“DUH” OF THE DAY: Official Policies Of Child Abuse, The “New American Gulag,” & Routinely Denying Constitutional Due Process Fail To Stem Refugee Tide On Southern Border!

https://www.washingtonpost.com/world/national-security/illegal-border-crossings-remained-high-in-may-despite-trumps-crackdown/2018/06/01/aab543ae-65a9-11e8-a768-ed043e33f1dc_story.html?utm_term=.3943d1d60e43

Nick Miroff reports for WashPost:

The number of migrants attempting to cross illegally into the United States remained high last month, according to administration officials and Border Patrol agents, an early indication that “zero tolerance” measures separating parents from their children and President Trump’s deployment of National Guard troops have not had an immediate deterrent effect.

The Department of Homeland Security is expected to publish its closely watched monthly arrest totals in coming days, and Trump administration officials are bracing for a new eruption from the president. He has treated the statistics as a gauge for the success of his hard-line immigration policies, and when border arrests fell to historic lows in the months after his inauguration last year, Trump touted the decrease as a personal triumph.

Since then, migration trends have reversed. In March and again in April, border arrests exceeded 50,000, the highest monthly totals of Trump’s presidency, sending him into fits of rage, aides say. Trump unloaded on DHS Secretary Kirstjen Nielsen during a Cabinet meeting May 9, scorching her for nearly 30 minutes over the spike in illegal crossings, while demanding she “close” the border.

The Trump administration is preparing to renew its push for an $18 billion border wall plan that would also tighten asylum procedures and overhaul other laws Trump officials say are encouraging illegal behavior. Trump has threatened to shut down the government this fall if Democrats don’t provide the funds.

But with midterm elections approaching and the president preparing to campaign on his border crackdown, Nielsen and other Homeland Security officials do not appear to be satisfying his strict enforcement targets. May’s arrest totals are expected to be at least as high as the previous two months, administration officials and Border Patrol agents said.

Large groups of Central American migrants have been taken into custody in the Rio Grande Valley of South Texas in recent weeks, according to Border Patrol agents, speaking on the condition of anonymity because they are not authorized to discuss operations. During one 24-hour span last month, 434 migrants were processed at the Border Patrol station in McAllen, agents said.

Department of Homeland Security Secretary Kirstjen Nielsen and President Trump have had a contentious relationship as illegal border crossings increase.

“The numbers have been very high,” said one agent assigned to the Rio Grande Valley, the nation’s busiest corridor for illegal migration. “It’s to the point that we have had to bring in buses to come out and load these folks up, or send four of five vans at a time.”

 

 

Another agent said so many migrants were apprehended in the Rio Grande Valley last month that many were diverted to other sections of the border for processing. The Justice Department has reassigned additional prosecutors to the border region to increase the number of migrants it charges with federal crimes, but one veteran border agent said it was “too early to tell” if the tougher enforcement measures were giving pause to migrants thinking of making the journey from Honduras, El Salvador and Guatemala.

“It’s going to take longer for the message to get back to those countries,” the agent said.

On Friday, Homeland Security officials would not say whether the tougher enforcement measures were meeting their goals. They said the May border arrest totals were not ready for publication, and they would not confirm whether the figures have been sent to the White House.

“The bottom line is Congress needs to act and close loopholes that serve as a tremendous pull factor for illegal immigration,” said Tyler Houlton, a DHS spokesman. “The Trump administration is restoring the rule of law by increasing prosecutions of illegal border crossers.”

According to a Trump adviser, the president was warned this spring that illegal border crossings were likely to increase. Trump said at the time he would not be satisfied with any such surge and everything needed to be done to block it. That led to the decision to deploy the National Guard.

The number of illegal border crossings “is going to go higher and higher yet,” said the adviser. “You’re going to see a line that goes up all summer long.”

Trump has not been briefed on the May arrest numbers yet, two advisers said.

In a statement late Friday, Trump senior adviser Stephen Miller blamed Democrats for blocking the president’s immigration overhaul.

“The illegal migrant crisis is the exclusive product of Democrats’ shameless refusal to close catch-and-release loopholes that cartels exploit to smuggle illegal aliens into the United States at great cost in taxpayer dollars, jobs and, too often, lives,” Miller said.

Weak border enforcement remains the biggest incentive to illegal migration, according to Miller. “We must end catch-and-release by reforming our asylum laws, and establishing expedited removal, to stop the smuggling and defend the nation,” he said.

As in recent years, many of those taken into custody last month were teenagers or parents traveling with children, and the administration has triggered broad condemnation for separating more families with its push to prosecute anyone who crosses illegally.

More than 10,800 migrant children were in federal custody as of May 31, according to the Department of Health and Human Services, up 21 percent since the end of April. The agency’s shelters are 95 percent full, and HHS officials say they are preparing to add thousands of additional beds to cope with the increase.

A Border Patrol agent in South Texas said the family separation measures were not being applied as broadly as assumed. Some parents who face federal charges are apart from their children for only several hours, then released and assigned a court date, the agent said.

“To us, that’s still ‘catch-and-
release,’ ” the agent said. “People are going to continue to come.”

Arrests along the Mexican border peaked at more than 1.6 million in 2000, then fell sharply during the Obama administration. During the government’s past fiscal year that ended in September, U.S. agents made 303,916 arrests, the lowest total since 1971.

Trump’s fixation is driven, in part, by a view that border security is paramount to his most fervent supporters and that immigration is a winning issue for Republican candidates in November’s congressional elections.

“I’m very proud to say that we’re way down in the people coming across the border,” Trump said in January. “We have fewer people trying to come across, because they know it’s not going to happen.”

The arrest numbers began shooting upward soon after that, from 36,682 in February to 50,296 in March. The yearly total for 2018 is on pace to approach or exceed 400,000, a level more consistent with migration patterns of the past five years, DHS statistics show.

During a visit Thursday to the Nogales border crossing in southern Arizona, Nielsen called the increase in illegal migration a crisis and said Homeland Security officials were working to “end this lawlessness.”

The country’s borders are being violated “by criminals, by smugglers and by thousands of people who have absolutely no respect for our laws,” she said.

“This is changing, it will change, and we will do all that we can to change this,” Nielsen added, emphasizing that the “zero-tolerance” approach announced in April will be applied as aggressively as possible.

“If you come here illegally, whether you’re single, whether you have a family, whether you’re a smuggler or whether you’re a trafficker, you’ve broken the law, so we’re prosecuting,” she said.

On Friday, Democratic members of the House Judiciary Committee sent a letter to Nielsen and Attorney General Jeff Sessions demanding information on the administration’s enforcement efforts, including the number of children who have been separated from their parents and whether there are formal procedures to reunite them.

Border arrests typically rise during spring months, when seasonal labor demands increase. Farms across the Midwest are becoming desperate for workers, with the U.S. unemployment rate at the lowest level since 2000. Lawmakers from both parties have told Nielsen that worker shortages are squeezing an array of industries in their states, and the DHS said last week that it will issue 15,000 seasonal guest-worker visas.

But border agents said much of the increase this spring seems to be driven by the same groups — families and teenagers traveling alone — who have been straining Homeland Security capacity since the 2014 crisis that left Border Patrol stations overflowing.

Photos of recent mass arrests provided by one agent show migrants of all ages walking through willow groves along the Rio Grande or lined up in federal custody along the river levees, waiting to board government buses.

Josh Dawsey contributed to this report.

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No surprises here. “Toldja so” back when Trump unwisely declared “Victory at Sea” after a few months of reduced border apprehensions. Since Trump is proudly ignorant of history, he apparently didn’t study what happened to Bushie II after he declared “Victory in Iraq” or his “Heck of Job, Brownie” moment. Nor does he have any idea of the actual dynamics driving human migration. That’s the problem with policies driven by racism, bias, xenophobia, and White Nationalism.

Also, trying to rewrite the Constitution and international protection law, as Trump, Sessions, Miller, Cotton, and the rest of the White Nationalist Gang would dearly like to do, to deny established legal rights won’t work either. In fact, it would make things 10X worse.

The laws aren’t the problem!  The problem is the people charged with implementing them.

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

 

PWS

06-02-18

A DESPERATE CRY FOR HELP FROM DEEP WITHIN OUR BROKEN U.S. IMMIGRATION COURT SYSTEM: “Yesterday as I left court after an individual hearing for a 237(a)(1)(H) waiver, my client told me she felt like she was not a human being because of the way she was treated during the trial.” – JOIN THE “NEW DUE PROCESS ARMY” & STOP THE DEHUMANIZATION OF INDIVIDUALS SEEKING DUE PROCESS!

Here’s what a practicing immigration attorney has to say about what’s really happening in our broken U.S. Immigration Court system:

I was at the FBA conference in Denver and your keynote speech made me feel like someone actually understands the tragedies that are unfolding in our immigration court system, and is trying to do something about it. Each time I go into court I try to look at the system with new eyes and refreshed hope that today’s trial will be different. Each time I leave court I am reminded of how blatantly biased the judges can be, how the government attorneys are given special treatment, how our clients are badgered and treated inhumanely, and how the “dirty immigration lawyers” such as myself are treated with disdain. I know that I will be ok, but worry to the point of losing sleep over how my clients are treated. Yesterday as I left court after an individual hearing for a 237(a)(1)(H) waiver, my client told me she felt like she was not a human being because of the way she was treated during the trial. I consider myself a part of the due process army and want to know what else I can do to advocate for serious changes, including a complete overhaul, of the EOIR system. I thank you for your time and look forward to hearing from you.

Here’s my response:

You can:
1) Take cases to the Article III Courts. They still have no idea of how Due Process is being mocked every day in the Immigration Courts. They need to be forced to accept responsibility for this travesty which they have the power to end.
2) Make a record of how the IJs are ignoring facts of record and applicable law because they have prejudged cases.
3) Get out the vote for candidates who put Dreamer relief, an independent  Immigration Court, and an end to unnecessary and expensive immigration detention at the top of their legislative “to do” list. (Something that the Dems conspicuously failed to do when Obama was elected in 2008).
4) Actively support candidates for state and local office who are pledged to resist the divisive and racially motivated immigration policies of this Administration to the extent possible under the law.
5) Support efforts for universal representation.

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It’s both telling and disturbing that most of us who understand the system’s failings and are committed to fixing them are now outside the system — where our voices actually can be heard, our views are taken seriously, and the truth about the national disgrace taking place in our U.S. Immigration Courts under Trump & Sessions can be spoken. 

Yes, there are many conscientious, courageous, and hard-working Immigration Judges still in the system. But, they have been “muzzled, degraded, and disrespected.” Instead, those Immigration Judges who are biased against respondents, particularly asylum seekers, willing to cut corners, and oblivious to what Constitutional Due Process actually means for individuals are being empowered and encouraged by Sessions.

How is it fair or reasonable to have a so-called “court system” where conscientious attorneys like this are “losing sleep” over the unfair, degrading, and dehumanizing treatment that they are receiving at the hands of supposed Federal Judges in what purports to be a Federal Court system? Totally outrageous!

Attorneys — particularly those appearing pro bono and “low bono” — are the undisputed heroes of this system, the only ones standing between the Immigration Courts and unimaginable chaos and injustice at the hands of Jeff Sessions. Indeed, notwithstanding this reprehensible mistreatment, private attorneys are leading the battle for true judicial independence in the Immigration Courts over the objections of the DOJ and EOIR. What does that tell you about this system?

A “real” Attorney General, who took his oath of office seriously, would slow down this entire farce and direct retraining of every judge in the system in what “guaranteeing fairness and Due Process for all,” carrying out the generous standards for asylum seekers set forth by the Supreme Court in Cardoza-Fonseca, the BIA in Mogharrabi, and actually reflected in the current regulations really mean in practice!

If Due Process, asylum law, withholding law, and the CAT were properly and fairly applied, the vast majority of applicants and recent arrivals could be competently represented and granted some type of protection either by the DHS or in “short block” Immigration Court hearings. That would both fulfill the law and help reduce the backlog pressure on Immigration Courts, as well as reducing the number of needless petitions for review being filed in the Courts of Appeals to correct basic errors committed by the BIA and the Immigration Courts!

Instead, we are stuck with a “scofflaw” Attorney General who intends to establish and reinforce “worst practices.” It will take a concerted effort on the part of the New Due Process Army to halt the Trump Administration’s attack on human decency and our constitutional rights in the Immigration Court system!

Harm to the most vulnerable among us is harm to all!

PWS

05-31-18

WHILE SESSIONS “BLOWS OFF” VIEWS OF “OUR GANG” OF RETIRED US IJs & BIA JUDGES, ARTICLE III (“REAL’) COURTS (& EVEN “OIL”) ARE PAYING ATTENTION – J.C. Andre of Sidley Austin Reports That 10th Circuit Has Remanded Matumona v. Sessions On The Issue Of Access To Counsel!

Judge Schmidt –

 

Thank you so much for the flattering post about our work with you all in recent months.

 

On that front, we have two updates for you all.

 

First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief).  As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late.  Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23.  Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.

 

Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off.  On the government’s concession, the Tenth Circuit last week remanded the case to the BIA.  A copy of the remand order also is attached.

 

It’s been a pleasure and an honor to work with you guys so much over the last two months.

 

Hope everyone had a great Memorial Day weekend,

 

jc

 

JEAN-CLAUDE ANDRÉ

SIDLEY AUSTIN LLP
+1 213 896 6007
JCAndre@Sidley.com

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Here’s a copy of the remand order:

2018-05-22_Order Remanding

And, here’s a link to Hon. Jeffrey Chase’s previous blog on the Matumona Amicus effort:

https://wp.me/p8eeJm-2ko

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The pleasure is all ours, J.C.!  Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!

Always interesting how folks sometimes give your views more attention after you’re gone.

Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.

My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like.  Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.

PWS

05-30-18

 

THE GIBSON REPORT – 05-29-18 – COMPLIED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP — Highlighting Significant, Yet Unfortunately Unpublished, BIA Holding That 2 Weeks Was An Inadequate Continuance To Seek an Attorney!

 

THE GIBSON REPORT 05-29-18

TOP UPDATES

 

TRAC Finds ICE Deportations Dropped by Almost Half Over Past Five Years

TRAC released a report on ICE deportations, updated through October 2017, finding that deportation levels have dropped by almost half since October 2012. TRAC also provided updated web tools on ICE deportation data including a breakdown on convictions and number of ICE deportations. AILA Doc. No. 18052231

 

BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337

 

Neglect and Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection

ACLU: Documents obtained by the American Civil Liberties Union featured in a new report released today show the pervasive abuse and neglect of unaccompanied immigrant children detained by U.S. Customs and Border Protection.

 

She came to the US for a better life. Moments after arrival, she was killed

CNN: Claudia Patricia Gomez Gonzalez traveled 1,500 miles to the United States, hoping to find a job and a better future. Shortly after she set foot in Texas, a Border Patrol agent shot and killed her.

 

Border Patrol union calls Trump’s National Guard deployment ‘colossal waste’

LA Times: A month after President Trump called for sending National Guard troops to the U.S.-Mexico border, the head of the national Border Patrol union called the deployment “a colossal waste of resources.” “We have seen no benefit,” said Brandon Judd, president of the union that represents 15,000 agents, the National Border Patrol Council.

 

Swept up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers

NYIC: Through an extensive field study, the report shows how Immigration and Customs Enforcement (ICE), with other federal agencies and law enforcement, uses arbitrary methods to profile immigrant youth of color to allege gang affiliation.

 

Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members

ILRC: This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration.

 

Pretermitting Gang PSGs

AILA Listserv: It appears that, at least in some jurisdictions, DHS is moving to pretermit gang PSGs for asylum before merits hearing. Looks like we must also be prepared to respond to these arguments going forward. See useful gang PSG resources attached.

 

Civil rights groups slam DeVos for saying schools can report undocumented students

WaPo: Civil rights groups slammed Education Secretary Betsy DeVos for saying Tuesday that schools can decide whether to report undocumented students to immigration enforcement officials, saying her statements conflict with the law and could raise fears among immigrant students.

 

DHS Prosecutes Over 600 Parents in Two-Week Span and Seizes their Children

AIC: Following implementation of a “zero tolerance” policy, the Department of Homeland Security (DHS) announced that 638 parents who crossed with children had been prosecuted in just a 13-day span this month.

 

New RFE Policy

From the USCIS District Director’s meeting: Starting immediately if you are issued an USCIS RFE that you need to submit to 26 Federal Plaza they will be issuing a notice giving you a time to hand deliver it.  The dates will always be on Fridays and the notice will state that you can come in anytime between 7am-12pm on that date to hand the RFE response in at the indicated window.  There will be no interview – you will just hand in the response and get your copy stamped.  They are moving away from mail in RFE responses because of too many problems with the post office.

 

U-visa Categories (attached)

ASISTA: The AAO seems to have paid attention to our amicus arguments on U visa crimes as “categories” in their decision in the case underlying our amicus, see attached redacted decision and the amicus.  We will need to keep pushing this framework, however, so please continue using the arguments in the amicus when arguing crime categories.  We do not, for instance, agree that the DV category contemplates only the facts involving relationships; many crimes are DV depending on the facts of the crimes, not just the relationships.  See attached.

 

Stay Requests

HerJusticeOn this topic, I learned last year that ICE ERO (NYC) wasn’t even accepting applications for stay of removal if the applicant didn’t have a current passport—is this still the case?

LSNYC: As I understand it, it’s always been ICE’s policy that the applicant for a stay (I-246) must have a current passport. Really, the Officers are all over the place when it comes to stays.  Some say they are not accepting stays, some say so long as the client has something pending (appeal, MTR, U/VAWA/T, etc) no removal will be effectuated and that no stay is needed until removal is imminent.

Sanctuary: Our office recently filed a stay of removal, and in the alternative request for deferred action, for a client with a removal order from 2009 whose son has hemophilia. ERO accepted the stay without her passport. ERO said that they would make a decision on within 3 months, and if not, she is to return for another check-in at the end of June.

 

Immigrant Legal Aid Group Withdraws Request for Montgomery County Funding with Carve Out

Bethesda Mag: A Washington, D.C., nonprofit set to receive about $374,000 in Montgomery County funds to provide deportation defense to detained immigrants has withdrawn its request for the money in response to an updated list of criminal convictions that would bar certain immigrants from receiving legal aid.

 

Anti-Immigrant Extremist Nominated to Run Refugee Office at State Department

HRF: In response to the nomination of Ronald Mortensen to serve as Assistant Secretary of State for Population, Refugees and Migration, the senior-most American diplomat representing the United States in matters relating to the most vulnerable populations in the world, Human Rights First’s Jennifer Quigley issued the following statement: “Mortensen has spent the past several years working at an anti-immigrant hate group, spewing vile, extremist views that have no relation to reality.”

 

Immigration dominating GOP candidates’ TV ads in House contests across the country

USA Today: House Republican candidates are blanketing the airwaves with TV ads embracing a hard line on immigration — a dramatic shift from the last midterm elections in 2014 when immigration was not on the GOP’s political radar, according to a USA TODAY analysis of data from Kantar Media.

 

U.S. Immigration Courts, Long Crowded, Are Now Overwhelmed

The Wall Street Journal reports on the U.S. immigration court system’s backlog increasing 25 percent since President Trump took office, with insights on the situation from AILA National Secretary Jeremy McKinney. AILA Doc. No. 18052342

 

This Salvadoran Woman Is At The Center Of The Attorney General’s Asylum Crackdown

NPR: Attorney General Jeff Sessions is stirring panic in immigrant communities by moving to limit who can get asylum in the United States. Perhaps no one is more alarmed than one Salvadoran woman living in the Carolinas…Now Sessions has personally intervened in her case, questioning whether she and other crime victims deserve protection and a path to American citizenship.

 

LITIGATION/CASELAW/RULES/MEMOS

 

SIJS Family Court Appellate Case

2d dept remanded and ordered a new judge be assigned after a Nassau County Fam Court Judge dismissed a mother’s petition for guardianship and refused to set the motion for special findings, without any hearing. They also made note of the judge’s wildly inappropriate remarks.

 

Supreme Court Delays Further in Deciding Certiorari Petition in Case Involving Abortion by Undocumented Teen

ImmProf: [May 21], the Supreme Court granted certiorari in four cases and also issued orders (denied cert, etc.) in a number of cases.  The press room, as it has been for so many weeks, was buzzing about the possible disposition of the U.S. government’s cert petition in Azar v. Garza, a case involving the undocumented pregnant teenager. The government wants the Supreme Court to vacate the D.C. Circuit decision that cleared the way for her to get an abortion.  The Court did not act on the case this morning.

 

Detainees in Stewart Detention Center File Suit Challenging Forced Labor Practices

Plaintiffs filed a class action suit against private prison company CoreCivic challenging its practice of depriving detained immigrants of basic necessities so they are forced to work at well below minimum wage to purchase items at the prison commissary. (Barrientos v. CoreCivic, 4/17/18) AILA Doc. No. 18052163

 

DOJ Announces Airlines Staffing Executive Sentenced for Immigration Fraud

DOJ announced that Eleno Quinteros, Jr., the former vice president of operations for two airline mechanic staffing companies, was sentenced today to 12 months in prison for making false statements in support of legal permanent resident petitions for dozens of the companies’ mechanics. AILA Doc. No. 18052162

 

DOJ Settles Immigration-Related Discrimination Claim Against University of California, San Diego

Posted 5/25/2018

DOJ announced a settlement agreement with the University of California, San Diego. The settlement resolved whether the University’s Resource Management and Planning Vice Chancellor Area discriminated against workers in violation of the INA when verifying their continued authorization to work.

AILA Doc. No. 18052532

 

Documents Relating to Los Angeles’s Challenge to Immigration Enforcement Conditions on Federal Law Enforcement Grants

The court issued an order granting the government’s request to expedite the case. The case will be calendared for September 2018. (Los Angeles v. Sessions, 5/15/18) AILA Doc. No. 18041638

 

BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337

 

BIA Holds Child Abuse Ground of Deportability Does Not Apply to Attempt Crimes

Unpublished BIA decision holds that attempt to endanger the welfare of a child under N.Y.P.L. 260.10 is not a crime of child abuse because INA §237(a)(2)(E)(i) only applies to completed crimes. Special thanks to IRAC. (Matter of B-Q-, 6/20/17) AILA Doc. No. 18052432

 

BIA Finds Wisconsin Prostitution Statute Is Categorically an Aggravated Felony

The BIA reinstated removal proceedings, after finding that INA §101(a)(43)(K)(i) encompassed offenses related to the operation of a business that involves engaged in, or agreeing or offering to engage in, sexual conduct for anything of value. Matter of Ding, 27 I&N Dec. 295 (BIA 2018) AILA Doc. No. 18052164

 

BIA Holds Possession of Drug Paraphernalia in Arizona Is Not a Controlled Substance Offense

Unpublished BIA decision holds possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415(A) is not a controlled substance offense because the state schedule is overbroad and the identity of the drug is not an element of the offense. Special thanks to IRAC. (Matter of Lopez, 6/16/17) AILA Doc. No. 18052160

 

BIA Reverses Discretionary Denial of Adjustment Application

Unpublished BIA decision reverses discretionary denial of adjustment application where respondent had five U.S. citizen children, was active in church, and last DUI offense was more than eight years prior. Special thanks to IRAC. (Matter of Rodriguez, 6/15/17) AILA Doc. No. 18052230

 

BIA Limits Application of Firm Resettlement Bar

Unpublished BIA decision holds that the firm resettlement bar does not apply to asylum applicants who fear persecution in the country of alleged resettlement. Special thanks to IRAC. (Matter of L-K-U-, 6/16/17) AILA Doc. No. 18052332

 

CA4 Upholds CBP Search of Smartphone Seized While Defendant Was Exiting the United States

The court found it was reasonable for the CBP officers who conducted a month-long forensic analysis of the defendant’s smartphone to rely on precedent allowing warrantless border searches of digital devices based on at least reasonable suspicion. (U.S. v. Kolsuz, 5/9/18, amended 5/18/18) AILA Doc. No. 18052165

 

White House Releases Fact Sheet on MS-13

The White House released a purported fact sheet on MS-13, in which it refers to these individuals as “animals.” AILA Doc. No. 18052232

 

USCIS Issues Policy Guidance on CSPA

USCIS issued policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA). This guidance is controlling and supersedes any prior guidance on the topic. Comments are due by 6/6/18. AILA Doc. No. 18052339

 

USCIS Notice on the Termination of the Designation of Nepal for Temporary Protected Status

USCIS notice on the termination of the designation of Nepal for TPS on 6/24/19. Holders of TPS from Nepal who wish to maintain their TPS and receive an EAD valid through 6/24/19 must re-register for TPS in accordance with the procedures set forth in the notice. (83 FR 23705, 5/22/18) AILA Doc. No. 18052236

 

EOIR Released Percentage of Detained Cases Completed Within Six Months

EOIR released statistics on the percentage of detained cases completed within six months. As of 3/31/18, 89 percent of initial case completions were completed in less than six months. AILA Doc. No. 18052237

 

ICE Announces 24-Month Imprisonment for ICE Agent Impersonator

ICE announced that Matthew Ryan Johnston was sentenced to 24 months in federal prison after possessing multiple destructive devices and using fake ICE badges and uniforms to falsely represent himself as an ICE agent to unsuspecting members of the public. AILA Doc. No. 18052561

 

ACTIONS

 

 

RESOURCES

 

 

EVENTS

 

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The second item on Elizabeth’s List is well worth a look. Although the BIA has stayed away from addressing in a precedent the length and number of continuances required to meet minimum standards of Due Process, this unpublished BIA decision finds that a two-week continuance to locate counsel was inadequate.

That certainly would have been the case in Arlington when I was there, particularly given the unnecessary pressure being put on pro bono counsel by the Obama’s Administration’s policies of “ADR” and “gonzo scheduling” of so-called “priority cases.”

This decision also confirms and reinforces what many of us retired U.S. Immigraton Judges and BIA Appellate Immigration Judges have been saying all along: by pushing the court system to move more cases, faster, and with limited continuances, Immigration Judges are effectively being encouraged to deny Due Process to respondents who do have a right to be represented at no expense to the Government. That right clearly includes reasonable access to, and a resonable opportunity to locate, pro bono counsel. Clearly that didn’t happen here. I suspect it’s also not happening in thousands of other cases — particularly detained cases — across the country.

Instead of protecting Due Process and encouraging “best practices” by U.S. Immigration Judges, Sessions and EOIR Management are feverishly working to instill “worst practices” in the Immigration Courts. The BIA won’t catch all of them, particularly in the absence of helpful precedents. Indeed, and quite remarkably, even this modest declaration of minimum Due Process produced a “split” BIA panel with Judge Roger Pauley signing the order, joined by Judge Edward Grant, but with Judge Ana Mann “dissenting without opinion.”

All of this is likely to mean 1) more denials of Due Process in Immigration Court; 2) more lives ruined; and 3) more “otherwise avoidable” remands from the Courts of Appeals.

Just like mother always said:  “Haste Makes Waste!”

PWS

05-30-18

CATHERINE RAMPELL @ WASHPOST: “Cruelty and unconstitutionality: the platform of today’s Republican Party.”

https://www.washingtonpost.com/opinions/republicans-inhumanity-at-the-border-reveals-their-grand-scam/2018/05/28/b3b18d9c-62b0-11e8-a768-ed043e33f1dc_story.html?utm_term=.38485dbb9b85

Republicans’ inhumanity at the border reveals their grand scam

Since October, more than 700 minor children have been separated from their parents at the border. More than 100 have been under 4 years old.

Some, like an 18-month-old Honduran boy torn from his mother in February, are just toddlers.

“The immigration officers made me walk out with my son to a government vehicle and place my son in a car seat in the vehicle. My son was crying as I put him in the seat,” the boy’s mother said in a sworn statement. “I did not even have a chance to try to comfort my son, because the officers slammed the door shut as soon as he was in his seat. I was crying, too. I cry even now when I think about that moment when the border officers took my son away.”

This mom was not trying to “sneak across” the border, by the way. She had crossed an international bridge into Brownsville, Tex., and presented herself to immigration authorities to request asylum from political violence.

Instead of receiving refuge, she lost her child. It was months before they were reunited.

Such stories are enraging and shameful. They also put the lie to sacred principles that Republican politicians have long claimed to stand for, chiefly: family values and rule of law.

For decades, Republicans have championed traditional family values and having parents, rather than the state, take responsibility for their children.

This Republican administration’s inhumane treatment of helpless children — who are ripped from their mothers’ arms, detained in human warehouses and drop-kicked into “foster care or whatever” — reveals such rhetoric to have been a scam.

The Trump administration’s goal is to inflict pain upon these families. Cruelty is not an unfortunate, unintended consequence of White House immigration policy; it is the objective.

After all, if forced separations are sufficiently agonizing, fewer families will try to come here, no matter how dangerous their home countries are. Administration members have argued as much.

Last year, then-Homeland Security secretary John F. Kelly acknowledged he was considering separating children from their parents at the border “to deter” potential border-crossers. Again this month, he said “a big name of the game is deterrence.”

This vile and unpopular policy has been roundly condemned, including by prominent conservatives. So President Trump did what he always does when facing backlash for using children (remember the “dreamers” and children’s health insurance?) as a bargaining chip: Blame the Dems.

“Put pressure on the Democrats to end the horrible law that separates children from there [sic] parents once they cross the Border into the U.S.,” Trump tweeted Saturday.

Got that? Our law-and-order-obsessed president is merely enforcing an evil Democratic law!

There is, however, no statute — supported by Democrats or otherwise — that requires immigrant families to be torn apart.

The most cogent possible point Trump could have been making is one that other Republicans have made: that crossing the border unlawfully is a crime. If you prosecute every border crossing criminally — as Trump’s administration says it now does, even for asylum seekers — that means parents will go to jail.

And as Homeland Security Secretary Kirstjen Nielsen put it, when parents go to jail, whether for unlawful entry or another crime, that requires separating them from their children.

Which is true, to a point; prisons generally can’t house children.

But here’s the part Trump apologists neglect to mention: The government is keeping immigrant families forcibly separated even after criminal proceedings are over and the parents get released from jail.

Take the case of a Brazilian family that also crossed the border to seek asylum.

The mother, named in court documents as “Ms. C.,” was prosecuted for entering the country illegally in August 2017, a misdemeanor for which she spent 25 days in jail. Her 14-year-old son was sent to a facility in Chicago.

After she was released, she passed a “credible fear interview” and began the process of applying for asylum. She was sent first to an immigration detention center, then released to a nonprofit shelter in El Paso. This shelter is willing to take in her son.

But the government still refuses to release him. She has been out of detention for five weeks and still hasn’t been allowed to see her boy.

“What they’re really basically saying is that these people don’t have a due-process right to remain with their child,” says American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt, who is representing Ms. C. and other asylum-seeking immigrants challenging Trump’s family separation policy. The Constitution, of course, guarantees due process for all, regardless of immigration status.

Cruelty and unconstitutionality: the platform of today’s Republican Party.

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Yup.

PWS

05-30-18

 

 

GONZO’S WORLD: Ann Telnaes: Where Cruelty, Immorality, & Intellectual Dishonesty Rule!

The evil of separating children from their parents

May 29 at 6:13 PM

Just because Attorney General Jeff Sessions announced that every illegal immigrant crossing the border would be prosecuted (resulting in parents being separated from their children), that doesn’t mean it’s morally defensible.

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Yup! Captures the essence of the man.

 

PWS

05-30-18

REIGN OF LIES: Trump, Sessions, & Nielsen Continue Lie About Separating Migrant Children – NO, It Isn’t Required By Law!

https://www.washingtonpost.com/politics/trump-is-blaming-democrats-for-separating-migrant-families-at-the-border-heres-why-this-isnt-a-surprise/2018/05/27/c07810d8-61d3-11e8-a69c-b944de66d9e7_story.html

reports for the Washington Post:

President Trump’s attempt to blame Democrats for separating migrant families at the border is renewing a political uproar over immigration, an issue that has challenged Trump throughout his presidency and threatens to grow more heated as he imposes more restrictions to stem the flow of illegal immigration.

In one of several misleading tweets during the holiday weekend, Trump pushed Democrats to change a “horrible law” that the president said mandated separating children from parents who enter the country illegally. But there is no law specifically requiring the government to take such action, and it’s also the policies of his own administration that have caused the family separation that advocacy groups and Democrats say is a crisis.

In April, more than 50,000 migrants were apprehended or otherwise deemed “inadmissible,” and administration officials have made clear that children will be separated from parents who enter the country illegally and are detained. The surge in illegal border crossings is expected to continue as the economy improves and warmer weather arrives.

 “I keep imagining somebody taking my kids from me. My kids are 2 and 4 years old, and that’s the age of some of the children that have been separated from their parents at the border,” said Rep. Joaquin Castro (D-Tex.), who is helping to organize a Thursday rally in San Antonio to highlight the issue. “When a lot of people hear the story, they get a similar reaction. They can’t imagine why this would be a standard government practice.”

Trump’s deflection offers a familiar playbook, critics of the administration’s policies say. In their view, Trump’s most recent comments are strategically similar to tactics he used when he ended the Obama-era Deferred Action for Childhood Arrivals program and then insisted on hard-line measures in a bill to permanently protect “dreamers.”

“He used DACA kids as a bargaining chip, and it didn’t work,” said Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies, a nonpartisan think tank. “So now he’s using vulnerable Central American families for his nativist agenda. It’s shameless.”

. . . .

“The law does not require this inhumane and immoral action – DHS could stop it today. We do not need a law. This is a punt. They literally just ran this bad-faith play with DACA,” Sen. Brian Schatz (D-Hawaii) tweeted Sunday. “They are going to use the suffering of children as political leverage for the wall, and we must refuse to participate, because if this kind of hostage taking is ever successful it will never stop.”

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Read the complete article at the link.

No, protections for refugees and children aren’t “loopholes!” They are important protections for those who have a right to seek a fair determination of their applications for refuge in the United States under our laws!

The statement that families can be “deported together” is simply more proof that Trump, Nielsen, and Sessions have already prejudged these cases. Although many are in fact denied, many more would be granted, possibly a majority, if individuals were given fair access to counsel, as the law contemplates, and the Government were actually required to correctly apply asylum and protection laws. Instead, for years the government has been getting away with politically influenced, unduly restrictive legal constructions and also coercing individuals with detention, entering bogus “in absentia orders” against them, or otherwise hustling them through the system without Due Process. Most of these tactics are directed specifically against those seeking protection from the Northern Triangle of Central America — one of the most dangerous regions in  the world.

Join the New Due Process Army and stand up against the dishonest scofflaw public officials administering Trump’s sick immigration policies.

PWS

05-28-18

THE HILL: Nolan On Who Really Benefits From Cal’s “Sanctuary Cities” Laws

http://thehill.com/opinion/immigration/389600-the-people-really-benefiting-from-californias-sanctuary-laws

Family Pictures

Nolan writes:

. . . .

But are California’s sanctuary laws really protecting them from being deported?

According to a report from the Migration Policy Institute (MPI), Trump’s immigration enforcement efforts have been hurt by pushback from California and cities such as Chicago, New York, and Boston that have sanctuary policies.

Sanctuary policies prevent local police departments from turning inmates over to ICE when they are released from custody, which has resulted in returning some dangerous criminal aliens to the community.

ICE had to change its enforcement operations from taking custody of aliens at police stations to looking for undocumented aliens in the community, which resulted in arresting approximately 40,000 noncriminal aliens in FY 2017.

The main obstacle to deporting removeable aliens is the immigration court backlog crisis.

According to TRAC Immigration, as of the end of April 2017, when the backlog was 585,930 cases, most aliens were waiting around 670 days for a hearing.

At a panel discussion last year on the backlog, Immigration Judge Larry Burman said:

“I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”

From April 2017 to April 2018, the backlog for the immigration courts in California increased by almost 20 percent to 692,298 cases.

These lengthy wait times make it necessary to release newly arrested aliens until hearings can be scheduled for them, which gives them time to disappear into the shadows.

Conclusion.

Apparently, the main beneficiaries of California’s sanctuary policies are deportable aliens in police custody who otherwise would be turned over to ICE when they are released and unscrupulous employers who exploit undocumented immigrant workers.

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Go on over to The Hill to read Nolan’s complete article! this article also was featured on ImmigrationProf Blog.

PWS

05-28-18

MASHA GESSEN IN THE NEW YORKER: THE GREAT MORAL DILEMMA OF THE TRUMP ERA: Total Resistance Or “Damage Control?” — “In our case, stepping outside the lie means refusing—stubbornly, consistently, incrementally—to lend credence to the opposite of politics, the opposite of diplomacy, and the opposite of sanity. That would require thinking, reading, and speaking critically: not treating an outburst as though it were politics, a tantrum as though it were diplomacy, and a delusion as though it were aspiration.”

https://www.newyorker.com/news/our-columnists/in-the-trump-era-we-are-losing-the-ability-to-distinguish-reality-from-vacuum

Gessen writes:

The Trump Presidency is an age of unanswerable questions and lose-lose propositions. How is one to maintain sanity, decency, and a measure of moral courage? In a pair of thoughtful essays in Slate, Dahlia Lithwick tackles the problems of dealing with the everyday nature of our current political disaster and of deciding on the best way to try to save the country from Donald Trump: by staying close to him, or by walking away. The latter is a question for members of the Administration and for congressional Republicans. “This is the time,” Lithwick writes, to “think about what combination of exit and voice can make a meaningful difference if a real crisis were to happen. Or rather, when the real crisis happens—if we are not there already.”

This is not a new question. Many people will continue posing it to themselves and others with ever more frustrating results, because it cannot be answered. Is the possibility of moderating the damage done by this Administration worth sacrificing one’s moral principles? Should one protect one’s individual integrity by sacrificing the chance to moderate damage done by this Administration? We can’t possibly know. We don’t have the information necessary to evaluate these options in the short term. Did H. R. McMaster, during his tenure as Trump’s national-security adviser, prevent an unknown number of disasters? If he did, was it worth whatever psychic and intellectual price he paid? It’s likely that he himself doesn’t know. For those who have so far decided to stay, whether in the Administration or in the Republican Party, small daily sacrifices of personal integrity become part of their sunk cost in the project of staying in; these people inevitably grow more committed and less critical. The landscape keeps shifting, the stakes keep changing, and the crises keep mounting.

The overstimulation of the age of Trump, meanwhile, makes us lose track of time and whatever small sense humans normally have of themselves in history. We forget what happened a month ago. If we look away for a day, we miss news that seems momentous to others—only to be forgotten, too, in a week. Living in a shared reality with our fellow-citizens is an endless triathlon of reading, talking, and panicking. It creates the worst possible frame of mind for answering vexing moral questions, especially ones that require a choice between two desperately unsatisfying options.

Thinking morally about the Trump era requires a different temporal frame. It requires a look at the present through the prism of the future. There will come a time after Trump, and we need to consider how we will enter it. What are we going to take with us into that time—what kind of politics, language, and culture? How will we recover from years of policy (if you can call it that) being made by tweet? How will we reclaim simple and essential words? Most important, how will we restart a political conversation? Political discourse was in crisis before Trump—no wonder Americans of all stripes have become accustomed to using the words “politics” and “political” to denote substance-free transactions in the electoral arena. But, under Trump, it is nearing complete destruction.

Consider the last month’s worth of conversation about Trump and North Korea. Forgetting the President’s “little rocket man” remarks and building on months of denial that Trump had brought the world as close to the brink of nuclear annihilation as it has ever been, politicians, bureaucrats, policy wonks, and journalists have been speaking as though Trump were engaged in actual negotiations with Kim Jong Un. Some deliriously joined him in contemplating the prospect of a Nobel Peace Prize. The voices of a few experts who dared say that nothing had been accomplished yet and expressed doubt that the summit would actually occur were quickly drowned out. The ritual of analysis and anticipation that normally accrues to diplomacy was accruing instead to Trump’s flailing gestures, in the same way that the normal rituals of punditry have accrued to Trump’s tweets, harangues, and inconsistencies, all of which are the opposite of politics. On Friday, the Times’ morning podcast, “The Daily,” offered up a thoughtful analysis of Trump’s summit-cancelling missive, which was written in the language of a sulking, lovelorn seventh grader. But no sooner was the podcast posted than Trump told the media that he might hold the summit after all.

We are losing the habit, and perhaps the capability, of distinguishing reality from vacuum. This is disorienting in the present and disastrous for the future—it is the one factor that will make post-Trumpian recovery, when it comes, so difficult. We must pose a bigger question than whether Administration members or congressional Republicans should stay or go, for it’s not only Trump’s appointees or fellow party members who are implicated in the daily insults and damage to our perceptions. We should be asking what each one of us can do to assert a fact-based reality at any given time. The great French thinker and activist Simone Weil had a prescription that she wrote down in her journal in 1933: “Never react to an evil in such a way as to augment it.” A few days later, she added, “Refuse to be an accomplice. Don’t lie—don’t keep your eyes shut.”

Throughout the twentieth century, writers and thinkers who faced reality-destroying regimes kept producing similar recipes. “Live not by lies,” the Russian dissident novelist Aleksandr Solzhenitsyn wrote. The Czech dissident playwright and future President Václav Havel pondered the predicament of living, unquestioningly, “inside the lie”—and the uncanny power of stepping outside of it. In our case, stepping outside the lie means refusing—stubbornly, consistently, incrementally—to lend credence to the opposite of politics, the opposite of diplomacy, and the opposite of sanity. That would require thinking, reading, and speaking critically: not treating an outburst as though it were politics, a tantrum as though it were diplomacy, and a delusion as though it were aspiration. The good news is that this is not an entirely impossible task.

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Any individual with a sense of morality, decency, values, and a commitment to fundamental fairness, and Constitutional Due Process can’t afford to “sit this one out.” Don’t “normalize” Trump and his vile lies, bullying, mysoginy, and racism! Join the “New Due Process Army” and stand up for the REAL America (never to be confused with the scary and bogus “MAGA Pervision”)!

PWS

05-27-18

LA TIMES: JUDICIAL BURNOUT: Unjust Failed Laws That Congress Ignores; Morally Corrosive Policies Of The Obama & Trump Administrations; & An Overwhelming Workload Combine to Demoralize Even Article III Judges! — “I have presided over a process that destroys families!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=9f85955b-8f63-4c72-a322-e89f2d83b70b

Lauren Villagran reports for the

‘I have presided over a process that destroys families’

Judge can’t reconcile values and the law

Crackdown on illegal immigration takes its toll on a federal judge with an unparalleled sentencing record.

By Lauren Villagran

LAS CRUCES, N.M. — Day in, day out, immigrants shuffle into Judge Robert Brack’s courtroom, shackled at the wrist and ankle, to be sentenced for the crime of crossing the border.

The judge hands down sentences with a heavy heart. Since he joined the federal bench in 2003, Brack has sentenced some 15,000 defendants, the vast majority of them immigrants with little or no criminal record.

“See, I have presided over a process that destroys families for a long time, and I am weary of it,” said Brack one day in his chambers in Las Cruces. “And I think we as a country are better than this.”

Brack’s court in rural southern New Mexico is swollen with immigration cases, the migrants brought to his courtroom by the dozen. They exchange guilty pleas for “time served” sentences, usually not more than two months on the first or second offense. They leave his court as felons.

For years, federal authorities in this area along the New Mexico border have taken a distinctively hard-line approach to enforcing immigration law, pursuing criminal charges rather than handling cases administratively.

Essentially, authorities here have already been carrying out the “zero tolerance” policy Atty. Gen. Jeff Sessions unveiled in April, when he announced that all immigrants who cross the border will be charged with a crime.

Together, the Border Patrol and U.S. attorney’s office in New Mexico bring charges against nearly every eligible adult migrant apprehended at the state’s border, according to U.S. Customs and Border Protection. That amounted to 4,190 prosecutions last fiscal year.

Vigorous enforcement in New Mexico is a result of ample bed space in the state’s border county jails and a fast-track system that prosecutes nonviolent migrants quickly. The state also doesn’t face the volume of illegal crossings that south Texas does, for example.

“It is an efficient process,” says U.S. Atty. John Anderson of the District of New Mexico. “That is one of the key features that allows us to implement 100% prosecutions.”

For Judge Brack, it’s a punishing routine. And it has been building for a long time. Back in 2010, the judge had been on the federal bench for seven years, his docket overloaded with immigration cases, when “at some point I just snapped,” he said.

He sat down to compose a letter to President Obama to call for a more compassionate approach to immigration, one that would keep families together and acknowledge that the demands of the labor market drive immigration:

I write today because my experience of the immigration issue, in some 8,500 cases, is consistently at odds with what the media reports and, therefore, what many believe.

I have learned why people come, how and when they come, and what their expectations are. The people that I see are, for the most part, hardworking, gentle, uneducated and completely lacking in criminal history. Just simple people looking for work.

He didn’t get a reply.

No other federal criminal court judge comes near Brack’s sentencing record.

In the five years through 2017, Brack ranked first among 680 judges nationwide for his caseload, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks court data. He sentenced 6,858 offenders — 5,823 of them for felony immigration violations.

It’s a dubious honor for a man who is a devout Catholic and makes plain his moral dilemma in public hearings. He takes seriously his oath to uphold the laws of the United States. But he is a cog in a system he believes is unjust.

Johana Bencomo, director of organizing with the Las Cruces immigrant advocacy group Comunidades en Acción y Fe — Communities in Action and Faith — calls criminal prosecution of migrants “dehumanizing.”

“We’re just this rural community with some of the highest prosecution rates,” she said. “That is Brack’s legacy, no matter how you spin it.”

Advocates of stronger immigration enforcement counter that prosecutions are a crucial element of border security and have contributed to today’s historically low rates of illegal immigration.

“Criminal charges turn out to be one of the most effective tools for dissuading people from trying [to cross] again,” said Jessica Vaughan, director of policy studies at the Washington, D.C.-based Center for Immigration Studies, which advocates for tougher border enforcement.

The effects of this enforcement play out at the five-story, copper-colored federal building in Las Cruces, about 47 miles from the U.S.-Mexico border. Brack’s chambers are on the top floor.

In windowless cellblocks on the bottom floor, migrants from Mexico, Central America and Brazil wait to make their initial appearance in a federal magistrate courtroom.

The same scene repeats again and again: The immigrants crowd five broad benches, the juror’s box and the swivel chairs meant for attorneys. They wear the jumpsuits of the four county jails where they are being held: a sea of orange, navy, dark green, fluorescent yellow.

They hear their rights and the charges against them. They eventually plead guilty, to benefit from New Mexico’s fast-track process. Within a month or so, they will find themselves in Brack’s court for sentencing and within days they’ll be deported.

The border used to be wide open, but now it is closed, Brack tells each migrant at sentencing. There are more Border Patrol agents than you can count. Immigration used to be handled as a civil offense, but now it is criminal: a misdemeanor on the first attempt, a felony on the second.

“Everyone gets caught and what’s worse, everyone goes to jail,” he told one migrant, a Mexican woman named Elizabeth Jimenez Rios. “That is not how it has always been, but that is how it is now.”

Their fate is sealed, but Brack still asks the public defenders to tell each migrant’s story.

Elías Beltran, an oil field worker from Mexico, with no criminal history, tried to return to his wife and two kids, U.S. citizens in eastern New Mexico. He lived there for 15 years before he was deported.

Andres Badolla Juarez, a farmworker from Mexico, wanted to pick strawberries in California to support his wife, toddler and new baby — all U.S. citizens — in Arizona. He lived in the U.S. for 16 years and got deported after an aggravated DUI. It was his fourth failed attempt to cross the border.

Rosario Bencomo Marquez, a 52-year-old maid from Mexico, with no criminal history, hoped to return to her daughter and grandchildren in Santa Fe. She lived in the U.S. for 19 years before she was deported.

Brack also sees migrants charged with drug offenses or long criminal records and is unsparing in their punishment. But they are a minority, he said.

“I get asked the question, ‘How do you continue to do this all day every day?’ I recognize the possibility that you could get hard-edged, you could get calloused, doing what I do,” he said. “I don’t. Every day it’s fresh. I can’t look a father and a husband in the eye and not feel empathy.”

Brack, 65, is the son of a railroad-worker father and homemaker mother and earned a law degree at the University of New Mexico. He served as a state judge before being named to the federal bench by President George W. Bush.

In his chambers, above a shelf stacked with books on jurisprudence, Bible study and basketball, hang framed pictures of his forefathers: men who immigrated to the U.S. from England and Prussia. Brack grew up in rural New Mexico, where immigrants — whatever their status — were viewed as “valuable co-workers,” not a threat, he said.

After that first letter to Obama in 2010, he wrote another. And another. As the nation periodically heaved toward the possibility of immigration reform, only to leave the issues — and lives of millions — unresolved, Brack continued to write letters to the White House.

He told more heart-wrenching stories about families divided. He kept it up for four years. He pleaded for a civil debate: “See what I see, hear what I hear. Be wary of the loudest, angriest voices.”

He signed each letter with prayer: “May God continue to bless all those who serve our great nation.”

He never got a response. He stopped writing.

And now, after so many grueling years and thousands more immigration cases, Brack has decided enough is enough. He takes “senior status” in July, effectively stepping aside to serve part time. President Trump will name his replacement.

Villagran writes for Searchlight New Mexico.

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Imagine what the stress levels are like for U.S. Immigration Judges! They often have pending dockets in excess of 2500 cases; are expected to “grind out” so-called “oral decisions” in “life or death” cases without time to reflect or the assistance of judicial law clerks; lack the job tenure, independence, and status of an Article III judge; operate in an out of control court system largely without rules; have been stripped of effective control of their dockets; and are constantly subjected to disingenuous attacks, “production quotas”  and a “bogus blame game” by their so-called “boss” Attorney General Jeff “Gonzo Apocalypto” Sessions — who has a well-earned reputation for lacking any moral sensitivity or responsibility for his statements and actions, having a biased and one-sided view of the law, and being totally unqualified and incompetent to administer a major court system that is supposed to be providing Due Process for migrants.

PWS

05-27-18

 

FULL FRONTAL: SAMANTHA BEE ICES ICE! (WARNING: Video Clip Contains Explicit Language)

https://youtu.be/AiBtPy0EOno

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Most of the ICE folks that I met during my career (including with the “Legacy INS”) were hard-working, dedicated civil servants performing a very difficult and often thankless job. In particular, the attorneys in the Office of ICE Chief Counsel in Arlington were not only talented lawyers but had strong senses of justice that often went beyond the most narrow constructions of the law.

They also had strong senses of being part of the  larger “justice system team” working cooperatively with both the Immigration Judges and the private bar to keep the dockets moving while dispensing justice with humanity that reflected legal knowledge, the willingness to exercise their discretion, and the courage to do what was necessary to make a broken system function in something approaching a fundamentally fair manner.

For those of us involved the creation of the forerunner of the “Modern Chief Counsel System” at INS in the 1980’s, it’s exactly what we had in mind. According to my sources, that important attitude and the values upon which it was based (which, admittedly, might never have existed in some ICE offices) has now largely disappeared in light of the Trump Administration’s mismanagement and “gonzo” enforcement policies.

I don’t see how I could have done my job as a judge without the thoughtful assistance and professionalism of the ICE Office of Chief Counsel in Arlington. Working with them, our private bar, and our dedicated court support team as a group was a daily pleasure and probably extended my career by a number of years.

The main problem with ICE these days appears to stem from extraordinarily poor leadership from the top down, starting, but by no means ending, with Trump himself. As a result, ICE is now well on its way to becoming the most hated and least trusted law enforcement agency in America. While it might not require abolition of ICE, it will require fundamental changes to ICE structure, culture, and policies in the future under more talented, practical, and humane leaders.

Unfortunately, and not necessarily thorough the fault of individual employees at the “working” level, today’s ICE is a national disgrace and an embarrassment — for American justice, the Constitution, and our national values.

PWS

05-25-18

 

TAL & FRIENDS REPORT @ CNN: DACA TALKS HUNG UP ON CITIZENSHIP – TRUMP’S LATEST SCOFFLAW IMMIGRATION IDEA: Deal With Self-Created Bogus “Crisis” By Ignoring Statute, Treaties, & U.S. Constitution!

Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes

By Lauren Fox and Tal Kopan, CNN

Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.

At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.

On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.

According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.

Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.

More: http://www.cnn.com/2018/05/24/politics/discharge-petition-immigration-daca-congress/index.html

 

Trump calls for sweeping changes to US immigration legal process

By: Allie Malloy and Tal Kopan, CNN

President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.

“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.

“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.

Trump also questioned the process of immigrants going through the court system at all.

“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.

The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.

Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.

“I guess he has no belief in due process and the Constitution,” Lofgren said.

Comments run counter to Justice policies

At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.

More: http://www.cnn.com/2018/05/24/politics/donald-trump-immigration-courts/index.html

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To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding  in real time!

PWS

05-24-18

TRUMP’S COWARDLY ATTACK ON CHILDREN – More Lies, Distortions, Smears, & Racism Mark Administration Officials’ Bogus Attempts To Link Refugee Children & Their Legal Rights With Gangs!

https://www.washingtonpost.com/politics/trump-warns-against-admitting-unaccompanied-migrant-children-theyre-not-innocent/2018/05/23/e4b24a68-5ec2-11e8-8c93-8cf33c21da8d_story.html

Seung Min Kim reports for the Washington Post:

. . . .

The issue is compounded, Rosenstein said, by the fact that these migrant children must eventually be released from detention, and many never show up for their immigration proceedings before a judge.  Rosenstein, quoting statistics from the Department of Homeland Security, said less than 4 percent of unaccompanied minors are ultimately removed from the United States.

“We’re letting people in who are creating problems. We’re letting people in who are gang members. We’re also letting people in who are vulnerable,” Rosenstein said. Because many of the migrant children lack families or a similar support system, they become “vulnerable to [gang] recruitment,” the deputy attorney general said,

Thomas Homan, the departing deputy director of Immigration and Customs Enforcement, said about 300 arrests related to the MS-13 gang were made on Long Island last year. Of those arrested, more than 40 percent entered the United States as unaccompanied minors, he said.

“So it is a problem,” Homan said. “There is a connection.”

Other federal statistics paint a somewhat different tale. From October 2011 until June of last year, U.S. Customs and Border Protection officials arrested about 5,000 individuals with confirmed or suspected gang ties, according to congressional testimony from the agency’s acting chief, Carla Provost, in June.

Of the 5,000 figure, 159 were unaccompanied minors, Provost testified, and 56 were suspected or confirmed to have ties with MS-13. In that overall time frame, CBP apprehended about 250,000 unaccompanied minors, according to Provost.

. . . .

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Read the full article at the link.

The Trump claims are, as usual, totally bogus. The percentage of gang members who come in as “unaccompanied minors” is infinitesimally small.  The vast majority of these kids are gang victims entitled to asylum or relief under the Convention Against Torture if the law were fairly applied (which it isn’t).

Contrary to the suggestion by Rosenstein, when given access to legal representation, approximately 95% of the unaccompanied children show up for their hearings. And the “vulnerability” mentioned by Rosenstein is largely the result of the Trump Administration’s “reign of terror” against migrant communities which has made nearly all migrant children, along with other community members, “easy pickings” for gangs, with no realistic recourse to law enforcement. There are actually strategies for combatting gangs. But the Trumpsters have no interest in them.

Indeed, gangs have recognized that folks like Trump, Sessions, Homan, Neilsen, and now Rosenstein are their best recruiters and enablers. How dumb can we be as a country to put these biased, spineless, and clueless dudes in charge of “law enforcement.”

Interesting that in an obvious attempt to kiss up to Trump, Sessions, & Co and save his job, Rosenstein pathetically has decided that being a sycophant and sucking up to the bosses is his best defense. Particularly when it’s at the expense of kids and other vulnerable migrants seeking protection. Pretty disgusting! And, I doubt that it will eventually save him from Trump. Just tank his reputation and his future like others who have been “slimed for life” by their association with Trump.

Join the New Due Process Army and stand up for kids against the “child abuse” being practiced by the Trump Administration and its corrupt and incompetent officials.

PWS

05-24-18

 

SARA RAMEY @ THE HILL: To Achieve Justice, We Must Get The U.S. Immigration Courts Out Of The Department Of Justice!

http://thehill.com/opinion/immigration/388876-doj-shouldnt-be-in-charge-of-immigration-courts

On April 18 the Senate Committee on the Judiciary held a hearing on strengthening the Immigration Court system. Several organizations, including the American Bar Association and the American Immigration Lawyers Association, recommended that Congress make the immigration courts independent courts under Article I of the Constitution. Congress should do so without delay, especially in light of the attorney general’s May 17 decision in Matter of Castro-Tum eliminating administrative closure.

People on both sides of the political divide agree that the immigration courts are overburdened. The approximately 350 immigration judges who work in about 60 courts around the country are currently tasked with reviewing close to 700,000 cases. The Trump administration has made several, mostly misguided, attempts to fix this backlog. However, as Former Chairman of the BIA Paul Schmidt stated recently ‘‘Nobody… can fix this system while it remains under the control of DOJ.’’

Because the immigration courts, along with the Board of Immigration Appeals, are currently part of the Department of Justice, the attorney general, and others in the executive, not least of all the president, are in charge of agency regulations, case procedures, the hiring and firing of judges, and decision-making.

 

In recent months the administration has made unprecedented attacks on the judicial independence of immigration judges, including policy changes that are in direct contradiction to the recommendations of an April 2017 Booz Allen Hamilton report commissioned by the Department of Justice.

On March 30 the administration instituted a case completion quota of 700 a year for a “satisfactory” performance rating. This amounts to each Immigration Judge needing to complete on average three cases every working day. For judges who have dockets with a high number of asylum cases, for example, this arbitrary requirement will push them to expedite cases in ways that are extremely dangerous to due process.

As the president of the National Association of Immigration Judges, Judge Tabaddor, testified at the congressional hearing, there has been ‘‘no quota ever, in any court; somehow implicit in [designating a quota] is that judges are not doing enough… [However, w]e should focus on [is] how we can support our judges.’’

Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.

The real problem is not with how hard-working the immigration judges are. As I explained in a 2016 article, part of the problem lies with understaffing. Instead of hiring a reasonable number of judges and law clerks, and otherwise investing in supporting the work of our Immigration Judges, the Administration is eliminating administrative closure and calling for administratively closed cases to be put back on the docket, actions that only serve to raise the number of pending cases.

If, for example, the Department of Justice puts all the administratively closed cases back on the docket, it would increase the court backlog to over 1,000,000.  These are cases of crime victims and DACA recipients and others where an immigration judge has already determined that it would not be a good use of judicial resources, or in the public interest, to litigate, usually because the person is eligible for some non-judicial form of immigration relief and has a case pending with USCIS. Re-calendaring these cases would not only unnecessarily increase the work of taxpayer-funded DHS Trial Attorneys but it would add more pressure to the already overworked immigration judges.

The attorney general has also stepped into managing the immigration courts by restricting the use of continuances, which in the fast-paced detention context where my organization works are often necessary in order to have time to obtain crucial pieces of evidence and otherwise prepare for trial.

While the attorney general is the boss and is responsible for the judges’ performance, he should have a little more faith in the good judgement of his immigration judges, who, unlike the attorney general, are looking at the situation-specific issues in the individual case before them.

While the helpfulness of the attorney general’s methods for carrying out his job are questionable at best, the underlying problem remains that, regardless of our political opinion on the administration’s policies, those policies are affecting the judicial independence of our immigration courts and putting due process in jeopardy.

What the attorney general says matters to the immigration judges working under him. In one recent case, the immigration judge cited him as saying there is a lot of fraud in the asylum process as evidence that the asylum seeker was lying. Not only was the attorney general’s statement not based on facts — at least not on facts made publicly available, or that anyone even claimed exist, and which statement runs in stark contrast to my six years of on-the-ground experience — but that statement had nothing to do with the truthfulness of the individual asylum seeker present before the court.

Additionally, as stated by the former president of the National Association of Immigration Judges Dana Marks, there is a ‘‘conflict of interest between the judicial and prosecutorial functions [of the Department of Justice that] creates a significant (and perhaps even fatal) flaw to the immigration court structure.’’

It appears that the administration is looking for specific outcomes in cases with little regard to the merits of the claim. The attorney general has certified an unprecedented number cases to himself for review with the idea that he might change the decision of the Board of Immigration Appeals. This extraordinary power of one political-appointee to overturn the decision of trained immigration judges is fundamentally at odds with judicial independence.

Unfortunately, it appears that not only the review and firing of judges has become political, but their hiring too. Information has surfaced that the Department of Justice is asking candidates questions about their political party affiliation, their position on same-sex relationships, and their opinion on abortion; preparing internal memos on those whose immigration views that do not align with the administration’s policies; slowing down review of applications where there are ideological differences; and withdrawing employment offers or delaying start dates by up to a one and a half years.

Making judicial decisions subject to the political whims of the times, and not dependent on the accurate execution of the law, is a serious risk to the checks-and-balances system underlying our democracy. The need for independent immigration courts has never been clearer.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.

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As this article shows, inappropriate anti-asylum statements and knowingly false narratives from Jeff Sessions do affect the fairness of results.  Yes, there are many courageous judges in the system who continue to treat respondents fairly and grant relief in appropriate cases.

But, numerous reports have established that there are Immigration Judges with anti-asylum and anti-migrant biases similar to Sessions’s. They now feel “empowered” to ignore the law, fairness, and Due Process to deny most applications and remove more migrants.

Moreover, some of the more experienced judges are retirement eligible and therefore largely immune from Sessions’s power because they are immediately eligible to retire. But, as they grow frustrated with the Aimless Docket Reshuffling and growing backlogs created by this Administration’s irresponsible actions and retire, they will be replaced by inexperienced judges. These new judges, in addition to being hand-picked by Sessions, without public input, are subject to removal at will during a two-year “probationary period.” Therefore, new judges are more likely to be influenced by Sessions’s xenophobic, anti-Due-Process views.

Additionally, Sessions  is hard at work misusing his “certification” authority to overturn or limit established interpretations and procedures that implement protection and further Due Process and fairness for migrants.

Another important part of Sara’s article — giving lie to the concept that Immigration Judges can complete more than tow “full merits” asylum hearings per day consistent with Due Process.

Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.

Given the tendency of the current Administration not to settle or otherwise reasonably negotiate Immigration Court cases, the number of “full merits” hearings and appeals is likely to increase dramatically, thus adding to the already overwhelming backlog!

Time to end this farce!

PWS

05-24-17

THE HILL: NOLAN SAYS TRUMP‘S “GET TOUGH” IMMIGRATION POLICIES COULD BE “SOUND AND FURY SIGNIFYING NOTHING!”

http://thehill.com/opinion/immigration/388488-enforcing-trumps-immigration-plan-will-be-harder-than-he-thinks

Family Pictures

Nolan writes:

Trump inherited a number of immigration enforcement problems from the Obama administration, the most serious of which was an immigration court backlog that has prevented him from using removal proceedings to reduce the size of the undocumented alien population.

His solution seems to be to heed the advice of Mitt Romney, who said, when asked about reducing the population of undocumented aliens during a debate in 2012:

The answer is self-deportation, which is people decide they can do better by going home because they can’t find work here because they don’t have legal documentation to allow them to work here.”

But Trump is using harboring prosecutions to discourage people from helping undocumented aliens to remain here illegally in addition to enforcing employer sanctions to discourage employers from giving them jobs.

Neither is likely to be successful.

. . . .

If Trump doesn’t find more promising enforcement measures, historians familiar with Macbeth may say that his “hour upon the stage” just amounted to “sound and fury, signifying nothing.”

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Go on over to The Hill at the link to read Nolan’s complete article with much more analysis!

I agree with Nolan that in practical terms of reducing the overall undocumented population, Trump’s strategies are not likely to succeed to a numerically significant extent. But, maybe that’s not the objective.

If the real objective to inflict unnecessary pain and suffering, keep stirring the pot of xenophobia, and rev up a restrictionist base, the policies might make more sense. And, certainly guys like Trump, Sessions, & Neilsen never take any responsibility for their own failures — they just shift the blame to others and use that as a bogus justification for seeking (or demanding) unneeded, draconian changes in the law.

PWS

05-21-18