Immigration Detention – Page 119 – immigrationcourtside.com

HON. JEFFREY CHASE: EVERYONE IN THE HUMAN RIGHTS/WOMEN’S RIGHTS ADVOCACY COMMUNITY NEEDS TO UNITE AND TAKE AGGRESSIVE ACTION AGAINST JEFF SESSIONS’S PLAN TO PASS DEATH SENTENCE ON FEMALE REFUGEES FLEEING DOMESTIC VIOLENCE –Many Will Be Killed, Raped, Maimed, Disfigured, Or Sentenced To A “Life Worse Than Death” If Sessions Has His Way!

https://www.jeffreyschase.com/blog/2018/5/6/7r3izq486dxxtzlrsythpmr2kg35j3

May 6 Briefs Filed in Matter of A-B-

Briefs of the parties and amici have now been filed with the Attorney General in Matter of A-B-. Once again, a group of former immigration judges and BIA members, which this time numbered 16 (including myself) filed an amicus brief (which can be viewed here: http://www.aila.org/infonet/amicus-brief-matter-of-a-b- ).* The respondent’s brief was submitted by the outstanding legal team of Ben Winograd of IRAC; Karen Musalo, Blaine Bookey, and Eunice Lee of CGRS, and Charlotte attorney Andres Lopez. DHS’s brief was submitted by Michael P. Davis of ICE, whose reasoned positions are to be commended.

The issue in the case below involved the actions of immigration judge V. Stuart Couch in failing to abide by the decision of the Board of Immigration Appeals, which reversed Couch’s denial of asylum in a particularly strong claim involving a victim of severe domestic violence. The BIA reversed the judge’s decision, and remanded with instructions to grant asylum following the required updated security clearance by DHS. However, Couch took some nine months to schedule the case for a hearing. When at that hearing, DHS stated that the clearances had been completed, Judge Couch did not issue a new decision (as he was directed to do by the BIA). Instead, he stated that he was recertifying the case to the BIA, something that he lacked the authority to do without first issuing a new decision.

The case sat for another seven months, during which time it is not clear whether the record actually made its way back to the BIA. But before the Board could rule on the propriety of Judge Couch’s actions, the case was somehow plucked from wherever it had been by AG Jeff Sessions, who on his own transformed the case into a vehicle to answer a question that no one but himself seems to understand, namely, whether being the victim of private criminal activity constitutes a cognizable particular social group for asylum purposes. (There is an interesting question of how Sessions even knew that this case existed.)

In response, the Department of Homeland Security appealed to reason. It requested the AG to hold off until the BIA ruled on the propriety of Couch’s attempted recertification. DHS also requested Sessions to provide further clarification of his question, and noted that “this question has already been answered, at least in part, by the Board and its prior precedent.” Sessions denied both requests, adding that he is not bound by BIA precedent, nor is he required to allow briefing on an issue before him on certification. It seems as if Sessions might be saying that as he’s bestowing the privilege of allowing briefs, he doesn’t further need to let everyone know what it is they are being asked to brief.

Depending on how Sessions is choosing to interpret the question, his decision might impact not only domestic violence claims, but any asylum claim based on a particular social group involving private criminal activity (which could include claims based on sexual orientation or sexual identity; as well as victims of female genital cutting, human trafficking, gang violence, blood feuds and honor killings). Or then again, maybe not. Because if Sessions is asking whether a particular social group delineated as “victims of private criminal activity” is cognizable, his answer wouldn’t impact the outcome of this case, as the respondent never claimed to be a member of such group. Nor would it matter to the outcome if Sessions is asking whether a group which includes the element of victimization by a criminal acting in a private capacity is cognizable, as no element of victimization is included in the respondent’s delineated group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Nowhere in the wording of such group is there a mention of being the victim of private criminal activity, nor is the respondent claiming that she was targeted for abuse because of her being a victim of private criminal activity.

But could Sessions be questioning whether any particular social group merits asylum where its members fear persecutors who are not government officials? If that’s his question, a decision in the negative would run counter to not only more than a half century of BIA precedent, but also to decisions of all eleven Federal circuit courts, and to international law, all of which universally agree that for asylum purposes, persecution may be by private actors that the government is unable or unwilling to control.

Does Sessions himself understand the question he is asking? Let’s just assume that since this case involves a credible victim of severe domestic violence, and that her particular social group was found by the BIA to be substantially similar to the one it recognized as cognizable in its 2014 precedent decision in Matter of A-R-C-G-, that Sessions is considering invalidating that decision.

The purpose of courts and tribunals is to resolve disputes between the parties. The issue that Sessions now wishes to address has been settled, and is not being contested by either party. The Department of Homeland Security itself made this point to Sessions. Had this case been allowed to run its course and result in a grant of asylum, it is far from clear that such result would have been contested or appealed by DHS. In its brief to Sessions, DHS states more than once that it “generally supports the legal framework set out by the Board in Matter of A-R-C-G-.” DHS continued that the group in that case of “married women in Guatemala who are unable to leave their relationship” was not defined by the respondent’s being subject to domestic violence. DHS specifically stated that like the BIA, it “understands ‘unable to leave a relationship’ to signify an inability to do so based on a potential range of ‘religious, cultural, or legal constraints…’” DHS continued that neither the PSG in A-R-C-G- nor the group offered by A-B- herself violate the principle that such group “must exist independently of the persecution suffered and/or feared.”

In refusing DHS’s request for clarification, Sessions claimed that “several Federal Article III courts have recently questioned whether victims of private violence may qualify for asylum” based on their membership in a particular social group. However, in responding to such statement in its subsequent brief, DHS noted that “none of the circuit court decision cited by the Immigration Judge questioned the underlying validity of A-R-C-G-.” In response to Sessions’ statement that he is not bound by the BIA’s precedent decisions, DHS recognized this, but “avers that the Attorney General should not directly or indirectly abrogate A-R-C-G-,” but should “rather…emphasize the importance of case and society-specific analysis.”

There is thus agreement between the parties of the validity of the Board’s holding in A-R-C-G-. In revisiting the issue, Sessions is not attempting to resolve a dispute, as no such dispute exists.

To me, the most shocking aspect of Sessions’ action is its timing. Case law concerning human rights (including the law of asylum) and civil rights does not develop in a vacuum. Much as courts have extended civil rights protections based on race, gender, and sexual orientation throughout the history of this country, the idea of what constitutes persecution and which of its victims are deserving of protection evolves along with the views of society. Sessions is choosing, unprompted, to challenge whether victims of domestic violence are deserving of asylum just as our society has undertaken a powerful, long-overdue, and much needed correction in the form of the #metoo movement. Many hundreds of thousands of us (“us” of course referring to people regardless of gender, as women’s rights are human rights) have filled the streets of cities all over America (and the world) the past two Januarys in a powerful, emotional rebuke to sexual assault and all forms of sexism. Powerful men who for years had engaged in all forms of sexual abuse and harassment are for the first time experiencing the consequences of their actions. And it is at this particular time that Sessions seeks to revoke protection to women who are domestic violence victims?

Briefs are good, but more is needed. The wonderful Tahirih Justice Center collected 60,000 signatures on a petition which it delivered to Sessions in March calling on him to uphold asylum protection for survivors of domestic violence: https://www.tahirih.org/news/tahirih-delivers-petition-on-asylum-for-domestic-violence-survivors-to-the-attorney-general/. More organizations need to follow Tahirih’s example. In addition to the briefs submitted, there needs to be a true public outcry addressed to Sessions on this issue. Asylum protection for victims of domestic violence is not just an immigration issue or a women’s issue. It is a human right, on which all of us should make ourselves heard.

*Heartfelt thanks to the law firm of Gibson Dunn (Megan Kiernan, Ronald Kirk, Chelsea Glover, Lalitha Madduri, and Amer Ahmed) for drafting the brief, and to former BIA member Lory D. Rosenberg for organizing and coordinating the effort.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

DAVID G. SAVAGE @ LA TIMES: REFUGEE ROULETTE CONTINUES – But, It’s Not What You Might Think – The “Outliers “ Are All On The Anti-Asylum Side In A System Systematically Biased Against Asylum Seekers From The Northern Triangle!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=73fad225-44bc-4757-97fa-b9369552de1e

By David G. Savage

WASHINGTON — Central Americans who travel north to plead for entry at the U.S. border are taking their chances on an immigration system that is deeply divided on whether they can qualify for asylum if they are fleeing domestic violence or street crime, rather than persecution from the government.

The law in this area remains unclear, and the outcome of an asylum claim depends to a remarkable degree on the immigration judge who decides it.

And sitting atop the immigration court system is Atty. Gen. Jeff Sessions, a longtime advocate of much stricter limits on immigration who has recently taken an interest in reviewing asylum cases.

Lawyers say they are troubled by a legal system in which decisions turn so much on the views of individual judges.

Among the 34 immigration judges in Los Angeles, two granted fewer than 3% of the hundreds of asylum claims that came before them in the last five years, while another judge granted 71% of them. The disparity is even greater in San Francisco, where the judge’s rate of granting asylum claims ranged from 3% to 91%.

Overall, asylum seekers would do much better in San Francisco, where 32% were denied between 2012 and 2017, compared with a 68% denial rate in Los Angeles during the same period, according to data from the Transactional Records Access Clearinghouse at Syracuse University.

This is not news to immigration lawyers. A decade ago, several law professors published a study called “Refugee Roulette” that revealed how asylum cases depend heavily on the views of individual judges. “The level of variation was shocking. And it hasn’t changed,” said Georgetown University professor Philip Schrag.

Judge Ashley Tabaddor from Los Angeles, president of the National Assn. of Immigration Judges, discounts the statistics. “They’re not reliable,” she said, since judges may have very different caseloads. Some judges hear claims from people who have been detained for crimes, while others hear mostly claims from juveniles, she said.

“We are human. Different people can have different views about the same set of facts,” she said.

Several Los Angeles lawyers who have won or lost asylum cases in recent months said the identity of the judges played an important role. “It’s astounding how much variation there is from judge to judge. The system is in need of repair. It’s an embarrassment,” said Joseph D. Lee, a partner at Munger, Tolles & Olson.

He represented an El Salvador mother who fled north with her three children after gang members shot and killed her husband’s brother in front of her family and then threatened to do the same to her relatives.

“The Central American cases can be difficult to win. Some judges are pretty hostile to gang-related claims,” he said. His client’s claim was denied, and he plans to appeal. “Your chance of winning an asylum claim shouldn’t turn on the luck of the draw on which judge you get. But that is exactly how it works,” he said.

It may soon become much harder to win such claims. Under an unusual feature of the law, the attorney general, as the nation’s top law enforcement officer, also oversees the immigration courts. He can overrule their decisions and announce new rules that are binding on them.

In March, Sessions announced he would review the question of whether women fleeing domestic violence or other “private criminal activity” can rely on this to win asylum.

Last fall, Sessions spoke to a meeting of immigration judges and complained America’s “generous asylum” system has become “overloaded with fake claims.… The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.”

In the last week, the American Bar Assn., faith-based groups and a coalition of immigration law professors have submitted “friend of the court” briefs to Sessions urging him not to reverse years of precedent involving women fleeing abuse and terror.

But veteran immigration judges are not optimistic. Sessions “just wants more people to be removed,” said Paul W. Schmidt, a retired immigration judge from Virginia and an outspoken critic of the attorney general. “He will make it a lot harder for Central Americans to get asylum.”

The dispute begins with the words of the asylum law. In the Refugee Act of 1980, Congress adopted the United Nations standard and said people may seek asylum if they are “unable or unwilling to return” to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Under the law, asylum seekers are treated differently than, for example, refugees from a war-torn nation or immigrants seeking work.

Four of those terms in the asylum law are clear enough: race, religion, nationality and political opinion. But lawyers and judges have struggled to decide what counts as “membership in a particular social group.”

Courts have agreed that gays and lesbians can count as a social group, since they have suffered persecution in many societies. Some judges have also said women and girls fleeing sexual abuse and violence can seek asylum because their society views women as the property of men — and with no hope for protection from their government.

But the question becomes harder when considering the gang violence that has spread through some Central American countries. For example, people who testified against violent gangs or resisted them in other ways have sought asylum on the grounds they are members of a particularly endangered social group.

“These cases are challenging,” said Nareeneh Sohbatian, a Los Angeles lawyer at Winston & Strawn who supervises asylum claims. “We talk a lot about this. If they are targeted because of a gang, it can be difficult to show it was caused by their membership in a particular social group.”

Jenna Gilbert, managing attorney for Human Rights First in Los Angeles, said it is clear the asylum law does not protect people fleeing “generalized violence.” A claim “needs to be tied to the one of the protected categories,” she said. “The cases are very fact-dependent.”

But the odds of winning asylum are not good for Central Americans. In the last five years, China had the largest number of asylum seekers in the U.S. immigration courts, and only 20% of their claims were denied. Ethiopians did even better, with only 17% denied. By contrast, the highest denial rates arose from claims brought by natives of Jamaica (91%), the Philippines (90%), Mexico (88%), El Salvador (79%), Honduras (78%) and Guatemala (75%).

Andrew Arthur, a former immigration judge who works at the Center for Immigration Studies, which favors stricter enforcement, said it is not surprising that Sessions will reconsider rulings on asylum in cases of domestic violence. “Right now, the law is very unclear. The phrase ‘particular social group’ is vague. A lot of these claims are compelling, but that doesn’t mean it is ‘persecution’ under the law. If a gang wants to recruit me, that’s not persecution.”

Last month, Sessions criticized a caravan of Central American asylum seekers approaching the border as a “deliberate attempt to undermine our laws and overwhelm our system. There is no right to demand entry without justification. Smugglers and traffickers and those who lie or commit fraud will be prosecuted to the fullest extent of the law.”

People who present an asylum claim at the border must only show they have a “credible fear” of persecution if they were to return home. Most asylum seekers are allowed to stay and make their claim.

Sessions said he would send more prosecutors and judges to the border area to resolve these claims quickly, rather than let them linger for many months or years.

Meanwhile, lawyers are also rushing to represent the asylum seekers. “Unfortunately, the Trump administration has waged a yearlong campaign to undermine asylum seekers and demonize those who only wish to live in safety with the families,” said Gilbert of Human Rights First. “We’re proud to assist these individuals who are fleeing unspeakable horror as they try to rebuild their lives.”

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

It’s really not that complex.

Under the BIA’s seminal precedent decision in Matter of Acosta, 19 I&N Dec. 285 (BIA 1985) resisting gang recruitment is undoubtedly a characteristic that is “fundamental to identity” therefore making an individual a member of a “particular social group” (“PSG”) for asylum purposes.
- Undoubtedly, this conduct is threatening to a gang’s existence and power and is “at least one central reason” why forced recruitment and other forms of harm are used, among other things, to overcome this fundamental characteristic of the PSG.
- Therefore, the vast majority of those fleeing the Northern Triangle over the years because of various forms of resistance to gangs should have qualified for asylum under the Acosta test.
- However granting most of these cases might have been perceived as “opening the floodgates” and therefore career threatening to the BIA.
Following the “Ashcroft Purge,” which removed almost all of the Appellate Judges on the BIA who consistently stood up for the rights of migrants and asylum seekers, the BIA came up with bogus requirements of “particularity” and “social visibility/social distinction” to facilitate the denial of most asylum grants to individuals from the Northern Triangle.
- To do this, the BIA actually had to intentionally and disingenuously misapply criteria developed by the UNHCR to expand the protection available on the basis of a particular social group to instead restrict the group entitled to protection.
  - With the “due process” group of judges removed by Ashcroft, the BIA was able to get away with this with no visible internal resistance.
However even under the BIA’s new “bogus test” almost all experts agree that individuals resisting gang recruitment in countries where “go along to get along (and live)” is the norm would be both a well-defined “particularized” group and highly “socially distinct.”
- Consequently, the BIA and a number of anti-asylum Immigration Judges simply resorted to intentionally misconstruing country conditions and making biased “no nexus” findings or largely bogus “adverse credibility rulings” to keep the Northern Triangle grant rate unrealistically low.
- A great way to maximize denials is to hold individuals in detention or game the system so that they can’t obtain competent representation and/or “fail to appear” in Immigration Court thereby denying them the relief that the likely could win in a truly fair, unbiased system.
- Remarkably, the article quotes a source who espouses one of the many DHS “enforcement myths” — that forced recruitment can’t be a basis for asylum.
  - This is nonsense. Even under BIA’s intentionally restrictive precedents, the factual reasons why the respondent is being recruited (“nexus”) are important.
  - But, as a practical matter, no detained, unrepresented applicant has any realistic chance of understanding the law and developing the factual record necessary to support relief.
Also, in the Northern Triangle gangs have infiltrated the system to the extent that it is almost impossible to separate “political motives” from supposedly “criminal ones/”
- Individuals are forcibly recruited as punishment for a variety of reasons including family membership, having been witnesses against gangs, actual or imputed political opinion, and actual or imputed religious views.
- With competent lawyers, time to prepare, and an attentive Court of Appeals, most credible gang-related cases should qualify for asylum.
  - Without lawyers or the chance to develop and document a case, the chances for success are almost nil.
Even though the system is already heavily rigged against bona fide asylum applicants from the Northern Triangle, Attorney General Jeff Sessions has made it clear that he intends to further misconstrue the law to make it virtually impossible for refugees fleeing the Northern Triangle to qualify for asylum
Given the total corruption of the governments in the Northern Triangle and the serious infiltration by gangs, a fair process should result in a “blanket precedent” that would give almost everyone credibly fleeing gang threats in the Norther Triangle at least “temporary withholding of removal” under the Convention Against Torture (“CAT”).
No, the problem is not just that different Immigration Judges have different opinions. It’s that both the composition of the Immigration Court and the administrative case-law have been consciously “rigged” to deny those seeking protection from the Northern Triangle the protection to which they should be entitled under both U.S. and international law.
- Yes, I of all people certainly agree that judges can and should have differing views and philosophies,
- But, at some point, “differences” become “biases.”
- There is no way that those judges whose grant rates are below 10% can actually be applying asylum law in the generous manner set forth by the Supreme Court in Cardoza-Fonseca or the BIA itself in Matter of Mogharrabi.
- Nor are they properly applying the “benefit of the doubt” as it’s supposed to be given according to the UNHCR in systems based on the 1952 Geneva Convention on Refugees.
- No, I wouldn’t “fire” any current Immigration Judges (although I might over time make everyone re-compete for their jobs in a true merit-based selection system). But we do need:
  - An independent Article I U.S. Immigration Court, free from the pernicious political influence that the DOJ has been applying for many years.
  - A real merit selection system for future Immigration Judges that emphasizes expertise in immigration and asylum law and proven ability to deal fairly, effectively, and objectively with the public and which utilizes panels with some members from outside the Federal Government who practice before the Immigration Courts.
  - An Appellate Division that functions like a true independent Appellate Court, with a diverse membership, that will rein in those judges who are biased against asylum seekers and not applying Cardoza-Fonseca.
  - As I’ve pointed out before, things simply can’t happen under the highly biased, xenophobic Jeff Sessions. He is the “perfect storm” of why the Immigration Judiciary must be removed from the DOJ.
- As a historical aside, an unfortunate harbinger of things to come, the BIA actually misapplied their own “immutability/fundamental to identity” test to the facts in Acosta!
  - Of course “taxi drivers in San Salvador” were a PSG! Ask any New Yorker whether being a taxi driver is “fundamental to identity!”
  - Occupational identification, at all levels of society, is one of the most powerful indicators of self-identity and one that we seldom ask individuals to involuntarily change. Think that “truck drivers” aren’t a “PSG?” Just walk into the next Pilot Truck Stop you see on the Interstate in your little black judicial robe and shout that next to the Drivers” Lounge or rest rooms. I think you would find some “strong dissenters.”
  - Or how about going before a group of judges and telling them that being a judge isn’t “fundamental to identity!” I remember when a somewhat “tone-deaf” (but in retrospect, perhaps clairvoyant) invited speaker at one of our past Annual Immigration Judges’ Conferences referred to us as “just highly paid immigration inspectors working for the Attorney General.” He barely got out alive!
  - The BIA ruling in Acosta was “doubly absurd” in the context of 1985. The U.S. was then actively engaged in supporting the Government of El Salvador against the guerrillas. The BIA suggested that the taxi drivers in San Salvador could merely quit their jobs en masse or participate in the guerrillas taxi strike called by the guerrillas. Both of which would have crippled the country of El Salvador and seriously undermined the government we were supporting!
  - In short, the BIA has a long ugly history of twisting the law and the facts against legitimate asylum seekers, particularly those from Latin America.
    - Jeff Sessions, well-known for his long history of xenophobia, racially charged attitudes and actions, and bias against nearly every non-White-male-straight-right-wing-Christian social group in America is on the cusp of making things even worse for vulnerable refugees entitled to our protection by abusing his power as AG and stripping the hard earned asylum rights from abused women — who had to labor through 15 years of wrong BIA decisions, outrageous political maneuvering at the DOJ, and task avoidance at the BIA to win their hard-earned rights in A-R-C-G- in the first place!
    - Only cowards pick on the vulnerable and the dispossessed!

Eventually, long after I’m gone, I’m sure the “truth will out.” However, that will be little help to those currently being railroaded through the travesty that passes for justice in today’s U.S. Immigration Courts or those who have been denied justice in the past.

PWS

05-06-18

BABY DONNIE THROWS TANTRUM, THREATENS TO DECLARE WAR ON AMERICA IF HE DOESN’T GET HIS WALL!

https://www.cnn.com/2018/05/05/politics/donald-trump-border-wall-close-country-remark/index.html

Elizabeth Landers reports for CNN:

(CNN)President Donald Trump seemed to float a new idea about border control during a tax reform roundtable in Ohio.

The President was in the midst of criticizing Democrats during a riff about border security when he slipped in the idea that people might “have to think about closing up the country.”

“They don’t want the wall, but we’re going to get the wall, even if we have to think about closing up the country for a while,” Trump said. “We’re going to get the wall. We have no choice. We have absolutely no choice. And we’re going to get tremendous security in our country.”

Trump then mentioned the notion a second time, saying, “And we may have to close up our country to get this straight, because we either have a country or we don’t. And you can’t allow people to pour into our country the way they’re doing.”

It was not immediately clear what Trump meant by the remarks. CNN has reached out to the White House for comment.

Democratic Rep. Pramila Jayapal of Washington said Saturday in an interview with CNN’s Ana Cabrera that Trump “is absolutely out of his mind to think that is any kind of a reasonable solution for our economy or compassionate or in line with our values.”

“This President has done everything he can every time he’s in trouble to turn around and try to turn it against immigrants, and it really deeply saddens me,” Jayapal said.

. . .

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

Read the full article at the link.

Ironically, building the wall would do nothing to stop individuals from appearing at U.S. ports of entry and applying for asylum as they are completely entitled to do under both U.S. law and international conventions to which we are party. Indeed, that’s what almost all the remaining members of the “intentionally overhyped by Trump Caravan” did. Moreover the wall is unlikely to stop professional smugglers who can easily outsmart any physical barriers. At best, it might further enrich smugglers and kill more migrants by allowing smugglers to charge more money for more dangerous crossings.

On the other hand, a robust system for granting refugee status in the Northern Triangle and a fairer and more efficient asylum system for those who apply at the port of entry would almost certainly reduce the number of unlawful border crossings, while saving lives, and allowing the Border Patrol to allocate resources more toward drug smuggling and others who might actually threaten the security of the U.S. And a larger, more robust, and more realistic legal work visa program would also dramatically decrease unlawful border crossings.

PWS

)5-06-18

READ MY SPEECH TO THE ABA COMMISSION ON IMMIGRATION: “CARICATURE OF JUSTICE: Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts!”

CARICATURE OF JUSTICE:

Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts

ABA COMMISISON ON IMMIGRATION

WASHINGTON, D.C.

MAY 4, 2018

Thank you, Madam Moderator. I am pleased to be on this distinguished panel. And, I am particularly delighted that EOIR Director James McHenry has joined us.

Clearly, this isn’t about Director McHenry, who by my calculations was still in law school when the wheels began coming off the EOIR wagon. Also, as a former Senior Executive in past Administrations of both parties, I’m familiar with being sent out to “defend the party line” which sometimes proved to be “mission impossible.”

For me, no more disclaimers, no more bureaucratic BS, no more sugar coating, no more “party lines.” I’m going to “tell it like it is” and what you need to do to reestablish Due Processand fundamental fairnessas the only acceptable missionof the United States Immigration Courts.

It’s still early in the morning, but as Toby Keith would say, “It’s me, baby, with your wakeup call!”

Nobody, not even Director McHenry, can fix thissystem while it remains under the control of the DOJ. The support, meaningful participation, and ideas of the judges and staff who work within it and the public,particularly the migrants and their lawyers, who rely on it, is absolutely essential.

But, the current powers that be at the DOJ have effectively excludedthe real stakeholdersfrom the process. Worse,they have blamed the victims,you, the stakeholders, for the very problems created by political meddling at the DOJ. We’re on a path “designed and destined for failure.”

The decline of the Due Process mission at EOIR spans several Administrations. But, recently, it has accelerated into freefallas the backlog largely created by “Aimless Docket Reshuffling” (“ADR”) by political officials at the DOJ over the past several Administrations and chronic understaffing have stripped U.S. Immigration Judges of all effective control over their dockets, made them appear feckless, and undermined public confidence in the fairness, independence, and commitment to individual Due Process of our Immigration Courts.

The Due Process Clause of the Fifth Amendment is there for one, and only one reason. To protect all individuals in the United States, not just citizens, from abuses by the Federal Government. In simple terms, it protects individuals appearing in Immigration Court from overstepping and overzealous enforcement actions by the DHS. It is notthere to insure either maximum removals by the DHS or satisfaction of all DHS enforcement goals.

Nor is it there to “send messages” – other than the message that individuals arriving in the United States regardless of statuswill be treated fairly and humanely. It serves solely to protect the rights of the individual, and definitelynotto fulfill the political agenda of any particular Administration.

The “EOIR vision” which a group of us in Senior Management developed under the late Director Kevin Rooney was to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that noble vision is now dead and buried.

In fact, when I mentioned it to a recently hired EOIR attorney just prior to my retirement in 2016, she looked at me as if I were from outer space. Indeed, nobody in his or her right mind would seriously suggestthat today’s Immigration Courts are on track to meet that vision or that it motivates the actions of today’s DOJ.

No, instead, the Department of Justice’s ever-changing priorities, Aimless Docket Reshuffling, and morbid fascinationwith increased immigration detention as a means of deterrence have turned our Immigration Court system back into a tool of DHS enforcement. Obviously, it is long past time for an independentU.S. Immigration Court to be established outside the Executive Branch.

I work with a group of retired colleagues on various Amicus Briefs trying to defend and restore the concept of Due Process in Immigration Court. I doubt that it’s what any of us thought we’d be doing in retirement. As one of those colleagues recently said, it’s truly heartbreaking for those of us who devoted large segments of our professional lives to improving Due Process and fairness in the Immigration Courts to see what has become of those concepts and how they are being mocked and trashed on a daily basis in our Immigration Court system.

Those of us watching from retirement treat each day’s EOIR news with a mixture of disbelief, disappointment, anger, and total outrage. But, it drives and inspires us to actionto halt and reverse the travesty of justice now taking place in our US Immigration Courts.

I am one of the very few living participants in the 1983 creation of EOIR when it was spun off from the “legacy INS” to create judicial independence and better court administration during the Reagan Administration.

And, I can assure you that the Reagan Administration was not filled with “knee jerk liberal.” No, those were tough, but fair minded and practical, law enforcement officials. The other “survivors” who come to mind are former Director and BIA Judge Tony Moscato and then Associate Attorney General Rudy Giuliani, whom I understand is “otherwise occupied” these days.

Sadly, although EOIR appeared to have prospered for a period of time after its creation, it has now regressedto essentially the same problematic state it was in prior to 1983: lack of actual and perceived judicial independence; a weak appellate board that fails to function as an independent judiciary promoting due process; an unwieldy structure, poor administrative support, and outdated technology; a glacial one-sided judicial selection process that effectively has eliminated private sector attorneys with actual experience in representing immigrants and asylum applicants in court from the 21^stCentury Immigration Judiciary; and an overwhelming backlog with no end in sight.

Only now, the backlog is multiples of what it was back in 1983, nearing an astounding 700,000 cases! And additional problemshave arisen, including grotesque overuse of detention courts in obscure, inappropriate locations to discourage representation and inhibit individuals from fully exercising their legal rights; a lack of pro bono and low bono attorney resources; and new unprecedented levelsof open disdain and disrespect by Administration officials outside EOIR, at the DOJ, for the two groups that are keeping Due Process afloat in the Immigration Courts: private attorneys, particularly those of you who are pro bono and low bono attorneys representing vulnerable asylum applicants and the Immigration Judgesthemselves, who are demeaned by arrogant, ignorant officials in the DOJ who couldn’t do an Immigration Judge’s job if their lives depended on it.

But, wait, and I can’t make this stuff up, folks, it gets even worse! According to recent news reports, the DOJ is actually looking for ways to artificially “jack up” the backlog to over 1,000,000 cases – you heard me, one million cases– almost overnight. They can do this by taking cases that were properly “administratively closed” and removed from the Courts’ already overwhelmed “active dockets” and adding them to the backlog.

Administratively closed cases involve individuals who probably never should have been in proceedings in the first place – DACA recipients, TPS recipients, those waiting in line for U visa numbers, potential legal immigrants with applications pending at USCIS, and long-time law-abiding residents who work, pay taxes, are integrated into our communities, have family equities in the United States, and were therefore quite properly found to be low to non-existent “enforcement priorities” by the last Administration.

Some of you in the audience might be in one of these groups. They are your neighbors, friends, fellow-students, co-workers, fellow worshippers, employees, workmen, child care workers, and home care professionals., and other essential members of our local communities.

And you can bet, that rather than taking responsibility for this unnecessary cruelty, waste, fraud, and abuse of our court system, the DOJ will attempt to falsely shift blame to Immigration Judges and private attorneys like those of you in the audience who are engaged in the thankless job of defending migrants in the toxic atmosphere intentionally created by this Administration and its antics.

Expose this scam! Don’t let the DOJ get away with this type of dishonest and outrageous conduct aimed at destroying our Immigration Court system while disingenuously directing the blame elsewhere.

Basically, respondents’ attorneys and Immigration Judges have been reduced to the role of “legalgerbilson an ever faster moving treadmill” governed by the unrestrained whims and indefensible, inhumane “terror creating” so-called “strategies” of the DHS enforcement authorities. And, instead of supportingour Immigration Judges in their exercise of judicial independence and unbiased decision-making and nurturing and enhancing the role of the private attorneys, the DOJ, inexcusably, during this Administration has undercut them in every possible way.

For the last 16 years politicians of both parties have largely stood by and watched the unfolding Due Process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration, at levels over which Director McHenry has no realistic control, will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

Our Constitution and our protection laws, which adhere to international treaties that we have signed, are not“loopholes.” Treating migrants fairly, humanely, and in accordance with the rule of law does notshow “weakness.” It shows our strengthas a nation.

There is a bogus narrative being spread by this Administration that refugees who are fleeing for their lives from dangerous situations in the Northern Triangle, that we had a hand in creating, are mere “economic migrants” not deserving of our protection. Untrue!

Migrants should be given a reasonable chance to get lawyers; an opportunity to prepare, document, and present their cases in a non-coercive setting; access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws in the generous spirit of the Supreme Court’s decision in Cardoza-Fonsecaand the BIA’s oft cited but seldom followed precedent in Matter of Mogharrabi; and a fair decision, preferably in writing, without being placed under duress by unnecessary, wasteful, inhumane detention and separation of families. This Court System should not be run by a Cabinet Member who has already announced his predetermination of the preferred outcomes and his total disdain for migrants and their lawful representatives.

Once fully documented, many of these cases probably could be granted either as asylum cases or as withholding of removal cases under the CAT in short hearings or by stipulation if the law were applied in a fair and unbiased manner. Those who don’t qualify for protection after a fair and impartial adjudication, and a chance to appeal administratively and to the Article III Courts, can be returned under the law.

This Administration and particularly this DOJ depend on individuals notbeing competently represented and therefore not being able to assert their rights to either legal status or fair treatment. But, there are still real,truly independent Article III Courts out there that can intervene and put an end to this “deportation railroad” and its trampling on our Constitution, our laws, our values, and our dignity as human beings. For, friends, if we are unwilling to stand up against tyranny and protect the legal and Constitutional rights of the most vulnerable among us, like asylum seekers, then our ownrights and liberties as Americans mean nothing!

I urge each of youin this audience to join the “New Due Process Army” and stand upfor “truth, justice, and the American way” in our failing, misused, and politically abused United States Immigration Courts and to continue the fight, for years or decades if necessary, until this systemfinally is forced to deliveron its noble but unfulfilled promise of “being the world’s best tribunals, guaranteeing fairness and due process for all.” Harm to one is harm to all! Due process forever!

Thank you, Madam Moderator, I yield back my time.

(04-04-18)

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ADMISSION: Notwithstanding the last sentence, I went “overtime,” so there actually was no time to “yield back.”

PWS

05-04-18

BOGUS BORDER CRISIS — How Trump, Sessions, & Nielsen Ignored Reality To Create Yet Another False Narrative To Support White Nationalist, Anti-Immigrant Agenda!

http://www.cnn.com/2018/05/03/politics/immigration-border-crossings-stabilize/index.html

Border crossings steady in April after March spike

By: Tal Kopan, CN

Illegal border crossings stabilized in April after jumping substantially in March, a sign that a surge at the southern border may not be imminent, according to newly released statistics from the Trump administration.

In April, there were 38,234 apprehensions at the southern border and 12,690 people deemed “inadmissible,” or who came to a port of entry without papers that authorized them to enter the US, virtually unchanged from the month before. The number of family units and children in both categories also held roughly steady from the previous month.

The news comes as the administration has claimed a “crisis” on the southern border, a narrative largely driven by the jump in March and the comparison to the numbers last spring, when crossings were at abnormally low levels.

Administration officials have also been decrying a so-called caravan of migrants — an annual pilgrimage of mostly women and children who say they are fleeing violence and abuse in their home countries — that has arrived at the border with Mexico. More than half of the roughly 150 migrants in that group have been processed by Customs and Border Protection for their claims of asylum. Those who meet the legal threshold will be allowed to pursue their claims in court cases that could take months or years. Those that don’t will be turned away from the US.

In the midst of the caravan’s trek and the release of the March statistics, President Donald Trump has ordered the National Guard to deploy troops to the border, with roughly 1,000 having been sent so far, and with the Justice Department announcing it will send more immigration judges and prosecutors to border districts, as well.

April’s figures indicate that although there was a sharp spike in March, border crossings remain in line with historic seasonal trends. Numbers are still consistent with Obama administration years — slightly below fiscal years 2013 and 2014 but slightly above 2015 and 2016.

The crossings in April of this year were more than triple April 2017, but that comparison is distorted, as crossings last April were at levels unseen in modern history, before they started to pick up and stabilize more in line with recent years.

Crossings have been trending downward for decades and are at historic lows, prompting Homeland Security to declare last fall that the border is the most secure it has ever been.

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

Lies and false narratives are a key part of the White Nationalist agenda. Kind of like the modern version of the infamous “Reichstag Fire” that Hitler used to rally nationalist sentiment and seize power. Nice folks!

PWS

05-04-18

GONZO’S WORLD: NO PRETENSE OF DUE PROCESS! – US Immigration Judges and “Kangaroo Courts” Now Part Of Law Enforcement Message – No Justice, No Protection, No Rule Of Law – Just Removals & “Messages!”

Sessions sends new attorneys, judges to the border

By Tal Kopan, CNN

Attorney General Jeff Sessions on Wednesday announced further actions to keep the pressure on illegal immigration at the southwestern border, including more resources to prosecute cases.

Sessions said a total of 35 assistant US attorneys would be added in the five districts along the southern border to allow for more cases to be brought against illegal crossings and human smuggling, and 18 immigration judges would be tapped to hear cases in person and through video conferencing at border state immigration courts.

The moves follow a continued pledge by Sessions to take a hard line on illegal immigration and to try to move cases through the immigration courts more quickly, with the lengthy backlog in those courts blamed for allowing a number of undocumented immigrants to live for years in the US as they await final decisions on their fates.

The announcement also came as dozens of migrants looking to call attention to their plight in Central America have reached the US border, where they are slowly being allowed across to be processed for their asylum claims. The so-called caravan, a yearly event, has become a flashpoint in the immigration debate, especially since it caught the attention of President Donald Trump. Supporters say it exposes the need for asylum laws that offer protections to people fleeing dangerous and deadly persecution in their home countries, but the administration has used the situation to call for tougher laws, claiming migrants coming north are exploiting the US system.

Read more: http://www.cnn.com/2018/05/02/politics/immigration-southern-border-jeff-sessions/index.htm

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Sessions willfully misrepresents the truth: 1) there, of course, is no “legal line” for these folks to get in; 2) someone fleeing for his or her life can’t get in line anyway; 3) this Administration dismantled the only “in country” refugee processing program in the Northern Triangle.

Hopefully, at some point the Article III Courts will do their job, step in, and put an end to this caricature of justice.

Folks should be given a reasonable chance to get lawyers, an opportunity to prepare, document, and present their cases in a non-coercive setting, access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws, and a fair decision without being placed under duress by unnecessary detention and separation of families. The Court System should not be run by an individual like Sessions who has already announced his predetermination of the preferred outcomes.

Given the situation in the Northern Triangle that is driving these individuals to seek refuge, we should 1) reestablish a robust in country refugee processing system for the Northern Triangle; and 2) work with the UNHCR and other stable countries in the Western Hemisphere to equitably distribute those who can’t return to the Northern Triangle.

PWS

05-03-18

HERE’S MY TESTIMONY BEFORE THE MONTGOMERY COUNTY (MD) COUNCIL ON A SPECIAL APPROPRIATION FOR REPRESENTING COUNTY RESIDENTS IN U.S. IMMIGRATION COURT!

Testimony for Montgomery County Council Hearing

May 1, 2018

Special Appropriation

Judge Paul W. Schmidt

Good evening, Council President, Vice Council President, Council Members,

For 21 years, I served as an Appellate Judge on the Board of Immigration Appeals, and a U.S. Immigration Judge at the Arlington Immigration Court. I was the Chair of the Appeals Board for six years. Though I am since retired, I follow with great interest and concern the immigration court’s troubling trajectory.

There is a real crisis in the immigration system today: the attack on Due Process in our U.S. Immigration Courts. This crisis has been many administrations in the making. However, the current administration has done more damage to Due Process more quickly than any prior administration. Its most recent insistence on quotas for immigration judges, the attempted dissolution of the Legal Orientation Program, combined with increased immigration enforcement, and inhumane detention policies, has eradicated any semblance of Due Process.

I applaud the Council for recognizing the need to ensure Due Process for its immigrant residents facing removal by funding deportation defense. I further urge you to make that deportation defense universalby providing legal representation to all Montgomery County residents facing removal regardless of any previous interactions with the criminal justice system.

All immigrants facing removal are entitled to Due Process. No person should be denied access to justice. The only way to ensure that an immigrant has Due Process in the current immigration system is by providing competent legal representation. Without an attorney, there is simply no other way an immigrant can navigate the extremely complex legal immigration system.

When an immigrant appears without an attorney, the Immigration Judge must rely on the attorney for the government; the person who is fighting to remove the immigrant from this country, to present the immigrant’s case. Despite a judge’s best efforts, it is simply not possible to ensure that the immigrant has had all of the relevant facts about his or her case presented and that all legal defenses to removal have been explored, explained, and understood. While some judges might like to believe that they are capable of ensuring that those appearing before them without counsel have the same chance of relief as those appearing with counsel, I know from my experience that this is simply not possible. I also know that my courtroom ran more efficiently when all parties were represented; frivolous arguments decreased, continuances decreased, and the number of appeals decreased as well. Simply put, a good judge knows that having competent counsel representing both parties yields a more efficient and just outcome.

Allow me to assure this council that, though representation by an attorney dramatically enhances any immigrant’s chance of success in immigration court, it by no means guarantees success. The immigration laws are sometimes rigid, by design. Relief is only available in those cases where the law explicitly permits it.

Moreover, serious criminal convictions often will exclude, by operation of law, even the most sympathetic petitioner from relief. In some instances, the presence of the conviction precludes relief altogether, in other cases, the judge must balance the equities, and for immigrants who have committed serious crimes, the equities usually weigh in favor of removal.

However, I maintain that all immigrants should have access to counsel, regardless of their history with the criminal justice system, because the only way an immigration judge can make a just, informed decision is if the immigrant facing removal has Due Process. And Due Process, particularly now, can only be guaranteed through the competent representation of an attorney.

I urge this council to leave to the immigration judges, a body expert in the immigration law, the task of determining what consequences a criminal conviction should have upon an immigrant’s ability to remain in the United States. Do not deny Due Process to any member of your community. Do not deny access to justice to immigrants facing removal, simply because of their criminal history. In doing so, you put the deserving and the underserving in the same category and risk denying relief to vulnerable, deserving members of your community.

The erstwhile vision of the Immigration Court, the vision which I helped develop in the late 1990s was for the court to “be the world’s best administrative tribunal[s] guaranteeing fairness and due process for all.” Instead, the Department of Justice’s ever-changing priorities and morbid fascination with increased detention as a means of deterrence have turned the Immigration Court system into a tool of enforcement.

I urge this council to vote in favor of the special appropriation and thank you for the opportunity to testify today.

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My friend and pro bono superstar Claudia Cubas, Litigation Director of the Capital Area Immigrants Rights (“CAIR”) Coalition was the “lead witness” favoring the proposal. It was “democracy in action” as folks with strong views both ways on the issue appeared to express their views to their elected representatives. As it should be!

PWS

05-02-18

DACA MESS: GOP AGs FILE SUIT WITH “FRIENDLY” JUDGE TRYING TO FORCE SUPREME’S HAND ON DACA!

7 states sue to end DACA, potentially jumbling its legal future

By: Tal Kopan, CNN

The future of the Deferred Action for Childhood Arrivals program got murkier Tuesday when the Texas attorney general made good on a threat to challenge it in court.

The lawsuit throws a wrench in an already-complicated legal morass for the DACA program, which protects young undocumented immigrants who came to the US as children and which President Donald Trump has been blocked from ending, for the time being, by other federal courts.

The lawsuit has the potential to create a headache for the Justice Department and courts as it could potentially conflict with rulings from judges in three separate judicial regions of the country who have blocked the end of DACA and could force the government to take an awkward position in the case.

It may also potentially seal the issue’s path to the Supreme Court.

Texas Attorney General Ken Paxton and six other states on Tuesday filed a lawsuit challenging the lawfulness of DACA, arguing that former President Barack Obama’s initial creation of DACA in 2012 violated the Constitution and federal law.

The move follows through on a threat from Paxton and what was originally nine other states to challenge DACA in court as part of a lawsuit regarding a similar but broader program that expanded upon DACA to include parents. Paxton issued an ultimatum to Trump: End DACA himself or defend it in court and face the prospect it is overturned by a judge that had already rejected the program’s expansion in that other lawsuit.

More: http://www.cnn.com/2018/05/01/politics/daca-lawsuit-challenge-texas/index.html

(Bonus link: https://www.cnn.com/2018/05/01/us/border-patrol-agent-less-dangerous-than-being-police-officer-invs/index.html )

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The DACA kids aren’t going anywhere. It’s just a question of how much unnecessary pain and suffering can be inflicted on America’s future leaders and how much enmity from the growing Hispanic electorate Paxton and his White Nationalist cronies will create for the GOP. It figures to be lots.

Hopefully, enough to eventually lead to the GOP’s demise as a viable political force in US politics and the rise of a non-racist Conservative opposition party to take its place.

No, it’s not going to happen in my lifetime! But, hopefully in my kids or grandchildren’s. That’s really what the “New Due Process Army” is all about!

On the “bonus coverage,” it’s a shame that the false narratives about immigration and crime pushed by DHS and encouraged by the Trump Administration are eclipsing truth and understanding.

I’ll testify from my work representing and training Border Patrol Agents at the “Legacy INS” that it’s a difficult, dangerous, important, and thankless job. The vast majority of Border Patrol Agents perform it with courage, dedication, and professionalism. I had friends in the Patrol. Somewhere in the dusty recesses of the Schmidt attic among the remains of my Government career is a box of Border Patrol mementos and memorabilia.

Immigration law enforcement is also being hurt by the bogus White Nationalist “scare stories,” false crime narratives, and constant overt and covert messages of racism being delivered by Trump, Sessions, and their cronies. In the end their dishonest and distorted picture of immigrant communities, the asylum system, their denial of the contributions of all migrants, and their constant over hyping of the dangers of undocumented immigration (it’s been a net gain for the US, and would be an even greater net gain had we enacted a more rational and realistic legal immigration system) hurt everybody in the US, including law enforcement.

In this, as in most situations, a Government dedicated to truth rather than lies and exaggerations designed to divide our country and “fire up” a voter base would better serve the national interest and the interests of everyone concerned.

The Border Patrol’s mission can and should stand on its own merits. It doesn’t need inflated statistics and false narratives.

PWS

05-03-18

EUGENE ROBINSON @ WASHPOST – THE ST. LOUIS DOCKS AGAIN AT OUR SOUTHERN BORDER — TRUMP, SESSIONS & CO. WANT THE US TO FAIL THE MORAL TEST AGAIN – But, This Time It’s Anti-Hispanic Racism, Rather Than Anti-Semitism Behind Our Government’s Intentional Immorality — Trump & Sessions “are sincere in their desire to stanch the flow of Latino immigration — not, I strongly suspect, because of drugs or crime, but because they loathe the demographic and cultural change that is taking place.”

https://www.washingtonpost.com/opinions/the-immigrant-caravan-is-a-test-trump-wants-us-to-fail/2018/04/30/124b975c-4cb4-11e8-84a0-458a1aa9ac0a_story.html?noredirect=on&utm_term=.72fbc5bc8d11

The immigrant ‘caravan’ is a test. Trump wants us to fail.

By Eugene Robinson

The “caravan” of asylum-seeking migrants that has finally arrived at the U.S.-Mexico border is a test of American character and purpose — a test President Trump wants us to fail.

I put caravan in quotation marks because the group that reached Tijuana hardly qualifies for the term. Just a few dozen would-be entrants presented themselves at the Port of San Ysidro on Sunday — only to be told that U.S. immigration officials were too busy to attend to them. Another several hundred were reported to be in the general area, waiting their turn to attempt to cross the border.

Trump has spoken of these people as if they were some kind of rampaging horde. Attorney General Jeff Sessions has accused them of “a deliberate attempt to undermine our laws and overwhelm our system.” The truth is that this sort of thing happens every year: Would-be migrants seek safety in numbers as they make the long and perilous trek north through Mexico.

Sessions probably understands this context; Trump probably doesn’t. But I believe both are sincere in their desire to stanch the flow of Latino immigration — not, I strongly suspect, because of drugs or crime, but because they loathe the demographic and cultural change that is taking place.

While he and his administration were being appropriately roasted at the White House Correspondents’ Associationdinner on Saturday evening, Trump was at a rally in Michigan saying that our immigration laws are “corrupt . . . so corrupt” and that the motives of those who defend our nation’s traditional role as a haven for asylum seekers are political. “The Democrats actually feel, and they are probably right, that all of these people that are pouring across are going to vote for Democrats, they’re not going to vote for Republicans.”

They’re not going to vote for anybody, of course, since they’re not citizens. Truth doesn’t matter to Trump. But you knew that.

What seems to really drive the president crazy is that the United States remains a haven for those fleeing persecution. Trump laid out his complaint Saturday: “If a person puts their foot over the line, we have to take them into our country, we have to register them. We then have to ask them a couple of questions. Lawyers are telling them what to say. How unsafe they are. And once they say that, we have to let them go, to come back to court in like a year. Only one problem: They don’t come back, okay. That’s the end. Welcome to the United States.”

You will have noticed that missing from Trump’s rant is any sense of morality or mission.

There is a reason the law makes provision for those seeking asylum. In 1939, Congress rejected a bill that would have admitted 20,000 German Jewish children. Later that year, authorities refused to allow the St. Louis, a ship carrying about 900 German Jews, to dock in Miami; the Coast Guard sent out patrol boats to warn the ship away. The St. Louis was forced to return to Europe, and 254 of its passengers later perished during the Holocaust.

That shameful history led to changes in immigration policy that prohibit rejecting claims of asylum out of hand. The bar is high, but many of the Central American asylum seekers probably clear it.

In El Salvador, Honduras and Guatemala, the major threat comes from rampant gang violence. Boys are often offered a stark choice: Join a gang or be killed. Girls are threatened with rape. It is easy to say this is a problem local elected officials and police ought to solve, but government institutions are weak, and corruption is widespread. What choice does a family under imminent threat have but to flee? What would you do?

It is of course true that not every Central American who asks for asylum truly merits it. That’s why each case is examined and evaluated, with all the time needed to reach a proper determination — which is how the migrants now at the border must be handled, despite what Trump and Sessions might prefer.

To close our eyes and hearts to legitimate claims of persecution would be to repeat the shameful and tragic mistakes of the World War II era. If the subjects of Trump’s demagoguery were summarily denied entry, as he apparently would like, most would be forced to go home and some would be killed. That would be a terrible stain on the nation’s conscience.

I’m tempted to add that it would be a stain on Trump’s conscience as well, but it’s not clear that he has one.

Read more from Eugene Robinson’s archive, follow him on Twitter or subscribe to his updates on Facebook. You can also join him Tuesdays at 1 p.m. for a live Q&A.

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I remember walking through the “St. Louis Exhibit” at the Holocaust Museum (on an EOIR-sponsored tour, no less, for a long ago and far away Annual Judges Conference — my how official racism & xenophobia have changed things) and asking myself how we could have done that to our fellow human beings.

Then, we had a “special session” explaining the catastrophic failure and cowardice of the German Judiciary during the Nazi rise to power. Judge after judge “adhered to the rule of law” even when those laws unfairly disenfranchised Jews, deprived them of their properly and lawful occupations, and eventually sentenced them to mass death!

I’ve now come to the unhappy realization that the St. Louis might have represented the norm, rather than the exception, to the reality of American democracy and its serious anti-Semitic and racially biased undertones. And, the actions of the corrupt & cowardly German judges of that era are certainly what Trump, Sessions, and their cronies are referring to when they disingenuously pontificate about “the rule of law” and looking for judges, Government officials, and lawyers who are committed to applying it in a biased and one-sided fashion

It’s their rule of law, as they consistently misconstrue it to protect only their favored political and racial groups, and misuse it “punish enemies” and to carry our their increasingly racist, White Nationalist agenda.

And yet 40% of our fellow countrymen are enthusiastically supportive of this heinous agenda. What’s wrong with them? Why ask ourselves how Nazism could have overtaken Germany when we’re in the process of trying to repeat that sordid history here? It’s pretty easy to see Hitler rallies of the 1930s in the Trump rallies of today. The same vicious disregard of both the truth and humanity, scapegoating, and an attacks on the true rule of law and on those who stand up for democracy, all wrapped in an appeal to false religious nationalism!

We’re failing as a nation on both a moral and a legal basis. It remains to be seen whether the resistance to Trump, his supporters, and his enablers will be sufficient to preserve democracy and human decency in America.

PWS

05-01-18

CHILD ABUSE: COWARDLY ADMINISTRATION USES FALSE NARRATIVES & DISTORTED FACTS TO ATTACK PROTECTIONS FOR REFUGEE CHILDREN — Our National Morality & Human Decency In Free-fall Under Trump! — “It has been national law and policy that as adults we look out for children …. No longer.”

https://www.nytimes.com/2018/05/01/us/immigration-minors-children.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news

Eli Hager of The Marshall Project in the NY Times:

On April 4, the White House posted a fact sheet on its website warning that legal “loopholes” were allowing tens of thousands of immigrant children who entered the country on their own to remain in the United States.

The next day, another post went up: “Loopholes in Child Trafficking Laws Put Victims — and American Citizens — At Risk.”

And the same week, the Administration for Children and Families, a division of the Department of Health and Human Services not normally known for its politics, announced that it “joins the President in calling for Congress to close dangerous loopholes.”

Over the past month, the Trump administration has taken aim at a set of child protection laws created to protect young people who cross into the United States without a parent or guardian, perhaps aided by smugglers. The administration now sees some of these same youths as a threat, and is portraying the laws as “loopholes” that are preventing the quick deportation of teenagers involved in gangs.

The campaign is aimed at Capitol Hill, but the Trump administration is not waiting for legislation: In a series of at least a dozen moves across multiple federal agencies, it has begun to curtail legal protections for unaccompanied children who cross the border. Many of these safeguards were created by a 2008 law that provided protections for children who might otherwise be forced into labor or prostitution.

The young people affected by the administration’s measures have been fleeing deadly gang violence in Central America since 2014, when civil strife erupted in the region. They are a less politically shielded group of young people than the so-called “Dreamers,” most of whom came to this country as toddlers with their parents.

The new directives appear aimed at detaining more of these youths after their arrival and speeding deportation back to their home countries — where they may face violent reprisals from gangs or other forms of abuse.

“It has been national law and policy that as adults we look out for children,” said Eve Stotland, director of legal services for The Door, a youth advocacy organization in New York. “No longer.”

Endangered Central American Children

Among the many new directives, the State Department in November gave just 24 hours’ notice to endangered children in Guatemala, Honduras and El Salvador before canceling a program through which they could apply for asylum in the United States before getting to the border. About 2,700 of them who had already been approved and were awaiting travel arrangements were forced to stay behind in the troubled region.

The Department of Homeland Security, meanwhile, has sharply cut back on granting a special legal status for immigrant juveniles who have been abused, neglected or abandoned; the program dropped from a 78 percent approval rate in 2016 to 54 percent last year, according to statistics compiled by U.S. Citizenship and Immigration Services. In New York, Texas and elsewhere, the agency in recent months has also begun revoking this protection for children who had already won it, according to legal aid organizations in the states.

The Justice Department has also issued legal clarification for courts and prosecutors about revoking “unaccompanied child” status, which allows minors to have their cases heard in a non-adversarial setting rather than in immigration court with a prosecutor contesting them. (The White House has said that it intends to remove this protection altogether, but has not yet done so.)

And the Office of Refugee Resettlement, which provides social services to vulnerable immigrant youth, is now placing all children with any gang-related history in secure detention instead of foster care, whether or not they have ever been arrested or charged with a crime, according to an August memo to the President’s Domestic Policy Council.

“It’s law enforcement mission creep, and our office is ill-prepared for it,” said Robert Carey, who was director of the refugee agency under President Barack Obama.

A Focus on Gangs

The Trump administration has said that its actions are necessary to stem the tide of violent crime. It has focused on teenagers belonging to or associated with the Salvadoran-American street gang MS-13, which has been linked by the police since 2016 to at least 25 homicides on Long Island — a testing ground for many of the president’s new policies.

About 99 of the more than 475 people arrested in the New York City area during ICE raids for gang members had come to the U.S. as unaccompanied children, a representative for the agency said.

To fortify the “loophole” narrative, official announcements of these ICE actions often point out that a number of those arrested were in the process of applying for various forms of child protection.

Yet 30 of 35 teenagers rounded up during these ICE raids last year and who later filed a class-action lawsuit have subsequently been released because the gang allegations against them were thin, according to the ACLU. And the Sacramento Bee reported that a juvenile detention center in California recently cut back its contract with the federal government and complained that too many immigrant teens were being sent there with no evidence of gang affiliation.

The refugee agency acknowledged in its August memo to the White House that only 1.6 percent of all children in its care have any gang history.

“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.

“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.

. . . .

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Read the complete article at the link.

Yes, folks, it’s way past time to use the correct term for the Trump Administration’s outrageous, and in many cases illegal, policies directed against primarily Hispanic migrant children: “Child Abuse!”

I met many of these kids and families coming through my court over the years. While there were a tiny number of “bad actors” (which the DHS did a good job of discovering) the vast, vast majority were nothing like what Trump, Sessions and others are describing. They actually much better represented “true American values,” courage, and the “American work ethic” than do Trump and his valueless cronies.

That’s right folks! OUR U.S. Government is using racist-inspired lies to conduct a war against Hispanic children and to illegally return many of them to deadly and life threatening situations! Bad things happen to nations that let bullies and cowards bully, demean, and harm children!

The Trump Administration’s abuse of migrant children and their legal and Constitutional rights could be taken right out of a State Department Country Report on human rights abuses in a Third World Dictatorship. Is this they way YOU want to be remembered by history?

No, Constitutional and statutory protections for children are NOT “loopholes.” What kind of human beings speak such trash? The Trump Administration’s response to the “rule of law” when, as is often the case, it doesn’t fit their White Nationalist agenda is always to tell lies, rail against it, and look for ways around it.

Stand up against the lawless behavior and immoral actions of Trump, Sessions, and the rest of their “hate crew!” Join the “New Due Process Army” and fight against the Trump Administration’s erosion of our national values, morality, and the true “rule of law” (which is there to protect migrants and the rest of us from abuse at the hands of our Government).

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

PWS

05-01-18

DAVID LEONHARDT @ NYT: FROM FORD TO NOW – HOW THE CONCEPT OF “NEUTRAL JUSTICE” & THE AGs WHO BELIEVED IT DISAPPEARED FROM THE DEPARTMENT OF JUSTICE WITHOUT A TRACE! – Today’s DOJ Offers A “Disingenuous Charade” Of “Equal Justice For All!” — “It undermines the idea of equal justice. It tells Americans that our legal system is merely another instrument of partisan battle, that our prosecutors and law-enforcement officers are political hacks in disguise.”

https://www.nytimes.com/2018/04/29/opinion/the-sense-of-justice-that-were-losing.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

Leonhardt writes:

Edward Levi and Griffin Bell were very different men. One was the son and grandson of rabbis, a legal scholar whose life revolved around the University of Chicago. The other was a country lawyer who became a master operator in the Atlanta legal world. One was appointed to high office by a Republican president, the other by a Democrat.

Yet for all their differences, Levi and Bell came to share a mission. Together, they created the modern Department of Justice and, more important, the modern American idea of the rule of law.

They were the first two attorneys general appointed after Watergate — Levi by Gerald Ford and Bell by his fellow Georgian Jimmy Carter. And they both set out to refashion the Justice Department into the least political, most independent part of the executive branch. “Our law is not an instrument of partisan purpose,” Levi said. It cannot become “anyone’s weapon.” Bell described the department as “a neutral zone in the government, because the law has to be neutral.”

They understood Richard Nixon’s deepest sins: He saw the law as an instrument not of justice but power. Yet Levi and Bell also knew that Nixon hadn’t been the only problem. Other administrations had also misused the law — investigating enemies and rivals, like civil-rights leaders. So Levi and Bell made sure that the crisis of Watergate didn’t go to waste.

They changed the rules for F.B.I. investigations. They put in place strict protocols for communication between the White House and Justice Department. They made clear — with support from Ford and Carter — that the president must have a unique relationship with the Justice Department.

“It’s perfectly natural and fine for the president and others at the White House to have interactions with the Justice Department on broad policy issues,” Sally Yates, the former deputy attorney general, told me last week. “What’s not O.K. is for the White House, and especially the president, to have any involvement with criminal prosecutions. That really turns the rule of law on its head.”

No administration has been perfect in the pursuit of neutral justice, but every one from Ford’s through Barack Obama’s stayed true to the post-Watergate overhaul. They allowed uncomfortable investigations to proceed unimpeded. They did not treat the law as a weapon.

Then came President Trump.

The story of Levi and Bell highlights how fragile the rule of law is. Much of it does not depend on the Constitution or legislation. It depends on political culture and habits. And that culture and those habits can change. In the sweep of history, the reforms of Levi and Bell are still quite young.

The most obvious ways that Trump is undermining the law involve the Russia investigation. Like Nixon, Trump is enraged that anyone in his administration would investigate anyone else in it. But Russia is only one part of the problem: Trump really does view the law as a weapon, to protect his allies and strike his enemies.

The incomplete list includes: He suggested an end to the prosecution of someone he likes (Joe Arpaio) and the start of prosecutions of people he hates (Hillary Clinton, James Comey). Trump defended his personal lawyer by claiming that the government regularly fabricates evidence. Trump has dragged federal prosecutors into politics, bringing one of them — John Huber, Utah’s top federal prosecutor — to the White House to give a speech lobbying for new immigration laws.

Other presidents did none of this. It undermines the idea of equal justice. It tells Americans that our legal system is merely another instrument of partisan battle, that our prosecutors and law-enforcement officers are political hacks in disguise.

The Trump attacks on the justice system demand a stronger response. The media can’t become numb. His aides and appointees need to stand up to him more often — rather than, for example, assenting to a baseless new inquiry into Clinton, overseen by none other than Huber.

And other Republicans, in Congress and private life, should summon more courage. “We don’t see senior Republican officials, either current or past, defending the Department of Justice and the F.B.I.,” John Bellinger III, a veteran of the George W. Bush administration, said last week at a Georgetown University conference on democratic norms. “It’s just inexplicable.”

Where are the Republican defenders of law and order? Where are you, John Ashcroft? What about C. Boyden Gray, Larry Thompson, Paul Clement, Ted Olson, Susan Collins and Ben Sasse? At least a few of them should be willing to take a little heat in defense of the American system of justice.

In retrospect, Levi almost seemed to be pleading with them in his 1977 goodbye speech as attorney general: “We have shown that the administration of justice can be fair, can be effective, can be nonpartisan. These are goals which can never be won for all time. They must always be won anew.”

You can join me on Twitter (@DLeonhardt) and Facebook. I am also writing a daily email newsletter and invite you to subscribe.

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

Yup! And, in some cases, the disguise is pretty transparent — perhaps the only “transparency” in today’s DOJ.

This time period comes close to spanning my career in the DOJ. I worked for both Attorney General Ed Levi and Attorney General Griffin Bell (“known on the “5th Floor” of the DOJ as “Judge Bell”).

I don’t have a recollection of personally meeting Attorney General Levi. However, I did have a strong impression of his integrity because he disqualified himself from a key BIA disbarment case being then being written by my office mate Lauri Steven Filppu who later served with me as an Appellate Judge at the BIA.

The case was Matter of Koden, 15 I&N Dec. 739 (BIA 1974; A.G., BIA 1976), aff’d , 564 F.2d 228 (7th Cir. 1977). The conflict apparently involved the fact that Levi’s wife served on the board of a charitable organization in Chicago where Koden had worked as an attorney.

Compare that with Jeff Sessions who continues to interfere in BIA cases by certification notwithstanding the obvious conflict of interest and ethically required disqualification stemming from his many pejorative (often untrue and/or distorted) statements about migrants exercising their legal rights, particularly asylum seekers.

I knew Judge Bell better. As INS Deputy General Counsel I accompanied my then boss General Counsel (now Judge) David Crosland to a number of meetings in Bell’s office. I believe that our response to the Iranian Hostage situation was the main topic. I remember him as having a very pronounced Southern accent and being just what I expected of a former judge — concerned with the fair enforcement of the law.

Those days are long gone. The DOJ now appears to have reverted to what it was in the Nixon Administration, when Attorney General John Mitchell actually plotted Federal Crimes from his office.

PWS

04-30-18

POST EDITORIAL SLAMS INSTITUTIONALIZED CHILD ABUSE BY TRUMP’S IMMIGRATION KAKISTOCRACY! — Human Rights Abuses “Business As Usual” Under Anti-Values Administration!

https://www.washingtonpost.com/opinions/the-trump-administration-traumatizes-children-in-the-name-of-scaring-migrants-away/2018/04/29/fe779b50-4a5a-11e8-827e-190efaf1f1ee_story.html?utm_term=.f866c5f999d8

The WashPost Editorial Board writes:

By Editorial Board April 29 at 7:46 PM

INFANTS, TODDLERS, tweens, teens — Trump administration officials are less interested in the age of an unauthorized child migrant than they are in removing the child from his or her parents as a means of deterring illegal border-crossers. That plan, first floated by White House Chief of Staff John F. Kelly last year when he was homeland security secretary, was widely regarded as so callous and such a radical departure from historical practice that it was unthinkable for any U.S. government.

If only.

In fact, not only has the idea of systematically separating undocumented children and parents gained currency among top officials determined to turn the tide on illegal entry, it’s already happening with increasing frequency. The Department of Homeland Security insists it has not adopted the practice as a matter of official policy — despite White House pressure to do so — but administration officials acknowledge that hundreds of children, including scores younger than 4, have been taken from their parents in the past few months.

By now it’s clear that there are few red lines President Trump is unwilling to cross in his crusade to rid the United States of undocumented immigrants. For Mr. Trump, having washed his hands of the “dreamers” — young migrants, most in their 20s, raised and educated in the United States after being brought here as children — it’s hardly a moral leap to inflict lasting psychological damage on younger children by taking them from their parents if it will further his goal of combating illegal immigration.

As reported by The Post’s Maria Sacchetti, top immigration and border officials have recommended that all parents who enter the country illegally with their children be detained and prosecuted, meaning the automatic separation of minors, who cannot legally be held in jails or detention centers designed for adults. Until recently, that was extremely uncommon; most parents who crossed the border with children would be released pending an immigration court hearing, or, in some cases, detained together in a facility designed for families. Prosecuting parents for illegal entry, a misdemeanor under federal law, has been exceedingly rare — specifically because of the harm it would cause blameless children.

In addition, many of the parents who would be prosecuted are eligible under U.S. law to seek and be granted asylum. That’s hardly a stretch for migrants from El Salvador and Honduras, beset by drug cartels, gang violence, domestic abuse and some of the world’s highest homicide rates. In the last three months of 2017, more than two-thirds of the 30,000 asylum seekers crossed into the country illegally — and it is far-fetched to exempt from prosecution only those who announce themselves as asylum seekers at legal ports of entry, as Homeland Security officials propose. Are desperate, impoverished people fleeing violence to be penalized because they enter the United States in the wrong place?

The United States has a legitimate interest in deterring illegal border-crossing. It is within its rights to detain and deport individuals and families who fail to make a persuasive case for asylum. But to splinter families and traumatize children in the name of frightening away migrants, many of whom may have a legitimate asylum claim, is not just heartless. It is beyond the pale for a civilized country.

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

Pretty ugly! Eventually our country, particularly future generations, will pay a high price for abandoning civilized values and human decency. The world is watching and the historical record is being made of the Trump Administration’s cowardly response to humanitarian tragedies and the folks who are enabling him and his White Nationalist cronies.

Get on the “right side of history!” Join the New ‘Due Process Army!”

PWS

04-30-18

GONZO’S WORLD: TRAVESTY AT JUSTICE: HOW SESSIONS’S DISINGENUOUS WHITE NATIONALIST AGENDA DEGRADES THE MEMORY OF AMERICAN CIVIL RIGHTS LEADER W.E.B. DU BOIS – “It is often said that elections have consequences. Distorting history, though, and the contributions of past scholars is not a political consequence but rather degrades our intellectual tradition.”

https://www.theguardian.com/us-news/commentisfree/2018/apr/26/jeff-sessions-is-shamefully-undermining-web-du-boiss-legacy?CMP=Share_iOSApp_Other

Marc Mauer writes in The Guardian:

Since 2002, the US Department of Justice’s WEB Du Bois program has sponsored research fellowships on issues of race and criminal justice. During Republican and Democratic administrations, a diverse group of academics have carried the spirit of the noted sociologist and civil rights leader to the race challenges of the 21st century. Given the racial disparity endemic at every stage of the justice system the DoJ’s investigation of these issues has been praiseworthy.

But with Jeff Sessions as attorney general exploring the roots of this injustice may now be compromised. In the recently released solicitation for the Du Bois fellowships the DoJ invited scholars to engage in research on five issues arising out of the “tough on crime” era that would make a student of the Du Bois legacy shudder.

Whereas Du Bois is widely known for promoting the idea that “the problem of the 20th century is the problem of the color line”, the DoJ solicitation displays no interest in such high-profile issues as police killings of unarmed black men or the impact of mass incarceration on the African American community. Instead, “protecting police officers” is the only area of law enforcement prioritized by the DoJ.

Another research priority, “enhancing immigration enforcement”, coming at a moment when barely disguised racist imagery accompanies those policies, seems particularly jarring when upheld in the name of a civil rights legend.

The DoJ approach to research is unfortunately consistent with the misconstrued “law and order” agenda that Jeff Sessions has brought to his leadership. Within a month of taking office Sessions had rescinded the Obama-era decision to phase out federal contracting with private prisons. That initiative had been based in part on an inspector general’s finding that such prisons had higher levels of assault and safety concerns than public prisons.

Sessions overturned a policy adopted by his predecessor Eric Holder that urged federal prosecutors to use their discretion to avoid bringing drug charges that would carry a mandatory minimum sentence if the facts of the case suggested that the defendant had little criminal history and was not a major player in the drug trade. A year after its implementation the number of such sentences had declined by 25%, with no adverse effects on drug law enforcement.

Sessions also has emerged as the primary political obstacle to the bipartisan sentencing reform movement on Capitol Hill

In contrast, Sessions now requires that federal prosecutors seek the most serious charge they can bring in every case. This policy is faulty on two counts. First, it fails to recognize that no two crimes or defendants are exactly alike, and that sentencing needs to be individualized. Second, the directive conflicts with the ethical standard for prosecutors to seek justice, not vengeance. In some cases, justice may represent a prison term, in others it may be placement in residential drug treatment.

Sessions also has emerged as the primary political obstacle to the bipartisan sentencing reform movement on Capitol Hill, and joined with President Trump’s barbaric call for the death penalty for drug sellers. At a moment when Americans increasingly recognize that treatment is more effective than punishment for addressing addiction, such a dehumanizing message will only inflame the public debate in unproductive ways.

Perhaps most unsettling about the Du Bois initiative and the thrust of current policy is its disconnect from evidence and the current realities of crime and justice. Certainly law enforcement officers need to be protected as they do their jobs, but so do communities of color when they are harmed by racist policing. Suggesting that we need to enhance immigration enforcement at a time when this is already at record levels fails to engage in the vitally needed conversation about how to develop immigration policy that offers refuge to those fleeing violence and enhances cross-border economic opportunity and family stability.

It is often said that elections have consequences. Distorting history, though, and the contributions of past scholars is not a political consequence but rather degrades our intellectual tradition.

Marc Mauer is the executive director of The Sentencing Project and the author of Race to Incarcerate

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

Sessions is and always has been a racist. That he has now shifted most of his intellectual dishonesty, intentionally racially inflammatory rhetoric, and false narratives to attacking Hispanics, immigrants, and gays, rather than concentrating on demeaning African-Americans, doesn’t change anything.

About the best that can be said for “Gonzo” is that he’s an “equal opportunity racist.” That he has risen to the position of Attorney General while espousing his White Nationalist views is a continuing stain on America and our national values. It’s also something for which the GOP must be held accountable once they finally lose their ultimately doomed quest to “Keep America White.”

Sen. Elizabeth Warren and others were right about Sessions. That they were ignored and rudely “tuned out” by their GOP colleagues is an ongoing national disgrace.

PWS

04-29-18

RACISM IN AMERICA: WILL YOU OR YOUR FAMILY BE NEXT IN THE “NEW AMERICAN GULAG?” — Think It Can’t Happen Because You Are A US Citizen? — Guess Again! — DHS Has Detained Nearly 1,500 Citizens, & They Are Largely Indifferent To The Problem! Of Course It Will Get Worse Under Trump, Unless You’re A “White Guy!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8d20e42e-cd60-4330-b0f1-f808600e59b5

Paige St. John & Joel Rubin report for the LA Times;

Immigration officers in the United States operate under a cardinal rule: Keep your hands off Americans. But Immigration and Customs Enforcement agents repeatedly target U.S. citizens for deportation by mistake, making wrongful arrests based on incomplete government records, bad data and lax investigations, according to a Times review of federal lawsuits, internal ICE documents and interviews.

Since 2012, ICE has released from its custody more than 1,480 people after investigating their citizenship claims, according to agency figures. And a Times review of Department of Justice records and interviews with immigration attorneys uncovered hundreds of additional cases in the country’s immigration courts in which people were forced to prove they are Americans and sometimes spent months or even years in detention.

Victims include a landscaper snatched in a Home Depot parking lot in Rialto and held for days despite his son’s attempts to show agents the man’s U.S. passport; a New York resident locked up for more than three years fighting deportation efforts after a federal agent mistook his father for someone who wasn’t a U.S. citizen; and a Rhode Island housekeeper mistakenly targeted twice, resulting in her spending a night in prison the second time even though her husband had brought her U.S. passport to a court hearing.

They and others described the panic and feeling of powerlessness that set in as agents took them into custody without explanation and ignored their claims of citizenship.

The wrongful arrests account for a small fraction of the more than 100,000 arrests ICE makes each year, and it’s unclear whether the Trump administration’s aggressive push to increase deportations will lead to more mistakes. But the detentions of U.S. citizens amount to an unsettling type of collateral damage in the government’s effort to remove undocumented or unwanted immigrants.

The errors reveal flaws in the way ICE identifies people for deportation, including its reliance on databases that are incomplete and plagued by mistakes. The wrongful arrests also highlight a presumption that pervades U.S. immigration agencies and courts that those born outside the United States are not here legally unless electronic records show otherwise. And when mistakes are not quickly remedied, citizens are forced into an immigration court system where they must fight to prove they should not be removed from the country, often without the help of an attorney.

The Times found that the two groups most vulnerable to becoming mistaken ICE targets are the children of immigrants and citizens born outside the country.

Matthew Albence, the head of ICE’s Enforcement and Removal Operations, declined to be interviewed but said in a written statement that investigating citizen claims can be a complex task involving searches of electronic and paper records as well as personal interviews. He said ICE updates records when errors are found and agents arrest only those they have probable cause to suspect are eligible for deportation.

“U.S. Immigration and Customs Enforcement takes very seriously any and all assertions that an individual detained in its custody may be a U.S. citizen,” he said.

But The Times’ review of federal documents and lawsuits turned up cases in which Americans were arrested based on mistakes or cursory ICE investigations and some who were repeatedly targeted because the government failed to update its records. Immigration lawyers said federal agents rarely conduct interviews before making arrests and getting ICE to correct its records is difficult.

. . . .

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

Read the complete, very scary, story at the link.

Just more support for my position that DHS should not be given any additional agent positions until they account for how they are using (and in too many cases misusing) their current positions. If there is anything that the Trumpsters have clearly shown it’s their total disdain for the Constitution and laws of the U.S. except as they might advance and protect the parochial interests of Trump and his supporters.

There is little doubt that the Trump/Sessions/Miller/Homan crew see DHS as “Internal Security Police” — largely beyond anyone’s control — that they will use for partisan political purposes. The case for the ultimate abolition of ICE in its current form and leadership looks stronger all the time.

And, as usual these days, Congress is AWOL while this Administration undermines American democracy.

Now, a REAL Attorney General might be concerned about getting to the bottom of this lawless behavior affecting the rights of U.S. citizens. But, White Nationalist Jeff Sessions is too busy creating false narratives, demonizing immigrants, and undermining the rights of Hispanic Americans, LGBTQ Americans, and African-Americans to be bothered with fundamental violations of Constitutional rights particularly where the victims aren’t White Guys. Jim Crow lives! And all of us should be worried about where he will strike next.

PWS

04-29-18

AMERICAN INJUSTICE: ADVOCATES COMPLAIN ABOUT US IMMIGRATION JUDGE V. STUART COUCH’S BIAS AGAINST CENTRAL AMERICAN WOMEN SEEKING ASYLUM – APPEALS BOARD AGREES, FINDING COUCH’S RULINGS “CLEARLY ERRONEOUS” IN MANY CASES – Now They Fear That Judge Couch Has A “Kindred Spirit” In The Overtly Xenophobic Jeff Sessions!

Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court

By: Tal Kopan, CNN

Jeff Sessions recently used his special authority as attorney general to review an asylum case that could have sweeping implications for how the US treats immigrants fleeing domestic violence.

Newly released records now show that the case he handpicked, which involves a Central American woman fleeing domestic abuse from her ex-husband, comes from a judge who has been repeatedly rebuked by appellate judges for his multiple rejections of asylum claims from victims of domestic abuse.

Advocates and immigration attorneys fear that Sessions could be using the case as an opportunity to reverse case law that has protected Central American women fleeing violence and sexual assault from husbands by granting them asylum in the US.Stuart

Couch, an immigration judge in Charlotte, North Carolina, has sought to justify denying such women the right to stay in the US in multiple cases, even with the appellate body repeatedly ruling that his findings were “clearly erroneous,” according to records released after a Freedom of Information Act request.

Couch’s decision in the case Matter of A-B-, a convention of naming cases in immigration court that protects the individual’s identity, is a rare opinion that Sessions has referred to himself for review. Sessions has been using a little-known authority to refer immigration cases to himself for review, allowing him to almost single-handedly direct how immigration law is interpreted in this country.

In reviewing Couch’s decision, Sessions invited interested parties to comment on the notion of whether being the victim of a crime can count for asylum, a complicated aspect of asylum law.

The case was initially kept secret by the Justice Department and immigration courts on privacy grounds, but was made public by immigration attorneys as a domestic violence case. Input on the case was due to Sessions on Friday.

It was also later revealed that Sessions decided to consider the case over the objections of the Department of Homeland Security, which had asked him to hold off on diving into the case until the Board of Immigration Appeals, the immigration courts’ appellate body, decided on a request from Couch to take the case back up themselves. Sessions denied DHS’s request.

The Department of Justice declined to comment on why or how Sessions chose the case, and it’s not known how he will rule. When Sessions initially referred himself the case, a department official said he was considering it “because of a lack of clarity in the court system on the issue.”

More on Couch’s decisions: http://www.cnn.com/2018/04/28/politics/jeff-sessions-immigration-courts-domestic-violence-asylum/index.html

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

You should read Tal’s entire article for a profile of just how biased Judge Couch — the second most reversed Judge among hundreds in the Immigration Courts — is in asylum cases. He had 58 cases reversed by the BIA just in 2017, while piling up an “asylum denial rate” 26% above the national average!

And, remember that this “isn’t the Ninth Circuit” by any stretch of the imagination. The BIA is a considered a conservative tribunal with a strong predilection to rule for the DHS to begin with!

I’m glad that the anti-asylum bias that runs through too much of today’s Immigration Court system, and is actually fanned and encouraged by Sessions, is finally being exposed. Even if Congress won’t solve this glaring problem by removing these Courts from the DOJ and creating an independent Immigration Court, with a merit-based hiring system, I hope that the Article III reviewing courts are getting the picture that much of what they are getting from EOIR in the area of asylum denials is the product of an intentionally unfair and biased system.

In this outrageous example, Matter of A-B-, the BIA was actually quite properly trying to “rein in” Judge Couch. Rather than encouraging justice, Sessions actually interfered with the BIA’s actions, even though neither the BIA nor any party had requested his review. What kind of “court system” allows a law enforcement official to control the results? Sounds like something directly out of the DOS Country Report on a Third World Dictatorship!

Judge Couch actually was appointed during the Obama Administration, illustrating the widespread and chronic nature of the problem of anti-asylum biased judging at EOIR. The Obama Administration was not accused of the overtly politicized hiring engaged in by the Bush Justice Department.

Nevertheless, from a statistical standpoint, the opaque, closed, and glacial (two-year average) Obama DOJ selection system was biased in favor of attorneys from government backgrounds and against those with experience representing asylum applicants by an astounding 9 to 1 ratio! Many believe this intentionally produced a BIA and an Immigration Court that would more or less “go along to get along” with construing the law and the facts against asylum applicants from countries considered to be “enforcement priorities” by the Obama Administration.

It’s time to put an end to this charade of justice and Due Process in our Immigration Courts. We need an independent Article I U.S. Immigration Court with a merit-based selection system. If not, we need a “helpful intervention” by the Article III Courts to end this chronically unfair and dysfunctional administration of justice by the Department of Justice!

PWS

04-28-18

May 6 Briefs Filed in Matter of A-B-

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The immigrant ‘caravan’ is a test. Trump wants us to fail.

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Endangered Central American Children

A Focus on Gangs

Yes, folks, it’s way past time to use the correct term for the Trump Administration’s outrageous, and in many cases illegal, policies directed against primarily Hispanic migrant children: “Child Abuse!”

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

PWS

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