"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
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Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.
The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.
What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.
In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.
How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.
As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.
The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6
The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.
Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.
Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.
In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.
Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.
My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.
So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.
The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?
As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.
Notes:
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.
24 I&N Dec. 37 (BIA 2006).
Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
27 I&N Dec. 803 (BIA 2020).
Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.
Matter of Guerra, supra at 40.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!
By Paul Wickham Schmidt
“Courtside” Exclusive
April 6, 2020
Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.
Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.
A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”
Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.
And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequentwillingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!
If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?
Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.
Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent inR-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.
Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.
And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.
That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”
Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA“sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.
Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”
The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.
Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.
The United States operates the largest immigration detention system in the world. More than 50,000 immigrants are detained every day in county jails and for-profit prisons that contract with Immigration & Customs Enforcement (ICE) — at great human cost, and at a cost to taxpayers of $3 billion per year. The current administration has drastically expanded the system, establishing over 20 new detention centers (17,000 more people per day). Christina Fialho, an Ashoka Fellow since 2016 and co-founder of Freedom for Immigrants, is working not only to stop this expansion, but to end immigration detention altogether. Ashoka’s Lorena García Durán caught up with her to learn more.
You co-founded Freedom for Immigrants eight years ago with Christina Mansfield. What was the main goal you set out to achieve?
We want to build a country where no person is imprisoned for crossing a border. Freedom for Immigrants is working to achieve this goal through two main strategies. First, we’ve built a network of 4,500 volunteers that is a consistent watchdog inside this system. We started by building the first visitation program in California. Now volunteers in our network visit people in 69 immigrant prisons in nearly 30 states every week. Second, we launched a community-based alternative to free over 250 people by paying their immigration bonds. Once they are released, we connect them to housing, lawyers, transportation, and mental health services — and we do it all for only $17 per person per day, far less than the government pays to detain people (roughly $165 per person per day).
We are proving that our strategy works. Freedom for Immigrants drafted and co-sponsored the Dignity Not Detention Act — composed of the first statewide bills in the country to stop detention expansion and give the state attorney general oversight powers. These bills passed in California — a state that used to detain a quarter of all people in immigration detention. Since Dignity Not Detention went into effect, seven municipalities ended their ICE contracts. We then worked in a statewide coalition of immigrant rights groups to pass another bill to phase out private prisons in California. Together, we are proving that abolition is possible in the 5th largest economy in the world.
You talk a lot about the importance of creativity and risk taking in the face of obstacles. What are some obstacles you’ve overcome along the way?
Since 2013, we’ve faced “a litany of retaliatory acts by DHS in response to our public advocacy,” as Judge Andre Birotte Jr. explained in his recent court ruling granting us a preliminary injunction against ICE. We’ve had over a dozen of our affiliated visitation programs suspended when we’ve published articles or spoken out in favor of a new system. When we worked with Orange Is The New Black to dramatize the reality of detention, our national hotline was terminated. Private prison companies have muzzled us for reporting sexual assault in detention, and I was personally barred from visiting at certain detention facilities. However, we have successfully moved the work forward through creative persistence, community mobilization, and legal action when necessary.
Speaking of obstacles, ICE just ended all social visitation in response to COVID-19. How is Freedom for Immigrants responding?
If ICE is truly serious about ensuring the health and wellbeing of people in its custody, the agency would release immigrants, beginning with vulnerable populations. Other countries like Spain and Iran are releasing people in response to Covid-19. In fact, Spain’s Interior Ministry has begun a gradual release of people from immigration detention whose deportation cannot be effected before March 29. Freedom for Immigrants has launched an interactive map that tracks ICE response to Covid-19, and we have trained our national hotline volunteers to respond to medical negligence.
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Read the rest of Lorena García Durán‘s interview of Christina Fialho at the above link.
In my experience, there are a few cases where ICE could show on an individualized basis that temporary detention is necessary to protect the public or insure appearance. But, such caseswould be the “exception to the rule,” a very small percentage of today’s “New American Gulag” population.
As this article points out, in most cases government grants to enable community placements and legal representation actually would be much cheaper than today’s wasteful funding of the Gulag.
Unlike the Gulag, it also would promote due process, fundamental fairness, best practices, docket efficiency, and most important, maximize the chances of fair results.
Under the Trump regime, the cruel, costly, and counterproductive Gulag has expanded as a means of punishing, coercing, dehumanizing, and deterring those asserting legal rights, particularly the right to apply for asylum and mandatory protections like withholding of removal and protection under the Convention Against Torture (“CAT”).
It also is used by the regime to hinder the statutory and constitutional right to counsel and to promote biased results. Consequently, individuals entitled to relief and protection under our laws are instead railroaded out of the country by judges employed by the regime who have been instructed to disregard migrants’ rights and follow unethical and legally incorrect “precedents” intentionally misconstruing the law to make release from detention unnecessarily difficult and to promote unjust removals.
In other words, a systemic “Due Process Disaster” and a national disgrace.
Thanks to Christina and her team at Freedom for Immigrants for their courageous efforts to stand up to tyranny and defend due process. You certainly are brave front line fighters for the New Due Process Army!
Mica Rosenberg National Immigration Reporter, Reuters
Mica writes:
I wanted to share our latest reporting, which found about a third of the 43,000 immigrants in detention as of March 2 were housed at facilities that have only one hospital – or none – with intensive-care beds within 25 miles, according to an analysis of data from the American Hospital Directory and U.S. Immigration and Customs Enforcement (ICE). The seven sites with no such hospitals nearby held a total of about 5,000 detainees, according to the analysis, which examined centers that averaged 100 or more detainees. (ICE has said there are fewer detainees being held currently – around 35,600 – but did not provide a facility-by-facility breakdown of their whereabouts)
We focused on Louisiana where the number of immigrant detainees has quadrupled under Trump to nearly 7,000 as of March 2 data. Many of the detention centers in the state are in tiny, rural towns. The Catahoula Correctional Center for example houses more than 500 detainees. It is just outside of Harrisonburg, LA, population 330.
Nurses, doctors and hospital administrators at the small hospitals closest to the detention centers – and even at larger facilities farther away – said they would be overwhelmed if there is an outbreak inside one of the facilities.
Public health experts said an outbreak in a population of 1,500 detainees could require between 150 and 175 intensive-care admissions.
We previously have reported on how lawyers are seeking parole for vulnerable immigrant detainees and how the city of Matamoros in Mexico, where thousands of migrants are stuck in limbo in tent camps, is unprepared for an outbreak.
Please read and share and contact me with additional tips for us to follow!
The whole idea of locating immigration prisons “in the middle of nowhere” intentionally to hamper representation, coerce, punish, and deter detainees from asserting legal rights, and limit accountability and public oversight has been a grotesque denial of due process from the “git go.” Congress and the Article III Courts should have intervened long ago to put a stop to this nonsense before it became life-threatening on an even larger scale.
Even more preposterous is that the DOJ and EOIR have located so-called “courts” (that aren’t really courts in any sense of the term, and which no longer provide any semblance of due process and fundamental fairness) within the Gulag. It’s more like the Spanish Inquisition than it is 21st Century American Justice. Except the tragedy is that this is what passes for justice in 21st Century America! What has happened to our country and our souls? Sadly, it’s actually possible that those appearing before the Spanish Inquisition were treated better than we treat asylum seekers under the Trump regime.
Even worse, the “perpetrators” of this disgraceful mockery of the law and human dignity have to date gotten away Scot-Free. Our justice system at all levels has failed migrants seeking fair and humane treatment under our laws. (Apparently, threatening the lives, rights, and safety of non-criminal so-called “civil detainees” isn’t a problem for either Congress or the Article IIIs. We already know that Trump considers our Constitution to be a joke, and that he therefore runs over it with regularity, contempt, and impunity, while Roberts and his Supremes’ majority express disinterest in holding the Trump regime accountable for even the most boldly egregious abuses. No wonder his open contempt for the Article IIIs has only grown over the past three years.)
Thanks, Mica, for your courageous reporting and continuing to tell the story of those whose lives are being endangered by a “maliciously incompetent” White Nationalist regime and feckless Federal Courts, many of whom have forgotten the meaning of their oaths of office and their obligations to their fellow human beings.
Read all of Mica’s stories in their entirety at the above links. Or, better yet, contact Mica directly@Reuters with your own “horror stories” from inside Trump’s judicially-enabled New American Gulag.
Due Process Forever! The Trump Regime & The Complicit Congress & Federal Courts That Enable Its Abuses, Never!
Vote Like Your Life Depends On It This November! Because, It Does!
One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.
Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open.
The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger.
“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”
Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said.
In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders.
“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”
“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.
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Read the rest of Liz’s article at the link.
Looks like the dead bodies will have to pile up before the Article IIIs and EOIR will take action. As the rest of us know, but to which U.S District Judges & EOIR appear willfully blind, by the time individuals show symptoms and begin dying, it’s too late to stop the spread. The larger community has already been infected.
I wonder what it is that gives both EOIR officials and Article III Judges such great confidence that they and their families will escape the consequences of their irresponsible behavior? Maybe, it’s that both EOIR Senior Execs and Article III Judges manage to studiously avoid “direct exposure” to Immigration Courts. “Below their pay grade,” so to speak.
But, according to folks like Dr. Fauci, who possibly knows even more about infectious diseases than EOIRDirectorMcHenry and the Federal Judges who continue to defer to the irresponsible EOIR “guidance,” nobody will be immune.
So far, the U.S. has done the worst job of any developed country in the world of “flattening the curve.” Inevitably, we eventually will become the “world leader” in coronavirus deaths. After observing the inept response of EOIR and the failure of the U.S. District Courts to promptly intervene on the side of medical knowledge, common sense, and preserving human lives, I can now see why we are failing as a nation to take the extreme measures necessary for self-preservation.
I would think that as lawyers, judges, and other members of the legal community start dying as a result of EOIR’s policies, that the officials responsible eventually will face legal actions brought by surviving family members and colleagues. Life tenure and the judicial doctrine of “absolute immunity” will protect the feckless Federal Judges from legal accountability. But, it won’t protect them and their reputations from moral accountability and the “judgements of history” which are likely to be harsh and as unforgiving as the Trump Immigration Kakistocracy’s treatment of the most vulnerable among us and their brave lawyers.
Due Process Forever! Trump’s Immigration Kakistocracy & Feckless Federal Courts, Never!
As the coronavirus spread through California and the economic fallout of the pandemic began to hit Patricia’s community in the rural Coachella Valley, she said a new Trump administration policy had layered worries upon her worries.
The so-called “public charge” rule, which allows the government to deny green cards and visas to immigrants who rely on public benefits, went into effect in late February, just as the first cases of Covid-19 were being reported across the US.
“Now, we are in panic,” said Patricia, a 46-year-old mother of three and daughter of two elderly parents. The Guardian is not using Patricia’s real name to protect her and her undocumented family members.
Patricia’s father, who stopped seeking treatment for his pancreatic cancer after a lawyer advised that using some public medical benefits could affect his bid to gain legal status, is among the most at-risk for complications from contracting the coronavirus. So is her mother, who is diabetic.
“I have a broken heart,” she said. “We’ve been told that if we want papers to feel secure and calm here, there’s a tradeoff.”
‘I won’t survive’: Iranian scientist in US detention says Ice will let Covid-19 kill many
Although the US Citizenship and Immigration Services last week announced under pressure from lawmakers and advocacy groups that immigrants who undergo testing or treatment for Covid-19 would not be denied visas or green cards under the new rule, fear and confusion are stopping people from seeking medical care. In the midst of a pandemic, health and legal experts say that policies designed to exclude vulnerable immigrant communities from medical care are fueling a public health disaster.
“The community doesn’t trust the government right now.” said Luz Gallegos, who directs the Todec Legal Center in southern California. As Covid-19 spreads across the state, much of the center’s efforts recently have been dedicated to reassuring immigrants that they can and should take advantage of health programs if they can.
Patricia, who went to Todec for advice, said even though she’s been told that the public charge rule doesn’t apply to those who want to get tested for the coronavirus, she can’t help but worry. “With this president, you can never know,” she said. When immigration policies can change overnight, she said, “how can we have trust?”
Even before the public charge rules went into effect, a UCLA analysis found that more than 2 million Californians enrolled in the state’s public food and medical benefits programs could be affected by the rule, which allows immigration officials to turn away those seeking green cards and visas based on who are “likely to be a public charge”.
“We can’t stop the spread of disease while denying health coverage to people,” said Ninez Ponce, director of the UCLA Center for Health Policy Research. “It’s irresponsible public health policy.”
Although several groups of immigrants, including asylum-seekers and refugees, are exempt from the rule, the complicated, 217-page regulation has a “chilling effect”, Ponce said, driving people to withdraw from social services even if they don’t have to.
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Read the rest of Maanvi’s report at the link.
SUPREME COMPLICITY SPELLS SUPREME DANGER FOR ALL AMERICANS
By Paul Wickham Schmidt
Exclusive for Courtside
April 3, 2020
So, let’s be clear about what happened here with the so-called public charge regulations. The expert public commentary opposing this unlawful and unnecessary (i/o/w “stupid and malicious”) change in the regulations was overwhelming.
Support for the change outside of White Nationalist nativist “fringies” was negligible and had no basis in fact.
The Administration’s rationale, sacrificing health and welfare and screwing immigrants for some small fabricated savings that failed to consider the offsetting harm to the public and individuals, was facially absurd.
Then, the “real emergency” (as opposed to Francisco’s fabricated one) predicted by the health officials who had opposed the regulation change occurred. Now, immigrant families who often form the backbone of our “essential workforce” are at risk and they, in turn, will unavoidably spread the risk. Americans, citizens, residents, documented, undocumented, will unnecessarily die because the J.R. Five were derelict in their duties.
The truth is very straightforward: “The coronavirus pandemic is ‘Exhibit A for why the public charge rule is stupid’ said Almas Sayeed, at the California Immigrant Policy Center.” Apparently, “Exhibit A” was too deep for the “J.R. Five” to grasp.
The Constitution actually doesn’t enable the Executive to promulgate irrational policies that contradict both the best science and endanger the public health and welfare to achieve openly racist and xenophobic political goals. “Stupidity based on racism and ignorance” has no place in our Federal Government.
As Mark Joseph Stern so clearly said in Slate:
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants.
“Stupid” actually means “illegal” in this and most other cases. That such an an obvious concept is over the heads of the ideologically biased “J.R. Five” should give us all great pause. The next time these folks decide to elevate the “stupid” and the “racist” over “rational, legal, and humane,” it could be YOUR life and future going down their drain.
If we continue to empower a regime that elevates poorly qualified individuals who have lost any sense of human values and common decency they might have possessed to life tenure in the highest courts of our land, there will be no end to the avoidable human disasters, unnecessary suffering, and tragedies that will ensue.
We need regime change in November! That won’t change the composition and qualifications of the Federal Judiciary overnight. But, it will be an absolutely necessary start toward a Government and a judiciary that understand and respect the Constitution, the rule of law, and the individual rights and human dignity of all persons before our laws. In other words, due process and equal justice for all.
Vote like you life depends on it. Because, it does!
Citing little-known power given to the CDC to ban entry of people who might spread disease and ignoring the Refugee Act of 1980, an internal memo has ordered Border Patrol agents to push the overwhelming majority of migrants back into Mexico.
For the first time since the enactment of the Refugee Act in 1980, people who come to the U.S. saying they fear persecution in their home countries are being turned away by Border Patrol agents with no chance to make a legal case for asylum.
The shift, confirmed in internal Border Patrol guidance obtained by ProPublica, is the upshot of the Trump administration’s hasty emergency action to largely shut down the U.S.-Mexico border over coronavirus fears. It’s the biggest step the administration has taken to limit humanitarian protection for people entering the U.S. without papers.
The Trump administration has created numerous obstacles over recent years for migrants to claim asylum and stay in the United States. But it had not — until now — allowed Border Patrol agents to simply expel migrants with no process whatsoever for hearing their claims.
The administration gave the Border Patrol unchallengeable authority over migrants seeking asylum by invoking a little-known power given to the Centers for Disease Control and Prevention, the U.S. public health agency, to ban the entry of people or things that might spread “infectious disease” in the U.S. The CDC on March 20 barred entry of people without proper documentation, on the logic that they could be unexamined carriers of the disease and out of concern about the effects if the novel coronavirus swept through Customs and Border Protection holding facilities.
U.S. immigration law requires the government to allow people expressing a “well-founded” fear of persecution or torture to be allowed to pursue legal status in the United States. The law also requires the government to grant status to anyone who shows they likely face persecution if returned to their homeland.
“The Trump administration’s new rule and CDC order do not trump U.S. laws passed by Congress and U.S. legal obligations under refugee and human rights treaties,” Eleanor Acer, of the legal advocacy group Human Rights First, told ProPublica. “But the Trump administration is wielding them as the ultimate tool to shut the border to people seeking refuge.”
Two weeks ago, the Trump administration hastily put in place a policy, which the internal guidance calls Operation Capio, to push the overwhelming majority of unauthorized migrants into Mexico within hours of their apprehension in the U.S.
The Trump administration has been publicly vague on what happens under the new policy to migrants expressing a fear of persecution or torture, the grounds for asylum. But the guidance provided to Border Patrol agents makes clear that asylum-seekers are being turned away unless they can persuade both a Border Patrol agent — as well as a higher-ranking Border Patrol official — that they will be tortured if sent home. There is no exception for those who seek protection on the basis of their identities, such as race or religion.
Over 7,000 people have been expelled to Mexico under the order, according to sources briefed by Customs and Border Protection officials.
The guidance, shared with ProPublica by a source within the Border Patrol, instructs agents that any migrant caught entering without documentation must be processed for “expulsion,” citing the CDC order. When possible, migrants are to be driven to the nearest official border crossing and “expelled” into Mexico or Canada. (The Mexican government has agreed to allow the U.S. to push back not only Mexican migrants, but also those from Guatemala, Honduras and El Salvador; the four countries account for about 85% of all unauthorized border crossings.)
Under the Refugee Convention, which the U.S. signed onto in 1968, countries are barred from sending someone back to a country in which they could be persecuted based on their identity (specifically, their race, nationality, religion, political opinion or membership in a “particular social group”).
The Trump administration has taken several steps to restrict the ability of migrants to seek asylum, a form of legal status that allows someone to eventually become a permanent U.S. resident. Until now, however, it has acknowledged that U.S. and international law prevents the U.S. from sending people back to a place where they will be harmed. And it has still allowed people who claim a fear of persecution to seek a less permanent form of legal status in the U.S. (In the last two weeks of February, 2,915 people were screened for humanitarian protection, according to the most recent statistics provided by U.S. Citizenship and Immigration Services.)
The Border Patrol guidance provided to ProPublica shows that the U.S. is acting as if that obligation no longer applies.
Customs and Border Protection, the agency that oversees the Border Patrol, said it would not comment on the document provided to ProPublica. Asked whether any guidance had been provided regarding people who expressed a fear of persecution of torture, an agency spokesperson said in a statement, “The order does not apply where a CBP officer determines, based on consideration of significant law enforcement, officer and public safety, humanitarian, or public health interests, that the order should not be applied to a particular person.”
That language does not appear in the guidance ProPublica received. Instead, it specifies that any exception must be approved by the chief patrol agent of a given Border Patrol sector. One former senior CBP official, who reviewed the guidance at ProPublica’s request, said that because there are so many levels of hierarchy between a chief patrol agent and a line agent, agents would be unlikely to ask for an exemption to be made.
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Read the rest of the article at the link.
Shows how fragile our legal system and our democratic institutions are. Contrary to “popular liberal myth” they have not “been holding up well” in the age of Trump.A GOP Senate, of course, deserves much of the blame. But, it’s not like the Democrats have exactly put protecting the rule of law and Constitutional Due Process for the most vulnerable among us at the forefront.
We can also trace the disintegration of the legal system under Trump directly to the the failure of Roberts and the GOP majority on the Supremes to stand up for separation of powers, racial and religious justice, and Executive accountability. By ignoring a very clear record of invidious racial, religious, and political bias behind Trump’s Executive actions, and allowing a transparently contrived “national security” rationale to be used, in the so-called “Travel Ban Case” the Supremes’ majority basically signaled they had no intention of halting a White Nationalist assault on our Constitution and the rights of vulnerable minorities, particularly migrants. In other words, Roberts & Co. said: “It’s OK to ‘Dred Scottify’ away, we’ll never stand in your way.” And, true to their word, the “J.R. Five” have been more than happy to ignore the law and “green light” the White Nationalist nativist immigration agenda.
So, four decades of painstakingly hard cooperative work by “good government” advocates, NGOs, the private sector, and the international community to reach an imperfect, yet basically workable, consensus that saved countless lives and helped fuel our economic success, the Refugee Act of 1980 lies in tatters. Decades of progress destroyed in a little over three years. That’s “institutional failure” on a massive scale!
Don’t look for the Refugee Act or the rule of law to be resurrected any time soon. Under Trump and his would-be authoritarian kakistocracy, the “emergencies,” real and fabricated, will never end until democracy and human decency are dead and buried. And, don’t count on Mitch McConnell or John Roberts to stand in the way.
This is exactly how democracies die. But, we do have the remaining power to remove the kakistocracy at all levels of our government and start rebuilding America. Yes, Roberts and his gang have life tenure. But, with “regime change,” we can start appointing better judges who will aggressively push back against the far-right, anti-democracy judicial agenda! Folks who believe in Due Process, fundamental fairness, the rule of law, racial equality, human decency, and equal justice for all! Vote to save our nation in November!
I hope this finds you and your loved ones as safe and comfortable as possible right now.
We created a 90-second video – its a series of excerpts about the lack of access to healthcare in immigration detention facilities as a way to highlight how dangerous it is for anyone to be in detention during COVID-19.
Can you post or share this video on social media?
It will have a great impact – it will help engage more people in the movement to get people out of detention.
All info about how to post is below.
I’ve also included a few relevant news stories in case you’re interested in more context. And, there is information about one direct action you can take if you are interested.
Feel free to be in touch if you have any questions.
(AND – if you are also working on this issue and have other ideas about how this video, or the project, can be most effective at this time, we are all ears, our digital doors are open.)
(This is the most direct way to connect your message and your followers to the movement among advocates and policy makers.)
ACTION – if you want to take an action today, this is from RAICES Texas:
> Call the San Antonio ICE Field Office at (210) 283-4712
> “Hi, my name is _____ and I am calling to demand the release of all immigrant detainees from the Residential Centers at Karnes and Pearsall due to the imminent threat of COVID-19. If you don’t, we are all at risk.”
FOLLOW these incredible advocacy organizations to stay informed about the issues and amplify important actions they are instigating:
Detention Watch Network (@DetentionWatch)
Raices (@RAICESACTION @RAICESTEXAS)
Southern Border Community Coalition (@SBCCoalition)
New Sanctuary Coalition (@NewSanctuaryNYC)
ACLU – Border Rights (@ACLU_BRC)
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Join the New Due Process Army and fight to end official child abuse and Article III judicial complicity!
What kind of society allows its government to abuse children? Whatever happened to accountability? How about ethics and common sense for Article III Judges who could end the abuse, but haven’t? How would you feel if your children were treated this way by the authorities? There is a reprehensible “double standard” at work here!
Due Process Forever! Child Abuse Never!
PWS
04-02-20
UPDATE: While folks like McHenry and the operators of the DHS Gulag provide misleading information, or perhaps outright lies, to Federal Judges, Courtside’s sources say that at least six individuals with some connection to the Immigration Courts have died from coronavirus. While I admittedly have no way of “independently verifying” this information, I’d bet that there are many more Immigration Court or Gulag-related coronavirus deaths and serious infections out there that I do not know about!
Why, I wonder, would any Federal Judge accept the word of someone like McHenry or officials in the DHS Gulag over affidavits from detainees, filings from experts, and the advice we hear from the Surgeon General, Dr, Fauci, and Dr. Birx every day? Stay home means “stay home!”
Nobody with any understanding of our immigration system could reasonably believe that running one more removal hearing or keeping non-criminals in prison is worth endangering lives and spreading disease! What in the recent public history of DHSDetention and EOIR would lead a Federal Judge to credit any information on “best practices” on public health provided by these inherently unreliable and incompetent organizations?
In a country ground to a standstill by the coronavirus pandemic, there is one place normalcy reigns: immigration courts.
Overburdened judges oversee packed proceedings; attorneys shuttle clients and paperwork from room to room, often with interpreters in tow; aspiring legal citizens, or at least residents, follow closely, sitting through hearings famously described as death-penalty cases held in a traffic court.
The courts, along with visa applications, detention hearings and other immigration related bureaucracy, are seemingly the lone part of the federal government still expected to function as if a global pandemic hasn’t upended nearly every facet of American life. But those tasked with keeping the machine running say that they have received little guidance about how to keep the system running in the era of social isolation, and even less protection despite fears that immigration proceedings put some of the most vulnerable people in the country in the impossible position of choosing between their health or their home.
The Trump administration has refused to allow immigration courts and visa hearings to comply with the same social isolation standards followed by nearly every other civil aspect of government, and has not allowed for previously scheduled hearings to be postponed. The administration has also issued little in the way of guidance for judges, immigration attorneys or immigrants, whose hearings—which often take years to schedule—directly conflict with stay-at-home orders across the county.
“The immigration court’s refusal to adopt policies that protect the health of respondents, lawyers, judges and immigration court staff during the current pandemic forces immigrant families and their lawyers to make an impossible decision: endanger public health or risk being deported,” said Nadia Dahab, senior litigation attorney at Innovation Law Lab, one of half a dozen immigrants-rights groups that on Friday filed an emergency order challenging the operation of immigration courts despite the crisis.
“We are in the middle of a global pandemic, but the immigration court system is continuing to operate as if it’s business as usual,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The government has turned the court system into a public health hazard.”
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Read the rest of the article at the link.
With very few exceptions, deportations are hardly “essential” during a worldwide pandemic. Indeed, given that even asymptomatic individuals can and have spread the disease, deportation will certainly spread the risk to other countries that likely won’t be able to control it.
There is currently no cure, no vaccine, and no known way of controlling the coronavirus other than staying home. While this well-known information might have gone over the heads of EOIR and Article III Judges, you really wouldn’t need a law degree of even be very smart to figure out that Immigration Courts and the DHS Gulag need to be shut down. Now! No Article III Judge would actually want to trust his or her life to operating under the messed up “guidelines” issued by EOIR! So why is it OK for others?
Statistics show that the longer we wait to keep everyone home, the more individuals who will die! Why is that such a hard concept for EOIR officials and Article III Judges to grasp?
This is a time for “radical prudence” not “criminal recklessness.” The Government should have to demonstrate “clear and convincing” reasons and “best health practices” to go forward with any individual removal case during the pandemic.
Because so many Federal Judges have little understanding of what it means to appear in the Immigration “Courts” (which are not “courts” in any sense of the word) and because they use exceptionallypoor judgement in believing regime bureaucrats who have no credibility on issues of public health or anything else, over experts in the field, individuals will unnecessarily suffer and die.
At some point in the future, there will have to be an accounting for the whole mess that has been allowed to unfold as a result of Trump’s biased and irrational immigration policies. Examination of the unconscionably poor response by the Article III Judiciary must be part of that process. They are a key part of unnecessarily “endangering public health” as described in this article.
The Article III Judges we have now are what we have — they have life tenure. But, going forward we can do better — much better. And, our lives and the future of humanity will depend on it.
Due Process Forever! Better Judges For A Better Future! Constantly Confront Complicit Courts 4 Change!
Close immigration courts now: A coronavirus necessity to protect public health
BySTEPHEN YALE-LOEHR andJACLYN KELLEY-WIDMER
NEW YORK DAILY NEWS |
MAR 31, 2020 | 1:36 PM
In this Nov. 15, 2019, file photo, a detainee talks on the phone in his pod at the Stewart Detention Center in Lumpkin, Ga. While much of daily life has ground to a halt to reduce the spread of the coronavirus, the Trump administration is resisting calls from immigration judges and attorneys to stop in-person hearings and shutter all immigration courts. They say the most pressing hearings can still be done by phone so immigrants aren’t stuck in detention indefinitely.(David Goldman/AP)Imagine you’re an immigration lawyer. You have a case scheduled for trial in immigration court, but you’ve got a cough, a sore throat and shortness of breath. In normal times, you probably would have gone to court for the trial. In current times, you’re worried. We all know what those symptoms mean.
You call your doctor, who tells you that you’re displaying symptoms consistent with COVID-19. The doctor recommends that you self-quarantine.
Your immigrant client is detained by Immigration and Customs Enforcement (ICE) and counting on you to present their asylum case. You’ve been preparing for months. Your client’s ability to avoid being deported to a country where they face torture or death depends on your performance.
Even though most courts around the country are closed in response to the pandemic, your court date is still on. The Justice Department is keeping its detained immigration courts open, ignoring joint letters from the National Association of Immigration Judges, the American Immigration Lawyers Association and the union representing ICE attorneys calling for a shutdown during the pandemic.
As of your trial date, you haven’t been able to meet with your client in person to prepare for at least two weeks. At the time, ICE wouldn’t let you use your regular attorney visit rooms due to disease risk, so you were stuck waiting in line for the one glass-partitioned attorney room at the detention center. You never got to the front of the line for the room, so you were only able to talk to your client through glass and on the telephone.
Then ICE issued a new directive on March 21 requiring all attorneys to bring their own gloves, mask and eye protection for contact visits with clients. Your office doesn’t have any of this gear. Even if you could get protective gear, you wouldn’t take it away from the medical professionals who truly need it.
Despite all of this, you hope the immigration judge will sympathize with your predicament. You file a motion asking for more time to better represent your client after all of this is over. You cite your own illness, your inability to meet with your client to prepare, and local and national public health warnings.
Despite your objections, the immigration judge proceeds with your client’s asylum trial. The judge gives you the choice of abandoning your client to face the fight of his life by himself or proceeding as his attorney via telephone. Reluctantly, you find a folding table to put your file on and try the case from your couch, unable to see or communicate privately with your client. You cannot see anything that is happening in court.
All you know is that the immigration judge, ICE prosecutor and interpreter are there.
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Read the rest of the article at the above link.
And here’s my good friend and former Georgetown Law colleague Leila, now at Tulane Law, with her plea in Slate for some sanity and humanity on unnecessary and demonstrably harmful and dangerous continued incarceration of children in DHS’s “New American Gulag.”
With nearly 3,000 deaths and more than 160,000 infected by COVID-19 in the United States, it’s clear no one will be spared from impacts of the pandemic. In the past week, four children in immigration detention and seven employees of the Office of Refugee Resettlement who work in children’s detention facilities in New Jersey and Texas tested positive for the virus. Doctors working with detained immigrants have warned members of Congress that immigrant detention centers pose a “tinderbox scenario,” where social distancing precautions are impossible.
Two separate lawsuits are asking federal courts to force the release of unaccompanied children as well as families in immigrant detention, citing the grave health risks of contracting the coronavirus and spreading the disease. These risks are particularly serious because of the confluence of factors in family detention centers: crowded quarters, limited cleaning supplies, and the influx of new families into the detention centers. While it is understood children are usually less at risk of serious complications from COVID-19, a handful of children in the U.S. with COVID-19 have died in the past few days, and children may be more likely to more rapidly spread the disease.
Instead of a public health–oriented response to COVID-19 in the immigration legal system, we are seeing political opportunism. The Trump administration is using the virus as an excuse to swiftly deport unaccompanied minors at the border, despite laws that require that children be allowed to have their cases heard first by an immigration judge. Similarly, the Department of Justice is defying public health guidelines by forcing judges, attorneys, and immigrants to appear in select immigration courts across the country, despite positive COVID-19 tests from court personnel and risks inherent to crowded courtrooms, in order to continue deportation proceedings.
This mistreatment of children is not new. Before the outbreak, children were finding themselves in an increasingly punishing immigration legal system—where they had been separated from their parents, detained in record-breaking numbers for longer periods of time, and held in shocking and abusive detention conditions, including “dog cage” holding cells without mattresses, overflowing toilets, and frigid temperatures. Children do not have to be held in these conditions; unaccompanied children can and should be released more expeditiously to live with family in the U.S., and children detained with parents could be released as a family unit to pursue their legal case outside of detention.
Detained children have experienced forced hunger, dehydration, and sleeplessness.Holly Cooper, an attorney representing detained children, stated: “In my 22 years of doing visits with children in detention I have never heard of this level of inhumanity.” One 15-year-old boy, detained at the jail-like Shenandoah Valley facility, wrote “I want us to be treated as human beings.”
As a law professor and immigration attorney for more than a decade, I have seen firsthand how the immigration system mistreats children. In a recent law journal article, I argue adultification bias can help explain the mistreatment of immigrant children, who are largely teenagers of color. Adultification is the phenomenon whereby children of color are perceived as more adultlike and therefore less innocent than white peers. Adultification has created systemic harm for children of color within public systems like education, juvenile justice, and child welfare. In particular, the disproportionate rates of arrests, adjudications, and sentencing for children of color within the juvenile justice system has been studied closely.
Immigration laws were not designed to protect children. In fact, only a few areas of the law consider the special circumstances of children. The Flores settlement sets minimum standards for detaining minors, limited to children under 18. Under Flores, children should be released as soon as possible to family, when feasible. Furthermore, the Office of Refugee Resettlement, not U.S. Immigration and Customs Enforcement, is tasked with the custody of detained unaccompanied minors. According to legislative history, this is because ORR, under the Department of Health and Human Services, has more expertise in child care. Another child-focused measure is the Trafficking Victims Protection Reauthorization Act of 2008, or TVPRA, which expands legal protections for children including in the areas of asylum law and special immigrant juvenile status, a pathway to legal permanent residence and citizenship available for some children. Lastly, the government has issued guidelines for children’s cases to improve immigration court procedures.
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Read the rest of Leila’s article at the link.
“Adultifiation,”“Adjudication Bias,”“Dred Scottification,”“dehumanization,” it’s all pretty much the same thing. As human beings, we must ask ourselves every day why have we empowered the cowardly bullies of the Trump regime to commit what are essentially “crimes against humanity” against the most vulnerable among us, their courageous representatives (about the only folks in the country brave enough to stand up for all of our Constitutional and human rights), and even their own employees? Compare their brave performance with the complicity of many Federal Judges, all the way up to the Supremes, and many legislators who stand by and watch these preventable and outrageous human and legal disasters occur, yet do nothing to stop them!
Why do we have the best and brightest legal and public health minds in the country pleading with the regime to take straightforward, common sense, prudent steps that even a minimally competent government would have taken long before now? How have we allowed the kakistocracy and the wanton cruelty and “malicious incompetence” they inflict on almost everything they touch become the “face of America?”
Due Process Forever! Vote Like YOUR Life Depends On It This November; Because It Does!
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.Knightess of the Round Table
Round Table leader Judge Ilyce Shugall led the charge on both of these efforts!
Here’s the Amicus Brief on court closings we filed in LAS AMERICAS IMMIGRANT ADVOCACY CENTER v. TRUMP in the U.S. District Court for the District of Oregon in Portland:
And here’s the official comment we filed opposing the EOIR’s outrageous proposal to raise feesfor intentionally diminished services — a transparent attempt to limit access to justice for the most vulnerable and to discourage appeals in a system rife with largely available, often life-threatening mistakes and errors!
My “Inbox” here at Courtside has been pulsating with palpable outrage, anger, and unrestrained grief from my Round Table colleagues about the callous disregard by EOIR for the health, safety, and humanity of both the public and its own employees, many of them our friends and former colleagues. What better evidence could there be of the need for an independent Immigration Court, run by competent professionals, committed to due process, best practices, and service to the public than the awful mess happening at EOIR right now?
During this time of true national emergency, the Round Table remains committed to lending our collective voices and group expertise to as many organizations out there courageously fighting on the “front lines” as we can. Together, we represent literally centuries of experience on the immigration benches, the “retail level” of our justice system. We are sharing widely with judges, journalists, public officials, and others our insights into what’s wrong with today’s Immigration Courts and how to restore and enhance due process, the rule of law, common sense, and basic human values to a system that actively scorns and undermines all of the foregoing.
I am honored to be a member of the Round Table and deeply appreciative of the fearless leadership and endless energy of folks like Ilyce, Judge Jeffrey Chase, Judge Sue Roy, Judge Charles Honeyman, Judge Carol King, Judge John Gossart, Judge Lory Rosenberg, and many others for our daily efforts to literally save our nation and our justice system from the disastrous policies, legal ignorance, “malicious incompetence,” and disregard for human lives being inflicted by DOJ, EOIR, and DHS on our nation every day.
Due Process Forever! Malicious Incompetence Never!
Our “Round Table Brief” is mentioned in the article. Unfortunately, in this case it didn’t get the plaintiffs “over the top.”
The Judge seems to have applied the old “good enough for government work” standard to EOIR’s efforts. In other words “show me the dead bodies.” Assuming that the the Surgeon General and other health exports are right, the worst is yet to come. That doesn’t bode well for anyone caught up in the EOIR system. Also seems inconsistent with the “radical mitigation strategy” that government has been preaching.
A federal judge in Washington pressed U.S. Immigration and Customs Enforcement to release migrants held in family detention centers, citing the imminent risk of coronavirus outbreaks in confinement and their rapid spread to surrounding communities.
U.S. District Judge James E. Boasberg of Washington, D.C., stopped short of ordering the immediate release of about 1,350 members of migrant families detained at three centers in Pennsylvania and Texas as part of a lawsuit advocates recently filed. But during a hearing on Monday, the judge directed U.S. immigration authorities to report on their efforts to release families in custody by next week.
“I will order that in a week [April 6], the government has got to come back to me and give me answers about the capacity of these centers, videotapes of living conditions and steps taken toward release,” Boasberg said after a 45-minute hearing.
“Circumstances are changing rapidly, and if there are cases in these centers or there are other problems that are not compliant, I will revisit” the petitioners emergency release request, the judge added.
Boasberg’s order expands on a similar one U.S. District Judge Dolly M. Gee issued Saturday in Los Angeles related to an emergency hearing seeking the release of 6,900 detained children. Gee had ordered that federal agencies operating detention facilities for migrant children report their efforts to release children in custody by April 6. Boasberg widened the order to cover their parents.
[[Coronavirus could pose serious concern in ICE jails, immigration courts]]
Boasberg also directed U.S. immigration authorities to comply with Centers for Disease Control and Prevention guidelines for congregate housing and the Constitution’s guarantee that prisoners be held in safe and sanitary conditions.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
Boasberg entered his order in a lawsuit filed March 21 by three groups helping migrant families seeking asylum and being held at three centers in Berks County, Pa.; Dilley, Tex.; and Karnes City, Tex., under the Trump administration’s family detention policy.
Lawyers for the Refugee and Immigrant Center for Education and Legal Services, the Rapid Defense Network, and ALDEA — the People’s Justice Center argued that their clients are “trapped and at risk of serious, irreparable harm” in situations they called “a tinderbox.”
The suit alleged that groups of about 60, 500 and 800 detained mothers, fathers and children live, eat and sleep in close quarters at the three facilities and cannot meet hygiene and “social distancing” standards recommended to prevent the spread of the virus.
The complaint asserts that up to 100 people sit “elbow to elbow” in lunchrooms at tables of 10; soap is limited; access to hand sanitizer is limited or nonexistent; and cleaning of centers is typically done by volunteer detainees who are paid $1 a day and not provided hand sanitizer or masks.
“Families in [detention centers] are scared and concerned for their lives,” the complaint alleged. “It is almost certain to expect COVID-19 to infect and spread rapidly in family residential centers, especially when people cannot engage in proper hygiene or isolate themselves from infected or asymptomatic residents or staff.”
The suit said authorities have begun to release some families that include pregnant women or people with asthma from the Karnes and Dilley facilities.
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Read the complete story at the link.
It’s clear that DHS has neither the desire nor the ability to comply with CDC guidelines. Delay could be deadly. Indeed, that Judge Boasberg had to order the DHS to do what it should be doing anyway and what it has falsely claimed it was doing actually demonstrates why the whole system should long ago have been removed from the regime’s control
The good news is that in this case the regime’s immigration kakistocracy is finally getting some much-needed “adult supervision” from Judge Boasberg. Let’s hope he can save some lives from a system designed and operated to demean, dehumanize, and endanger as part of an unconstitutional “deterrence” strategy.
But, at some point, both our society and our justice system will have to stop the ongoing “willful blindness” and deal directly with the unconstitutionality, intentional cruelty, immorality, and wastefulness of falsely classifying gratuitous “cruel and unusual punishment” of families and children seeking asylum as “civil detention.” It’s no such thing; it must be outlawed and abolished except in the extremely limited circumstances where it is actually required to protect the public or insure appearance.
And, under our Constitution, it should never be imposed without an individualized order from an independent Federal Judge. Today’s “New American Gulag” is an unconstitutional national disgrace which has been “weaponized,” with disturbingly little actual supervision by the Article III Judiciary, by a regime interested only in furthering a White Nationalist agenda of gratuitous cruelty and oppression of “the other” (primarily, other humans of color)!
WASHINGTON, DC—In a lawsuit filed today in the U.S. District Court for the District of Columbia, several immigration lawyer groups and individuals with pending immigration cases demanded that the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) take immediate necessary actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.
The American Immigration Lawyers Association (AILA), the Immigration Justice Campaign— a joint initiative of the American Immigration Council and AILA—represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) call for the government to take the following measures:
suspend in-person immigration hearings for detained individuals and provide robust remote access alternatives for detained individuals who wish to proceed with their hearings for the duration of the COVID-19 pandemic;
guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives;
provide Personal Protective Equipment for detained noncitizens and legal representatives who need to meet in person in facilities where PPE is required for entry;
alternatively, release detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or with the immigration court.
The global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. The Centers for Disease Control and Prevention has specifically highlighted in-person court appearances as a risk factor for coronavirus outbreaks. Federal courts and the Bureau of Prisons via the Attorney General have taken measures to minimize the health risk. Yet, EOIR, a component of DOJ which oversees immigration courts, has not taken the same protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. The CDC has also highlighted the particularly acute dangers of COVID-19 outbreaks in detention, and more than 3,000 public health experts have called for the release of immigrants from detention. However, ICE has refused to take measures to release or protect immigration detainees from harm and continues to transport them back and forth from courthouses while denying them critical access to counsel during this crisis.
AILA Director of Federal Litigation Jesse Bless stated, “Simply put, EOIR and ICE need to adopt flexible measures to ensure safety for respondents and ensure access of counsel is not denied. Access to counsel is integral to the fundamental constitutional right to due process and recent incoherent and contradictory policies from EOIR and ICE are endangering the health and constitutional rights of countless individuals, including members of their own staff.”
Immigration Justice Campaign Director at the American Immigration Council Karen Siciliano Lucas said, “Through our Immigration Justice Campaign, we have seen what the COVID-19 pandemic means for our volunteer attorneys and their clients in detention. They struggle to communicate with each other and have real concerns about how they can fairly present their immigration cases. The government must immediately close immigration courts and utilize remote opportunities until the coronavirus is under control to protect the health of immigrants, immigration judges, court staff, and surrounding communities alike. Our nation is only as healthy as its people. We must call on our leaders to do all they can to protect and care for everyone—regardless of immigration status.”
“EOIR and ICE have failed to take critical actions necessary to protect the health and safety of detained immigrants and their attorneys, creating disastrous public health conditions in detention centers and at immigration courts,” said Sirine Shebaya, Executive Director of the National Immigration Project. “Instead of releasing immigrants who do not need to be detained, ICE is choosing to keep them detained and deprive them of access to counsel, while EOIR proceeds with their hearings as though nothing has changed. The agencies must take the necessary measures to provide access to counsel and ensure the availability of robust alternatives for detained immigrants and attorneys who cannot proceed with in-person hearings at this time.”
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
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As the Trump regime intentionally puts the public at risk in Immigraton Court and DHS’s “New American Gulag,” the public officials supposedly in charge of protecting the pubic and insuring the integrity of justice continue to operate with “malicious incompetence” and “criminal negligence.” Kakistocracy is bad! But, it becomes life-threatening in the time of true (rather than the regime’s usual bogus) emergency!
In a major departure from previous practice mandated by federal law, the Trump administration has begun quickly deporting immigrant children apprehended alone at the southern border.
Administration officials say they are following public health orders designed to prevent the spread of the coronavirus in the US, but opponents say they are using the health orders to skirt federal laws that govern the processing of unaccompanied minors.
The New York Times first reported that the Trump administration would apply to unaccompanied children from Central America a March 20 order issued by the Centers for Disease Control and Prevention (CDC) that bars the entry of those who cross into the country without authorization.
Previously, unaccompanied children from Central America picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement (ORR), where they would be housed in shelters across the country as they began officially applying for asylum and waited to be reunited with family members in the US.
On Monday, a US Customs and Border Protection official confirmed to BuzzFeed News that the agency was now applying the CDC order to children.
“All aliens CBP encounters may be subject to the CDC’s Order Suspending Introduction Of Persons From A Country Where A Communicable Disease Exists (March 20, 2020), including minors,” read a statement from CBP. “When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families quickly and safely, if possible.”
The statement noted that there is discretion for the agency to exclude certain unaccompanied children from the order if, for example, they show signs of illness.
Immigrant advocates told BuzzFeed News they were alarmed at the policy shift.
“Children arriving at the border, many of whom have endured unimaginable harm at home and on their journey, are the most vulnerable group encountered by border officials. Unaccompanied children are particularly vulnerable to trafficking,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. “The answer to coronavirus cannot be to put children in harm’s way.”
Eleanor Acer, the refugee protection director at Human Rights First, said the move was proof that the Trump administration was “using” a public health crisis “to advance their long-standing goal of overturning US laws protecting vulnerable children and people seeking asylum.”
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Read the rest of the article at the link.
Like all fascists, the White Nationalist nativists of the regime are always looking for new ways to pick on the most needy and vulnerable. And, what presents a better target for cruelty and abuse than unaccompanied kids, particularly when a health emergency offers “cover?”
The Dems sputter but can’t do anything except write letters that go in the regime’s waste baskets.
