PROFESSOR MAUREEN SWEENEY ON WHY THE BIA DOESN’T DESERVE “CHEVRON” DEFERENCE – JEFF SESSIONS’S ALL OUT ATTACK ON THE INDEPENDENCE OF THE IMMIGRATION JUDICIARY IS EXHIBIT 1!

http://lawprofessors.typepad.com/immigration/2018/08/immigration-article-of-the-day-enforcingprotection-the-danger-of-chevron-in-refugee-act-cases-by-mau.html

Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)

In an article full of memorable passages, here is one of my favorites:

Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.

This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.

The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.

Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.

PWS

08-23-18

AIC: DATA IN NEW REPORT CLEARLY SHOWS THAT FAMILY DETENTION DIMINISHES DUE PROCESS WITHOUT OFFSETTING POSITIVES – So, Why Do Administrations Of Both Parties Keep Resorting To, & Even “Doubling Down On” This Expensive, Wasteful, & Repugnant Practice?

http://immigrationimpact.com/2018/08/16/detention-family-separation-government-data/#disqus_thread

Tory Johnson reports in Immigraton Impact:

In the wake of the government separating thousands of asylum-seeking families, the Trump administration has scrambled to reunite families. In place of family separation, the administration is pursuing the expansion of an equally horrific practice: holding families in detention camps. This practice has sadly persisted in the United States since 2001.

Neither option—separation or detention—is suitable for families. According to a recent study that analyzed 15 years of government data, detention poses significant barriers to justice for asylum-seeking families. The study’s findings, released this week in a report from the American Immigration Council, provide further evidence that detaining families seeking protection is unnecessary, costly, and inhumane.

The United States currently detains more asylum-seeking families than any nation in the world—even without the expansion proposed by the current administration. This practice has skyrocketed since 2001, when the United States began operating the first detention center to exclusively hold families. But what do we know about the impact of detaining families?

Until now, there was little information about how detained families fare in the immigration court process and what barriers they face in pursuing their asylum claims. “Detaining Families: A Study of Asylum Adjudication in Family Detention” is the first empirical study of family detention and the U.S. immigration court process. The report presents the analysis of government records from more than 18,000 immigration proceedings initiated between fiscal years 2001 and 2016, which involved families held in one of five family detention centers in the United States.

The findings detailed in the report are vital as the government weighs policies that affect asylum seekers and the immigration courts. The report reveals that over the course of 15 years, the United States relied on—and overused—detention in various ways to imprison families seeking asylum, sometimes for prolonged periods.

The thousands of family members included in the study faced serious barriers accessing the court system and a fair asylum process. Notably, the report finds that access to legal representation is limited in detention and in fast-track removal proceedings. Having counsel is critical when navigating the U.S. immigration system—and may be the difference between life and death for an asylum seeker.

These hurdles are particularly concerning given the findings from the period studied (2001 to 2016), which show that families pursue viable claims for protection and had increased representation when released from detention.

Specifically, the main findings discussed in the report include:

Family members who were released from detention had high compliance rates; the overwhelming majority (86 percent) of family members released from detention showed up for their court hearings.

Representation increased among family members who were released from detention; 76 percent of released family members were represented by counsel at their most recent merits hearing, whereas only 47 percent of family members who remained detained had counsel.

Family members who were released from detention and obtained counsel had a relatively high rate of success in their completed cases; 49 percent of released family members with counsel successfully obtained relief from removal. This rate dropped significantly for unrepresented family members who remain detained—only 8 percent had the same success in their cases.

In addition, the report reveals the important role that the immigration courts can play in maintaining due process in asylum proceedings. While the courts are vulnerable to variability based on different jurisdictions, they serve as a vital check on the detention decisions of immigration officials. For example, in the period studied, Immigration and Customs Enforcement (ICE) officers issued initial custody decisions that unnecessarily prolonged the detention of families. These decisions were regularly overturned after immigration judges found that family members were eligible for release.

The study adds to mounting evidence against family detention, underlining the fact that detaining families is unnecessary, costly, and inhumane. In contrast, the study’s findings provide strong support for different policy choices—ones that uphold access to justice for families and respect a system with checks and balances.

As a country, we must choose policies in line with our values and end the horrible practice of detaining families. Family unity does not, and should not, require imprisonment.

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

One obvious answer as to why this horrible and counterproductive practice remains prevalent across Administrations of both parties: although punishment, deterrence, and “sending messages” are not appropriate reasons for immigration detention, that’s what’s really at work here. Even though there is little or no documentable “deterrent value” to such detention, Administrations of both parties like to send “hard-line border enforcement” messages to certain constituencies. Add to that individuals and entities from both parties who stand to profit from immigration detention, and you have a prescription for a major disaster. Not surprisingly, that’s exactly what overuse of immigration detention has been!

Ironically, the Trump Administration’s widespread public misuse of immigration detention has focused public attention on its immorality and wastefulness, and therefore might ultimately lead to the curtailment of the practice.

PWS

08-20-18

WASHPOST: RACISTS FIND HOME IN TODAY’S GOP —From Dissing Mexican Americans, To Barring Muslims, Abandoning Refugees, Restricting Legal Immigration, Slamming Families, & Encouraging Voter Suppression, GOP Appears To Be “All In” On “Built To Fail” Strategy Of Making America White Again: “the larger moral cowardice that has overtaken the party.”

https://www.washingtonpost.com/politics/im-not-going-there-as-trump-hurls-racial-invective-most-republicans-stay-silent/2018/08/18/aab7fd8a-a189-11e8-83d2-70203b8d7b44_story.html

By Ashley Parker

, Reporter

Seung Min Kim

, Reporter

Robert Costa

, Reporter

August 18 at 6:14 PM

The president of the United States had just lobbed another racially charged insult — this time calling his former top African American adviser a “dog” — but Sen. John Cornyn (R-Tex.) had no interest in talking about it.

“I’ve got more important things on my mind, so I really don’t have a comment on that,” said the Senate’s No. 2 Republican, chuckling at the question.

Has President Trump ever said anything on race that made Cornyn uncomfortable? “I think the most important thing is to pay attention to what the president does, which I think has been good for the country,” the senator demurred.

What about his constituents back home — are they concerned? “I know you have to ask these questions but I’m not going to talk about that,” Cornyn said, politely ending the brief interview in the basement of the U.S. Capitol. “I just think that’s an endless little wild goose chase and I’m not going there.”

And so it went last week among Republicans: As Trump immersed the nation in a new wave of fraught battles over race, most GOP lawmakers tried to ignore the topic altogether. The studied avoidance is a reflection of the enduring reluctance of Republicans to confront Trump’s often divisive and inflammatory rhetoric, in part because the president remains deeply popular within a party dominated by older white voters.

The Washington Post reached out to all 51 Republican senators and six House Republican leaders asking them to participate in a brief interview about Trump and race. Only three senators agreed to participate: Jeff Flake of Arizona, David Perdue of Georgia and Tim Scott of South Carolina, the only black Republican in the Senate.

Trump has a history of mocking his black critics’ intelligence

President Trump insulted NBA player LeBron James’s intelligence in a tweet Aug. 3. It’s not the first time Trump has taken this approach. (Elyse Samuels /The Washington Post)

Flake, a frequent Trump critic who is retiring, rattled off examples when asked if there were times he felt Trump had been racially insensitive.

“It started long before his campaign, the whole Barack Obama, the birtherism . . . that was abhorrent, I thought,” Flake said in a phone interview. “And then you know, the Mexican rapists . . . on his first official day as a campaign. And then you know, Judge Curiel, the statement that he couldn’t judge because of his heritage. Failure to, you know, condemn in Charlottesville. Just the willingness to go there, all the time. Muslim ban. This kind of divide-and-conquer strategy. It’s just — it’s been one thing after another.”

Six other lawmakers granted impromptu interviews when approached in the Capitol, although most declined to be specific about whether they were uncomfortable with any of Trump’s statements on race. One exception was Sen. Bob Corker of Tennessee, another Trump critic who is leaving Congress in January.

“It’s a formula that I think they think works for them, as it relates to winning,” Corker said, referring to the use of divisive racial issues by Trump and his advisers. “I think that’s their kind of governing. I think that’s how they think they stay in power, is to divide.”

Several other lawmakers said they did not like some of Trump’s language, especially on race, but did not consider Trump to be racist.

Sen. John Thune (R-S.D.), the No. 3 Republican in the Senate, said Trump’s description of former black adviser Omarosa Manigault Newman as a “dog” was “not appropriate, ever.” But he stopped short of pointing to a time when he felt the president had crossed a racial boundary.

“I just think that’s the way he reacts and the way he interacts with people who attack him,” Thune said. “I don’t condone it. But I think it’s probably part built into his — it’s just going to be in his DNA.”

The month of August — which included the first anniversary of the deadly white supremacist rally in Charlottesville — has seen Trump unleash a steady tide of racially charged invective, including questioning the intelligence of basketball star LeBron James, attacking Chinese college students and reviving his attacks on anthem protests by black NFL players. At one point last week, White House press secretary Sarah Huckabee Sanders said she could not guarantee that no audio recording exists of Trump using the n-word, as Manigault Newman alleges in her book.

Republicans have struggled over issues of race since the Civil Rights era, with periodic efforts to appeal to blacks, Latinos and other minorities. Trump’s critics within the party fear that, in an increasingly diverse nation, the president is reopening wounds many Republicans had sought to heal.

Trump and his allies frequently counter by offering economic data that they say is favorable to minorities, seeking to separate Trump’s harsh rhetoric from his policy agenda.

But some longtime party stalwarts worry about the long-term consequences of the party’s near-silence on race.

Mike Murphy, a veteran Republican consultant and vocal Trump critic, bemoaned “the larger moral cowardice that has overtaken the party.”

“Trump’s shtick is that he’s the grievance candidate,” Murphy said. “He’s focused on the economically squeezed Caucasian voter. . . . He is speaking to that rage. Mexican rapists, clever Chinese traders, African American people as dogs. That’s Trump’s DNA.”

. . . .

Perdue said in an interview that he believes Trump is results-focused and “trying to be all-inclusive,” and that Democrats are the ones using race as a political issue.

“Well, I hope they will,” Perdue said. “I have many friends in the African American community and they’re tired of being treated as pawns.”

But Republicans who believe that Trump has galloped past norms of civil society on race and other issues worry about the costs the party may ultimately pay, both politically and morally.

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

Read the rest of the article at the link.

Not surprising to see modern-day Jim Crows like Sen. David Perdue (R-GA) out there carrying water for the Trump/Sessions brand of 21st Century racism. After all, in the face of the overwhelming evidence that America needs more legal immigration and that family-based immigration is good for America, Perdue is one of the chief sponsors of the CIS-inspired bogus merit-based immigration bill that actually reduces legal immigration in a losing attempt to bar immigrants of color and “Keep America White As Long As Possible.” Donald Trump trying to be “all-inclusive?” How’s that David, by dissing African-Americans, calling them “dogs,” dehumanizing immigrants, slurring Hispanics, taking protections away from transgender kids, taking away security clearances of critics, attacking the free press, attacking the Justice Department, the FBI and the intelligence community, promoting a false narrative about voter fraud, or telling thousands of lies since assuming office? Which one of these is “all inclusive?” The only “inclusive” thing about Donald Trump is that the majority of Americans who aren’t in his overwhelmingly White Guy “core.” are all included in his insults, lies, and disrespect!

I also thought that the final comment about the late George Wallace was telling. Yup, Wallace accomplished some things in Alabama including getting more textbooks. (Remember that Adolf Hitler built great Autobahns too!) But, the screaming crowds of White Folks who supported Wallace on the national stage weren’t excited about textbooks or better roads — they loved the message of racism and White Supremacy. And, that’s exactly how history will remember Wallace and his supporters — not for the textbooks, but for the public defense and advocacy of racism (just like Hitler isn’t remembered for his Autobahns). Which is how Trump, his “base,” and his many enablers (whether enthusiastic, merely willing, or downright cowardly) will also be remembered!

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

Still doubt the racism of Trump and his agenda. check out this article by Ta-Nehisi Coates in The Atlantic entitled “The First White President:” https://www.theatlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/

It is often said that Trump has no real ideology, which is not true—his ideology is white supremacy, in all its truculent and sanctimonious power. Trump inaugurated his campaign by casting himself as the defender of white maidenhood against Mexican “rapists,” only to be later alleged by multiple accusers, and by his own proud words, to be a sexual violator himself. White supremacy has always had a perverse sexual tint. Trump’s rise was shepherded by Steve Bannon, a man who mocks his white male critics as “cucks.” The word, derived from cuckold, is specifically meant to debase by fear and fantasy—the target is so weak that he would submit to the humiliation of having his white wife lie with black men. That the slur cuck casts white men as victims aligns with the dicta of whiteness, which seek to alchemize one’s profligate sins into virtue. So it was with Virginia slaveholders claiming that Britain sought to make slaves of them. So it was with marauding Klansmen organized against alleged rapes and other outrages. So it was with a candidate who called for a foreign power to hack his opponent’s email and who now, as president, is claiming to be the victim of “the single greatest witch hunt of a politician in American history.”

In Trump, white supremacists see one of their own. Only grudgingly did Trump denounce the Ku Klux Klan and David Duke, one of its former grand wizards—and after the clashes between white supremacists and counterprotesters in Charlottesville, Virginia, in August, Duke in turn praised Trump’s contentious claim that “both sides” were responsible for the violence.

Trump’s political career began in advocacy of birtherism. But long before that, he had made his worldview clear.

To Trump, whiteness is neither notional nor symbolic but is the very core of his power. In this, Trump is not singular. But whereas his forebears carried whiteness like an ancestral talisman, Trump cracked the glowing amulet open, releasing its eldritch energies. The repercussions are striking: Trump is the first president to have served in no public capacity before ascending to his perch. But more telling, Trump is also the first president to have publicly affirmed that his daughter is a “piece of ass.” The mind seizes trying to imagine a black man extolling the virtues of sexual assault on tape (“When you’re a star, they let you do it”), fending off multiple accusations of such assaults, immersed in multiple lawsuits for allegedly fraudulent business dealings, exhorting his followers to violence, and then strolling into the White House. But that is the point of white supremacy—to ensure that that which all others achieve with maximal effort, white people (particularly white men) achieve with minimal qualification. Barack Obama delivered to black people the hoary message that if they work twice as hard as white people, anything is possible. But Trump’s counter is persuasive: Work half as hard as black people, and even more is possible.

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

I encourage you to read Coates’s entire totally cogent expose of the Supreme ugliness of Trump, his “team,” and his core supporters. No, you can’t really separate Donald Trump’s policies from his racism.

That’s why America needs regime change at the ballot box. NOW!

PWS

08-18-18

JASON JOHNSON @ WASHPOST: YES, TRUMP IS A RACIST, AS ARE MILLER, SESSIONS, BANNON & THE REST OF THE WHITE NATIONALIST CREW — “If you think a racial slur is the only way to determine if the president is racist, you haven’t been paying attention, and you don’t understand what racism is.”

https://www.washingtonpost.com/news/posteverything/wp/2018/08/15/is-trump-a-racist-you-dont-need-an-n-word-tape-to-know/?utm_term=.427cd1460cea

Jason Johnson writes in the Washington Post:

By Jason Johnson

Associate professor at Morgan State University and politics editor for the Root

August 15

Omarosa Manigault Newman — who once declared that “every critic, every detractor will have to bow down to President Trump” — evolved from mentee to frenemy to antagonist before her nonstop media blitz promoting her new post-White House tell-all, during which she’s touted the existence of a recording of Trump using the n-word. It’s all sent the White House scrambling, with the president tweetingMonday that “I don’t have that word in my vocabulary, and never have.” Press secretary Sarah Huckabee Sanders told reporters Tuesday she “can’t guarantee” Americans will never hear audio of Trump using the slur.

It doesn’t matter.

Trump is a racist. That doesn’t hinge on whether he uttered one particular epithet, no matter how ugly it is. It’s about the totality of his presidency, and after 18 months you can see his racial animus throughout his policy initiatives whether you hear it on tape or not.

ADVERTISING

Over the course of his career, well before he took office, Trump’s antipathy toward people of color has been plainly evident. In the ’70s, his real estate company was the subject of a federal investigation that found his employees had secretly marked the paperwork of minority apartment rental applicants with codes such as “C” for “colored.” After black and Latino teenagers were charged with sexually assaulting a white woman in Central Park, he took out full-page ads in New York City newspapers calling for the return of the death penalty. He never backtracked or apologized when the teenagers’ convictions were overturned. He championed birtherism, and wouldn’t disavow the conspiracy theory that President Barack Obama was born in Kenya until the end of his 2016 presidential campaign. As president, he’s targeted African American athletes for criticism, whether it’s ranting, “Get that son of a bitch off the field,” in reference to professional football players silently protesting police brutality or tweeting that:

Calling African American Rep. Maxine Waters (D-Calif.) a “low IQ person” is now a routine bit at his political rallies. He was quoted referring to Haiti, El Salvador and various African nations as “shithole” countries. He announced his campaign in 2015 by referring to Mexican immigrants as “rapists.” Later that year, he called for the United States to implement a “total and complete” Muslim ban.

After taking office, he hired xenophobes such as Stephen Miller — an architect of the ban, whose hostility toward immigrants is so stark, and hypocritical, that his uncle excoriated him this week in an essay for Politico Magazine, writing of Miller and Trump that “they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human.”

[Trump wanted ‘facts’ before calling out racists. When I was on trial, he didn’t care.]

I could go on. The point is that Trump’s view of nonwhites is out in the open. As Slate’s Christina Cauterucci notes, there’s every reason “to believe that an n-word tape wouldn’t torpedo Trump’s presidency”; there’s no indication his supporters “will turn against him because he used a racial slur.” Trump’s words and deeds over time have demonstrated his racism — it doesn’t hinge on being outed, Paula Deen-style, by a tape of him using the word. Racism hardly ever does.

I’m not saying it would be okay for Trump to use any variation of the n-word — in jest, in anger, singing along to the lyrics of a song, with or without the hard “R.” But the feverish speculation about whether he ever deployed the term wrongly implies that a verdict on his racist character turns on its use. What matters more about Trump are the positions he’s taken and the policy choices he’s made that harm communities of color. In his first year as president, Trump evolved from mere interpersonal racist to racist enabler when he proclaimed there were “very fine people, on both sides” when white supremacists and anti-racist protesters converged in Charlottesville last year. Jeff Sessions, a senator from Alabama who, three decades ago, was denieda federal judgeship by the Republican-controlled Senate Judiciary Committee over concerns that he was a racist, was installed by Trump as attorney general.

Since assuming that role, Sessions has worked to undermine consent decrees meant to restrain racially abusive police departments and explicitly articulated the administration’s intent to use family separation to deter immigration. The Department of Education, under Secretary Betsy DeVos, is dismissing hundreds of civil rights complaints, supposedly in the name of efficiency. Trump hired Manigault Newman as a liaison to black constituent groups based on their reality TV relationship and, according to him, her willingness to say “GREAT things” about him, despite almost universal criticism of her appointment and subsequent work by African American Republicans and Democrats.

Being a racist — which entails belief in a fixed racial hierarchy and the power to act upon that belief in commerce, government or social spaces — is not now, and never has been, about one word or one slip of the tongue. It is about the ability of those in power to use public and private resources to enforce a racial hierarchy, whether that means having black people arrested for sitting in Starbucks, refusing to hire or promote qualified black job applicants or staffing a presidential administration with people who tolerate or encourage white nationalists. Trump’s statements and his approach to governance suggest he believes in a set racial hierarchy, and the possible existence of a hyped tape doesn’t change that. So far, and as far as I know, no one’s produced audio of white nationalist participants in last Sunday’s Unite the Right 2 rally in Washington using the n-word. Presumably, by the logic of some Trump defenders, that would mean there’s no proof they’re racist, either.

If American public discourse on race continues to revolve around a game of “gotcha,” with sentiments and smoking guns, divorced from an acknowledgment of how racists use their power, we won’t make any progress, during this administration or any other.

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

Johnson states a simple truth that some don’t want to acknowledge. But, racist anti-immigrant, anti-Muslim, anti-refugee, anti-Mexican American, xenophobic “dog whistles” were at the heart of Trump’s campaign and remain at the heart of his policies, particularly on immigration, refugees, and law enforcement.

Does that mean that the majority of Americans who don’t endorse racism don’t need to deal with the fact that Trump is President and that Sessions and Miller are exercising outsized control over our justice system? Or that today’s Trumpist GOP isn’t your grandparents’ GOP (in my case, my parents’ GOP) and, although they might occasionally mutter a few insincere “tisk, tisk’s,” are firmly committed to enabling Trump and his racist policies including, of course, voter disenfranchisement. Of course not. Just think of how African-Americans, Hispanics, and liberals had to deal in practical terms with Southern political power in the age of Jim Crow (which is basically the “Age of Jeff Sessions”).

But, it is essential for us to know and acknowledge who and what we are dealing with and not to let political expediency totally obscure the harsh truth. Trump is a racist. And, that sad but true fact will continue to influence all of his policies for as long as he remains in office. Indeed, “Exhibit 1,” is the failure of the GOP to achieve “no-brainer” Dreamer protection over the last two years and the stubborn insistence of Sessions and others in the GOP to keep tying up our courts with bogus attempts to terminate already limited protections for those who aren’t going anywhere in the first place.

PWS

08-18-18

“OUR GANG OF RETIRED US IMMIGRATION JUDGES” ISSUES STRONG CONDEMNATION OF SESSIONS’S LATEST ASSAULT ON DUE PROCESS & THE INDEPENDENCE OF US IMMIGRTION JUDGES IN MATTER OF L-A-B-R-!

https://www.aila.org/infonet/retired-ijs-former-bia-statement-matter-of-l-a-b-r?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Instant

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to AG’s Decision in Matter of L-A-B-R-

August 17, 2018

As former Immigration Judges and Members of the BIA with many decades of combined experience on thebench, we must expose the Attorney General’s latest blow to judicial independence in his decision in Matter of L-A-B-R-.

There is no question that the Immigration Courts are currently overwhelmed by a backlog of more than 700,000 pending cases. Facing the imposition of unreasonable case completion quotas, many Immigration Judges presently feel forced to double-book hearings. One of our members who recently left the bench states that judges at present may receive ten to fifteen motions for continuance a day. Sessions’s latest decision would force each judge to write lengthy, highly detailed decisions for each of these while still trying to complete three or more full hearings a day. Of course, the implementation of this latest decision is entirely unrealistic. Furthermore, the decision imposes no such requirements in instances where DHS seeks a continuance (often for avoidable reasons such as its inability to locate the file or to have adjudicated a petition in time).

It should be remembered that many of the cases before the Immigration Courts involve individuals whose lives are at risk in their home countries. As the President Emeritus of the group’s union has said,Immigration Judges hear death penalty cases under traffic court conditions. In his decision, Sessions usesthe words “efficient,” “efficiency,” or “inefficient” 12 times. The word “justice” (other than in the name ofthe agency he heads, or as a job title) appears only once.

Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets. While judges share the administration’s concern over the high volume of cases, they should be allowed a say inproposing solutions that will not infringe on their independent judgment or their ability to afford due process.

Sincerely,

Hon. Steven Abrams Hon. Jeffrey S. Chase Hon. Bruce J. Einhorn Hon. John F. Gossart, Jr. Hon. Rebecca Jamil Hon. William P. Joyce Hon. Carol King

Hon. Margaret McManus Hon. Charles Pazar
Hon. Lory D. Rosenberg Hon. Susan Roy

Hon. Paul W. Schmidt Hon. Polly A. Webber

1
AILA Doc. No. 18081776. (Posted 8/17/18)

List of Retired Immigration Judges and Former BIA Members

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration LawyersAssociation’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

Honorable Rebecca Jamil

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a

2

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
AILA Doc. No. 18081776. (Posted 8/17/18)
Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

Honorable Charles Pazar

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blogimmigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served

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AILA Doc. No. 18081776. (Posted 8/17/18)

as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

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It’s an honor to be part of this group of my distinguished colleagues and to stand in opposition to Sessions’s “deconstruction” of Due Process and fundamental fairness in our United States Immigration Courts. Court systems work best when we allow judges to function as judges, without this type of political interference by non-judges. The latter is a responsible for “Aimless Docket Reshuffling” — one of the key causes of the backlog which has developed and increased over the last three Administrations.

PWS

08-17-18

MMM v. SESSIONS – JUDGE SABRAW ISSUES NEW RESTRAINING ORDER AGAINST THE ADMINISTRATION IN THE “CHILD SEPARATION” CASE

Here’s a link to the order:

https://www.dropbox.com/s/btfdy0gdbopasfg/55%20-%202018-08-16%20Order%20Granting%20TRO%20in%20S.D.%20Cal..pdf?dl=0

My “Takeaways:”

Due Process protections extend to everyone present in the United States regardless of status;
“Expedited Removal” neither automatically trumps Due Process nor automatically complies with Due Process;
Even after weeks of litigation, only the courage and determination of Judge Sabraw and the plaintiffs stand between these vulnerable individuals and massive violations of their Constitutional rights to Due Process that the Administration, left to its own devices, would inflict;
All in all, it’s a pretty strong indictment of how this Administration is handling the overall situation surrounding Expedited Removal;
It also shows why meaningful review by the Article III Courts of the Constitutional issues involved in Expedited Removal is absolutely essential.

PWS

08-17-18

HUFFPOST: “’Demographic Change’ Doesn’t Cause Racism, Racists Do”

https://www.huffingtonpost.com/entry/opinion-laura-ingraham-immigration-racism_us_5b71e018e4b0ae32af9ab7f8

Noah Berlatsky writes in HuffPost:

“Massive demographic changes have been foisted upon the American people,” Laura Ingraham declared in a now-infamous rant on Fox News, “and they are changes that none of us ever voted for, and most of us don’t like.”

America has more people of color than it used to, and for Ingraham, the natural result of that demographic change is anger, resentment and anxiety.

The truth, though, is that racism is not natural. It is an ideology cultivated by propaganda and designed to subjugate, terrorize, control and exploit marginalized people.

Claiming that racism is natural, or implying as much, as Ingraham does, is itself a powerful means of spreading and legitimizing racism. Because, if racism is natural, then white people aren’t to blame for it. Instead, they can blame “demographic change.”

Which is to say, they can imagine that racism is caused by the existence of people of color ― and that the solution to racism is to remove those people, in one way or the other.

Ingraham’s rhetoric is extreme. But the idea that racism is normal, expected and understandable is actually quite common.

Ingraham’s rhetoric is extreme. But the belief that racism is normal, expected and understandable is actually quite common. In their book Racecraft, Barbara Fields and Karen Fields point out that writers on racism frequently use phrases like, “black people are denied rights because of the color of their skin.”

No one is denied rights because of skin color. People are denied rights because racists decide to use skin color as an excuse for hatred and violence. Blaming racist acts on skin color, Fields and Fields write, “transforms racism, something an aggressor does, into race, something the target is.” It is, they write, “a sleight of hand that is easy to miss.”

There’s a similar sleight of hand in blaming racism on “demographic change,” which transform racism into a natural disaster, like a flash flood or an earthquake. A recent Washington Post report on white workers at a chicken plant in Pennsylvania, for example, argues that “demographic anxiety is contributing to many of the social fissures polarizing the United States.” That’s a nicer way of paraphrasing Ingraham: White people aren’t racist, they just react helplessly ― and understandably ― to the experience of working alongside brown people.

Similarly, New York Times conservative columnist Ross Douthat recommended restricting immigration because “increased diversity and the distrust it sows have clearly put stresses on our politics.” And social psychologist Jonathan Haidt wrote in 2016 that “those who dismiss anti-immigrant sentiment as mere racism have missed several important aspects of moral psychology related to the general human need to live in a stable and coherent moral order.”

No one is denied rights because of skin color. People are denied rights because racists decide to use skin color as an excuse for hatred and violence.

Haidt, in particular, has argued at length that resentment of immigration or diversity is not racist. He argues that nationalism and love of a particular country and a particular culture is a valuable moral commitment. A shared sense of self or culture leads to lower crime rates and greater generosity, he says.

“People don’t hate others just because they have darker skin or differently shaped noses,” Haidt insists. “They hate people whom they perceive as having values that are incompatible with their own, or who (they believe) engage in behaviors they find abhorrent, or whom they perceive to be a threat to something they hold dear.”

That may well be true, but where do Haidt’s reasonably moral nationalists get the idea that certain people’s values are incompatible with their own?

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The Spanish-speaking people at the Pennsylvania chicken plant are doing hard work of the same kind and in the same place as their English-speaking co-workers. What’s the difference in values supposed to be? For that matter, Spanish-speaking people have been in the Americas longer than English speakers have been here. The idea that the United States is somehow essentially English-speaking not a permanent, inviolable truth ― it is a myth.

LEIGH VOGEL VIA GETTY IMAGES

Jonathan Haidt has argued at length that resentment of immigration or diversity is not racist.

Human beings are quick to organize in-groups and out-groups. And human beings also have huge latitude in how they conceptualize the membership of those groups. At one point in the United States, white American Protestants considered Irish Catholics to be dangerous outsiders whose traditions were fundamentally opposed to democracy and reason. Now, St. Patrick’s Day is seen as a celebration of quintessential American-ness. Irish people didn’t change; they were human beings then and they’re human beings now. White Americans just decided to start including the Irish in their in-group.

Deciding that someone is part of an out-group because they speak Spanish is a choice. Deciding immigrants don’t share “our” values is a choice. Insisting immigrants are criminals despite all the evidence to the contrary is a choice.

“These moral concerns may be out of touch with reality, and they are routinely amplified by demagogues,” Haidt admits. But if your “moral concerns” are based on lies amplified by demagogues, maybe those concerns aren’t really “moral” at all. They certainly are not natural, unstoppable and unchangeable.

Deciding that someone is part of an out-group because they speak Spanish is a choice. Deciding immigrants don’t share “our” values is a choice.

Thomas Jefferson, as was his wont, outlined the logic of natural racism with unusual clarity. In explaining why he didn’t believe white people and black people could ever live together, Jefferson pointed to white prejudice and to black people’s resentment for years of oppression. But, tellingly, he also cited “the real distinctions that nature has made.” Jefferson believed white people hated and disliked black people because white and black people were fundamentally different from one another. Natural difference produces natural animosity. Racism, for Jefferson, is inevitable because race is real.

But Jefferson was wrong. Race isn’t a biological fact; humans are all the same species. There’s no instinctual demand that white people panic when someone with a different skin tone moves in next door. There’s no universal cultural imperative that says that English speakers must be filled with rage and fear when they hear someone speaking a different language.

“Difference” doesn’t make us hate. In fact, Ingraham and her ilk have it precisely backward: It’s the choice to hate that defines other people arbitrarily as “different.” When Ingraham says that “massive demographic changes” have made Americans angry, she’s blaming the victims of that anger.

But the existence of people of color is not the cause of racism. The cause of racism is racists like Laura Ingraham.

Noah Berlatsky is the author most recently of Nazi Dreams: Films About Fascism.

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Yup! Couldn’t agree more! And, blaming the victims is exactly what Trump, Sessions, Miller, Ingraham, and the White Nationalist restrictionists are all about.

Just say no to Trump, Sessions, Miller and racism!

PWS

08-16-18

THE HILL: NOLAN SAYS ACLU COULD FORCE TRUMP TO ELIMINATE ASYLUM SYSTEM!

http://thehill.com/opinion/immigration/401633-aclus-lawsuit-may-force-trump-to-stop-granting-asylum-applicationsr

Nolan writes:

. . . .

Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures.

The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”

The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.

This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.

But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted

. . . .

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Read Nolan’s complete article at the link.

Unlike Nolan, I believe that the ACLU has properly stated a case for jurisdiction under INA 242(e)(3)(A)(ii). Sessions’s decision in Matter of A-B- has the force and effect of a regulation. Moreover, the DHS implementing instructions give it the status of a “written policy” concerning credible fear and expedited removal. Here’s the complaint in Grace v. Sessions: https://www.aclu.org/legal-document/grace-v-sessions-complaint
Contrary to what Nolan suggests in his article, a petition for review of A-B- is not an adequate remedy for these plaintiffs. First, Matter of A-B-, to my knowledge, is still on remand to the Immigration Judge. Therefore, there is no “final order” for judicial review purposes.
Second, Matter of A-B- has never been subject to judicial review in any court. Yet, the plaintiffs in Grace face a likelihood of return to persecution without ever having a chance to challenge A-B- through a petition for review. That’s the result of Sessions’s improperly cutting off access to the Due Process hearing system before an Immigration Judge. If Matter of A-B- is eventually overruled by one or more Courts of Appeals, the respondents will have already been improperly deported to persecution or death.
Nolan also uses some of the questionable EOIR statistics that I commented on separately in my preceding post: https://wp.me/p8eeJm-2W2
The idea that Trump could essentially repeal the US asylum system on the basis of bogus national security concerns seems preposterous on its face. Yet, in the perverted “Age of Trump,” and given the Supremes’ majority’s spineless performance in Trump v. Hawaii, I suppose anything is posssible.

PWS

08-16-18

THE PROSTITUTION OF EYORE: Founded To Establish Independence, The Immigration Court Agency Puts Out Bogus Statistics To Support Sessions’s White Nationalist Agenda!

THE PROSTITUTION OF EYORE: Founded To Establish Independence, The Immigration Court Agency Puts Out Bogus Statistics To Support Sessions’s White Nationalist Agenda!

By Paul Wickham Schmidt (U.S. Immigration Judge, retired)

The Executive Office for Immigration Review, known as “EOIR” and pronounced “Eyore” as in the sad little donkey from Wininie the Pooh,was founded in 1983 to promote judicial independence and Due Process. Sadly, those have ceased to be the focus, as the beleaguered agency now develops and promotes bogus statistics to advance the White Nationalist xenophobic agenda of chief immigration “enforcer,” Attorney General Jeff Sessions.

Some might have noticed a new way of presenting so-called “asylum statistics.’ Recently, EOIR published the following so-called “statistical tables” on “defensive” asylum applications — that is, those filed by respondents as a defense to removal after they have been placed in proceedings before the Immigration Court. By contrast, applications filed with the USCIS Asylum Office before proceedings are instituted and thereafter “referred” to the Immigration Court if they are not granted are known as “affirmative” applications.

EYORE ROLLS OVER FOR SESSIONS

Here’s the chart:

Executive Office for Immigration Review

DefensiveAsylumApplications Fiscal Year	Filed	Granted	Defensive Receipts : Defensive Grants Ratio
2008	13,213	2,928	4.51:1
2009	12,258	2,458	4.98:1
2010	12,771	2,273	5.61:1
2011	17,988	2,807	6.4:1
2012	19,908	2,891	6.88:1
2013	23,372	2,620	8.92:1
2014	31,046	2,765	11.22:1
2015	45,960	3,388	13.56:1
2016	68,849	4,863	14.15:1
2017	120,094	6,995	17.16:1
2018 (as of 6/30/2018)	83,534	6,946	12.02:1

Anyone familiar with how immigration proceedings actually work immediately would see the problem with this presentation. However, few of those not familiar with EOIR and Immigration court would notice that glaring disconnect.

What’s the problem? This is a classic “apples and oranges”analysis. The number of “applications filed” in a particular year has little, indeed almost nothing, to do with the number granted. That’s because given the dockets at EOIR, applications are very seldom actually decided in the year that they are filed.The minority that are decided in the year filed are almost always applications by detained, usually unrepresented, aliens. Such applications are literally like “shooting fish in a barrel.” Detained unrepresented asylum applicants seldom receive anything even resembling Due Process and are therefore routinely denied asylum.

Moreover, because the system forces respondents to file all possible applications for relief before an “Individual Hearing” is scheduled, respondents who might actually be relying on cancellation of removal, adjustment of status, so-called “stateside waivers,” and other forms of relief must file the “backup” asylum application even if it might well never proceed to a final adjudication. Additionally, even respondents seeking only the lesser relief of withholding of removal or relief under the Convention Against Torture must file on the asylum application, Form I-589, and thus are counted as “asylum applicants” even if they never pursue asylum.

By artificially maximizing the number of “defensive filings,” while taking the grants out of context to minimize them, EOIR artificially creates a bogus picture of only a small number of asylum applications being granted on the merits. Moreover, EOIR compounds the error by presenting a totally bogus and highly pejorative statistic of “filings to grants” without correlating the year filed with the year granted.

No honest professional statistician would participate in such a hoax. The intent obviously is to create a false narrative of overwhelmingly non-meritorious asylum applications to support Sessions’s disingenuous fabricated scenario of “asylum fraud” infecting the system. For example, according the EOIR’s bogus numbers, the ratio of “applications to grants” in FY 2017 was 17 to 1, falsely suggesting very few meritorious asylum applications.

THE “REAL DEAL”

So, what are the only meaningful EOIR asylum statistics. The number of asylum applications granted and denied on the merits in a particular year. And, those statistics present a radically different picture. Let’s look at EOIR’s own Statistical Yearbookthrough 2016 (the last year for which it was published – the 2017 Statistical Yearbookshould have appeared in the spring of 2018 but, for some curious reason hasn’t) the last full year of the Obama Administration:

Immigration Court Defensive Grant Rate

Grants Denials Grant Rate

FY 12 2,854 5,480 34%

FY 13 2,592 6,188 30%

FY 14 2,747 7,254 27%

FY 15 3,390 7,644 31%

FY 16 4,836 10,842 31%

https://www.justice.gov/eoir/page/file/fysb16/download

As recently as 2016, despite the Obama Administration’s ill-advised “Southern Border Initiative” that forced more unprepared individuals into the “defensive” system faster, and notwithstanding the overall politicized slant of asylum law against Central American Asylum seekers (even before Sessions), the grant rate was a very “robust” 31%, essentially one in three, rather than the bogus one out of every 14.5 put forth in EOIR’s Sessions-driven false narrative.

Let’s look a little further into what the real numbers show. Here are the overall grant rates for asylum and withholding of removal (by regulation, all asylum applications are also considered applications for protection under the withholding of removal provisions of the INA) for the five-year period ending in 2016 :

Immigration Court Asylum or Withholding of Removal Grant Rate
	Asylum Grants	Withholding of Removal Grants	Denials of Both Asylum and Withholding of Removal	Grant Rate
FY 12	10,575	1,527	6,978	63%
FY 13	9,767	1,493	7,293	61%
FY 14	8,672	1,453	7,888	56%
FY 15	8,184	1,184	7,685	55%
FY 16	8,726	969	10,533	48%

While there is a remarkable drop in approvals in FY 2016, again, likely due to the Obama Administration’s ill-advised “Southern Border Initiative,” in FY 2016, 48% of asylum applicants whose cases were actually adjudicated on the merits received protection – essentially one-half of applicants.Again, this is a far cry from EOIR’s current misleading scenario which compares grants to both asylum applications that were not adjudicated on the merits during the year and asylum applications that have never been adjudicated and might never be adjudicated at all, as a result of Session’s mismanagement of the Immigration Courts.

Let’s dig a little further. Here is what happens to so-called “affirmative applications,” that is those made initially to the USCIS asylum Office, when they are “referred” to the Immigration court for a full hearing:

Immigration Court Affirmative Grant Rate

Grants Denials Grant Rate

FY 12 7,721 2,964 72%

FY 13 7,175 2,589 73%

FY 14 5,925 1,937 75%

FY 15 4,794 1,172 80%

FY 16 3,890 801 83%

As we can see, the overwhelming number of affirmative asylum applications not granted by the Asylum Office are eventually granted by the Immigration Courts – a huge majority, 83% in FY 2016. At a minimum, this suggests that the USCIS Asylum Offices should be granting many more affirmative asylum applications, thereby keeping them out of Immigration Court altogether.

ACCURATE STATISTICS LEAD TO BETTER CONCLUSIONS

Overall, the real numbers lead to some obvious conclusions that refute the bogus picture of asylum abuse being painted by Sessions and his EOIR accomplices:

About 50% of asylum applicants whose cases are decided on the merits by the Immigration Courts gain protection;
Asylum applicants who are given fair access to lawyers and time to prepare, generally those filing “affirmative” asylum applications, succeed at extremely high rates;
The USCIS Asylum Office could grant many more “affirmative applications” than they currently do.

All of this suggests that a much more logical approach to asylum adjudication would be:

Treating all asylum applicants applying at ports of entry or who are apprehended near the border and found to have a “credible fear” of persecution or torture as “affirmative applicants” whose cases can be initially adjudicated, and often approved, on the merits by the USCIS Asylum Office without bothering the already overloaded Immigration Courts;
Insuring fair access to counsel and adequate preparation time, preferably in a non-detained setting, to those seeking asylum at the border (significantly, represented asylum applicants show up for their court hearings at extremely high rates);
Encouraging “priority scheduling” for cases in Immigration Court where the documentation is compelling and the Assistant Counsel and private counsel have worked together to narrow the issues for a likely grantof protection (obviously, there are less likely to be Due Process issues with “expediting” grants as opposed to denials).
Exploring other forms of protection or legal status for those whose cases are now “stuck” in the Immigration Court backlog (many are now married to U.S. citizens and eligible for “stateside processing,” or have or will have viable claims for Cancellation of Removal as a result of the Supreme Court’s ruling in Pereira.)
Restoring a more realistic and generous “prosecutorial discretion” (or “PD”) policy along the line of that followed during the later years of the Obama Administration would also help reduce and restore some order to the Immigration Court dockets.
Keeping in mind that even denied asylum applicants more often than not are facing life threatening situations in their “home countries;” they just don’t happen to fit our current overly restrictive and legalistic interpretations of asylum law. (Indeed, in my experience most of those denied asylum were credible and had a well-founded fear of harm – they just failed to meet the rather arcane “nexus” requirements for asylum. Upon return, denied asylum seekers often suffer harm or even death. See, e.g.,https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence;https://www.theguardian.com/us-news/2015/oct/12/obama-immigration-deportations-central-america

Of course, under Sessions, EOIR and DHS are moving in the opposite direction: seeking, without any probative evidence to support their claims, to falsely paint asylum applicants as de-humanized “numbers” who are “gaming” the system. There is “gaming” going on; but, it’s by Sessions and his “go alongs” at EOIR who intentionally are using bogus statistics to paint a false picture of our asylum system.

NO JUSTICE UNTIL BOTH SESSIONS AND EYORE RIDE INTO THE SUNSET

Asylum is an important part of our immigration system. It should and could be much more generously granted and with far less red tape and bureaucracy. Granting asylum is not only our legal obligation (with a moral foundation stemming from the disaster of World War II and its aftermath) but also benefits both our country and, of course, the individuals whose lives are saved.

Yes, there is so-called “asylum fraud.” But, by and large, it doesn’t involve those currently applying at our Southern Border. Indeed, the parts of ICE Investigations that perform reallaw enforcement work, in my experience, do an excellent job of taking apart large asylum fraud rings and “undoing” those asylum grants that were based on fraud. Several significant Chinese and Indonesian “rings” and at least one involving Cameroonian claims were exposed and prosecuted in that manner.

The U.N Convention and Protocol relating to refugees, implemented by our Refugee Act of 1980, was intended to inspire “a generous asylum policy”and actually to extend protection

to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition. The generous letter and spirit of the Convention and the Refugee Act of 1980 also are reflected in the leading U.S. Supreme Court case, INS v. Cardoza-Fonseca, implementing the generous “well-founded fear” standard for asylum.

Jeff Sessions and his White Nationalist gang are moving to dismantle refugee and asylum protections at all levels. Part of their strategy depends on de-humanization of refugees, bogus statistics, and false narratives. Shamefully, “Eyore” has now become part of that effort, just proving again that Due Process and the rule of law won’t ever be totally restored to our country until we get an independent Article I U.S. Immigration Court.

My friend and colleague, The Honorable Jeffrey Chase, also contributed to this article. The views expressed are mine, and mine alone.

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PWS

08-16-18

LEADING ACADEMICS FILE OPPOSITION TO JUDICIAL QUOTAS WITH SESSIONS – The Continuing Saga Of The Due-Process-Killing Move That Nobody But Sessions Wants!

https://commonwealthlaw.widener.edu/files/resources/letter-to-sessions-immigration-adjudication-with-s.pdf

Professor Jill Family

Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

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August 14, 2018

Honorable Jeff Sessions Attorney General
U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

Dear Attorney General Sessions:

We are scholars and teachers of immigration law and of administrative law. We write to express our alarm about the Department of Justice’s new performance metrics for immigration judges. We believe the Department’s performance metrics are unacceptable and fear they are a part of larger goal to undermine the independence of the immigration courts.

Longstanding problems with immigration adjudication have simmered through both Republican and Democratic administrations.1 These problems have manifested in a tremendous backlog of cases awaiting adjudication: over 700,000 cases.2 The wait for a removal hearing can last years.3 The status quo is not acceptable and actions to reform the system are imperative.

Reforms, however, need to enhance fairness by protecting individual rights. Whether the adjudicating body is the Environmental Protection Agency, the Internal Revenue Service, or the Department of Justice in a removal proceeding, how government power is used against a respondent should be scrutinized. This concern is amplified in immigration law because Congress has eliminated federal court review of some issues. For many, the agency hearing before the Department of Justice is the only opportunity to seek statutory protections.

1 Our comments here focus on the Department of Justice’s proposed performance metrics for immigration judges, but there are other issues facing the immigration adjudication system, including a lack of access to counsel and the many types of diversions used to prevent an individual from reaching immigration court. SeeIngrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1 (2015); Jill E. Family, A Broader View of the Immigration Adjudication Problem, 23 GEO. IMMIGR. L.J. 595 (2009).2 Transactional Records Access Clearinghouse, Backlog of Pending Cases in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.

3 Transactional Records Access Clearinghouse, Average Time Pending Cases Have Been Waiting in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php.

Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, PA 17110
t: 717-541-3911 f: 717-541-3966 e: jefamily@widener.edu w: commonwealthlaw.widener.edu

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The concept of fair process in implementing the rule of law is one of the most fundamental American principles. It is a pillar of meaningful democracy. The idea that the government should not deprive any person4 of life, liberty or property without first providing fair process is enshrined in the U.S. Constitution. The repercussions of a lack of fair procedure can be devastating. While it is incumbent on any federal administration to act efficiently, the adjudication process must be fair.

The fair process calculus demands an adjudicator who does not feel compelled to rule in a certain way due to unacceptable influences. The law itself may of course compel an adjudicator, but the scenario becomes very murky very quickly when an adjudicator has a personal stake in the outcome of a case.

Agency adjudicators are not Article III judges and never have had the full independence of federal court judges. Immigration Judges do not have even the job protections that other agency adjudicators enjoy, however.5 Immigration judges are attorney employees of the Department of Justice.6 The Department of Justice sets the conditions of employment, including location of employment and whether employment continues.7 A Department of Justice regulation, nevertheless, tells immigration judges to “exercise independent judgment and discretion” when making decisions.8 Also, the immigration judge position has evolved over time to make it more independent,9 even if it has not reached the ideal level of independence.10

Congress has tasked you, the Attorney General, with the management of the Department of Justice, including immigration adjudication. It is your duty to insist that fairness and independence are a part of the system. Agency adjudicators are by nature more accountable to the executive branch. But that does not mean that agency adjudicators should be mere vessels who fail to apply statutory standards or who apply the law subject

4 The Due Process Clause is not limited to citizens. U.S. CONST. amends. V, IV.
5 See Kent Barnett, Against Administrative Judges, 49 U.C. DAVIS L. REV. 1643, 1647 (2016).
6 8 C.F.R. § 1003.10(a).
7 See Board of Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified at 8 C.F.R. pt. 3).
8 8 C.F.R. § 1003.10(b).
9 Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453 (1988).
10 There are proposals, for example, to recreate immigration adjudication as an Article I court with greater autonomy from the executive branch. Christine Lockhart Poarch, The FBA’s Proposal to Create a Federal Immigration Court, THE FEDERAL LAWYER (April 2014), available at http://www.fedbar.org/Image- Library/Government-Relations/CH16/Proposed-Article-I-Immigration-Court.aspx; American Bar Association,Reforming the Immigration System (2010) at E9, available athttps://www.americanbar.org/content/dam/aba/migrated/media/nosearch/immigration_reform_executive_s ummary_012510.authcheckdam.pdf; American Immigration Lawyers Association, Resolution on Immigration Court Reform (2018), available at https://www.aila.org/File/DownloadEmbeddedFile/74919. See also Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1640 (2010) (recommending that immigration judges become administrative law judges and be relocated from the Department of Justice to an independent tribunal within the executive branch).

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to unfair influence or a conflict of interest. Independence and a lack of bias help to protect individual rights and to secure public confidence in the integrity of the process.

The Department of Justice should not conflate enforcement with adjudication. Immigration judges are not prosecutors. Immigration adjudication is different than other functions of the Department of Justice. Immigration judges hear cases initiated by the Department of Homeland Security.11 The Department of Homeland Security therefore decides who enters the immigration adjudication system. The Department of Justice is tasked not with enforcement, but rather with carefully evaluating another agency’s claims that an individual should be removed from the United States.12

The Department of Justice must adjust and rapidly respond to the work thrust upon it by the Department of Homeland Security. One tool to help improve the efficiency and operations of the immigration courts would be for the Department of Homeland Security to more carefully assess and vet the cases it chooses to bring forward. We urge you to work with the Department of Homeland Security to improve their procedures rather than expecting all management of enormous dockets to fall on the shoulders of the immigration judges.

Instead of providing adequate resources13 or implementing other case management tactics, the Department of Justice has proposed the case completion quotas. 14 We believe that these quotas show disregard for the importance of independence,15 including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump’s

11 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 12 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf.
12 Congress has charged immigration judges with the duty to adjudicate charges of removal. 8 U.S.C. §1229a.13 The Administrative Conference of the United States has recognized the need for additional resources for immigration adjudication. See Administrative Conference Recommendation 2012-3 at 3, 5, available athttps://www.acus.gov/sites/default/files/documents/2012-3.pdf. We recognize that the Department of Justice has been hiring more immigration judges, but the number of judges has not kept pace with the workload. In 2012, there were 264 immigration judges and now there are approximately 330. Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 6 (2012),available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in- Immigration-Removal-Adjudication-Final-June-72012.pdf; (reporting 264 immigration judges in 2012); U.S. Department of Justice, Office of the Chief Immigration Judge, https://www.justice.gov/eoir/office-of-the- chief-immigration-judge (stating that there are approximately 330 immigration judges).

14 EOIR Performance Plan, available at http://cdn.cnn.com/cnn/2018/images/04/02/immigration-judges- memo.pdf.
15 We implore the Department of Justice to promote independence even outside the context of the quotas. A group of former immigration adjudicators recently objected to the Department’s removal of an immigration judge from a particular case and replacement with a supervisory judge who implemented the administration’s preferred outcome. Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Latest Attack on Judicial Independence, July 30, 2018, available at,https://www.aila.org/infonet/retired-ijs-former-bia-mems-attack-on-jud-independ.

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displeasure with the need for process in immigration cases. In response to a Republican proposal to add 375 immigration judges, he said, “We don’t want judges; we want security on the border.”16 He also characterized the Republican proposal as adding five or six thousand more judges (in actuality the legislation proposed adding 375 judges).17 He said that to add that many judges must involve graft.18 He also has claimed that there is something wrong with foreign nationals having lawyers represent them in immigration proceedings.19

Performance metrics for judges are not inherently objectionable. Careful data collection and analysis can be helpful for training adjudicators and for marshalling court resources. Immigration judges already are subject to qualitative evaluations of their work. These new quantitative performance metrics, however, appear to affect conditions of employment20such as salary and location of employment.21 This is unacceptable. These metrics will diminish independence in immigration adjudication as immigration judges will now have a personal stake in the outcome of cases. Meeting the performance metrics will become a powerful influence over immigration decision-making.

The metrics establish case completion quotas for immigration judges at 700 completions per year. This sets up many immigration judges to fail, or perhaps even worse, encourages immigration judges to cut corners to meet the quota.22 As far as we know, the Department has not introduced a case weighting system. Not every immigration court docket is the

16 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
17 Id; GOP Moves to End Trump’s Family Separation Policy, but Can’t Agree How, N.Y. TIMES, June 19, 2018,available at https://www.nytimes.com/2018/06/19/us/politics/trump-immigration-children-separated- families.html.

18 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
19 Id.

20 We are aware of your congressional testimony stating that an immigration judge would not be fired automatically for failing to meet the quota and that the Department of Justice would consider an explanation why a judge did not meet a quota. Department of Justice FY19 Budget: Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies, 115th Cong., available at https://www.c- span.org/video/?444369-1/attorney-general-sessions-testifies-justice-department-budget#&start=1786(testimony of Attorney General Jeff Sessions at 31:20). The Department, however, has not clarified exactly how these performance metrics would be used, and immigration judges believe that a failure to meet a quota would be used punitively. See Letter from A. Ashley Tabaddor, President, National Association of Immigration Judges, to Hon. Jefferson B. Sessions, May 2, 2018, available athttps://assets.documentcloud.org/documents/4452614/NAIJ-Letter-to-the-AG-5-2-2018.pdf.
21 Location of employment is valuable in a system with immigration courts in major cities and in extremely remote detention centers.
22 Russell Wheeler, Amid Turmoil on the Border, New DOJ Policy Encourages Immigration Judges to Cut Corners, June 18, 2018, available at https://www.brookings.edu/blog/fixgov/2018/06/18/amid-turmoil-on- the-border-new-doj-policy-encourages-immigration-judges-to-cut-corners/.

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same. Deciding 700 claims for asylum is not the same workload as deciding 700 cases where the only issue is whether a foreign national entered the United States without inspection. Asylum cases require careful consideration of evidence about country conditions and an applicant’s experiences in that country. Also, the unique characteristics of a particular judge’s caseload could prevent meeting the case completion goal. Some immigration courts have specialized dockets for vulnerable populations such as those with mental illness or juveniles. Judges assigned to these dockets have additional obligations to ensure minimum standards of fairness.23

The quota motivates judges to come up with coping mechanisms. 24 Efficiencies can come at too great of a cost. For example, what if an immigration judge decides to review paper records and then decide which cases to invite to provide live testimony? If a judge is worried about meeting a quota, a judge might only schedule those matters that could be handled quickly. That would leave more complicated cases to be decided on paper submissions alone.

The quota also sets up an incentive for immigration judges to deny applications for relief. Cancellation of removal provides just one example. By statute, the number of grants of cancellation of removal is limited to 4,000 per year.25 Once the cap is reached, immigration judges may delay a grant to the following fiscal year. If deferring a grant is not considered a completion, then the incentive is to deny the application for relief to earn a completion. This incentive exists even if an immigration judge sincerely believes that the individual is eligible for relief from removal. There are similar issues where the Department of Homeland Security must complete final security checks before a grant of asylum. The immigration judge knows that an asylum case requires multiple steps to complete, but a denial of a case shortens the completion time. Should the judge erroneously deny relief to maintain his or her conditions of employment?

In addition to the case completion quotas, the Department’s proposal calls for certain types of cases to be decided within a certain number of days. This further erodes an immigration judge’s independence to decide what cases need more attention or to allow a continuance to ensure fairness. For example, the plan calls for 95% of all individual merits hearings to take place on the originally scheduled date. The problem here is that there are many forces

23 The federal courts impose obligations on individual immigration judges. For example, in a recent decision on whether a juvenile must be appointed counsel, the Ninth Circuit held that the detailed questioning by the immigration judge was an adequate substitute for appointed counsel. C.J.L.G. v. Sessions, 880 F.3d 1122, 1137-42 (9th Cir. 2018) (noting the obligations of the immigration judge to develop the record). While many of us disagree with the lack of appointed counsel for indigent children, it is clear that federal courts mandate an active and inquisitorial role of immigration judges that requires time and patience.

24 Your own recent decision in Matter of Castro-Tum eliminated a docket management tool known as administrative closure. Now immigration judges must keep these cases active and open on their dockets. 27 I&N Dec. 271 (2018), available at https://www.justice.gov/eoir/page/file/1064086/download.
25 8 U.S.C. § 1229b(e).

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at work that lead immigration judges to issue continuances. Because there is no right to government funded counsel in removal proceedings, foreign nationals may ask for a continuance to find a lawyer, or a newly hired lawyer may need time to prepare. Also, witnesses may not be available on a particular date, or testimony may run long, and the hearing may need to be continued to another day. The 95% goal encourages immigration judges to hold hearings without lawyers even when the foreign national desires one and provides incentive for immigration judges to cut hearings short. Moreover, a study conducted on behalf of the Administrative Conference of the United States revealed a significant percentage of the delays in cases were made at the request of the Department of Homeland Security, not the respondent.26 If the Department of Homeland Security is not ready to proceed and the immigration judge rushes to completion, the government may have to file more appeals. That would simply create more work somewhere else.

As we noted above, the priorities of the Department of Homeland Security directly and at times dramatically impact the work of the immigration courts. The case completion quotas have arrived at the same time that President Trump’s administration has changed its prosecutorial discretion policies to make more foreign nationals priorities for removal.27The administration has announced its plans to open more actions in immigration court.28

Also, the Department of Justice has announced that it is reviewing the Legal Orientation Program, which provides information about the removal process to immigration detainees in a group setting.29 This review is taking place despite previous reviews that have found the program to increase the efficiency of the immigration courts and to save the government money.30 Without an adequate increase in resources, putting more individuals in removal proceedings and/or ending the Legal Orientation Program will only magnify the negative effects of the performance metrics.

26 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 73 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf (reporting that 11% of delays were because a Department of Homeland Security attorney was not ready to proceed and that 14% were because the Department of Homeland Security was missing a file).

27 Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available athttps://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united- states/.
28 See, e.g., US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), available at,https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1- Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.
29 Sessions Backtracks on Pausing Legal Aid Program for Immigrants Facing Deportation, WASH. POST. (April 25, 2018), available at https://www.washingtonpost.com/local/immigration/sessions-backtracks-on-pausing- legal-aid-program-for-immigrants/2018/04/25/c0d27a12-48cb-11e8-827e-190efaf1f1ee_story.html.
30ICE Praised Legal-aid Program for Immigrants that Justice Dept. Plans to Suspend, WASH. POST. (April 17, 2018), available at https://www.washingtonpost.com/local/immigration/ice-praised-legal-aid-program-for- immigrants-that-justice-dept-plans-to-suspend/2018/04/17/c0b073d4-3f31-11e8-974f- aacd97698cef_story.html?utm_term=.8fa7c90bba02.

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The Department’s performance metrics are a poor fit for the realities of immigration adjudication. Immigration law is extremely harsh and complex, and the consequences of the decisions of immigration judges are weighty. These decisions should not be made too quickly. An immigration judge must apply statutes that rival the tax code in complexity and must ensure the opportunity to be heard to a diverse and often poorly educated pool of respondents. The Supreme Court regularly hears immigration law cases that require it to resolve thorny questions. These Supreme Court opinions often leave many questions unanswered, as the Court only decides issues directly before it. Immigration judges need time to digest new interpretations and to think about how those new interpretations apply in a wide array of factual scenarios. For example, a recent Supreme Court decision holding certain Department of Homeland Security charging documents31 to be ineffective has created motions within the immigration courts to terminate proceedings and to reopen older cases. Finally, immigration judges are deciding cases with grave consequences. If an individual is removed, they may face death upon return to their country of nationality. Or an individual may be separated from children or other close family.

The immigration adjudication system needs more resources. More immigration judges need to be hired to guarantee that we do not sacrifice our cherished American values and our constitutional obligations. We also note that with the hiring of judges it is critical that the agency adequately provide support staff from law clerks to court administration. All immigration judges need more time to work through their cases fairly and efficiently. Immigration judges need to be given independence so that we all have confidence that their decisions are based on their judgment as adjudicators, and not influenced by what the adjudicators think best will guarantee positive conditions of employment.

We appreciate that you want to work to ensure efficiency in immigration adjudication. However, you are also charged with guiding our government to comply with the rule of law and to protect American legal values. Accordingly, we urge you to reconsider the new performance metrics.

Respectfully,
(Institutional affiliations are listed for identification purposes only.)

Jill E. Family
Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

31 Pereira v. Sessions, 138 S.Ct. 2105, 585 U.S. ___ (June 21, 2018).

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Lenni B. Benson Professor of Law New York Law School

Matthew Hirsch
Attorney/Adjunct Professor of Immigration and Nationality Law Delaware Law School, Widener University

Huyen Pham
Professor
Texas A&M University School of Law

Jacqueline Stevens
Professor and Director, Deportation Research Clinic Northwestern University

Anju Gupta
Professor of Law and Director of the Immigrant Rights Clinic Rutgers School of Law

William Brooks
Clinical Professor of Law Touro Law Center

Maria Isabel Medina
Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law

Jennifer Moore
Professor of Law University of New Mexico

Dina Francesca Haynes Professor of Law
New England Law

Nickole Miller
Clinical Teaching Fellow
University of Baltimore School of Law, Immigrant Rights Clinic

Estelle M McKee Clinical Professor Cornell Law School

Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)

Marisa Cianciarulo
Professor of Law, Associate Dean for Academic Affairs Chapman University Fowler School of Law

Lucy E. Salyer
Associate Professor
History Department, University of New Hampshire

Deborah M. Weissman
Reef C. Ivey II Distinguished Professor of Law UNC School of Law

Carrie Rosenbaum
Adjunct Professor
Golden Gate University School of Law

Emily Robinson
Co-Director, Loyola Immigrant Justice Clinic Loyola Law School Los Angeles

Fatma Marouf
Professor of Law
Texas A&M School of Law

Karen Musalo Professor U.C. Hastings

Miriam Marton
Assistant Clinical Professor University of Tulsa College of Law

Helena Marissa Montes Co-Director
Loyola Immigrant Justice Clinic

Alan Hyde Distinguished Professor Rutgers Law School

Stephen H. Legomsky
John S. Lehmann University Professor Emeritus Washington University School of Law

Erica Schommer
Clinical Associate Professor of Law St. Mary’s University School of Law

Renee C. Redman
Adjunct Professor
University of Connecticut School of Law

Linda Bosniak Distinguished Professor Rutgers Law School

Jonathan Weinberg Professor of Law Wayne State University

Denise Gilman
Clinical Professor
University of Texas School of Law Immigration Clinic

Kayleen R. Hartman Clinical Teaching Fellow Loyola Law School

Lynn Marcus
Director, Immigration Law Clinic
University of Arizona Rogers College of Law

Elizabeth McCormick
Associate Clinical Professor University of Tulsa College of Law

Christopher N. Lasch
Professor of Law
University of Denver Sturm College of Law

John Palmer Tenure-Track Professor Universitat Pompeu Fabra

Julie Ann Dahlstrom
Clinical Associate Professor Boston University School of Law

Susan Gzesh
Senior Lecturer University of Chicago

Violeta Chapin
Clinical Professor of Law University of Colorado

Jon Bauer
Clinical Professor of Law
Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law

Rachel E. Rosenbloom
Professor of Law
Northeastern University School of Law

Caitlin Barry
Assistant Professor of Law
Villanova University Charles Widger School of Law

Dr. Richard T. Middleton, IV
Adjunct Professor of Law; Associate Professor of Political Science St. Louis University School of Law; University of Missouri-St. Louis

Anna Welch
Clinical Professor
University of Maine School of Law

Charles Shane Ellison
Director of the Immigrant and Refugee Clinic Special Assistant Professor
Creighton University School of Law

Yolanda Vázquez
Associate Professor of Law
University of Cincinnati College of Law

Claire R. Thomas
Director, Asylum Clinic; Adjunct Professor of Law New York Law School

Laura A. Hernandez Professor of Law Baylor Law School

Kate Evans
Associate Professor of Law University of Idaho College of Law

Stella Burch Elias
Professor of Law
University of Iowa College of Law

Rachel Settlage Associate Professor Wayne State Law School

Hiroko Kusuda
Clinic Professor
Loyola New Orleans University

Sabi Ardalan
Assistant Clinical Professor Harvard Law School

Joshua I. Schwartz
E.K. Gubin Professor of Law
The George Washington University Law School

Florence Wagman Roisman
William F. Harvey Professor of Law and Chancellor’s Professor Indiana University Robert H. McKinney School of Law

Richard J. Pierce Jr.
Lyle T. Alverson Professor of Law George Washington University

Michael Sharon
Adjunct Professor of Law
Case Western Reserve University School of Law

Susan Rose-Ackerman
Henry R. Luce Professor of Law and Political Science, Emeritus Yale University

Jaya Ramji-Nogales
I. Herman Stern Research Professor Temple Law School

Michael Asimow
Visiting Professor of Law Stanford Law School

Natalie Gomez-Velez
Professor of Law
City University of New York (CUNY) School of Law

Adell Amos
Associate Dean & Clayton R. Hess Professor of Law University of Oregon

Harold J. Krent
Dean & Professor of Law Chicago-Kent College of Law

Aila Hoss
Visiting Assistant Professor
Indiana University McKinney School of Law

Richard Reuben
James Lewis Parks Professor of Law and Journalism University of Missouri School of Law

Morell E. Mullins, Sr. Professor Emeritus
UALR Bowen School of Law

Bernard W. Bell
Professor of Law and Herbert Hannoch Scholar Rutgers Law School

Rose Cuison Villazor Professor of Law Rutgers Law School

Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University

Victor Romero
Maureen B. Cavanaugh Distinguished Faculty Scholar Associate Dean for Academic Affairs & Professor of Law Penn State Law (University Park)

David Baluarte
Associate Clinical Professor of Law Washington and Lee University School of Law

Michelle N. Mendez
Adjunct Professor, Immigrant Rights Clinic University of Baltimore School of Law

Jeffrey A. Heller
Adjunct Clinical Professor Emeritus Brooklyn Law School
Seton Hall University School of Law

Susan M. Akram
Clinical Professor and Director, International Human Rights Law Clinic Boston University School of Law

Laila L. Hlass
Professor of Practice
Tulane University School of Law

Joanne Gottesman Clinical Professor of Law Rutgers Law School

Jennifer Lee Koh
Professor of Law
Western State College of Law

Geoffrey Hoffman
Director
Univ. of Houston Law Ctr. Immigration Clinic

Ingrid Eagly Professor of Law UCLA School of Law

Jason A. Cade
Associate Professor of Law University of Georgia School of Law

Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in Law Ohio State University

Anna Williams Shavers
Cline Williams Professor of Citizenship Law University of Nebraska College of Law

Stewart Chang
Professor of Law
UNLV Boyd School of Law

Margaret H. Taylor
Professor of Law
Wake Forest University School of Law

Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Columbia Law School

Michael J. Churgin
Raybourne Thompson Centennial Professor in Law The University of Texas at Austin

Kathleen Kim
Professor of Law
Loyola Law School Los Angeles

Ming H Chen
Associate Professor
University of Colorado Law School

Anil Kalhan
Professor of Law
Drexel University Kline School of Law

Shruti Rana
Professor
Indiana University Bloomington

Hilary Evans Cameron Instructor
Trinity College

Fernando Colon
Professor
Thurgood Marshall School of Law

Shoba Sivaprasad Wadhia
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law – University Park

Blake Close Nordahl Clinical Professor McGeorge Law School

Kaci Bishop
Clinical Associate Professor of Law
The University of North Carolina School of Law

Craig B. Mousin Adjunct Faculty DePaul University

Joel A. Mintz
Professsor of Law Emeritus
C. William Trout Senior Fellow in Public Interest Law Nova Southeastern University College of Law

Raquel E Aldana
Associate Vice Chancellor for Academic Diversity and Professor of Law UC Davis

Lindsay M. Harris
Assistant Professor of Law
Co-Director of Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law

Sheila Hayre
Visiting Associate Professor Quinnipiac University School of Law

Andrew Moore
Associate Professor of Law
University of Detroit Mercy School of Law

Krista Kshatriya Lecturer
UC San Diego

David B. Thronson
Professor of Law
Michigan State University College of Law

Mary Holper
Associate Clinical Professor Boston College Law School

Amelia McGowan
Adjunct Professor
Mississippi College School of Law Immigration Clinic

Maryellen Fullerton Professor of Law Brooklyn Law School

Renée M. Landers
Professor of Law and Faculty Director, Health and Biomedical Law Concentration Suffolk University Law School

Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law UC Berkeley

Alexander Vernon
Director, Immigration Law Clinic Detroit Mercy School of Law

Irene Scharf
Professor of Law
University of Massachusetts School of law

Seymour Moskowitz Senior Research Professor Valparaiso Law School

Veronica T. Thronson
Clinical Professor of Law
Michigan State University College of Law

Elissa Steglich
Clinical Professor
University of Texas School of Law

Mariela Olivares
Associate Professor of Law Howard University School of Law

Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law

Richard T. Middleton, IV
Associate Professor of Political Science Adjunct Professor of Law
University of Missouri-St. Louis
St. Louis University School of Law

Deborah Gonzalez
Director of the Immigration Clinic Associate Clinical Professor Roger Williams University School of Law

Alizabeth Newman
Int. Dir. Alumni Engagement & Initiatives CUNY School of Law

Juliet Stumpf
Robert E. Jones Professor of Advocacy & Ethics Lewis & Clark Law School

Bijal Shah
Associate Professor of Law
Arizona State University, Sandra Day O’Connor College of Law

Niels W. Frenzen
Sidney M. and Audrey M. Irmas Endowed Clinical Professor of Law Univ. of Southern California, Gould School of Law

Jon Michaels Professor of Law UCLA School of Law

Kit Johnson
Associate Professor of Law
University of Oklahoma College of Law

Nina Rabin
Director, UCLA Immigrant Family Legal Clinic UCLA School of Law

Karen E. Bravo
Professor
IU McKinney School of Law

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

Not likely to make any difference with Sessions & Co. But, Sessions is rapidly driving an already crippled and demoralized system into collapse. If Congress doesn’t fix it soon, which almost nobody thinks will happen, the Article III Federal Courts will eventually have to sort out (not for the first time — witness child separation, sanctuary cities, Travel Ban 1&2, violation of stays of removal, DACA termination, etc.) this self-inflicted mess created by the Department of Justice under the last three Administrations and accelerated by Sessions and his White Nationalist agenda.

And, NO, the answer isn’t to blame the victims: the respondents, their courageous, hard-working counsel, and the judges and their dedicated staff. The answer is to hold the “perps,” in this case Sessions and his gang, accountable and place them under strict judicial supervision until Due Process and order are restored to our Immigration Courts.

PWS

08-15-18

THINK THAT NEO-NAZI PRESIDENTIAL ADVISOR (& SESSIONS CONFIDANT) STEPHEN MILLER IS A DISINGENUOUS HYPOCRITE? – HIS UNCLE AGREES!

https://www.politico.com/magazine/story/2018/08/13/stephen-miller-is-an-immigration-hypocrite-i-know-because-im-his-uncle-219351

Stephen Miller is an Immigration Hypocrite. I Know Because I’m His Uncle.

If my nephew’s ideas on immigration had been in force a century ago, our family would have been wiped out.

By DAVID S. GLOSSER

August 13, 2018

Brendan Smialowski/AFP/Getty Images

Let me tell you a story about Stephen Miller and chain migration.

It begins at the turn of the 20^th century in a dirt-floor shack in the village of Antopol, a shtetl of subsistence farmers in what is now Belarus. Beset by violent anti-Jewish pogroms and forced childhood conscription in the Czar’s army, the patriarch of the shack, Wolf-Leib Glosser, fled a village where his forebears had lived for centuries and took his chances in America.

He set foot on Ellis Island on January 7, 1903, with $8 to his name. Though fluent in Polish, Russian, and Yiddish he understood no English. An elder son, Nathan, soon followed. By street corner peddling and sweat-shop toil Wolf-Leib and Nathan sent enough money home to pay off debts and buy the immediate family’s passage to America in 1906. That group included young Sam Glosser, who with his family settled in the western Pennsylvania city of Johnstown, a booming coal and steel town that was a magnet for other hard-working immigrants. The Glosser family quickly progressed from selling goods from a horse and wagon to owning a haberdashery in Johnstown run by Nathan and Wolf-Leib to a chain of supermarkets and discount department stores run by my grandfather, Sam, and the next generation of Glossers, including my dad, Izzy. It was big enough to be listed on the AMEX stock exchange and employed thousands of people over time. In the span of some 80 years and five decades, this family emerged from poverty in a hostile country to become a prosperous, educated clan of merchants, scholars, professionals, and, most important, American citizens.

What does this classically American tale have to do with Stephen Miller? Well, Izzy Glosser, is his maternal grandfather, and Stephen’s mother, Miriam, is my sister.

I have watched with dismay and increasing horror as my nephew, who is an educated man and well aware of his heritage, has become the architect of immigration policies that repudiate the very foundation of our family’s life in this country.

I shudder at the thought of what would have become of the Glossers had the same policies Stephen so coolly espouses— the travel ban, the radical decrease in refugees, the separation of children from their parents, and even talk of limitingcitizenship for legal immigrants— been in effect when Wolf-Leib made his desperate bid for freedom. The Glossers came to the U.S. just a few years before the fear and prejudice of the “America First” nativists of the day closed U.S. borders to Jewish refugees. Had Wolf-Leib waited, his family would likely have been murdered by the Nazis along with all but seven of the 2,000 Jews who remained in Antopol. I would encourage Stephen to ask himself if the chanting, torch-bearing Nazis of Charlottesville, whose support his boss seems to court so cavalierly, do not envision a similar fate for him.

Like other immigrants, our family’s welcome to the USA was not always a warm one, but we largely had the protection of the law, there was no state sponsored violence against us, no kidnapping of our male children, and we enjoyed good relations with our neighbors. True, Jews were excluded from many occupations, couldn’t buy homes in some towns, couldn’t join certain organizations or attend certain schools or universities, but life was good. As in past generations there were hate mongers who regarded the most recent groups of poor immigrants as scum, rapists, gangsters, drunks and terrorists, but largely the Glosser family was left alone to live our lives and build the American dream. Children were born, synagogues founded, and we thrived. This was the miracle of America.

Acting for so long in the theater of right wing politics, Stephen and Trump may have become numb to the resultant human tragedy and blind to the hypocrisy of their policy decisions. After all, Stephen’s is not the only family with a chain immigration story in the Trump administration. Trump’s grandfather is reported to have been a German migrant on the run from military conscription to a new life in the USA and his mother fled the poverty of rural Scotland for the economic possibilities of New York City. (Trump’s in-laws just became citizens on the strength of his wife’s own citizenship.)

These facts are important not only for their grim historical irony but because vulnerable people are being hurt. They are real people, not the ghoulish caricatures portrayed by Trump. When confronted by the deaths and suffering of thousands our senses are overwhelmed, and the victims become statistics rather than people. I meet these statistics one at a time through my volunteer service as a neuropsychologist for HIAS (formerly the Hebrew Immigrant Aid Society), the global non-profit agency that protects refugees and helped my family more than 100 years ago. I will share the story of one such man I have met in the hope that my nephew might recognize elements of our shared heritage.

In the early 2000s, Joseph (not his real name) was conscripted at the age of 14 to be a soldier in Eritrea and sent to a remote desert military camp. Officers there discovered a Bible under his pillow which aroused their suspicion that he might belong to a foreign evangelical sect that would claim his loyalty and sap his will to fight. Joseph was actually a member of the state-approved Coptic church but was nonetheless immediately subjected to torture. “They smashed my face into the ground, tied my hands and feet together behind my back, stomped on me, and hung me from a tree by my bonds while they beat me with batons for the others to see.”

Joseph was tortured for 20 consecutive days before being taken to a military prison and crammed into a dark unventilated cell with 36 other men, little food and no proper hygiene. Some died, and in time Joseph was stricken with dysentery. When he was too weak to stand he was taken to a civilian clinic where he was fed by the medical staff. Upon regaining his strength he escaped to a nearby road where a sympathetic driver took him north through the night to a camp in Sudan where he joined other refugees. Joseph was on the first leg of a journey that would cover thousands of miles and almost 10 years.

Before Donald Trump had started his political ascent promulgating the false story that Barack Obama was a foreign-born Muslim, while my nephew, Stephen, was famously recovering from the hardships of his high school cafeteria in Santa Monica, Joseph was a child on his own in Sudan in fear of being deported back to Eritrea to face execution for desertion. He worked any job he could get, saved his money and made his way through Sudan. He endured arrest and extortion in Libya. He returned to Sudan, then kept moving to Dubai, Brazil, and eventually to a southern border crossing into Texas, where he sought asylum. In all of the countries he traveled through during his ordeal, he was vulnerable, exploited and his status was “illegal.” But in the United States he had a chance to acquire the protection of a documented immigrant.

Today, at 30, Joseph lives in Pennsylvania and has a wife and child. He is a smart, warm, humble man of great character who is grateful for every day of his freedom and safety. He bears emotional scars from not seeing his parents or siblings since he was 14. He still trembles, cries and struggles for breath when describing his torture, and he bears physical scars as well. He hopes to become a citizen, return to work and make his contribution to America. His story, though unique in its particulars, is by no means unusual. I have met Central Americans fleeing corrupt governments, violence and criminal extortion; a Yemeni woman unable to return to her war-ravaged home country and fearing sexual mutilation if she goes back to her Saudi husband; and an escaped kidnap-bride from central Asia.

President Trump wants to make us believe that these desperate migrants are an existential threat to the United States; the most powerful nation in world history and a nation made strong by immigrants. Trump and my nephew both know their immigrant and refugee roots. Yet, they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human. Trump publicly parades the grieving families of people hurt or killed by migrants, just as the early Nazis dredged up Jewish criminals to frighten and enrage their political base to justify persecution of all Jews. Almost every American family has an immigration story of its own based on flight from war, poverty, famine, persecution, fear or hopelessness. These immigrants became the workers, entrepreneurs, scientists and soldiers of America.

Most damning is the administration’s evident intent to make policy that specifically disadvantages people based on their ethnicity, country of origin, and religion. No matter what opinion is held about immigration, any government that specifically enacts law or policy on that basis must be recognized as a threat to all of us. Laws bereft of justice are the gateway to tyranny. Today others may be the target, but tomorrow it might just as easily be you or me. History will be the judge, but in the meanwhile the normalization of these policies is rapidly eroding the collective conscience of America. Immigration reform is a complex issue that will require compassion and wisdom to bring the nation to a just solution, but the politicians who have based their political and professional identity on ethnic demonization and exclusion cannot be trusted to do so. As free Americans, and the descendants of immigrants and refugees, we have the obligation to exercise our conscience by voting for candidates who will stand up for our highest national values and not succumb to our lowest fears.

THE GIBSON REPORT — 08-13-18 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Featuring Atlantic’s Franklin Foer & The Case For Ending The Current “ICEAge”

Gibson Report 08-13-18 Gibson Report 08-13-18

How Trump Radicalized ICE

The Atlantic: The early trump era has witnessed wave after wave of seismic policy making related to immigration—the Muslim ban initially undertaken in his very first week in office, the rescission of DACA, the separation of families at the border. Amid the frantic attention these shifts have generated, it’s easy to lose track of the smaller changes that have been taking place. But with them, the administration has devised a scheme intended to unnerve undocumented immigrants by creating an overall tone of inhospitality and menace.

Stepped Up Illegal-Entry Prosecutions Reduce Those for Other Crimes

TRAC: The push to prioritize prosecuting illegal border crossers has begun to impact the capacity of federal prosecutors to enforce other federal laws. In March 2018, immigration prosecutions dominated so that in the five federal districts along the southwest border only one in seven prosecutions (14%) were for any non-immigration crimes.

Immigration Judges Union Slams Trump Administration For Undermining Courts

HuffPo: The National Association of Immigration Judges alleges that Trump administration officials transferred the case of an undocumented immigrant away from a Philadelphia-based immigration judge because the judge didn’t give them the outcome they wanted: a swift order of deportation when the immigrant didn’t show up in court for a hastily scheduled hearing.

“There Won’t Even Be A Paper Trail”: Has Stephen Miller Become A Shadow Master At The State Department?

Vanity Fair: For the past year, Miller has been quietly gutting the U.S. refugee program, slashing the number of people allowed into the country to the lowest level in decades. “His name hasn’t been on anything,” says a former U.S. official who worked on refugee issues. “He is working behind the scenes, he has planted all of his people in all of these positions, he is on the phone with them all of the time, and he is creating a side operation that will circumvent the normal, transparent policy process.” And he is succeeding.

Team Trump’s Plot to Block Legal Immigrants from Citizenship

Daily Show: Despite the Trump administration’s campaign promise to focus on illegal immigration, White House senior adviser Stephen Miller is crafting a plan to limit legal immigrants’ access to citizenship and green cards, especially for those who have used public assistance.

The Port of Entry

NPR: The wait time for migrants seeking asylum at legal ports of entry along the U.S.-Mexico border has recently increased from hours to weeks, causing some families to camp out for days. We go to the border to meet some of the people waiting there and explain the asylum process in the United States.

Colorado couple fighting to stop adopted 4-year-old daughter from being deported

The Hill: The Becerras legally adopted Angela through Peruvian court, and sought to bring her back to the U.S. after the adoption was finalized in 2017…The tourist visa that Angela was eventually granted is set to expire at the end of this month, but her immigration case was denied without explanation, according to the couple.

ICE Crashed a Van Full of Separated Mothers, Then Denied It Ever Happened

TX Observer: On July 18, a cargo van transporting eight Central American mothers separated from their children under Trump’s “zero tolerance” policy crashed into a pickup truck in San Marcos. An ICE contractor was taking the women from a detention center near Austin to the South Texas Detention Complex in Pearsall to be reunited with their kids. Even though police said the van was too damaged to continue driving and the women reported injuries, ICE repeatedly denied the crash ever took place.

Under Trump arrests of undocumented immigrants with no criminal record have tripled

NBC: The surge has been caused by a new ICE tactic of arresting — without warrants — people who are driving or walking down the street and using large-scale “sweeps” of likely immigrants, according to a class-action lawsuit filed in June by immigration rights advocates in Chicago.

The Thousands of Bodies Along the US-Mexico Border

NPR: In the last 18 years, more than 2,800 migrant bodies have been found along the Arizona border with Mexico. About 1,000 of the bodies are unidentified. We speak with a woman trying to identify them.

U.S. Mayors Send Letter to USCIS Regarding Backlog of Citizenship Applications

On 7/30/18, a group of U.S. mayors sent a letter to USCIS regarding the consistent backlog of citizenship applications before USCIS. The mayors urge USCIS to take aggressive steps to reduce the waiting time for processing citizenship applications down to six months. AILA Doc. No. 18080901. See also CHRCL Partners With NPNA And Others To FOIA U.S. Citizenship And Immigration Service For Reasons Behind

Skyrocketing Naturalization Backlog.

Coney Island Man Indicted for Posing as Immigrant Assistance Service Provider and Filing Dozens of Allegedly Fraudulent Asylum Applications

Brooklyn DA: The District Attorney identified the defendant as Vadim Alekseev, 42, of Coney Island, Brooklyn. He was arraigned today before Brooklyn Supreme Court Justice Danny Chun on a 21-count indictment in which he is charged with first-degree scheme to defraud, first-degree immigrant assistance services fraud, fourth-degree grand larceny, tampering with physical evidence and practicing or appearing as attorney-at-law without being admitted and registered. He was ordered held on $15,000 bail and to return to court on October 3, 2018. The defendant faces up to four years in prison if convicted on the top count.

LITIGATION/CASELAW/RULES/MEMOS

ACLU Files Lawsuit Regarding Expedited Removal and Matter of A-B-Asylum Policies

A federal judge ordered a woman and her daughter to be returned to the U.S. and threatened to hold AG Jeff Sessions in contempt after learning that they were in the process of being removed while a court hearing appealing their deportations was underway. (Grace, et al., v. Sessions, 8/9/18) AILA Doc. No. 18081004

Court rules Mexican mother can sue over cross-border Border Patrol shooting

Politico: A woman whose son was killed on Mexican soil by a U.S. Border Patrol agent in Arizona can sue for damages, a federal court ruled Tuesday. The U.S. Ninth Circuit Court of Appeals ruled that Border Patrol agent Lonnie Swartz is not entitled to qualified immunity, saying that the Fourth Amendment — which prohibits unreasonable searches and seizures — applies in this case.

DOJ Issues Statement on Court Order Ordering the Restoration of DACA Program

Attorney General Jeff Sessions issued a statement in response to the court order in the D.C. District Court, ordering the restoration of the DACA program, stating, “The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.” AILA Doc. No. 18080635

Federal Judge Certifies Class Action Against The Geo Group, Inc.

A District Court judge certified a class of current and former civil immigration detainees who performed work for The Geo Group, Inc. at its Northwest Detention Center in Tacoma, WA and were paid a $1 daily rate. (Nwauzor et al. v. The GEO Group Inc., 8/6/18) AILA Doc. No. 18080770

District Court Orders USCIS to Timely Adjudicate Initial EAD Asylum Applications

Following summary judgment briefing by both parties, the court ruled in Plaintiffs’ favor on July 26, 2018. The court ordered USCIS to follow the law and timely adjudicate initial EAD asylum applications. (Gonzalez Rosario v. USCIS, 7/26/18) AILA Doc. No. 15052630

Lawsuit Filed on Behalf of Parents Who Waived Right of Their Children to Pursue Asylum Claims

In a lawsuit filed on behalf of minor migrant children who were forcible separated from their parents and have been, or will be, reunified with them pursuant to Ms. L. v. ICE, the judge transferred three claims to be considered by the judge in the Ms. L. v. ICElawsuit. AILA Doc. No. 18080730

Judge Orders Full Restoration of DACA, with 20-Day Delay

A federal judge ruled that the Trump administration must fully restore the DACA program but delayed the order until 8/23/18 to allow the government to respond and appeal. (NAACP v. Trump, 8/3/18) AILA Doc. No. 17091933

BIA Dismisses Appeal, Finding Involvement in Animal Fighting Venture is CIMT

BIA reaffirmed its prior decision denying the respondent’s application for cancellation of removal and dismissed his appeal, finding that exhibiting or sponsoring an animal in an animal fighting venture is a crime involving moral turpitude. Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018) AILA Doc. No. 18080637

BIA Reverses EWI Finding in Light of Respondent’s Credible Testimony

Unpublished BIA decision reverses finding that respondent was present without being admitted or paroled in light of his credible testimony that he last entered the country with a border crossing card. Special thanks to IRAC. (Matter of I-M-G-, 7/28/17) AILA Doc. No. 18080731

BIA Dismisses Appeal, Finding Respondent Ineligible for Cancellation of Removal

BIA found that the IJ properly determined that the respondent is ineligible for cancellation of removal following his violation of a protection order, because he has been convicted of an offense under INA §237(a)(2)(E)(ii). Matter of Medina-Jimenez, 27 I&N Dec. 399 (BIA 2018) AILA Doc. No. 18080736

BIA Holds Oklahoma Statute Not an Aggravated Felony Theft Offense

Unpublished BIA decision holds that larceny from a person under Okla. Stat. tit. 21 § 1701 is not an aggravated felony theft offense because it encompasses takings that were fraudulently obtained with the consent of the owner. Special thanks to IRAC. (Matter of Lopez-Hernandez, 7/14/17) AILA Doc. No. 18080937

BIA Rescinds In Absentia Order for Respondent Who Arrived Late to Hearing

Unpublished BIA decision rescinds in absentia order against respondent who arrived at 10:45 am for a 9:00 am hearing after his vehicle experienced a mechanical failure, finding that he did not fail to appear for his hearing. Special thanks to IRAC. (Matter of Rivas-Diaz, 7/18/17) AILA Doc. No. 18081044

BIA Holds Virginia Larceny Statute Not a Particularly Serious Crime

Unpublished BIA decision holds that grand larceny from the person under Va. Code Ann. 18.2-95 is not a particularly serious crime on its face, making it unnecessary to examine the underlying circumstances of the offense. Special thanks to IRAC. (Matter of J-J-V-, 7/18/17) AILA Doc. No. 18081300

BIA Finds Reentry As LPR Not an “Admission” Under INA 212(h)

Unpublished BIA decision holds that respondent was not subject to the aggravated felony bar in INA 212(h) because his reentry following a trip abroad did not qualify as an “admission” as an LPR. Special thanks to IRAC. (Matter of Reza, 7/18/16) AILA Doc. No. 18081303

ICE Information on the Document and Benefit Fraud Task Forces

ICE provides background information into the document and benefit fraud task forces, including the 28 locations around the United States. HSI has partnered with federal, state, and local counterparts to create these task forces. AILA Doc. No. 18080802

DOS Responds Regarding Impact of Travel Ban 3.0 on Visa Processing

A 6/22/18 letter from DOS to Senator Van Hollen on the impact of Presidential Proclamation 9645 (Travel Ban 3.0) on the processing of U.S. visas. Letter includes information about the number of applicants from impacted countries who have applied for visas and those who have been cleared for waivers. AILA Doc. No. 18080900

GAO Finds CBP Is Proceeding Without Key Information Regarding Border Barriers

The GAO reviewed DHS’s efforts to deploy barriers along the southwest border, and issued a report finding that CBP is evaluating designs and locations for border barriers but is proceeding without key information, such as an analysis of the costs based on location or segment, which can vary widely. AILA Doc. No. 18080903

RESOURCES

ILRC: An Overview of Public Charge

Expert Advice & Resources for Undocumented College Students: A Guide

CLINIC Fact Sheet: Family Separation for Asylum Seekers

Updated FAQs on Mendez Rojas v. Johnson

Resources on Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications

Filing DACA Applications in the Wake of Federal Court Rulings

FOIA Response Highlights Importance of Independent Judges, Court Reform

Resources Related to DOD’s Tightening of Rules and Discharges of Immigrants from the Military

Resources on Lawsuit by Texas and Six Other States Seeking to End the DACA Program

Your Guide to Taking Immigration Cases to Federal Court

Avoiding Disciplinary Action for Requesting Multiple Continuances in Immigration Court

Flow Chart Illustrating the UAC Reunification Process

New CMS Report Shows Refugees Successfully Integrate and Strongly Contribute to United States

EVENTS

8/14/18Pro Bono: Motivations, Challenges, and Solutions

8/14/18Pack the Court! Support Ravi and Immigrant Rights Activists

8/15/18Representing Children in Immigration Proceedings

8/20/18All About Survivor Derivatives

8/29/18Understanding and Preparing Waivers

9/10/18NYIC 40 Hour Training: Albany

9/12/18Improving Productivity and Time Management

9/20-21/182018 Federal Court Litigation Conferences: Join Us in Washington, D.C. or Remotely via Webcast

9/26/18Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices

11/26-28/18 CLINIC & NITA “Advocacy in Immigration Matters”

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Check out Elizabeth’s first item, Franklin Foer’s outstanding article in The Atlantic on how Trump, Sessions, & Miller have turned ICE into a modern “Mini-Gestapo” deporting individuals who actually are contributing mightily to the United States and its economy while sowing terror in the ethnic communities. Sure sounds familiar to those of us who recently toured the Holocaust Museum.

That’s why 19 of the real “pros’ at ICE, the agents of Homeland Security Investigations (“HSI”), petitioned recently to escape from the toxic unproductive atmosphere of ICE and distance themselves from the tarnished “ICE brand” which actually greatly diminishes real law enforcement efforts.

Foer makes a compelling case for abolishing ICE and reconstituting its real law enforcement functions into a new agency with more professional and unbiased leadership. Not going to happen now. But, eventually there will be “regime change” in America (or America as we know it will cease to exist). When that happens, a meltdown of the current ICE and recasting it should be a top priority for Congress and the Executive.

Until then, the “New Due Process Army” (of which Elizabeth Gibson is a charter member) will be fighting ICE’s overkill (and, I might add, gross waste of taxpayer funds on counterproductive “enforcement”) every step of the way!

PWS

08-14-18

JUDGE BRUCE EINHORN QUOTED IN LA TIMES ON USCIS DENATURALIZATION INITIATIVE!

https://www.latimes.com/local/california/la-me-ln-denaturalization-20180812-story.html

Under Trump, the rare act of denaturalizing U.S. citizens on the rise

By BRITTNY MEJIA

AUG 12, 2018 | 7:30 AM

New citizens during a naturalization ceremony at the L.A. Convention Center. (Mel Melcon / Los Angeles Times)

Working a Saturday shift in the stuffy Immigration and Naturalization Service office in downtown Los Angeles in the 1970s, Carl Shusterman came across a rap sheet.

A man recently sworn in as a United States citizen had failed to disclose on his naturalization application that he had been arrested, but not convicted, in California on rape and theft charges.

Shusterman, then a naturalization attorney, embarked on a months-long effort to do something that rarely happened: strip someone of their American citizenship.

“We had to look it up to find out how to do this,” he said. “We’d never even heard of it.”

Forty years later, denaturalization — a complex process once primarily reserved for Nazi war criminals and human rights violators — is on the rise under the Trump administration.

A United States Citizenship and Immigration Services team in Los Angeles has been reviewing more than 2,500 naturalization files for possible denaturalization, focusing on identity fraud and willful misrepresentation. More than 100 cases have been referred to the Department of Justice for possible action.

“We’re receiving cases where [Immigration and Customs Enforcement] believes there is fraud, where our systems have identified that individuals used more than one identity, sometimes more than two or three identities,” said Dan Renaud, the associate director for field operations at the citizenship agency. “Those are the cases we’re pursuing.”

The move comes at a time when Trump and top advisors have made it clear that they want to dramatically reduce immigration, both illegal and legal.

The administration granted fewer visas and accepted fewer refugees in 2017 than in previous years.

Recently, the federal government moved to block victims of gang violence and domestic abuse from claiming asylum. White House senior advisor Stephen Miller — an immigration hawk — is pushing a policy that could make it more difficult for those who have received public benefits, including Obamacare, to become citizens or green card holders, according to multiple news outlets.

Shusterman, now a private immigration attorney in L.A., said he’s concerned denaturalization could be used as another tool to achieve the president’s goals.

“I think they’ll … find people with very minor transgressions,” he said, “and they’ll take away their citizenship.”

Dozens of U.S. mayors, including L.A.’s Eric Garcetti, signed a letter sent to the citizenship agency’s director in late July, criticizing a backlog in naturalization applications and the agency’s commitment of resources to “stripping citizenship from naturalized Americans.”

“The new measure to investigate thousands of cases from almost 30 years ago, under the pretext of the incredibly minimal problem of fraud in citizenship applications, instead of managing resources in a manner that processes the backlogs before them, suggests that the agency is more interested in following an aggressive political agenda rather than its own mission,” the letter stated.

Attorney Carl Shusterman in his Los Angeles office. (Al Seib / Los Angeles Times)

But Mark Krikorian, executive director of the Center for Immigration Studies, which supports tighter controls, said “denaturalization, like deportation, is an essential tool to use against those who break the rules.”

“It’s for people who are fraudsters, liars,” he said. “We’ve been lax about this for a long time, and this unit that’s been developed is really just a question of taking the law seriously.”

From 2009 to 2016, an average of 16 civil denaturalization cases were filed each year, Department of Justice data show. Last year, more than 25 cases were filed. Through mid-July of this year, the Justice Department has filed 20 more.

Separately, ICE has a pending budget request for $207.6 million to hire 300 agents to help root out citizenship fraud, as well as to “complement work site enforcement, visa overstay investigations, forensic document examination, outreach programs and other activities,” according to the agency.

The stage for increasing cases of denaturalization was set during the waning days of the Obama administration.

In September 2016, a report released by the inspector general for the Department of Homeland Security showed that 315,000 old fingerprint records for immigrants who either had criminal convictions or deportation orders against them had not been uploaded into a database used to check identities.

It turned out that because of incomplete fingerprint records, citizenship had been granted to at least 858 people who had been ordered deported or removed under another identity. USCIS began looking into cases.

John Sandweg, who headed U.S. Immigration and Customs Enforcement under Obama, said that when it came to denaturalization, officers considered it on a case-by-case basis, “looking at the seriousness of the offense and then deciding if it made sense to dedicate the resources.”

“It was looked at more in that context — let’s look for serious felons who may have duped the system because we didn’t digitize fingerprints yet. Not so much … let’s just find people where there’s eligibilities to denaturalize because we want to try to reduce the ranks of naturalized U.S. citizens.”

Even during the communist scare of McCarthy era, citizenship revocation was so rare that often the cases made the news.

“The constant surveillance of communists in this country is a 24-hour, seven-days-a-week, 52-weeks-a-year job,” President Eisenhower declared in 1954, according to a Los Angeles Times article headlined: “Eisenhower cites U.S. war on reds.”

The government in 1981 took citizenship away from Feodor Fedorenko, who had worked as a guard at a Poland death camp, fled to the U.S. and illegally obtained citizenship by omitting references to his Nazi service. After he was denaturalized, he was deported to the Soviet Union and executed as a war criminal.

“It’s always taken expertise and finesse to bring those cases to court and successfully finish,” said Bruce J. Einhorn, former litigation chief for Justice Department’s Office of Special Investigations. “I think an office like this, in theory, could do a great deal of good, depending also on their exercise of prosecutorial discretion.”

Citizenship and Immigration Services began training officers last year on how to review cases and on the burden of proof necessary to revoke a person’s citizenship. About a dozen people are in the L.A. unit — a number expected to rise to about 85 with the addition of support, analyst and administrative staff.

The case of Baljinder Singh, of India, is among those the agency referred to Justice officials.

Nearly three decades ago, Singh arrived in San Francisco from India without any travel documents or proof of identity, claiming his name was Davinder Singh. He was placed in exclusion proceedings but failed to show up for an immigration court hearing and was ordered deported.

He later filed an asylum application under his true name but withdrew it after he married a U.S. citizen who filed a visa petition on his behalf, according to the Justice Department. He became a citizen on July 28, 2006.

In January, a federal district judge revoked Singh’s citizenship.

“I think that if individuals saw these cases and really took time to understand the length to which some of these individuals went to fraudulently obtain immigration status, they too would want us to pursue these cases,” Renaud said.

Einhorn said that what many view as the Trump administration’s anti-immigration agenda makes it hard to see denaturalization and the citizenship agency’s role in it in a neutral way.

“The immigration law and the civil rights community are understandably going to be very suspicious of an office like this in the age of Trump,” he said. “The question will be: Is this office simply trying to apply the law in a bad way or in an unsound way just to effectuate the extremist views of the president? Or is it in fact going to be a professional group of people who are going after serious offenders of the naturalization law?”

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I’ll admit to being a skeptic on this one. Since 1908, the policy of the USDOJ has been not to revoke citizenship based on fraud or illegality unless “substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” Indeed that venerable legal policy statement is one of the earliest rebuttals to Jeff Sessions’s bogus claimed — never back up by any cogent legal reasoning — that programs of “de-prioritizing” certain types of cases, like DACA, are “illegal.”

Until now, that sensible and prudent policy of erring on the side of the naturalized citizen in denaturalization has served the country well. I’ve seen nothing to indicate that this Administration is capable of discerning the “betterment of the citizenship” in any non-racially-discriminatory manner. Their disingenuous approach to prosecutorial discretion generally leads me to believe that this initiative also will be abused. To me, it looks like just another step in turning USCIS from the service agency it was supposed to be into another branch of ICE.

PWS

08-13-18

THE UGLY ABOMINATION OF CHILDREN BEING DOPED & ABUSED IN DETENTION BEGAN IN THE OBAMA ADMINISTRATION – TRUMP & SESSIONS DOUBLED DOWN ON THAT TARNISHED LEGACY – IT’S PAST TIME FOR BIPARTISAN ACTION IN CONGRESS TO END THIS GROTESQUE BLOT ON OUR NATIONAL CHARACTER!

https://slate.com/technology/2018/08/immigrant-children-abuse-drugged-shiloh-treatment-center.html

Daniel Engber reports for Slate:

A federal court has given the Trump administration until Friday, Aug. 10, to figure out a plan for the 28 immigrant children still detained at the Shiloh Treatment Center in southeast Texas. Any child who is not deemed to pose “a risk of harm to self or others” must be transferred to a less restrictive facility, per Judge Dolly Gee’s July 30 ruling in a lawsuit filed earlier this year. She also addressed the lawsuit’s claims that residents at Shiloh have been given forced injections and prescribed antidepressants, mood stabilizers, and antipsychotic drugs without consent. The government must stop this practice, she determined, and make sure that psychotropic drugs are given to detainees at Shiloh only in accordance with Texas child welfare laws and regulations.

For weeks now, this misuse of psychiatric medications has been cited as a prime example of the White House’s “despicable,” “reprehensible,” “inhumane and unconscionable” border policies. “President Donald Trump’s zero tolerance policy stands to create a zombie army of children forcibly injected with medications,” said the article from the Center for Investigative Reporting that first brought the allegations to light. “The president has to be ordered not to give children psychotropic drugs, but I’m the one that’s tripping?” one Democratic candidate for Congress said a few days ago, in defending progressives’ call to defund U.S. Immigration and Customs Enforcement.

The standard gloss on this medication scandal—that the Trump administration isn’t merely ripping children from their parents but turning all those children’s brains to mush—is substantially misleading. It makes it sound as though the problem was created by our current president when the blame could just as well be placed on the Obama administration. Unaccompanied immigrant children first arrived at the Shiloh Treatment Center in 2009, according to the Center for Investigative Reporting, despite the fact that three children had already died at Shiloh and affiliated centers while being physically restrained by staffers. These were not the only horrific incidents on record. Another time, for example, staff encouraged a group of girls with cognitive disabilities to fight each other gladiator-style for after-school snacks. And while Trump is now responsible for the children in federal custody, and certain medication-related abuses appear to have continued under his watch, most of the cases of abuse included in the lawsuit occurred before he set foot in the Oval Office.

If a child can be diagnosed with post-traumatic stress disorder, then medications aren’t likely to be the most useful form of treatment.

The suspect framing of the Shiloh scandal as a cause for partisan anti-Trump outrage also serves to minimize the problem. When commentators link the overmedication of child immigrants to Trump’s zero tolerance policy at the border, they imply that the children who were forcibly separated from their parents earlier this year are the only ones at risk for this abuse—or, at the very least, that these kids are at higher risk than others in residential treatment. That’s wrong. The 2,500 kids subject to family separation are just a subset of the children held around the country by the Office of Refugee Resettlement. ORR already oversees the placement of some 10,000 minors who arrived at the border on their own, without parents or guardians—and the Shiloh Treatment Center has been housing, treating, and potentially abusing detainees from this larger population for about a decade now.

But even that doesn’t capture the full scale of the problem, which affects not just immigrants but kids throughout the nation’s child welfare system. The court exhibits from the recent lawsuit suggest a scene out of One Flew Over the Cuckoo’s Nest: In addition to receiving forced injections of antipsychotic drugs to calm them down, former residents say they were dosed with as many as nine different pills at a time without being told what they were taking or why. These medications were allegedly prescribed without consulting the children’s parents or their other adult relatives or otherwise securing a court order. Children who refused to swallow their pills, the lawsuit says, were physically made to do so or were coerced in other ways. “They told me … that the only way I could get out of Shiloh was if I took the pills,” one child explained. “I have not refused taking the pills because I was told that … would make me stay at Shiloh longer,” said another.

As awful as these details sound, they’re not unique. Experts on the use of psychotropic drugs in foster care and residential treatment settings say overmedication is widespread. Studies find that foster kids are given psychotropic drugs at least twice as often as other children served by Medicaid, despite a lack of solid evidence for these drugs’ efficacy in children and little knowledge of what long-term hazards they might pose to developing brains. (Most such medications are FDA-approved only for adults, so their use with children is off-label.)

The prescription of several different psychotropic drugs to children at the same time doesn’t represent some new perversion of psychiatry cooked up by the Trump administration or put in place by reckless doctors at a converted trailer park in Texas. Rather, “polypharmacy” is a mainstream approach to medicating children in residential treatment settings. In responding to the recent lawsuit, an ORR official informed the court that Shiloh follows Texas state guidelinesfor the use of such drugs in foster care—which means, she said, that they “strive to use no more than four [psychotropic] medications concurrently.” Again, there’s a lack of data to support this standard practice. “Very few studies have shown safety and efficacy for two or more psychotropics used concurrently in children, and none, virtually, have shown safety or efficacy using three or more,” says Erin Barnett, an assistant professor of psychiatry at Dartmouth who studies evidence-based practices for traumatized children. “Yet this kind of bad treatment is going on all over the country.”

There are some specific ways in which the methods reportedly used by Shiloh Treatment Center do stand apart. Even when a given child’s parents were reachable, the lawsuit says, the center did not bother to reach out to them regarding the use of drugs. (This apparent indifference to informed consent provoked a major portion of the judge’s recent ruling.) In practice, though, adherence to the rules on consent does not prevent the overuse of medications in residential treatment settings. Many parents and guardians acquiesce to polypharmacy when it’s recommended by a doctor, and officials tasked with overseeing wards of the state may also sign off on a smorgasbord of psychotropics provided that a child has been diagnosed with several different mental health conditions.

It’s also not enough to have a relative’s informed consent when treating psychiatric issues in these settings. The kids themselves should also give “assent” to treatment, which means they’re willing to accept the drugs. That’s often not the case in residential treatment settings, though. Kids who have been placed in these facilities tend to have long, complicated histories of treatment and may be suspicious of whatever care they’re being offered. When they do refuse their medication, their behavior is often chalked up to emotional problems—an “oppositional defiant disorder,” perhaps. According to both Barnett and Robert Foltz, a clinical psychologist and member of the board for the Association of Children’s Residential Centers, health care providers will at times cajole these children into taking meds, perhaps by threatening to “remove their privs”—which is to say, depriving them of activities they enjoy. Barnett cites a study of 50 adolescents taking psychotropic drugs, which found that nearly half reported feeling “forced or pushed” to take their medications.

The use of psychotropic drugs with kids detained at the border raises unique concerns. For one thing, we might guess that these children’s mental health issues stem, in large part, from whatever troubling events led them to leave their home countries, combined with the stress of being held in custody and—for those detained this year under Trump’s family-separation policy—the trauma of having been pried away from their parents. If it is possible to identify clear environmental causes of their distress, or if a child can be diagnosed with post-traumatic stress disorder, then medications—even when they’re ethically applied—aren’t likely to be the most useful form of treatment. According to Foltz, psychotropic drugs barely work for PTSD and are not considered front-line treatments; the American Academy of Child and Adolescent Psychiatry recommends cognitive behavioral therapy instead. Another problem arises from the fact that, in most cases, health care providers for these children won’t have access to their patients’ detailed case histories, so whatever psychiatric diagnoses they make will be off the cuff.

There are many reasons to be furious and fretful over what’s gone on at Shiloh and how the alleged abuse of children there could and should have been avoided. Over the past nine years, the federal government has paid tens of millions of dollars to house troubled detainees at a residential treatment facility with a well-earned, highly suspect reputation. But if there’s any bigger lesson to what happened at this 43-bed facility in rural Texas, it’s not that Trump’s border policies are inhumane. (There are plenty of other, better ways to come to that conclusion.) Nor does it suggest that “anti-child” ideologues have somehow come to power in Washington. No, this ugly scandal spanning two administrations should be taken as a sign of what can happen to the nation’s most damaged and defenseless kids no matter who’s in power.

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There’s more than enough blame to go around on this one. But, blame solves nothing. What needs to happen is for a bipartisan Congress to step up to the plate and end the abuse that Executive officials of two consecutive Administrations have lacked the ethics, common sense, and human decency to do the right thing and stop.

PWS

08-12-18

LA TIMES: FAILURE IN A NUTSHELL: HOW THE TRUMP/SESSIONS/MILLER/ WHITE NATIONALIST IMMIGRATION AGENDA HAS BEEN A DISASTER FOR AMERICA IN EVERY WAY! — GOP Congress Shares Blame For This Mess!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a2574305-1ea2-4b64-9a8a-4d9696ba9b90

Trump’s immigration debacle

It’s been six weeks since a federal judge ordered the Trump administration to fix the crisis it created when it separated more than 2,500 children from their parents under a heartless policy designed to deter desperate families from entering the United States illegally. But the job of reunification still isn’t done, in part because the government failed to devise a system to track the separated families.

Some 400 parents reportedly have already been deported without their children, and the government apparently has no idea how to reach them. It’s a colossal snafu that is as appalling as it is inexplicable. Among the many inhumane immigration enforcement policies adopted in the first two years of the Trump reign, history may well regard this bit of idiocy as the worst.

Or perhaps not; the competition hasn’t closed yet. In fact, the Pentagon is working on plans, at Trump’s direction, to house 20,000 detained immigrants — including children this time — in secured areas of military bases while they await deportation proceedings. Yes, the Obama administration did something similar when it tried to deal with the inflow of unaccompanied minors from Central America. It was a bad idea then, and it’s a bad idea now; kids don’t belong in prisons on military bases. Under a court order, the government cannot hold minors for more than 20 days before releasing them to the custody of their parents, other relatives or vetted guardians.

When it comes to immigration, there has been such a flood of bad policies and ham-handed enforcement acts since Trump took office that it can be hard to keep it all straight.

First there was the ban on travel of people from mostly Muslim countries and then the effort to eliminate protections for so-called Dreamers who have been living in the country illegally since arriving as children. Hard-line Atty. Gen. Jeff Sessions has inserted himself in the immigration court system and overridden previous decisions over who qualifies for asylum; not surprisingly, the number of people granted protection has dropped as a result. President Trump also has throttled the flow of refugees resettled here; last year, for the first time since the passage of the 1980 U.S. Refugee Act, the United States resettled fewer refugees than the rest of the world, a significant step away from what had been an area of global leadership. (Over the last 40 years, the U.S. has been responsible for 75% of the world’s permanently resettled refugees.)

Then there’s this: The White House is reportedly drafting a plan that would allow immigration officials to deny citizenship, green cards and residency visas to immigrants if they or family members have used certain government programs, such as food stamps, the earned income tax credit or Obamacare.

And this: The now largely abandoned “zero tolerance” policy of filing misdemeanor criminal charges against people crossing the border illegally led to a surge of cases in federal court districts along the Southwest border as non-immigration criminal prosecutions plummeted, according to an analysis by the Transactional Records Access Clearinghouse. In fact, non-immigration prosecutions fell from 1,093 (1 in 7 prosecutions) in March to 703 (1 in 17 prosecutions) in June, suggesting that serious crimes are taking a back seat to misdemeanor border crossing.

Meanwhile, a Government Accountability Office report this week questions how U.S. Customs and Border Patrol set priorities in planning where to build Trump’s border wall, and said the agency failed to account for wide variations in terrain in estimating the cost — which means that extending the existing border walls and fences another 722 miles could cost more than the administration’s $18-billion estimate. And while the president crows that the wall will secure the border, it won’t, experts say. People will still find a way around, over or under it. And most drug smuggling already comes hidden in motor vehicles passing through monitored ports of entry. At best, Trump’s wall — if Congress is insane enough to approve funding — would be little more than a symbol of his arrogance, and of this country’s determination to seal itself off from the world.

Trump’s immigration policy has been characterized by unnecessary detention and inadequate monitoring that has allowed for abuses at detention centers — including sexual assaults and forced medication of children. The immigration court system is now overwhelmed by a backlog of 733,000 cases.

In short, it’s been a disaster. And through all of these fiascoes, there have been zero serious efforts in Congress or by the president for comprehensive reform of a system everyone acknowledges is broken.

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Regime change is the only answer, beginning this November and continuing until Trump and his toxically incompetent White Nationalist Cabal are removed from office!

America is a great country that could reach its full potential and regain both economic and moral leadership among the world’s nations. But, it’s never going to happen while the majority of us are being governed by short-sighted, incompetent White Nationalists bent on letting their racist agenda destroy our country. Oh, and they are corrupt grifters too, never a good sign in leadership!

PWS

08-11-18

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