federal contexts.”

The narrower definition would be acutely felt in schools and their most visible battlegrounds: locker rooms and bathrooms.

One of the Trump administration’s first decisive policy acts was the rescission by the Education and Justice Departments of Obama-era guidelines that protected transgender students who wanted to use bathrooms that correspond to their gender identity.

Since the guidance was rescinded, the Education Department’s Office for Civil Rights has halted and dismissed discrimination cases filed by transgender students over access to school facilities. A restrictive governmentwide definition would cement the Education Department’s current approach.

But it would also raise new questions.

The department would have to decide what documentation schools would be required to collect to determine or codify gender. Title IX applies to a number of educational experiences, like sports and single-sex classes or programs where gender identity has come into play. The department has said it will continue to open cases where transgender students face discrimination, bullying and harassment, and investigate gender-based harassment as “unwelcome conduct based on a student’s sex” or “harassing conduct based on a student’s failure to conform to sex stereotypes.”

The Education Department did not respond to an inquiry about the health and human services proposal.

Ms. Lhamon of the Obama Education Department said the proposed definition “quite simply negates the humanity of people.”

A version of this article appears in print on Oct. 21, 2018 of the New York edition with the headline: Trump May Limit How Government Defines One’s Sex. Order Reprints | Today’s Paper | Subscribe

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Historical footnote: At one point in our “respective prior incarnations,” circa late 1970s, early 1980s, Robert Pear was the “immigration beat” reporter for the NY Times, and I was the Deputy General Counsel at the “Legacy INS.” I was sometimes asked by the Commissioner and the Public Information Office to respond to Robert’s telephonic inquiries. Smart, knowledgeable, incisive, and a “straight shooter” was how I would have described him in those days.

Moving on, I had a number of transgender individuals appear before me in Immigration Court. Almost all of them had been damaged by rejection, abuse, intentional cruelty, and humiliation inflicted by family, governments, teachers, and other community members who should have known better. The majority had either attempted suicide or admitted to having suicidal impulses. Yet, many appeared to have found the courage and determination to persevere.

Sadly, the attempt to deny the legal existence and humanity of transgender individuals seems to be something right out of the “Third Reich Playbook.” Using the law to “pick on,” target, and “legitimize” the dehumanization of already marginalized minorities was a “Hitler specialty.” And, in too many cases, lawyers and the judiciary were more than happy to help out. Some were even eager to “out-Hitler Hitler.”

History will deal harshly with the hate, racism, and intolerance being promoted by the Trump Administration. Where will YOU be recorded as standing! What have YOU done to remove these horrible individuals from public office and to resist their toxic and immoral programs and actions?

PWS

10/21/18

GONZO’S WORLD: WHITE NATIONALIST A.G. PUTS IDEOLOGY ABOVE LAW & FACTS – How He’s Destroying the U.S. DOJ & Corrupting Our Government! –“Since I’ve been a lawyer, going back to the late 1970s, I can’t recall a time when morale has been as low as I have heard from some former colleagues.”

https://www.nytimes.com/2018/10/19/us/politics/jeff-sessions-justice-department.html

Katie Benner reports for the NY Times:

Justice Dept. Rank-and-File Tell of Discontent Over Sessions’s Approach

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Justice Department lawyers have raised concerns about Attorney General Jeff Sessions pursuing legally indefensible cases and a lack of support when they tried to warn him.CreditCreditDoug Mills/The New York Times

By Katie Benner

Oct. 19, 2018

WASHINGTON — During his 20 months in office, Attorney General Jeff Sessions has swept in perhaps the most dramatic political shift in memory at the Justice Department, from the civil rights-centered agenda of the Obama era to one that favors his hard-line conservative views on immigration, civil rights and social issues.

Now, discontent and infighting have taken hold at the Justice Department, in part because Mr. Sessions was so determined to carry out that transformation that he ignored dissent, at times putting the Trump administration on track to lose in court and prompting high-level departures, according to interviews over several months with two dozen current and former career department lawyers who worked under Mr. Sessions. Most asked not to be named for fear of retribution.

President Trump has exacerbated the dynamic, they said, by repeatedly attacking Mr. Sessions and the Justice Department in baldly political and personal terms. And he has castigated rank-and-file employees, which career lawyers said further chilled dissent and debate within the department.

The people interviewed — many yearslong department veterans, and a third of whom worked under both the Bush and Obama administrations — said that their concerns extended beyond any political differences they might have had with Mr. Sessions, who is widely expected to leave his post after November’s midterm elections.

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“Since I’ve been a lawyer, going back to the late 1970s, I can’t recall a time when morale has been as low as I have heard from some former colleagues,” said Robert Litt, a former Justice Department official during the Clinton administration.

A department spokeswoman, Sarah Isgur Flores, said that Mr. Sessions and other senior law enforcement officials were committed to the department’s mission of upholding the rule of law, and that they had heard no complaints about that.

“We know of no department employee who is opposed to policies that uphold the rule of law and protect the American people — which are precisely the policies that this department has implemented and embraced,” Ms. Flores said in a statement.

Driven by Ideology

Mr. Sessions’s shift in the department’s priorities reflected Mr. Trump’s campaign promises to be tough on crime and crack down on illegal immigration, much as former Attorney General Eric H. Holder Jr. took office in 2009 with a mandate to realize President Barack Obama’s vision on civil rights.

Ms. Flores called Mr. Sessions’s changes “vital to reducing violent crime,” combating the opioid epidemic and securing borders.

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The Justice Department’s effort to crack down on sanctuary cities through the courts has been met with protests, here in Sacramento in June.CreditRich Pedroncelli/Associated Press

But Trump appointees ignored the legal advice of career lawyers in implementing their agenda, four current Justice Department employees said.

In one instance, Mr. Sessions directly questioned a career lawyer, Stephen Buckingham, who was asked to find ways to file a lawsuit to crack down on sanctuary laws protecting undocumented immigrants. Mr. Buckingham, who had worked at the Justice Department for about a decade, wrote in a brief that he could find no legal grounds for such a case.

Reminding Mr. Buckingham of the attorney general’s bona fides as an immigration hard-liner, Mr. Sessions asked him to come to a different conclusion, according to three people who worked alongside Mr. Buckingham in the federal programs division and were briefed on the exchange.

To Mr. Buckingham’s colleagues, the episode was an example of Mr. Sessions stifling dissent and opening the department to losses in court.

Mr. Buckingham resigned a few months later, and Mr. Sessions got his lawsuit. A federal judge dismissed most of the case, and the department has appealed. Both Mr. Buckingham and Ms. Flores declined to comment on the episode.

In stripping protections last year for transgender people under the Civil Rights Act, department leaders failed to consult Diana Flynn, the head of the civil rights appellate division who led the effort to add the protections in 2014, and many of her career staff.

The process left little room for debate. “Edicts came down, and it was up to us to try to implement them,” said Ms. Flynn, who has left the Justice Department for Lambda Legal, a lesbian, gay, bisexual and transgender legal aid organization.

Similarly, a flare-up over the Affordable Care Act this summer occurred after the department’s political leaders urged a judge to find unconstitutional two of the law’s key elements, a reversal of the government’s longstanding position.

“This is a rare case where the proper course is to forgo defense” of existing law, Mr. Sessions said at the time, adding that Mr. Trump had approved the step. Three career lawyers withdrew from the case, including Joel McElvain, a 27-year department veteran, who made headlines by resigning in protest.

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To some career Justice Department lawyers, Rod J. Rosenstein, the deputy attorney general, represents a measure of independence because his office oversees the investigations into the president and his associates.CreditJim Lo Scalzo/EPA, via Shutterstock

The episode prompted an all-hands meeting in June to address lingering rancor, according to two people who attended and two others briefed on the gathering.

During the standing-room-only meeting, attendees pressed the head of the departmental branch. What were the brief’s legal flaws, they asked. Had political considerations edged out a sound legal opinion? Did department leaders consider them part of the bureaucratic “deep state” that Mr. Trump has accused of conspiring against him?

After more than an hour, the officials running the meeting said they understood the employees’ concerns and simply encouraged them to continue doing good work.

Attorneys general have long confronted resistance when they implement ideological initiatives that career lawyers view as outside the Justice Department’s mission.

During the Bush administration under Alberto R. Gonzales, the department formed a task force to crack down on pornography; investigators focused on only a small swath of the most egregious examples.

When political appointees under Mr. Holder wanted to abandon the government’s defense of “don’t ask, don’t tell,” Jody Hunt, a well-regarded career attorney, argued successfully that the department had a legal duty to defend it.

Mr. Sessions is not bound to follow the advice of career Justice Department lawyers, “and, if he doesn’t like recommendations, to ignore them,” Mr. Litt said. “But it would be inappropriate to ask people to tailor legal judgments to policy preferences.”

Without directly addressing the department’s positions on transgender rights or the Affordable Care Act, Ms. Flores noted that its reversals on workplace arbitration, voting rights, labor unions and the appointments of federal officials were validated by wins at the Supreme Court.

Trump’s Shadow

Mr. Trump has stoked much of the unease at the Justice Department. He assailed the prosecutors who won a conviction of his former campaign chairman, and he attacked the plea agreement struck with his longtime personal lawyer. He castigated Mr. Sessions for not investigating perceived White House enemies — drawing a rare rebuke from the attorney general — and for daring to pursue cases against Republican lawmakers.

Image

President Trump stokes much of the unease at the Justice Department.CreditTom Brenner/The New York Times

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The president has also frequently targeted Rod J. Rosenstein, who as deputy attorney general oversees the day-to-day operations at the department as well as the special counsel investigation. In a turnabout this month, Mr. Trump declared his relationship with Mr. Rosenstein good, to the relief of some federal prosecutors. To them, Mr. Rosenstein’s office symbolizes the department’s independence because he oversees its inquiries into the president and his inner circle.

More unnerving, employees said, was the president’s threat to remove the security clearance of Bruce Ohr, a civil servant who worked to combat Russian mobs and oligarchs. The message, said one lawyer in the criminal division: Doing your job can make you vulnerable to a career-ending attack.

Two former attorneys said that they stepped away from Russia-related work as a result.

“The underlying message from Trump is that department employees are either enemies of the White House or vassals doing its bidding,” said Norman L. Eisen, who served as special counsel for ethics and government reform under Mr. Obama. Mr. Eisen is co-counsel for the plaintiffs in a lawsuit accusing Mr. Trump of violating the Constitution by maintaining a stake in his hotel in Washington.

As a target of Mr. Trump’s high-profile rebukes, Mr. Sessions has gained cautious support even from some rank-and-file lawyers who find his culture wars zeal distasteful. They cited instances where he pushed back on Mr. Trump’s broadsides and his simply enduring months of presidential invective.

Empty Spots

Internal events intended to boost morale have also proved tense. Guy Benson, a Fox News commentator, was chosen to speak at a gay pride event over the objections of the department’s L.G.B.T. affinity group, DOJ Pride, Justice Department lawyers said.

DOJ Pride members held a separate event, where one employee spoke about how progress for L.G.B.T. Americans had regressed under Mr. Trump. Department officials would not comment on the episode.

Some of the lawyers interviewed also said that departures of respected leaders and longtime career lawyers has weakened morale. Besides Ms. Flynn, Mr. McElvain and Mr. Buckingham, others who left included Doug Letter, the head of the civil appellate branch, and David Laufman, the chief of the counterintelligence section.

“Any given person wants to spend more time with his family,” said Benjamin Wittes, a senior fellow at the Brookings Institution and critic of Mr. Trump’s attacks on law enforcement who has heard complaints from department lawyers. “But the sudden decision by large numbers of people to spend more time with their families is a creation of the atmosphere.”

Days after the health law brief was filed, a long-planned happy hour for former and current federal programs lawyers took on the feeling of a support group, according to people who attended. Gathered at an Irish pub near the Justice Department, colleagues told Mr. McElvain they were sorry that he was leaving but that they admired his decision.

Some maligned the Trump administration or poked fun at Mr. Sessions. But when political appointees joined the conversation, the career lawyers, worried about being pegged as dissenters, shifted the discussion to more neutral topics.

Correction: October 18, 2018

Because of an editing error, an earlier version of this article misstated who Justice Department leaders consulted in stripping protections for transgender people. They spoke to departmental experts, though not to the head of the civil rights appellate division and her team.

Sharon LaFraniere and Glenn Thrush contributed reporting.

Follow Katie Benner on Twitter: @ktbenner.

Get politics and Washington news updates via Facebook, Twitter and the Morning Briefing newsletter.

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I’ve commented numerous times on Sessions’s stunningly “law free approach” to his job as the nation’s top legal official. His positions never appear to be the product of any type of legitimate deliberation and reflection. Rather they essentially are lifted, sometimes almost verbatim, from “position papers” and screeds written by far-right groups, most of them driven by a White Nationalist, racially motivated, religiously intolerant views that have little appeal to the majority of Americans — even among “true conservatives” (as opposed to racists masquerading as “pseudo conservatives.”)

Low morale has often been a significant issue among the much maligned corps of U.S. Immigration Judges. But, I’ve heard the same things reflected in this article — that morale is by far the worst that it has ever been among U.S Immigration Judges who feel that their expertise and abilities have been disrespected, discretion virtually eliminated, and their positions reduced to basically “robed representatives of DHS Enforcement” under Sessions’s White Nationalist, openly xenophobic regime.

Sessions undoubtedly is the most glaringly unqualified Attorney General since the disgraced “John the Con” Mitchell under Nixon. But, in terms of long term damage to the entire system, Sessions probably has surpassed even “the Con.”

PWS

10-21-18

JEFF SESSIONS WON’T LIKE THIS: 11th Cir. Says It Won’t “Rubber Stamp” BIA (Unfortunately Unpublished)!

11thCir-RubberStamp201811099

ALFREDO MARQUEZ-MARTINEZ v. U.S. ATTORNEY GENERAL, 11th Cir., 10-17-18, Per Curiam, Unpublished

KEY QUOTE:

When reviewing an agency decision for abuse of discretion, we evaluate whether the agency’s exercise of its discretion was arbitrary or capricious. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005), overruled on other grounds by Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013). The arbitrary- and-capricious standard is “exceedingly deferential”—we are not authorized to substitute our judgment for an agency’s so long as its conclusions are rational. Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009) (citations omitted).

That being said, we may nonetheless find an agency action arbitrary and capricious where an agency has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (citing Ala.–Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)).

Here, Marquez-Martinez has demonstrated that the denial of his motion to reopen was arbitrary and capricious. As indicated by the BIA, the IJ’s decision rested solely on two “negative” grounds: (1) Marquez-Martinez’s delay in filing the motion to reopen and (2) Marquez-Martinez’s prior relationships. Neither the IJ nor the BIA, however, provided any reason why these factors counted against Marquez-Martinez—indeed, the IJ explicitly discounted the only reason for which either factor could support a denial of Marquez-Martinez’s motion.

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Recently, Jeff Sessions has made it clear that he wants everyone to know just how deeply, deeply offended and totally outraged he is that Federal Judges (unlike his captive “Immigration Judges”) have, on some occasions, had the absolute audacity to insist that he and the Trump Administration comply with the law. Normally, the 11th Circuit is pretty willing to “go along to get along” with whatever the Government wants to do to migrants. So, you know that the BIA and Sessions were totally out of control for the court to assert itself in this manner, even in an unpublished case.

Obviously, Trump and his GOP buddies like McConnell are counting on appointing lots of wimpy right-wing judges who will be loath to intervene to stop the Government from pillaging the individual rights of ordinary Americans for the benefit of rich GOP “fat cats” and religious and social extremists. It will be interesting to see what these judges do if and when the Government again becomes controlled by Democrats who want to act in the overall public interest, rather than just protecting White privilege.

Stay tuned!

PWS

10-18-18

LEXISNEXIS: SCOFFLAW NATION: New Amnesty International Reports Document Trump Administration’s Intentional Abuses Of International Refugee Protection Standards, Call For Congressional Action!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/amnesty-international-report-illegal-pushbacks-arbitrary-detention-ill-treatment-of-asylum-seekers-in-the-united-states

Posted by Dan Kowalski at LexisNexis Immigration Community:

Amnesty International Report: Illegal Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States

Amnesty International, Oct. 11, 2018 – “The US government has deliberately adopted immigration policies and practices that caused catastrophic harm to thousands of people seeking safety in the United States, including the separation of over 6,000 family units in a four-month period more than previously disclosed by authorities, Amnesty International said in a new report released today.

USA: ‘You Don’t Have Any Rights Here’: Illegal Pushbacks, Arbitrary Detention and Ill-treatment of Asylum-seekers in the United States reveals the brutal toll of the Trump administration’s efforts to undermine and dismantle the US asylum system in gross violation of US and international law. The cruel policies and practices documented include: mass illegal pushbacks of asylum-seekers at the US–Mexico border; thousands of illegal family separations; and increasingly arbitrary and indefinite detentions of asylum-seekers, frequently without parole.

“The Trump administration is waging a deliberate campaign of widespread human rights violations in order to punish and deter people seeking safety at the US–Mexico border,” said Erika Guevara-Rosas, Americas Director at Amnesty International.”

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No, desperate families seeking refuge at our Southern Border don’t pose any real threat to the U.S., regardless of what Trump might say and whether they ultimately are found qualified or unqualified to enter. What does pose a real threat to our nation and to the legal rights and future of every American is “waging a deliberate campaign of widespread human rights violations in order to punish and deter people seeking safety at the US–Mexico border.”

PWS

10-18-18

GONZO’S WORLD: BOGUS “COURT SYSTEM” REVEALED IN ALL OF ITS DISINGENUOUS INGLORIOUSNESS — SESSIONS MOVES TO TRASH THE “LIMITED DURESS” DEFENSE FOR ASYLEES BEFORE TRUMP TURNS HIM BACK INTO A PUMPKIN (AFTER HALLOWEEN) – Why Have A BIA If It Is Only Permitted To Decide Major Issues In Favor Of The DHS Position? — Matter of Daniel Girmai NEGUSIE, 27 I&N Dec. 481 (A.G. 2018)

https://www.justice.gov/eoir/page/file/1101746/download

Cite as 27 I&N Dec. 481 (A.G. 2018) Interim Decision #3943

Matter of Daniel Girmai NEGUSIE, Respondent

Decided by Attorney General October 18, 2018

U.S. Department of Justice Office of the Attorney General

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012).

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

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

Here’s the BIA headnote a link to Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018):

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

http://immigrationcourtside.com/wp-content/uploads/2018/06/3930.pdf

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Remains to be seen whether Session’s November 16, 2018 “deadline for brief submission” will exceed his job tenure! But, don’t kid yourself: this decision has already been written, maybe with input or assistance from a “restrictionist” organization. And, even if Sessions departs shortly after the midterms, as most expect, I’m sure Trump will be able to find another “restrictionist patsy” to do his “immigration dirty work” for him.

Want to know how ludicrous Sessions’s action is: This case has been pending before the Immigration Court, the BIA, the Supreme Court, and now the Attorney General for nearly 15 years, with no end in sight. After Sessions rules against Negusie, the case will go back to the Court of Appeals, and then, perhaps, back to the Supremes, assuming Mr. Negusie lives long enough to see it through to its conclusion. When it comes to removing folks without Due Process, “time is of the essence” for guys like Sessions; but, when it comes to screwing asylum seekers, “time has no essence” — whatever it takes, no matter how long it takes.

Additionally, this is a great illustration of the absurd dereliction of duty in the Supreme’s so-called “Chevron doctrine.” It’s a purely judge-created device that enables the Supremes to avoid deciding important and potentially controversial legal issues by, in effect, “shuffling them off to Buffalo” (a/k/a the Executive Branch). Once in “Buffalo,” sometimes dysfunctional and often biased Executive Branch agencies can exercise their (often purely imaginary) “expertise” in construing ambiguous statutes (which is, after all, a question of law that constitutes the only function of the Article III Courts). And, does anybody (other than Jeff Sessions) really think that a politico like Jeff Sessions has any real “expertise” in immigration adjudication?

Interestingly, Justice Gorsuch, like his conservative predecessor the late Justice Scalia, has been openly skeptical of the Chevron doctrine. Perhaps ironically, he, along with the outlandish actions of the Administration that appointed him, could ultimately spell the well-deserved end or limitation of “Chevron deference.”

As we say in the business, stay tuned. But, please, please, don’t “hold your breath” on this one!

PWS

10-18-18

🎃🎃🎃

LEXISNEXIS: New Suit Highlights How Sessions & Other Trumpsters Knowingly & Intentionally Violate U.S. Asylum Laws!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/new-legal-filing-links-high-level-trump-officials-to-asylum-turnback-policy—al-otro-lado-inc-v-nielsen

Posted by Dan Kowalski @ LexisNexis:

New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

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It’s a strange system where the victims of law violations are punished while the “perps” — folks like Sessions, Nielsen, Miller, etc — walk free and are allowed to continue their lawless behavior.

Even stranger: A guy like Sessions — a scofflaw “Jim Crow Throwback” if there ever was one — has the absolute audacity to whine, complain, and even threaten when occasionally Federal Judges intervene in relatively limited ways to force him and even Trump to comply with our country’s laws and our Constitution. But, I suppose that’s what free speech is all about. Nevertheless, Sessions’s freedom to express his opinions that mock, distort, and mischaracterize our laws doesn’t necessarily entitle him to act on those opinions in a manner inconsistent with those law.

PWS

10-18-18

PRISCILA ALVAREZ @ THE ATLANTIC: Sessions’s Influence Over Justice In The U.S. Immigration Courts Will Continue Long After His Departure!

https://www.theatlantic.com/politics/archive/2018/10/jeff-sessions-carrying-out-trumps-immigration-agenda/573151/

Priscilla writes in The Atlantic:

Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.

Why?

That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”

The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”

The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.

This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.

Read: The end of civil rights

“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”

Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.

It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.

Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.

“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”

Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.

Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.

Read: Trump’s immigration crackdown is overwhelming a strained system

Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.

The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.

The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.

“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.

Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.

Read: The Democratic effort to keep Jeff Sessions in office

In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.

And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.

This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.

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

While immigration advocates might look forward to the day of Session’s departure from DOJ just as much as Donald Trump does, in the case of immigration the wonton damage and carnage he has inflicted on our justice system, particularly in the area of immigration, won’t easily be repaired. And, the repairs can’t even begin until after we get “regime change.”

PWS

10-16-18

THE GUARDIAN: THE UGLY TRUTH ABOUT “ZERO TOLERANCE:” “3,121 desperate journeys: Exposing a week of chaos under Trump’s zero tolerance”

https://www.theguardian.com/us-news/ng-interactive/2018/oct/14/donald-trump-zero-tolerance-policy-special-investigation-immigrant-journeys?CMP=Share_iOSApp_Other

BY Olivia Solon , Julia Carrie Wong , Pamela Duncan , Margaret Katcher , Patrick Timmons , and Sam Morris

On 6 April 2018, the US attorney general, Jeff Sessions, issued a memoto federal prosecutors along the US-Mexico border directing them “to adopt immediately a zero-tolerance policy” for violations of a federal law barring “improper entry” into the country. “You are on the front lines of this battle,” Sessions wrote, as if rallying his troops against an invading army.

Over the next six weeks, the collateral damage of the Trump administration’s policy was revealed: some 2,654 children were taken from their parents or guardians in order to fulfill the mandate that they be prosecuted for a criminal misdemeanor. As of 27 September, 219 children whose parents had already been deported remained in government custody.

Zero tolerance pushed serious fraud, drugs and weapons trafficking offences out of the courtroom to make way for the flood of people whose only crime was crossing the border. Between March and June, federal prosecutions referred by Customs and Border Protection (CBP) in the five districts along the south-west border rose by 74%, from 6,368 to 11,086.

I don’t think this is really about justice anymore Cesar Pierce, defense attorney

Today the Guardian publishes analysis of documents from more than 3,500 criminal cases filed by border district federal prosecutors during a single week of the zero tolerance policy: 13-19 May.

The three-month investigation, the most comprehensive analysis to date of the experiences of thousands of migrants entering the US during that period, shows how:

Zero tolerance churned thousands of migrants through an assembly-line justice system with copy-and-paste criminal complaints converted to hastily accepted guilty pleas.

Just 12.8% of the criminal cases filed by federal prosecutors were the kind of serious crimes – corruption, fraud and trafficking – that citizens expect federal prosecutors to pursue.

Sentence lengths for migrants charged with the same crimes varied dramatically depending on the state where they were arrested.

The court documents shine a spotlight on the migrants’ perilous journeys and the extreme lengths immigration enforcement goes to intercept them. They also reveal the lack of documentation created when children were torn away from families at the point of arrest – a shocking omission.

Four months after thousands were charged, only 23 individuals continue to fight their cases. The overwhelming majority have pleaded guilty, and only one case has actually gone to trial, where the defendant was found guilty.

“I don’t think this is really about justice anymore,” said Cesar Pierce, a defense attorney in Las Cruces, New Mexico, who represented 18 of the individuals in our sample.

“Justice really factors very little into it.”

The week was dominated by low-level immigration charges

Of the cases that we examined, 3,121, or 87.2%, were low-level immigration offences. Only 12.8% of cases were serious crimes like corruption, fraud, and drug or weapons trafficking, or more significant immigration offenses, such as human smuggling.

The majority of prosecutions are for first-time crossers

Of the 3,121 people charged with low-level immigration crimes, the vast majority were accused of illegal entry, a misdemeanor, while 31% were accused of illegal re-entry, a felony. The rest were caught using false immigration documents.

The long, perilous journey

José G left El Salvador for the United States on 3 May. The 43-year-old father had previously been deported from the US and was working as a bus driver, but when a gang threatened his 16-year-old son, Marco, he decided to take the risk of traveling to America again.

“It’s his age,” José said of his son. “It makes me afraid.”

It took six days for father and son to traverse Mexico by car. They were walking across the Rio Grande under a bridge linking Juárez with El Paso, about a mile from the official port of entry, when they were spotted by border patrol and arrested. Even though José had no other criminal record, his “illegal re-entry” after a previous deportation triggered a felony prosecution under zero tolerance.

‘I’ve been separated from my son for four months. I don’t understand why we are still separated’ José G

José was locked up in El Paso county jail to await his criminal case. Marco was sent to a children’s shelter.

“I’ve been separated from my son for four months,” José told the Guardian in mid-September. “I don’t understand why we are still separated.”

José is one of the 3,121 migrants in our sample who risked crossing the border to seek a better life. Just over half were Mexican nationals, closely followed by Guatemalans, Hondurans and Salvadorans. The vast majority are men.

Having made the long, perilous journey from their home countries, some cross at official ports of entry to claim asylum, while others attempt to conceal themselves in trunks of cars, trucks and freight trains.

Many are opting to trek across the border in more remote, dangerous desert and mountain regions. Others wade, raft or swim across the Rio Grande, which defines nearly the entirety of the Texas-Mexico border.

Most came from Latin America

With Mexico dominating, followed by Guatemala, Honduras and El Salvador. There were also a small number of migrants from China (three), India (nine), Chile (one), Peru (three) and Canada (one).

Number of migrants by country of origin

1

400

800

1200

1600+

In cases where a migrant’s country of origin was not recorded, we used the country to which the individual had previously been deported. We were not able to determine country of origin for another 58 people.

Far more men were arrested than women

Court documents do not record gender so we made educated guesses based on individuals’ first names and the pronouns used in the documents.

Previous deportation is not a deterrent

Of those who have been previously deported, many attempt to come back within a year or two, with 28 attempting the crossing within a matter of days.

Arrest location: a third were caught crossing the Rio Grande

In criminal complaints detailing the river crossings, Border Patrol recorded that 33% crossed by wading, 34% by rafting and 4.6% by swimming.

Number of arrests by county

1

100

200

300

400+

Extreme tactics at the border

The documents reveal the lengths to which the US Border Patrol and Immigration and Customs Enforcement (Ice) go to capture migrants.

Border Patrol uses an armory of technology including “seismic intrusion devices” (sensors that send an alert when they detect the vibrations created by footstep), giant towers packed with cameras and sensors, and mobile video surveillance systems – trucks that have extendable masts fitted with an array of cameras, radar and laser range finders, frequently referred to as “scope trucks”.

At least six migrants were arrested during “immigration inspections” of commercial passenger buses at a border patrol checkpoint in Texas – a practice that has been harshly criticized as unconstitutional by the American Civil Liberties Union, which is calling on Greyhound buses to stop allowing border patrol agents on board. All six have pleaded guilty; three received prison sentences ranging from 64 days to four months; the other three are still awaiting sentencing.

Others were arrested at motels, based on anonymous tips or pro-active surveillance. In one case, border patrol agents were surveilling the Cotton Valley Motel in Clint, Texas. After observing “two individuals wet and muddy from the knees down” enter, the agents obtained consent from the motel manager to search the room, where they found six people hiding in the bathroom.

It was a shock for everyone. You had 75 people in chains Daniela Chisolm, El Paso attorney

In some cases, migrants end up turning themselves in. On 16 May, Marin M, a migrant from Guatemala, called 911 from the desert in Otero county, New Mexico, when he and his traveling companions found they could walk no farther.

“Please come get us,” the men can be heard asking in the 911 call, which the Guardian obtained through a public records request. They ask repeatedly for water.

The Otero county sheriff’s department dispatched Border Patrol agents who transported the men to a local hospital for treatment. Marin was then taken to the Alamogordo Border Patrol station for processing, and charged with felony re-entry. He pleaded guilty and was sentenced to 57 days in federal prison.

Many of those arrested try to claim asylum because they are fleeing from gang violence, corruption, political instability and natural disasters. Those opting to seek asylum the “legal” way, by presenting themselves at a US port of entry, have been thwarted by officials who say they don’t have the capacity to process them. Border Patrol has started blocking anyone without a US passport from stepping onto US soil, leaving a backlog of asylum seekers camping on international bridges between the US and Mexico for weeks as they wait to be processed.

This crackdown on legal asylum is pushing some desperate migrants to enter illegally, say attorneys.

One Tucson-based lawyer, who did not wish to be named, described a client who crossed illegally only after being blocked from seeking asylum at a US port of entry.

“The mafia said if my client didn’t work for them they’d rape his six-year-old son,” she said. “So his only decision was to get to the US. Am I going to leave my child? No, I’m going to bring my child. Anybody would.”

Chaos in the courtrooms

As zero tolerance went into effect, federal courtrooms along the border were beset by an atmosphere of chaos and desperation, dozens of attorneys, judges and advocates told the Guardian.

“People were panicking,” recalled Carlos Quinonez, a defense attorney in El Paso, Texas. “I’ve never seen so many people.”

“It was a shock for everyone,” said Daniela Chisolm, another El Paso attorney. “You had 75 people in chains: 18-year-old girls from Guatemala, 70-year-old men from Honduras … The first day, I had 15 clients, and nine of them had children taken from them.”

Defense attorneys spoke of an “exponential” increase in the number of cases they were assigned, made all the more challenging by their clients’ anxiety after losing their children. “I spent a lot of time having to refocus my clients,” said Quinonez. “They were focused on where their kids were.”

While federal public defenders usually represent indigent defendants charged with felonies, the task of representing the thousands of misdemeanor illegal entry cases often fell to private defense attorneys like Quinonez and Chisolm, whose fees the government pays. Pierce, the Las Cruces defense attorney, said he came to consider those payments “blood money”. “We get paid to do this, but it’s not really what we signed up for,” he said. “You want to defend people in a criminal case, not because someone crossed the border looking for work.”

Maxine Dobro, a defense attorney in San Diego, was one of several defense attorneys to express disgust with what she called “a misguided decision by a misguided administration: the mass scooping up of minnows will go down as one of the darkest hours of our nation.”

“The sharks swim away and the minnows are prosecuted,” she added. Indeed, an analysis by the Transactional Records Access Clearinghouse found that between March 2018 and June 2018, federal prosecutions of non-immigration crimes fell in the five border districts, both as a percentage of total prosecutions and in absolute terms.

Some defense attorneys, including Jose Troche, an El Paso attorney who represented 11 clients in our sample, were supportive of zero tolerance. “Look, I represent them, but some of these parents need to be prosecuted for child endangerment,” Troche said. “They brought these kids through Mexico, through that pigsty, and dumped them here.” As for the children themselves: “The centers are the safest place these kids have ever been,” he said.

While defense attorneys were struggling to represent the thousands of newly criminalized migrants, federal prosecutors had challenges of their own. In at least 15 cases, the criminal complaints charging migrants with illegal entry included obvious errors suggesting that whoever had filled them out had failed to complete a prepared template.

Ananias B, a migrant from Honduras, was charged with entering the country by “wading the Rio Grande River near, #PLACE OF ENTRY#”. Angel A, from El Salvador, was charged with a crime that “took place on #DATE OF ENTRY#”. Perhaps most egregiously, seven migrants in Arizona were charged based on complaints that included the phrase, “Agents observed the Defendant #DOING WHAT? PICK ONE DELETE THE REST#”, followed by a list of apparently common behaviors.

The Guardian made numerous attempts to contact the federal prosecutors responsible for prosecuting the cases in our sample. None agreed to speak either on or off the record.

Cosme Lopez, a spokesman for the US attorney’s office in Arizona, said by email that one of the incomplete complaints had been filed with Pacer “due to an apparent error in the uploading process”. Lopez said that a “hard copy” was used in court “that included all the necessary information.” Lopez declined to provide a copy of this hard copy, and neither responded to questions regarding the uploading error nor explained how the document in Pacer came to be signed by a judge.

One federal magistrate judge who has handled zero tolerance cases and who spoke to the Guardian on condition of anonymity said that the incomplete complaints certainly represented “shoddy work”, but added that he would not “ascribe to it any sinister motives”.

The mass scooping up of minnows will go down as one of the darkest hours of our nation Maxine Dobro, defense attorney

He compared the criminal justice system to a boa constrictor that can open its mouth wider and wider to swallow increasing numbers of defendants, but cannot increase its capacity to digest those cases. “Historically, the government puts lots of resources into the law enforcement mouth, but the judicial resources to address that lump of new cases don’t get increased correspondingly,” he said.

That judge, like others who spoke with the Guardian, described a dramatic increase in misdemeanor and petty offenses in his courtroom. William P Johnson, the chief US district judge of New Mexico, shared with the Guardian a letter he had sent seeking authorization to fill a vacant magistrate judge position in which he highlighted the “drastic increase” of 1,100% in misdemeanor illegal entry cases from 2017 to 2018.

Within the pages of the more than 6,000 court documents the Guardian examined there is a striking omission: the fact that many migrants were travelling with children at the time of their arrests was recorded in only 10 of the 3,121 cases we examined.

José G is one of those 10. When he appeared in court on 14 May, five days after his apprehension by Border Patrol, the criminal complaint against him included a reference to his child. The fact that his son was in the US, and by then was being kept in a shelter for migrant children in El Paso, was not referenced in the prosecution’s motion asking a judge to deem José a flight risk and detain him without bond – a request that the judge in the case granted.

José spent two months in the El Paso county jail before the case against him was simply dropped. The prosecution’s motion for the case to be dismissed states only that “the government does not wish to prosecute at this time”. José was moved to an immigration detention center to start the separate process of immigration court. He did not pass the “credible fear” interview that would have allowed him to seek asylum.

He is yet to be reunited with Marco.

Assembly-line justice

The right to a fair trial, enshrined as the sixth amendment in the Bill of Rights, is as American an ideal as the Statue of Liberty.

But of the 3,121 migrants whose cases we examined, only one has gone to trial so far. Prosecutors dismissed the charges against 70 defendants – a few times because no translator was available or after a defense attorney filed a motion challenging the prosecution’s case, but largely without providing any explanation. Four migrants were found not competent to stand trial and were committed to mental institutions. Nine cases were terminated without any record of the outcome that we could find.

Over the summer, many migrants pleaded not guilty and remained incarcerated while awaiting trial. That number has dwindled to just 23 as of the end of September, however, as more and more holdouts change their pleas to guilty.

The vast majority – 3,014 – have now pleaded guilty.

Some judges defended the rate of guilty pleas, noting that it is difficult to mount a defense against a charge of improper entry if the defendant is found in the US. But many defense attorneys argued that it was impossible for defendants to make “knowing and voluntary” pleas when they had such limited access to legal advice or were preoccupied with worry for their children.

For those who pleaded guilty, the sentences they received ranged widely. The median time spent incarcerated for those who pleaded guilty to misdemeanor improper entry was five days, but it was significantly longer for those in California (16 days) than in Arizona (two days). Those charged with felony re-entry received a median sentence of 2.5 months (75 days). Here again the length of sentence varies by state, however, with those sentenced in the southern district of Texas receiving a median sentence of 4.3 months (130 days), compared to 1.4 months (43 days) in New Mexico.

As of 30 September, when we completed our data analysis, 266 migrants remained incarcerated, awaiting sentencing. Some were not scheduled to see a judge again until 2019.

Case outcomes: almost all pleaded guilty

Though as of 30 September, 23 continued to pursue their cases.

Most judges sentenced first-time entrants to time served

This meant that the time defendants spent incarcerated varied according to how quickly the court could process cases. For the vast majority, this resulted in less than 30 days in prison.

Those who had previously been deported received longer sentences

The longest sentences went to those with other criminal convictions.

First-time migrants in the southern district of California spent the longest time incarcerated

This is likely because California was not yet using a “fast track” system of prosecuting migrants, resulting in a longer wait for sentencing. California began using the new system, “Operation Streamline”, in July.

The southern district of Texas hands outs the longest sentences for re-entry cases

This data is incomplete, however, because almost all of the 266 migrants still awaiting sentencing were charged with felony re-entry.

Families still separated

After José’s criminal case was dismissed, he was transferred to an Ice immigration detention facility in Sierra Blanca, about 90 miles south-east of El Paso.

Immigration detention is the likely next step for most of the other 3,120 migrants once they complete their criminal sentences, though some are deported immediately after release from prison. For those who are transferred to Ice custody, they can either attempt to claim asylum, mount a case in immigration court that they should be allowed to stay, or be deported. But the paper trail ends with the criminal cases: immigration courts produce no comparable record of their proceedings.

José is allowed visitors, but only from behind a thick plate of glass. He is diminished; his weight has dropped from 180lbs to 152lbs while he has been incarcerated, he says.

“The stress is enormous,” he said, fighting back tears. He has not been allowed to see his son, and though he is allowed to speak to Marco by phone, he lacks the funds to do so. A 20-minute call to a US number from the detention facility costs about $10, with a $3 service fee.

José doesn’t have an immigration attorney and doesn’t know the status of his immigration case. “About a month ago I signed a form saying I want deportation,” he said. “But Ice hasn’t said anything to me about when I will be deported.”

Marco was eventually released to José’s brother in North Carolina, a fact that has both assuaged and increased his anxiety. The Trump administration has begun requiring family members to submit their fingerprints in order to receive family members – potentially placing them at risk of Ice themselves.

“My brother and my sister-in-law are both here without papers,” said José. “They gave up their fingerprints with their consent and in good faith to take in Marco.

“But I’m still here in detention. I haven’t seen Marco and that’s why it’s so bad here. All the time I have spent crying here about the separation,” he added, his voice trailing off.

“Nobody tells us anything. There’s no light at the end of the tunnel.”

Median sentence length for felony illegal re-entry0 days204060801001201401600 días20406080100120140160California southern60 daysArizona60 daysNew Mexico43 daysTexas western105 daysTexas southern130 days

Credits

ReportersJulia Carrie Wong, Olivia Solon, Margaret Katcher and Patrick Timmons

Reporting assistantSimon Campbell

Data AnalysisPamela Duncan

Design and developmentSam Morris

IllustrationKatherine Lam

Copy EditingCharlotte Simmonds

TranslationKatie Schlechter

Special thanks toFrancisco Navas and Chris Taylor

Methodology

One unintended consequence of zero tolerance was to create the means for greater transparency. US immigration courts are notoriously opaque, but proceedings in federal criminal courts are filed in Pacer, an electronic database. By insisting on criminalizing migrants prior to seeking to deport them, zero tolerance created a vast paper trail that sheds light on the mechanics and malfunctions of the policy.

To perform our data analysis for this article, we searched Pacer for all criminal cases filed by the US government in the five border districts during the first six weeks of zero tolerance, 7 May-25 June, the period during which family separations were taking place. The five districts are the southern district of Texas, the western district of Texas, New Mexico, Arizona, and the southern district of California.

The nearly 25,000 criminal cases filed during that period were more than we had capacity to investigate, so we decided to limit our analysis to one calendar week: 13-19 May. This resulted in a sample of 3,579 cases.

We divided that sample into two groups: those who were charged with low-level immigration offenses and everyone else. The charges that we considered low-level immigration offenses are: 8 USC § 1325; 8 USC § 1326; 9 USC § 1459; 18 USC § 1028, 1544 and 1546.

Because of the way that Pacer works, our sample includes two sets of cases: those that were originally filed during the week in question, and a smaller set of cases that were re-filed in criminal court during that week.

This distinction is the result of the way federal courts handle their workload. Low-level immigration offenses are usually filed in magistrates court where they are overseen by magistrates judges, whose job it is adjudicate minor or petty offenses, while felonies are handled in criminal court by district judges. In many cases, illegal re-entry charges are originally filed in magistrates court, then transferred to criminal court for sentencing.

We decided to keep these transfer cases in our sample because they represent a portion of the caseload that was burdening the courts overall during the week we examined.

We worked with PacerMonitor to download the criminal complaints and judgments for all of the cases in our sample, then used optical character recognition technology to convert as many of the documents as possible into a machine readable format. We then built our own database of the cases and all the information we could glean from the documents, such as demographic information about the migrants themselves, where and how they were arrested, who prosecuted them, and what the outcome of their court cases were. We are referring to migrants by their first names and last initials, and have changed the name of a minor.

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

Go to the original article at the link to get the charts in their proper format.

No amount of doubletalk and false narratives by the Trump Administration will change the reality of what they are doing, its intentional cruelty, and its utter failure to deter migration. Sadly, it’s quite possible, but not necessarily inevitable, that Trump, Sessions, Miller, and the others who have formulated these travesties will escape legal judgement in the present. But, they won’t escape the judgment of history; nor will those who have enabled, or worse yet, actively supported them.

We can can diminish (and are diminishing) ourselves as a nation, but it won’t stop human migration!

PWS

10-16-18

THE HILL: Read Nolan On Sessions’s Latest Bid To Expand Mandatory Indefinite Detention For Asylum Seekers, Even Those Who Have Passed Credible Fear!

https://thehill.com/opinion/immigration/411156-will-sessions-use-indefinite-mandatory-detention-to-reduce-the-demand-for

Nolan writes in The Hill:

. . . .

But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.

Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.

The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.

But in Jennings v. Rodriguez, the Supreme Court rejected that.

The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”

In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.

If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.

According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.

There was an uproar – and some backtracking – over detaining children for even relatively short periods. How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?

. . . .

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Go on over to The Hill at the above link to see Nolan’s complete article.

It’s likely that “Our Gang” of retired Immigration Judges will be weighing in on this issue in the near future. So, stay tuned for further developments.

PWS

10-16-18

POPULATION OF TENT CITIES IN TRUMP’S “KIDDIE GULAG” HAS INCREASED 5X – The Solution, According To Trump, Sessions, Nielsen, & Miller: Detain Even More Children & Families For Longer Periods Of Time!

https://www.buzzfeednews.com/article/amberjamieson/tornillo-tent-city?utm_term=.oolylVZRJr#.oolylVZRJr

Amber Jamieson reports for BuzzFeed News:

TORNILLO, Texas — Having immigrant teens live in the “tent city” in Tornillo, Texas, was always supposed to be a temporary solution, after the Trump administration’s policy of separating immigrant families at the border meant the government didn’t have enough beds in the shelter system.

It opened in June, and the contractor running the site had a 30-day contract. At that time, 326 children were being housed there.

But four months after its opening, the shelter 30 miles outside of El Paso has grown into a bustling town. It now holds nearly five times its initial population — roughly 1,500 teens — and its contract has been extended until at least Dec. 31.

The tent city’s purpose has changed as well. Officials at the Department of Health and Human Services, the federal agency responsible for the care of unaccompanied child immigrants, say none of the teens currently housed there were detained as a result of family separations. It now holds immigrant children who crossed the border without an adult, in theory as a last stage of their stay in the vast US shelter bureaucracy.

And as the shelter expands, administrative issues have cropped up concerning legal representation and FBI background checks — extending many teens’ stays longer than what HHS says is the average.

Tornillo now has a new football field, math and English classes, and more than 100 tent structures. Staffers zipped around in carts between dozens of portable offices offering mental health services, emergency medical care, legal services, and even a barber. A huge emergency tent has been turned into a sleeping hall for 300 teenage girls, decorated with paper chains and lanterns.

BuzzFeed News toured the Tornillo facility for the second time on Friday, as part of a group of reporters. Like the first and only other tour, instructions were strict. No photographs or recording devices were allowed, and reporters were not permitted to use the names of employees or speak with the teens living at the camp — though HHS was more lenient on the last rule during Friday’s tour. The only photos were provided by the government.

HHS

The facility in Tornillo, Texas.

“I frankly thought we were done here in July,” the facility’s incident commander, who works for the contractor BCFS, told reporters Friday. He spoke from a new command center that is nearly triple the size of the office he occupied in June.

Back then, the same incident commander, who is in charge of running the shelter, called the Trump administration’s family separation policy — which created the need for Tornillo — “an incredibly dumb, stupid decision.” With the rollback of that policy, he said he expected the camp to shut soon afterward.

“I’m still here, ’cause otherwise, where are these kids going?” the commander said.

Only children between ages 13 and 17 stay at the Tornillo facility, which is now the largest in the HHS’s nationwide system. Pregnant teens, and teens requiring behavioral medication, are not allowed — “we’re too big, too high-profile,” the incident commander explained.

Officials said the average length of time that teens spend at Tornillo is 25 days. Yet many of the teens living at the camp have spent weeks or even months in HHS shelters before arriving at Tornillo. In order to clear out those other facilities, teens are sent to the tent shelter to await final processing before they are released to a sponsor in the US.

“This is a last stop, if you will,” said Mark Weber, a spokesperson for HHS.

Ten teens in Tornillo BuzzFeed News encountered had spent between three to five months in government detention — significantly more than the 59 days that HHS says is the average stay for an unaccompanied immigrant minor in its care. That average is up from 48 days in 2017, and around 30 days during the Obama administration.

Christopher Smith / HHS Photo Christopher Smith

And even after arriving in Tornillo, the young occupants find themselves facing a fresh final set of administrative hurdles that threaten to complicate or delay their stay in the US shelter system.

One of the teens BuzzFeed News spoke with last week, a 16-year-old girl from Guatemala, told reporters that she’d been in Tornillo exactly one month on Saturday. Before being transferred to Texas, she had spent four months in an HHS shelter in Miami, meaning she’d already spent five months in HHS care. She was uncertain how much longer she’d remain there.

Her brother, who lives in Texas and had been in the US for a decade, is trying to sponsor her, which should secure her release. But he is undocumented, and he told her that her caseworker is not sure if he will be able to act as a sponsor.

She didn’t want to go back to Guatemala, where her parents are. “I suffered a lot in the journey [to the United States], and what, for nothing?” she said.

Another teenage girl standing next to her told reporters she’d also come to Tornillo from the Miami shelter at the same time, and that she’d crossed the border four months earlier.

The delays stem in part from a new requirement — that the FBI perform a fingerprint background check — imposed by the Trump administration on family members and other adults who wish to sponsor an unaccompanied immigrant minor.

Those changes are delaying how long kids are staying in care, and have created the ongoing need for Tornillo to operate as a temporary shelter to handle the overflow from permanent HHS shelters, said the incident commander. He added that more than half of the children at the Tornillo shelter are there because of FBI delays.

Christopher Smith / HHS Photo Christopher Smith

“It is the extra precaution that HHS has put in place for sponsors,” said the incident commander on Friday. “That is absolutely what has caused this, without any question whatsoever.”

While he applauded the extra care HHS has taken to ensure the safety of unaccompanied minors, the incident commander criticized the length of time the FBI takes to do fingerprint checks. On Friday, 826 of the kids in Tornillo were still awaiting the results of fingerprint checks, the final step needed before they are released, he said.

“I think it should be done quickly,” the incident commander said. “I don’t understand why it’s taking so long. It seems like a system issue. … That is frustrating to me.”

He noted that it takes time to do background checks, but said that HHS is “working through the process [with the FBI] and working to speed it up.” He did not provide further details.

Asked if the teens who end up in Tornillo spend longer than the average stay in the shelter system, Weber replied: “I don’t think that’s [true]. … These kids are very close to being released.”

Weber also argued that the need for the Tornillo facility is “driven by the number of kids crossing the border” — which this year, he said, is set to be the third highest on record. Around 50,000 unaccompanied minors are expected to cross the border this year.

Christopher Smith / HHS Photo Christopher Smith

On Thursday, BuzzFeed News visited the juvenile immigration proceedings in downtown El Paso. Eleven teenage boys from the Tornillo facility, aged between 15 and 17, had been given notice to appear in court on that day.

The boys were dressed in new, matching navy and white polo shirts, denim jeans or khakis, and black, braided leather belts. They had fresh haircuts.

The judge asked the boys if they had copies of their Notices to Appear, a charging document issued by US Immigration and Customs Enforcement informing them of removal proceedings, and read the date on which each NTA had been issued. Dates ranged from June 6 until July 1, meaning the teenagers had been in HHS care for a minimum of over three months — longer than the average stay.

None of the boys had legal representation at the court hearing — they were just accompanied to court by a BCFS employee. All of them asked the judge to delay their cases so they could find an immigration lawyer. They were given until late January to do so.

The HHS spokesperson said it’s just not his agency’s job. “Yes, children are appearing in court, but that is not part of HHS’s responsibility,” Weber told reporters on Friday. “Those legal options are pursued basically after they are released from us.”

Juveniles facing immigration proceedings do not have the right to a government-appointed lawyer. Weber said the children who appeared in court would absolutely have received legal help beforehand.

Everyone in HHS care receives a “Know Your Rights” training, Weber said, and upon arrival to Tornillo, the teenagers are again reminded that they are able to speak with a lawyer. Ten legal representatives — a combination of lawyers and social workers from different legal organizations — are on hand on weekdays in Tornillo to meet with children.

But those lawyers don’t formally represent them. They offer advice to the children.

And those representatives only meet with detainees if the teen specifically asks to see a lawyer, the incident commander said. He estimated that of the approximately 3,100 teens who have been housed at Tornillo since it opened, only about 400 had requested and received a meeting with a legal representative.

Christopher Smith / HHS Photo Christopher Smith

Moreover, to organize a meeting with the lawyers, the children must fill out a form — a difficult task for many of the children at Tornillo. The incident commander said most of the facility’s residents are at a fourth-grade learning level.

Asked how children in the care of HHS with very little education were supposed to be able to navigate the legal system alone, or even the process of arranging and interacting with a lawyer, Weber acknowledged that “negotiating the legal system is incredibly difficult.”

Although the incident commander is hopeful the facility will close on Dec. 31, Weber didn’t commit to that deadline. “It depends how many kids come,” he said.

The facility — its population peaked at 1,637 on Sept. 28 — has 1,400 beds on standby in two giant tents. This is in case the Homestead shelter in Florida — another temporary facility that opened during the family separation crisis — needs to evacuate due to a hurricane.

In immigration court Thursday, Judge Robert S. Hough, who oversees all juvenile immigration proceedings in El Paso, asked the BCFS employee assisting the children before him about Tornillo’s supposed Dec. 31 closing date.

“Hurry up and wrap it up before you get any bigger,” suggested the judge.

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Once the smokescreen of all the Trump lies and racism clears, how could we ever explain to future generations what we have done to the most vulnerable among us and to children, young people, and young families that are our world’s future? I guess it will go along with explaining how have we let Trump and his grifter buddies destroy, pollute, and poison the universe that also belongs to future generations.

PWS

10-15-18

COURTSIDE HISTORY: Elizabeth Drew Tells Those (Unlike Me) Too Young To Remember What “Watergate” Was REALLY About!

https://www.vanityfair.com/news/2018/10/will-the-myths-of-watergate-prove-misleading

Elizabeth Drew writes in Vanity Fair:

Considerable mythology has arisen about Watergate, and these myths are confusing the current discussion around why and how Nixon was driven from office—which in turn has muddled the conversation around the possible fate of Donald Trump, whom Democrats might move to impeach if they take control of the House in November. In any event, it’s worth separating myth from reality when it comes to Watergate and the impeachment proceedings against Richard Nixon.

One of the greatest misconceptions around Watergate is that it was the break-in at the headquarters of the Democratic National Committee, and the subsequent cover-up, that led to Nixon being forced to surrender the presidency. But, in fact, when Nixon returned to Washington from his vacation home in Key Biscayne, Florida, three days after the break-in had been discovered, he and chief of staff H.R. Haldeman had another matter on their minds. The two men were worried that if the burglars—a group of “plumbers,” established ostensibly to ferret out the source of leaks that upset the Nixon White House led by E. Howard Hunt, a former C.I.A. operative who’d participated in the Bay of Pigs invasion, and G. Gordon Liddy, a former F.B.I. G-man—talked to federal investigators, their other activities on behalf of the White House might come to light. The real role of the plumbers was to “destroy” (Nixon talked that way) Nixon’s real and perceived “enemies,” meaning that, as Haldeman put it to the president when they met three days after the discovered break-in, “the problem is that there are all kinds of other involvements.” (This conversation was recorded on the tape of which 18 and a half minutes was later discovered to have been erased—a revelation that set off one of a number of explosions in the Watergate story. John Ehrlichman, Nixon’s head of domestic policy, wrote in his memoir that Nixon had done the erasing at Camp David.)

The “other involvement” that Nixon and Haldeman were most worried about being discovered was a break-in on September 3, 1971, more than nine months before the famous Watergate intrusion. This earlier break-in occurred at the office of the psychiatrist of Daniel Ellsberg, the defense analyst who, in June 1971, leaked the Pentagon Papers, a Johnson-era analysis of the Vietnam War, to The New York Times, The Washington Post,and The Boston Globe. Although the report had nothing to do with the Nixon administration directly, it did raise serious questions about the rationale for the war. Nixon, egged on by national-security adviser Henry Kissinger, was enraged at the study’s leak, and wanted Ellsberg “crushed” and any further unwonted leaks stopped. And so the Office of Special Investigations—the plumbers unit—was established, and Nixon’s obliging top aides drew up “Hunt/Liddy Special Project No. 1,” the goal of which was to recover damaging intel on Ellsberg.

Once it was revealed, the break-in at the office of Dr. Lewis Fielding was considered by observers—as it had been by Nixon himself—to be far more serious than the Watergate break-in. Even conservative members of Congress were shocked. During hearings by a special Senate committee in the summer of 1973, Georgia’s conservative Democratic Senator Herman Talmadge (southern Democrats hadn’t yet gone red) asked Ehrlichman if he recalled the English principle in which “no matter how humble a man’s cottage is, even the king of England cannot enter without his consent.” Ehrlichman replied chillingly, “I am afraid that that has been considerably eroded over the years.”

As it happens, the burglars found no medical papers about Ellsberg in Dr. Fielding’s files. Nevertheless, that particular raid had far-reaching consequences. It remained secret until Ellsberg’s 1973 trial, when the Justice Department was obliged to disclose it. Citing this stunning news, the presiding judge dismissed the case against Ellsberg, saying that the administration’s behavior “offend[s] a sense of justice.” The Fielding break-in was incorporated into the articles of impeachment against Nixon.

Another oft-repeated Watergate myth, which arose from those Senate hearings, is that the committee vice-chair, Tennessee Republican Howard Baker, asked Nixon administration witnesses a particularly penetrating question: “What did the president know, and when did he know it?” This question was considered so clever that it’s been applied to determine whether Trump played a direct role in collaborating with the Russians in the 2016 presidential election. In fact, Baker was working with the Nixon White House, and the point of the question was to narrow the grounds for holding Nixon to blame for the Watergate break-in; unless a witness could pinpoint precisely that Nixon knew, for example, about the Watergate break-in ahead of time, he was blameless and couldn’t be held accountable for the acts of his aides and hired thugs.

The question of whether to hold a president accountable for the acts of his aides was a critical question facing the House Judiciary Committee in the summer of 1974, as it considered articles of impeachment. The most important of the three that it adopted, which it approved on July 30, was Article II, which accused Nixon of various abuses of power—wiretapping, using government agencies against his “enemies”—and also suggested that the president could be held responsible for a given “pattern or practice” on the part of his aides, meaning that simply winking and nodding would not insulate him from their untoward acts. The president determines the climate of the White House, and his aides can often ascertain what he wants done without receiving specific instructions. In effect, it didn’t matter whether Nixon knew about the Watergate break-in beforehand—according to Article II, he was implicated in it regardless.

A third widely misunderstood and highly important event that occurred shortly before the end of the Nixon presidency was the discovery of an excerpt from three tapes that Nixon, under pressure from his staff and the public, released belatedly on August 5. The tapes captured conversations between Nixon and Haldeman on June 23, three days after their initial meeting following the discovery of the Watergate burglars. The president admitted that he had withheld the recordings from even his own lawyers and staff, though in a seeming contradiction, he added that he hadn’t realized the “implications” of their contents. An unusually contrite Nixon admitted that it is “clear that portions of the tapes of these June 23 conversations are at variance with certain of my previous statements.” In a key passage, Nixon could be heard instructing Haldeman to tell the C.I.A. to tell the F.B.I. to halt its investigation into the Watergate case, for the sake of protecting matters pertaining to national security—a well-worn excuse for all sorts of misuses of power.

Here was indisputable evidence that the president was obstructing justice. And this, the myth goes, is why Nixon was forced to resign. In fact, by the time the missing piece of tape was released, the House Judiciary Committee had already approved, on a bipartisan basis, its three articles of impeachment (one was about obstruction of justice), and Nixon’s political position was so weakened by now that it was widely assumed he would be impeached and convicted. The scrap of tape only hastened his departure.

Nixon, photographed departing in his helicopter after resigning as U.S. president in 1974.

By Bill Pierce/The LIFE Images Collection/Getty Images.

As it turns out, Trump isn’t the only president whose aides occasionally saved him from himself by disregarding his orders. Nixon was often drunk at night (a condition exacerbated by Dilantin, an anti-convulsant that he’d been erroneously advised would help with depression), and he’d telephone aides at all hours to bark out instructions, once ordering the firing of an entire floor of State Department officials the next day. Those who received the calls were forced to use their (questionable) judgment to determine which orders to carry out, and which to ignore. One of the most infamous examples of this phenomenon was when Nixon instructed the plumbers to firebomb the Brookings Institution, where two former Johnson administration officials who’d worked on the Pentagon Papers were believed to be keeping unreleased portions of the report. In the confusion that was to be caused by the fire, the plumbers were instructed to break into said files and retrieve the unpublished papers. But someone on Nixon’s staff headed off this harebrained scheme. As it happened, neither man’s office contained even a file cabinet.

The events involving the break-ins and Nixon’s attempts to avoid prosecution—milquetoast in contrast to Trump’s—were more than a series of simple criminal acts. They were, in essence, a constitutional crisis. For some time, the question was whether the president could be held accountable to the Congress or the courts, as intended by the Constitution. But the situation was still more alarming than that: the Watergate break-in, as well as other activities perpetrated by Nixon’s goon squad, were parts of an effort by a sitting president to affect—if not determine—his Democratic opponent in the next election. Faced with a slate of possible opponents, including Ted Kennedy and Edmund Muskie, Nixon and his aides concluded that these potentially formidable candidates should be knocked out of the race, and that by contrast, Nixon believed, George McGovern, an anti-Vietnam War liberal (though he was a World War II hero), would be easy pickings in the general election. Ultimately, McGovern was chosen as the Democratic nominee, thanks in part to the machinations of the current governing party—an effort that veered dangerously close to fascism.

What may ultimately have saved the country was the fact that the plumbers botched every operation they undertook. In an act of carelessness that came to define their leadership, Hunt and Liddy had their picture taken in front of Dr. Fielding’s office door using a C.I.A.-supplied camera. (They then asked the C.I.A. to develop the pictures when they returned to Washington, which meant the agency had a copy of the two men at the site of their first and most serious misdeed.) The famous Watergate break-in was actually the plumbers’ fourth attempt at, in Nixon’s terms, “getting the goods” on D.N.C. chairman Lawrence O’Brien, whose office was in the Watergate complex. During their first attempt, they staged a dinner in the building as a pretext for a raid, but somehow ended up locked in a closet overnight. On their second try, they reached the D.N.C. offices, but discovered that they lacked the right equipment for breaking the lock. After one of the burglars returned to Miami to acquire said tool, they managed to break into the D.N.C.’s Watergate offices on their third attempt, over Memorial Day weekend of 1972. There, they bugged phones and photographed certain documents. But the tap on O’Brien’s phone didn’t work, and John Mitchell, formerly Nixon’s attorney general and now the chairman of his re-election committee, was said to have denounced the fuzzy pictures as “junk.” (Though it’s doubtful that that’s the exact word he used.) He instructed the plumbers to return.

Finally, the details around why a group of Republican leaders urged Nixon to resign have been misrepresented. The widely held belief, then and now, has been that the G.O.P. eminences from Capitol Hill, who told Nixon that his support among their colleagues had evaporated, acted courageously, out of patriotism. In truth, Nixon still had pockets of support around the country. These supposed courageous statesmen were hoping to avoid an inconvenient vote against the president. Nixon, anxious to keep his pension and to be granted the staff accorded presidents after they leave office voluntarily, agreed. He needed to pay off his sizable legal bills, and he wanted a staff to help write his memoirs and plot a return to public life—a scheme in which he succeeded beyond anyone’s wildest dreams. And so, on August 9, 1974, Nixon became the first president in our lifetime to resign from office. Before long, we may find out whether he will be the last.

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“Summer of ’73” — the Senate Watergate Hearings — when my wife Cathy and I arrived in Washington, D.C. and settled down across the river in Alexandria, VA. Alexandria was then home to the notorious Presidential Counsel John Dean who once testified that Nixon’s Chief Domestic Affairs Adviser, the equally notorious John Ehrlichman, suggested that he could use his short commute across the Potomac to “deep six” potentially incriminating evidence by throwing it in the river!

That led my cousin’s husband to (jokingly, of course) suggest that my job prospects in the Nixon Justice Department would be greatly improved by my Alexandria address!

Gotta give Trumpie credit for making “slimeballs of the past” like Ehrlichman & Dean “relevant” again.

PWS

10-15-18

HOW THE TRUMP ADMINISTRATION’S LIES AND MISCONDUCT HAVE CREATED THE VERY “FAKE BORDER CRISIS” THAT THEY CLAIM TO DECRY (& Use To Attempt To Justify Even More Draconian Measures To Mask Their Illegal & Immoral Conduct)

https://www.texasobserver.org/u-s-and-mexican-officials-collaborating-to-stop-asylum-seekers-attorneys-allege/

Gus Bova reports for the Texas Observer:

Elsa, a Guatemalan living in Southern Mexico, knew something was wrong. Her husband began traveling a lot without explanation, and physically abusing her and their two kids. When she eventually figured out that he’d gone to work for a cartel, she left him. But in 2016, the gang came after her to collect on debts the ex-husband had skipped out on. She fled to other Mexican towns, but the cartel men tracked her down. Then she went back to Guatemala, but they found her there, too. Finally, in September, Elsa decided to gamble on Uncle Sam — but the foot of the Reynosa-Hidalgo bridge was as far as she would get.

The Trump administration has repeatedly insisted that asylum-seekers should follow the rules by turning themselves in at ports of entry. Elsa tried to do just that. As a legal Mexican resident, she even had proper documentation for herself and her two children. Still, a Mexican customs agent stopped her at the turnstile and told her she couldn’t pass. He yelled at her that they were abusing their Mexican status by seeking asylum in the United States, and he threatened to tear their papers to shreds. Scared, the family slunk back into narco-ravaged Reynosa, and into total uncertainty.

The story of Elsa, whose name the Observer has changed for her protection, was included in a petition filed last week with the Inter-American Commission on Human Rights, a 59-year-old organization based in Washington, D.C., that investigates abuses in the Americas and issues recommendations to offending nations. The petition, filed by immigration attorneys working in the Rio Grande Valley, describes a systematic conspiracy between U.S. and Mexican customs agents to prevent asylum-seekers from requesting protection. The attorneys are asking the commission to tell both nations to stop stonewalling the law-abiding migrants.

U.S. customs agents blocking entry at the international boundary line on the Gateway International Bridge, Brownsville, July 2. COURTESY/FILING WITH THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Since June, the lawyers allege, Mexican customs officials along the Texas-Mexico border have been doing something virtually unprecedented: stopping asylum-seekers from entering the bridge, and if the migrants lack proper Mexican travel documents, the Mexican agents detain and even deport them. If an asylum-seeker makes it onto the bridge, U.S. customs officials call their Mexican counterparts to retrieve them; the Observerdocumented this phenomenon in a June story cited in the petition. In Nuevo Laredo, according to sworn affidavits from two Central American asylum-seekers, Mexican agents have demanded bribes of $500 per person to get onto the bridge. And in September, in Reynosa, they also started rejecting people, like Elsa, with Mexican papers.

“This petition highlights the reality of the U.S. working hand in glove with the Mexicans to completely shut down bridges, in violation of a number of human rights prohibitions,” said Jennifer Harbury, a longtime Rio Grande Valley attorney. Harbury has spent months documenting problems at the bridges and provided the majority of the information in the filing. According to Harbury and an affidavit from longtime Brownsville activist Mike Seifert, the international collaboration began after public outcry over long lines of asylum-seekers baking in the sun for weeks on the U.S. side of the bridges.

Harbury says in the filings that numerous Mexican agents at the Reynosa bridge have privately told her that the two governments are working together, and they’ve expressed frustration at doing the United States’ “dirty work.” Two other witnesses — a journalist and an activist — wrote similar affidavits. But U.S. customs agents have told Harbury that the Mexicans are acting alone, and a September letter she sent to Homeland Security Secretary Kirstjen Nielsen has gone unanswered. The United States began pressuring Mexico to stop migration at its southern border in 2014, and last month, Trump signaled he would redirect $20 million in foreign aid to beef up Mexico’s deportations. Neither U.S. nor Mexican immigration officials responded to Observer requests for comment.

The United States is unlikely, Harbury said, to heed the eventual request from the human rights commission. For one, the U.S. government rejects the authority of the commission’s enforcement arm, the Inter-American Court of Human Rights in San José, Costa Rica. (The same court recently ruled that many Latin American countries must recognize same-sex marriage.) But Harbury has higher hopes for Mexico, which is subject to the court and has an incoming leftist president in Andrés Manuel López Obrador. “I think the new president of Mexico is not going to want the commission saying they’re running dogs for Uncle Sam,” she said.

In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals.

If Mexico stops its collaboration, then the United States would have to do its own “dirty work” of stopping asylum-seekers, and hold all liability for the potentially illegal actions. In California, a lawsuit was filed last year after border agents briefly turned away asylum-seekers all along the U.S.-Mexico border on the false premise that Trump’s inauguration had abolished asylum. That suit continues to play out.

In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals. According to Attorney General Jeff Sessions, the point of the “zero tolerance” policy was to force families to use official ports of entry instead of crossing illegally. But U.S. customs agents started stonewalling asylum-seekers at the bridges. Now, with the threat of separation gone and the bridges still a dicey proposition, families have responded accordingly: More are crossing the river illegally to turn themselves in to Border Patrol. Immigration officials, in turn, are using this apparent spike to sound the alarm about another border crisis.

Meanwhile, many asylum-seekers from Central America, Africa and the Caribbean remain stranded, paralyzed by uncertainty in dangerous Mexican border towns where gangsters prey on refugees. In an affidavit, one would-be asylum-seeker wrote that she hears “shooting day and night” in Reynosa; another simply wrote, “many people die here.” As Harbury, the attorney, put it, “they’re like a snowball in Hell down there.”

Gus Bova reports on immigration, the U.S.-Mexico border and grassroots movements for the Observer. He formerly worked at a shelter for asylum-seekers and refugees. You can contact him at bova@texasobserver.org.

Get the latest Texas Observer news, analysis and investigations via Facebook, Twitter and our weekly newsletter.

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Jeff Sessions is a key part of this legal charade and scofflaw behavior. He disingenuously asserts that individuals should be using the legal system while doing everything in his power to make it impossible for individuals to present their asylum claims at ports of entry and have them fairly heard by fair and unbiased judges in Immigration Court.

The results of these shortsighted, cruel, illegal, and ultimately ineffective policies are to: 1) enrich smugglers, 2) make the trip more dangerous for asylum seekers, virtually insuring that more will die or be abused during the journey, and 3) to enlarge and promote the already robust “extralegal system” for immigrants and refugees. When orderly processing and the legal system for immigration are shut down or made less “user friendly,” the result is unlikely to be less overall immigration; just less immigration through legal channels and more “extralegal immigration” driven by Trump, Sessions, and their fellow White Nationalists.

Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!

Many thanks to Dan Kowalski over at LexisNexis Immigration Community for forwarding to me this timely and excellent reporting.

PWS

10-14-18

MILLER & TRUMP ADMINISTRATION HATCHING ANOTHER ILLEGAL CHILD SEPARATION PROGRAM AS THEIR CRUEL & COUNTERPRODUCTIVE WHITE NATIONALIST ENFORCEMENT CONTINUES TO FAIL!

https://www.washingtonpost.com/local/immigration/trump-administration-weighs-new-family-separation-effort-at-border/2018/10/12/45895cce-cd7b-11e8-920f-dd52e1ae4570_story.html?utm_term=.e82d531c008e

Nick Miroff, Josh Dawsey, & Maria Sacchetti report for WashPost:

The White House is actively considering plans that could again separate parents and children at the U.S.-Mexico border, hoping to reverse soaring numbers of families attempting to cross illegally into the United States, according to several administration officials with direct knowledge of the effort.

One option under consideration is for the government to detain asylum-seeking families together for up to 20 days, then give parents a choice — stay in family detention with their child for months or years as their immigration case proceeds, or allow children to be taken to a government shelter so other relatives or guardians can seek custody.

That option — called “binary choice” — is one of several under consideration amid the president’s frustration over border security. Trump has been unable to fulfill key promises to build a border wall and end what he calls “catch and release,” a process that began under past administrations in which most detained families are quickly freed to await immigration hearings. The number of migrant family members arrested and charged with illegally crossing the border jumped 38 percent in August and is now at a record level, according to Department of Homeland Security officials.

Senior administration officials say they are not planning to revive the chaotic forced separations carried out by the Trump administration in May and June that spawned an enormous political backlash and led to a court order to reunite families.

But they feel compelled to do something, and officials say senior White House adviser Stephen Miller is advocating for tougher measures because he believes the springtime separations worked as an effective deterrent to illegal crossings.

At least 2,500 children were taken from their parents over a period of six weeks. Crossings by families declined slightly in May, June and July before surging again in August. September numbers are expected to be even higher.

While some migrants worried about separations, others felt seeking asylum was worth the risk

For some seeking asylum, family separations were worth the risk: ‘Whatever it took, we had to get to this country’ (Zoeann Murphy, Jorge Ribas/The Washington Post)

While some inside the White House and DHS are concerned about the “optics” and political blowback of renewed separations, Miller and others are determined to act, according to officials briefed on the deliberations. There have been several high-level meetings in the White House in recent weeks about the issue. The “binary choice” option is seen as one that could be tried out fairly quickly.

“Career law enforcement professionals in the U.S. government are working to analyze and evaluate options that would protect the American people, prevent the horrific actions of child smuggling, and stop drug cartels from pouring into our communities,” deputy White House press secretary Hogan Gidley said in an emailed statement.

Any effort to expand family detentions and resume separations would face multiple logistical and legal hurdles.

It would require overcoming the communication and data management failures that plagued the first effort, when Border Patrol agents, Immigration and Customs Enforcement officials and Department of Health and Human Services caseworkers struggled to keep track of separated parents and children.

The Trump administration believes it is on solid legal ground, according to two officials, in part because U.S. District Judge Dana M. Sabraw, who ordered the government to reunite separated families in June, approved the binary-choice approach in one of his rulings. But a Congressional Research Service report last month said “practical and legal barriers” remain to using that approach in the future and said releasing families together in the United States is “the only clearly viable option under current law.”

‘Administration officials said the CRS report cited earlier legal rulings. But the American Civil Liberties Union, which launched the separations lawsuit, disputed that interpretation and said it would oppose any attempt at expanded family detentions or separations.

“The government need not, and legally may not, indiscriminately detain families who present no flight risk or danger,” ACLU attorney Lee Gelernt said in an email. “It is deeply troubling that this Administration continues to look for ways to cause harm to small children.”

Another hurdle is that the government does not have detention space for a large number of additional families. ICE has three “family residential centers” with a combined capacity of roughly 3,000 parents and children. With more than four times that many arriving each month, it is unclear where the government would hold all the parents who would opt to remain with their children.

But Trump said in his June 20 executive order halting family separations that the administration’s policy is to keep parents and children together, “including by detaining” them. In recent weeks, federal officials have taken steps to expand their ability to do that.

In addition to considering “binary choice” and other options, officials have proposed new rules that would allow them to withdraw from a 1997 federal court agreement that bars ICE from keeping children in custody for more than 20 days.

The rules would give ICE greater flexibility to expand family detention centers and potentially hold parents and children longer, though lawyers say this would be likely to end up in court.

Officials have also imposed production quotas on immigration judges and are searching for more ways to speed up the calendar in its courts to adjudicate cases more quickly.

Federal officials arguing for the tougher measures say the rising number of family crossings is a sign of asylum fraud. DHS Secretary Kirstjen Nielsen has blasted smugglers for charging migrants thousands of dollars to ferry them into the United States, knowing that “legal loopholes” will force the administration to release them pending a court hearing. Federal officials say released families are rarely deported.

Advocates for immigrants counter that asylum seekers are fleeing violence and acute poverty, mainly in Central America, and deserve to have a full hearing before an immigration judge.

“There is currently a crisis at our southern border,” DHS spokeswoman Katie Waldman said in a statement, adding, “DHS will continue to enforce the law humanely, and will continue to examine a range of options to secure our nation’s borders.”

In southern Arizona, so many families have crossed in the past 10 days that the government has been releasing them en masse to shelters and charities. A lack of available bus tickets has stranded hundreds of parents and children in Tucson, where they sleep on Red Cross cots in a church gymnasium.

At a Senate hearing Wednesday, Sen. John Kyl (R-Ariz.) told Nielsen that migrants were “flooding into the community” and that authorities there had “no ability to do anything about it.”

Nielsen said lawmakers needs to give DHS more latitude to hold families with children in detention until their cases can be fully adjudicated — a process that can take months or years because of huge court backlogs.

DHS officials have seen the biggest increase this year in families arriving from Guatemala, where smugglers called “coyotes” tell migrants they can avoid detention and deportation by bringing a child, according to some community leaders in that country.

On Friday, Nielsen called for a regional effort to combat smuggling and violence in the region and to “heighten our penalties for traffickers.”

“I think there’s more that we can do to hold them responsible, particularly those who traffic in children,” she said in a speech in Washington at the second Conference on Prosperity and Security in Central America.

More than 90,000 adults with children were caught at the southwest border in the first 11 months of fiscal 2018. The previous high for a single year was 77,600 in 2016

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My recollection is that 1) the DOJ conceded in court that a policy of intentionally separating families is unconstitutional; and 2) Federal Courts have held that detention of individuals who are neither security risks nor likely to abscond for the primary purpose of “deterrence” is illegal.

So, if this facially illegal program is put into action, why shouldn’t Stephen Miller go to jail and be held personally liable for all the damages he causes with his scofflaw racist policies? Why shouldn’t Nielsen, Sessions, and others who are part of the Miller White Nationalist scheme also be held personally liable?

More cruelty, more wasting of taxpayer resources, more abuse of the judicial process by the Trump Administration.

Oh, and by the way. although today’s out of control U.S. Immigration Court backlogs began with “Aimless Docket Reshuffling” during the Bush II and Obama Administrations, Sessions and the Trump Administration have pushed them to astounding new levels with their incompetence and anti-asylum bias. Don’t blame the victims for the Government’s irresponsible actions!

If folks who believe in human decency and the rule of law don’t get out and vote, these abuses and degradations of our national values will continue.

PWS

10-12-18

SURPRISE: TRAC STATS SHOW TRUMP ADMINISTRATION IS “BUSTING” MOSTLY NON-CRIMINAL MIGRANTS!

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Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. The vast majority (58%) of individuals in Immigration and Customs Enforcement (ICE) custody as of June 30, 2018 had no criminal record. An even larger proportion – four out of five – either had no record, or had only committed a minor offense such as a traffic violation. Case-by-case records on each of these 44,435 individuals held in ICE custody were recently obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data provide a detailed snapshot of ICE custody practices.

Individuals were mainly from four countries. Forty-three percent were from the Central American countries of Guatemala, Honduras and El Salvador, while an additional 25 percent were Mexicans. At least 18 percent had resided continuously in the U.S. for ten years or more, and one out of four had been in the country for at least five years.

Many individuals had been held in ICE custody for a relatively short period of time. Forty-one percent had thus far stayed in ICE custody for 30 days or less. At the other extreme, almost 2,000 individuals had been detained for more than a year, and a few individuals had already been continuously detained according to ICE records for over ten years.

The data document the dominance of private for-profit prisons in the large-scale detention of ICE detainees. Overall, fully 71 percent of detainees were housed in facilities operated by private companies. The rest of the facilities were operated by government, including by counties, cities, and the federal government. Texas held 29 percent of all ICE detainees.

Read the full report at:

http://trac.syr.edu/immigration/reports/530/

Access the brand new free web query tool to examine who ICE has in custody and where they are being held. Details on state, county, facility name, nationality, gender, length of time in the U.S., green card status, if convicted the most serious criminal offense, and much more are available at:

http://trac.syr.edu/phptools/immigration/detention/

In addition, there are many additional TRAC free query tools – which track Border Patrol arrests, ICE detainers and removals, the Immigration Court’s backlog, the handling of juvenile cases and more. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

Expensive, divisive, often counterproductive, and overall serving no discernible national interest: That’s the Trump immigration policy!

PWS

10-12-18

Are there “unknown Middle Easterners” “mixed” into the migrant caravan?

Will the administration cut off foreign aid? Can they?

Were authorities from Mexico unable to stop the migrant caravan from heading into the US?

Will the President declare a national emergency over the caravan?

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Driven by Ideology

Trump’s Shadow

Empty Spots

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Amnesty International Report: Illegal Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States

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New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen

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The week was dominated by low-level immigration charges

The majority of prosecutions are for first-time crossers

The long, perilous journey

Most came from Latin America

Far more men were arrested than women

Previous deportation is not a deterrent

Arrest location: a third were caught crossing the Rio Grande

Extreme tactics at the border

Chaos in the courtrooms

Assembly-line justice

Case outcomes: almost all pleaded guilty

Most judges sentenced first-time entrants to time served

Those who had previously been deported received longer sentences

First-time migrants in the southern district of California spent the longest time incarcerated

The southern district of Texas hands outs the longest sentences for re-entry cases

Families still separated

Median sentence length for felony illegal re-entry0 days204060801001201401600 días20406080100120140160California southern60 daysArizona60 daysNew Mexico43 daysTexas western105 daysTexas southern130 days

Credits

Methodology

We can can diminish (and are diminishing) ourselves as a nation, but it won’t stop human migration!

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Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!

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