"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
CORQUÍN, Honduras — The farmer stood in his patch of forlorn coffee plants, their leaves sick and wilted, the next harvest in doubt.
Last year, two of his brothers and a sister, desperate to find a better way to survive, abandoned their small coffee farms in this mountainous part of Honduras and migrated north, eventually sneaking into the United States.
Then in February, the farmer’s 16-year-old son also headed north, ignoring the family’s pleas to stay.
The challenges of agricultural life in Honduras have always been mighty, from poverty and a neglectful government to the swings of international commodity prices.
But farmers, agricultural scientists and industry officials say a new threat has been ruining harvests, upending lives and adding to the surge of families migrating to the United States: climate change.
And their worries are increasingly shared by climate scientists as well.
Gradually rising temperatures, more extreme weather events and increasingly unpredictable patterns — like rain not falling when it should, or pouring when it shouldn’t — have disrupted growing cycles and promoted the relentless spread of pests.
Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times
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Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times
The obstacles have cut crop production or wiped out entire harvests, leaving already poor families destitute.
Central America is among the regions most vulnerable to climate change, scientists say. And because agriculture employs much of the labor force — about 28 percent in Honduras alone, according to the World Bank — the livelihoods of millions of people are at stake.
Last year, the bank reported that climate change could lead at least 1.4 million people to flee their homes in Mexico and Central America and migrate during the next three decades.
The United States has allocated tens of millions of dollars in aid in recent years for farmers across Central America, including efforts to help them adapt to the changing climate.
But President Trump has vowed to cut off all foreign aid to Honduras, Guatemala and El Salvador because of what he calls their failure to curb the flow of migrants north.
Critics contend the punishment is misguided, though, because it could undermine efforts to address the very problems that are driving people to abandon their farms and head to the United States.
“If Donald Trump withdraws all the funds for Honduras, it’s going to generate more unemployment, and that’s going to generate more migration,” said María Esperanza López, the general manager of Copranil, a coffee-growers cooperative here in western Honduras. “And that’s going to result in more abandoned farms.”
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“Climate change is destroying some farms,” said a coffee farmer, Fredi Onan Vicen Peña, right, shown with his father, Juan José Vicen.CreditCésar Rodríguez for The New York Times
Coffee cultivators in the region are at particular risk of disruption because the crop is highly sensitive to weather variations.
Fredi Onan Vicen Peña, the coffee farmer whose brothers, sister and teenage son have already given up and joined the exodus north, reached over and tore a leaf off one of his plants.
It was a mottled yellow and brown: signs of coffee rust, a disease whose spread has been influenced by climate variability. As much as 70 percent of his crop, planted across five acres in a pine forest, had been affected, he estimated, and there was little chance he could salvage it.
“Climate change is destroying some farms,” said Mr. Vicen, 41.
Beyond that, some of his healthier plants had begun to blossom nearly two months ahead of schedule because of a heavy unseasonable downpour, throwing the entire growing cycle into doubt.
“This is not something we predicted,” Mr. Vicen said.
Average temperatures have risen by about two degrees Fahrenheit in Central America over the past several decades, making the cultivation of coffee difficult, if not untenable, at lower altitudes that were once suitable.
That has forced some farmers to search for land at higher altitudes, switch to other crops, change professions — or migrate.
“Some very fine families that have been producing quality coffee for a long time are now facing the decision of whether to stay in coffee,” said Catherine M. Tucker, a professor of anthropology at the University of Florida who has done research in Honduras for more than two decades.
Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times
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Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times
Some climate scientists say that in the absence of long-term meteorological data, it is hard for them to say with certainty whether the increasing variability is caused by long-term changes in the region’s climate. But, they say, they are leaning in that direction.
“It’s becoming so unusual, it’s almost certainly climate change,” said Dr. Edwin J. Castellanos, dean of the Research Institute at the Universidad del Valle de Guatemala, a university in Guatemala City, and one of Central America’s leading scientists in the field of climate change.
Climate change is rarely the sole factor in the decision to migrate. Violence and poverty are prime drivers, but climate change can be a tipping point, farmers and experts say.
“Small farmers are already living in poverty; they’re already at the threshold of not being able to survive,” Mr. Castellanos said. “So any changes in the situation may push them to have enough incentives to leave.”
The outlook for the region seems bleak. Reduced yields of coffee and subsistence crops like corn and beans could significantly increase food insecurity and malnutrition. By some predictions, the amount of land suitable for growing coffee in Central America could drop by more than 40 percent by 2050.
The number of coffee producers in the area where Mr. Vicen lives has dropped by a quarter in the past decade — to about 9,000 from about 12,000 — partly because of pressure from climate change, said Marlon Danilo Mejía, the regional coordinator for the Honduran Coffee Institute, an industry trade group.
A vast majority are small producers, managing less than about nine acres each, he said.
José Edgardo Vicen, 37, one of Mr. Vicen’s brothers, had weighed migrating for years. He had worked in the coffee fields since he was a boy, continuing the family tradition. In this part of Honduras, coffee is a major crop, with an increasing amount bound for North America, Europe and Asia.
Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times
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Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times
But after a rust outbreak and other pressures in recent years, including plunging commodity prices, the younger Mr. Vicen said he could no longer earn enough from his harvest to cover production costs.
He headed north with his 14-year-old son last August, crossed the border illegally and settled in Texas. A brother and a sister, driven by similar circumstances, left Honduras soon afterward and also sneaked into the United States.
“For the small producer, I promise you, there’s no way to get ahead,” said Mr. Vicen, who now works in construction and sends remittances home to support his wife and daughter.
When he was younger, harvest time “was like a party,” he recalled. Now, “there are only losses, no profits.”
Fifteen producers from the Vicens’ coffee cooperative — more than 10 percent of its members — have migrated to the United States in the past year, said Ms. Esperanza López, the general manager of the cooperative. They have joined thousands of others from villages in Honduras’s western highlands.
Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas at Austin, said that government statistics on apprehension of migrants at the southwest border of the United States in recent years reflect a sharp increase in people from western Honduras.
After large caravans of migrants arrived last fall in Tijuana, Mexico, a United Nations survey found that 72 percent of those surveyed were from Honduras — and 28 percent of the respondents had worked in the agricultural sector.
Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times
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Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times
The exodus of farm workers has worsened already serious labor shortages in western Honduras. Some industry leaders in the region joke that if the caravans in recent months were “the laborer caravans,” the next wave will be “the grower caravans.”
Coffee farmers have been scrambling to adjust to the changes, learning which species are more resistant to plague and drought, and branching out into other crops — like cacao, avocados or trees that produce construction-grade wood.
Nongovernmental and public-private initiatives have also taken root in coffee-growing regions of Central America and around the world to help guide farmers. Some have received the backing of the world’s biggest coffee sellers — like Starbucks, Tim Horton’s and Lavazza — trying to ensure their future supply.
Yet even the application of best practices is no guarantee that everything will be fine.
“The weather is crazy,” said Carlos Peña Orellana, 58, a farmer and member of a local coffee cooperative. “Everything’s out of control.”
He owns 12 acres of land but can afford to farm only about five. He gets by with income from a tomato greenhouse he built with the cooperative’s help, and with remittances from two sons who migrated to the United States after struggling through the rust crisis of 2012-13.
“They’re helping to revive the farm,” he said at his ramshackle ranch one recent afternoon. “It’s really difficult now.”
He turned to his youngest son, Carlos, 12, and saw a future migrant. Pointing a leathery finger, he said: “You’re next, right?” Mr. Peña chuckled. The boy squirmed, saying nothing.
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Can the “good guys” oust the Trump Kakistocracy at the ballot box before it’s too late? I was optimistic after my two-week Scarff Distinguished Professorship at Lawrence University that the upcoming generation understands these issues and is committed to action, not just talk, and certainly will work hard to undo the damage done by the current Administration’s intentionally ignorant and ill-intended approaches to both migration and climate issues.
Eileen Sullivan and Michael D. Shear report for the NY Times
WASHINGTON — Stephen Miller was furious — again.
The architect of President Trump’s immigration agenda, Mr. Miller was presiding last month over a meeting in the White House Situation Room when he demanded to know why the administration officials gathered there were taking so long to carry out his plans.
A regulation to deny welfare benefits to legal immigrants — a change Mr. Miller repeatedly predicted would be “transformative” — was still plodding through the approval process after more than two years, he complained. So were the new rules that would overturn court-ordered protections for migrant children. They were still not finished, he added, berating Ronald D. Vitiello, the acting head of Immigration and Customs Enforcement.
“You ought to be working on this regulation all day every day,” he shouted, as recounted by two participants at the meeting. “It should be the first thought you have when you wake up. And it should be the last thought you have before you go to bed. And sometimes you shouldn’t go to bed.”
A few weeks after that meeting, the consequences of Mr. Miller’s frustration and the president he was channeling have played out in striking fashion.
Mr. Trump has withdrawn Mr. Vitiello’s nomination to permanently lead ICE and pushed out Kirstjen Nielsen, his homeland security secretary. The department’s acting deputy secretary, Claire Grady, and the Secret Service director, Randolph D. Alles, are departing as well. And the White House has made it clear that others, including L. Francis Cissna, the head of United States Citizenship and Immigration Services, and John Mitnick, the department’s general counsel, are likely to go soon.
Mr. Trump insisted in a tweet on Saturday that he was “not frustrated” by the situation at the border, where for months he has said there is a crisis that threatens the nation’s security. But unable to deliver on his central promise of the 2016 campaign, he has targeted his administration’s highest-ranking immigration officials.
And behind that purge is Mr. Miller, the 33-year-old White House senior adviser. While immigration is the issue that has dominated Mr. Trump’s time in office, the president has little interest or understanding about how to turn his gut instincts into reality. So it is Mr. Miller, a fierce ideologue who was a congressional spokesman before joining the Trump campaign, who has shaped policy, infuriated civil liberties groups and provoked a bitter struggle within the administration.
White House officials insisted to reporters last week that they had no choice but to move against administration officials unwilling or unable to make their agencies produce results. One senior administration official at the White House, who requested anonymity to discuss what he called a sensitive topic, said many of the administration’s core priorities have been “either moving too slowly or moving in the wrong direction.”
But current and former officials from those agencies, who also requested anonymity to discuss contentious relations with the White House, describe a different reality.
The purge, they said, was the culmination of months of clashes with Mr. Miller and others around the president who have repeatedly demanded implementation of policies that were legally questionable, impractical, unethical or unreasonable. And when officials explained why, it further infuriated a White House set on making quick, sweeping changes to decades-old laws.
In a twist, many of the officials who have clashed with the White House were the president’s own political appointees, who share his broad goal of limiting immigration into the United States. To that end, they have already succeeded in lowering the number of refugees allowed into the United States, imposing a travel ban on entry from mostly Muslim nations, speeding up denaturalization proceedings, slowing asylum processing at ports of entry and developing proposals to limit work permits for spouses of high-tech workers.
“I don’t think the president’s really cleaning house,” said Thomas D. Homan, a former acting ICE director and strong supporter of the president’s immigration agenda. “I think he’s setting the reset button.”
A White House spokesman declined a request for comment. But even several of the most right-wing, anti-immigration groups have had a mixed reaction to the treatment of the immigration officials Mr. Trump and Mr. Miller have targeted.
The Center for Immigration Studies tweeted that “Nielsen got tough at the end of her tenure, but it was largely too little, too late.” The Federation for American Immigration Reform wrote: “Under Francis Cissna’s leadership, USCIS has issued a steady stream of policy changes and regulations that are firmly in line with President Trump’s immigration agenda. Removing him would be a huge mistake.”
But it has not been enough for Mr. Miller and his allies in the White House feeling the constant pressure from Mr. Trump.
Perhaps the greatest point of contention within the administration has been the asylum laws that are the root cause of the most vivid manifestation of the immigration issue: the hundreds of thousands of migrant families from Central America who have surged toward the southwestern border, fleeing violence and poverty.
In a Tuesday afternoon “deputies” conference call last year with about 50 or 60 officials from across government, Mr. Miller demanded to know why nearly all of the families seeking asylum were passing the first hurdle — a screening interview to determine whether they have a “credible fear” of persecution if they were returned to their home countries.
Mr. Miller and others in the White House were outraged that 90 percent or more of the applicants passed the first screening, a concern during the Bush administration, as well. Immigration judges ultimately deny all but about 20 percent of the asylum requests, but because of a backlog of hundreds of thousands of cases, many asylum seekers wait years for their case to be heard for the second time, giving them the chance to gain work permits, build roots and disappear in the United States.
To Mr. Miller, the asylum process was a giant loophole that needed to be plugged. And he faulted the asylum officers at Citizenship and Immigration Services who were conducting the screenings for having a cultural bias that made them overly sympathetic to the asylum seekers. “You need to tighten up,” Miller insisted.
Immigration officials on the conference call did not disagree that too many migrants were granted asylum in the initial “credible fear” screening. But the rules for conducting the screenings were written into law by Congress and designed to be generous so that persecuted people had a real opportunity to seek asylum. It was unclear, the officials said, what else the agency could do.
A Border Patrol vehicle near the border fence in Sunland Park, N.M. White House officials recently pushed to have Border Patrol agents, instead of asylum officers, conduct initial screenings of asylum seekers.CreditJose Luis Gonzalez/Reuters
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A Border Patrol vehicle near the border fence in Sunland Park, N.M. White House officials recently pushed to have Border Patrol agents, instead of asylum officers, conduct initial screenings of asylum seekers.CreditJose Luis Gonzalez/Reuters
Listening to Mr. Miller continue to hammer the issue, two people on the call recalled, it was almost as if Mr. Miller wanted asylum officers to ignore the law. At one point during the call, Mr. Cissna erupted in frustration.
“Enough. Enough. Stand down!” he said.
But such pressure from the White House was hardly unique, according to officials from multiple agencies.
For instance, a federal judge last week ruled that the White House early in the administration had improperly pressured officials at Citizenship and Immigration Services to terminate an immigration program for Haiti called Temporary Protected Status.
The judge said the decision in 2017 to end the program was contrary to the statute and indicated that the White House had strongly influenced the department.
More recently, White House officials pushed during one of the Tuesday afternoon conference calls to have Border Patrol agents, instead of asylum officers, conduct “credible fear” interviews. The notion, they said, was that the Border Patrol agents could process interviews quickly and cut out the several-day wait to schedule a meeting with an asylum officer.
Many of the immigration officials recoiled at the idea. Assigning agents to interview duty would pull them from their primary roles at the ports and along the border. Even worse, asylum laws require interviewers to undergo up to two months of training that would strain the already understaffed Border Patrol stations.
But even if they could be trained, officials told the White House, the logistics would be a nightmare. Cramped Border Patrol stations — many of which look like small, rural police stations — were not set up to conduct scores of two-hour interviews with hundreds of migrants flooding into border communities each day.
When the idea leaked out in early April, immigrant rights advocates accused the Trump administration of trying to prevent migrants from having a real chance at asylum.
“Border Patrol officers are simply not qualified to do this,” said Eleanor Acer, the director of the refugee program at Human Rights First. “This will put unfit, untrained and unqualified agents in charge of determining who warrants potentially lifesaving protection in the United States.”
To Mr. Miller and other White House officials, it was another instance in which the law and machinations of government were getting in the way of needed changes. And they think there are many others.
In November, as Mr. Trump railed publicly about the dangers of migrant caravans from Central America, a top White House domestic policy adviser floated the idea of taking migrants who had been apprehended to so-called sanctuary cities represented by Democrats. Homeland security officials, who saw the idea as political retribution, resisted.
In an email, Matthew Albence, the acting deputy director of ICE, said that it would create “an unnecessary operational burden” and that transporting the migrants to a different location was not “a justified expenditure.” Lawyers at the Department of Homeland Security, including Mr. Mitnick, also questioned the idea’s legality.
Mr. Trump has also not given up on the idea of shutting down the southern border, a move economists have said would be catastrophic and halt nearly $1.7 billion of goods and services that flow across the border each day.
Even as Mr. Trump retreated publicly and said he would give Mexico a year to do more to prevent migrants from reaching the southern border of the United States, he has made it clear to his advisers privately that the closing was still on the table.
His insistence increased the friction with his top immigration officials, especially Ms. Nielsen, who tried to talk him out of closing the ports of entry and refusing to grant asylum. Ms. Nielsen explained why she could not do that, citing economic and legal issues — banning migrants from seeking asylum would be against the law.
When Ms. Nielsen did not give the president the answer he sought, he turned to Kevin McAleenan, the commissioner of Customs and Border Protection, and asked him to stop migrants from entering the country. Mr. Trump told Mr. McAleenan that he would pardon him if he ran into any legal problems, according to officials familiar with the conversation — though he denied it in a tweet Saturday night.
Ms. Nielsen’s refusal to shut down the southern border appeared to be the final straw for Mr. Trump. After forcing her resignation, he named Mr. McAleenan the acting secretary of the department.
But Mr. Miller remains unsatisfied. Lately, he has made clear to immigration officials and others in the White House that he remains frustrated with the still-pending regulation on welfare benefits for immigrants. After nearly two years of painstaking work and more than 200,000 public comments, the 447-page rule is on track to eventually be published.
And it is not clear that the political bloodletting is over. Mr. Cissna and Mr. Mitnick remain in bureaucratic limbo, having received neither their walking papers nor an explicit stay of execution. While Mr. McAleenan is now the acting secretary of homeland security, rumors persist that Mr. Trump may want someone else to be the permanent head of the department.
Inside the immigration agencies, there is a persistent rumor that Mr. Trump may yet name an immigration czar to better coordinate — or, some believe, control — the sprawling immigration bureaucracy.
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Good thing we have the New Due Process Army to fight against Miller and his forces of evil out to destroy American democracy.
Hon. Dana Leigh Marks writes in the Center for Migration Studies Tribute to the late Juan P. Osuna:
On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.
I found immigration law quite by accident in 1976, the summer between my second and third years of law school. I responded to an ad for a part-time law clerk. The small law office was near school, paid well, and had nice support staff, so I took the job, barely knowing what the daily work would be. The field of immigration law was so small at that time that my law school only offered one, semester-long immigration law course every other year. It was not offered in the one year I had left before graduation. I have never taken an academic immigration law class, but rather learned my trade from generous practitioners who gave up their Saturdays once a month to teach free seminars to new practitioners. It was from that perspective that I developed a profound respect for immigration lawyers, so many of whom freely shared their knowledge in the hope of ensuring that quality legal services were offered to the immigrant community.
For me, the daily practice of immigration law was akin to love at first sight. It was the perfect mix of frequent client contact with fascinating people from all walks of life and all socioeconomic backgrounds that made me feel as if I was travelling the world; and a combination of social work and complex legal puzzles that intellectually intrigued me. As I became immersed in the field, I became totally hooked by the compelling stories behind my cases, as well as the complicated legal strategies that many cases required. At the time I began my career, I did not understand why immigration lawyers were generally ranked only slightly above ambulance chasers. My experience allowed me to interact with brilliant lawyers dedicated to helping their clients, often with little acknowledgement and meager remuneration.
When I began to practice and tried to explain the basics of immigration law to interested legal friends, it became clear to me that the statutory structure of this field of law was quite unique, but fairly sensibly built on general parameters of who would be a benefit to our country and thus should be allowed to find a way to legalize their status; and who were the bad actors who should not be allowed into the country or allowed to stay even if their initial entry had been legal. It struck a balance between family reunification and business and labor needs. There was even a category for industrious, pioneering individuals to come without sponsorship so long as they were able to support themselves financially. In short, it seemed to me to be a logical balance, with fair criteria to limit legal status to deserving, law-abiding people. Some of the hurdles that had to be overcome — for example, to test the labor market to protect US workers where one wanted to immigrate as an employee, or lengthy quotas that resulted in separation of families of lawful permanent residents (LPRs) — were clunky and cumbersome, but on the whole the system seemed to work fairly rationally.
While some aspects were frustrating and individual immigration officers sometimes seemed inflexible or even a bit irrational, I do not remember the legal community who helped immigrants being tormented by draconian twists and turns in the law on a daily basis, which is how it has seemed lately. When someone was in deportation proceedings, there was the possibility of showing that, after having lived in the United States for more than seven years as a person of good moral character, if one’s deportation would cause oneself or a qualifying US citizen (or LPR) spouse, parent, or child extreme hardship, one could qualify for suspension of removal and eventual permanent resident status. There was also the possibility of qualifying for withholding of deportation if one was more likely than not to suffer persecution if returned to one’s homeland if one had fled a communist country or certain specified geographic areas. Yes, the preference quotas could be problematic, but all in all, it seemed to me at that time that most people who wanted to regularize their status could carve out a reasonably achievable path towards their goal, while the bad actors who were sent home deserved that fate. Every so often there were sad cases of nice people who could not find a category that allowed them to stay, but somehow it just did not seem as harsh a result for so many people as it does lately.
The codification of the Refugee Act in 1980 ushered in a particularly exciting time. A large portion of my client base was from El Salvador, Guatemala, and Nicaragua, and the civil wars raging in the late 1970s were generating an influx of refugees. The stories I began to hear were exceedingly disturbing accounts of war and the cruelty which all too often accompanies it, but the horror was counterbalanced by the satisfaction of finding a way to protect people from further victimization by helping them secure safe haven in the United States. From an academic perspective, seeing how a statute evolved, through real-time interpretation and application, was a fascinating process — something many lawyers do not experience in their entire career. Then, to top it off, the Ninth Circuit set the stage to allow me to present oral argument in a case before the US Supreme Court in 1986. I am very proud that I, along with colleagues Kip Steinberg, Bill Hing, and Susan Lydon, were able to establish lasting precedent through our representation of Luz Marina Cardoza-Fonseca, making it clear that the use of the term “well-founded fear” was a significant change in the law and assuring that the adherence of the United States to the UN Protocol on Refugees was intended by Congress to guide our interpretation of US asylum law.[1]
Just as the briefs were being submitted, I learned that there was an opening for a judge at the immigration court in San Francisco, a location I had vowed never to leave. I struggled with the decision of whether or not to leave a practice with partners I truly loved, or to dive into a new adventure, in the hope that I could lead by example and prove that a former private practitioner could be viewed as an impartial and fair judge, respected by both the prosecution and defense bars. It was an exciting time at the immigration court because only a few years earlier, in 1983, the Executive Office for Immigration Review (EOIR) was created as a separate agency outside the Immigration and Naturalization Service (INS) as a component in the Department of Justice (DOJ). That step was a vital step forward, acknowledging the important distinction which must exist between the prosecutor and the judge in deportation hearings. I went for it and became a member of a corps of 68 immigration judges working for EOIR at that time.
I found the transition to the bench challenging. There was far less interaction and discussion among peers as to how thorny legal issues might be resolved. In addition, because of the need to remain distant from the lawyers who appeared before me, I was much lonelier than I had been in private practice. While I found the interactions in the courtroom just as fascinating as in the first days of my legal career, there was a part of me that was unfulfilled. The stories I heard were riveting and the ability to resolve a conflict in a fair way extremely satisfying. However, I soon realized just how large a part advocacy played in my personality and path to personal satisfaction. This was quite a dilemma for a neutral arbiter who was determined to show the world that a former private practitioner could give both the government and the respondent a fair day in court! I searched to find an appropriate outlet for that aspect of my character, and the answer came in the form of my volunteer work for the National Association of Immigration Judges (NAIJ).
The NAIJ was formed in 1979 as a professional association of immigration judges to promote independence and enhance the professionalism, dignity, and efficiency of the immigration courts. Through my membership and eventually leadership at NAIJ, I was able to help my colleagues as a traditional labor union steward, as well as to educate the public about the important role played by the immigration court and the reality which exists behind the cloak of obscurity the DOJ favors. Many people, lawyers included, are surprised to learn that the DOJ insists on categorizing immigration judges as attorney employees, which gives rise to a host of problems for both the parties and for judges themselves.
While the creation of EOIR was a huge step forward, there was still considerable influence wielded by the INS. From courtrooms to management offices, ex parte communications occurred at all levels, and our relatively small system remained dwarfed by the behemoth immigration enforcement structure. My NAIJ colleagues and I worked hard to elevate the professionalism of our corps, to adhere to the American Bar Association (ABA) Model Code of Judicial Ethics, and to insulate our courts from political or ideological driven agendas, with the goal of assuring that all who appeared before us had a fair day in court. But we have always faced the headwinds of our classification as attorneys in an enforcement-oriented agency and the tension caused by enforcement goals that run counter to calm, dispassionate deliberation and decisional independence.
Despite the creation of EOIR and its early promise that we would benefit from enhanced equality with those who enforced our nation’s immigration laws, we remained “legal Cinderellas,” mistreated stepchildren who seemed to be doomed to endless hard work without adequate resources or recognition for our efforts. From the time I became an immigration judge, we have never received the resources we needed in a timely or well-studied manner, but instead for decades we have played catch-up, had to make do with less, and have faced constant pressure to do our work faster with no loss of quality. Immigration judges scored a legislative victory when our lobbying efforts codified the position of immigration judge in the mid-1990s, and again in 2003 when we succeeded, quite against the odds, to remain outside the enforcement umbrella of the Department of Homeland Security (DHS) when it was created. Those accomplishments were quite sweet, but unfortunately, they did not go far enough — a fact predicted by my NAIJ colleagues and me.
When I fast-forward to today, I see a substantive law which has spiraled out of control and a court system on the brink of implosion. The law has become so misshapen by unrelated, sometimes conflicting or overly repetitive congressional tweaks that it has become an almost unnavigable labyrinth, where many are lost on the way to their ultimate goal because of unanticipated interactions by the various incarnations of the statute. For example, the myriad criminal provisions interact illogically and conflict in ways that allow some clever lawyers to navigate a path for their clients, while pro se respondents become blocked from status with far less serious criminal histories because of an inability to parse nuances and wage creative legal battles.
And many provisions of the statute would surprise, or even shock, members of the public. Many people do not know that there is no such thing as “anchor babies” because US citizens cannot sponsor a parent until they are over 21 years of age, and even then, the parent’s years of unlawful presence in the United States often present a virtually insurmountable bar to legal status. Many do not realize that US citizen children are routinely de facto deportees when their parents are removed, or that parental rights can be terminated for responsible, loving parents who are held in immigration detention and thus are prevented from appearing in family court to exercise their parental rights. Nor does someone become a US citizen (or even lawful resident) just because of marriage to a US citizen. But perhaps the most sobering fact that is little known by the public is the fact that there is no statute of limitations for crimes under the immigration laws. Therefore, LPRs can be deported decades after a conviction for a relatively minor drug crime because there is no mechanism in the law which allows them to remain, despite deep roots in the community and sometimes being barely able to speak the language of the country of their birth.
I am deeply concerned that decisions on immigration legislation so often seem to be based on sound bites or knee-jerk reactions to individual horror stories rather than careful and unbiased analysis of documented facts and trends. I fear the public is deprived of the ability to form a well-reasoned opinion of what the law should provide because the rhetoric has become so heated and the facts so obscured. The immigration law has grown away from allowing decision-makers, especially immigration judges, to make carefully balanced decisions which weigh nuanced positive and negative considerations of someone’s situation. Instead, rigid, broad categories severely limit the ability of those of us who look an immigrant in the eye and see the courtroom filled with supporters from carefully tailoring a remedy, which can make our decisions inhumane and disproportionate. Such rigidity reflects poorly on our legacy as a country that welcomes immigrants and refugees and leads to results which can be cruel and not in the public’s interest.
In the rush to reduce the backlog that was decades in the making, our immigration courts are once again in the hot seat, and individual judges are being intensely pressured to push cases through quickly. Immigration judges are placed in the untenable position of having to answer to their boss because of their classification as DOJ attorneys who risk loss of their jobs if they do not follow instructions, and yet we judges are the ones who are thrown under the bus (and rightfully so) if the corner we cut to satisfy that unrealistic production demand ends up adversely impacting due process. That pressure is intense and the delicate balance is one that often must be struck in an instant through a courtroom ruling — made all the more difficult because of the dire stakes in the cases before us. But, just to make it abundantly clear to immigration judges that productivity is paramount, last October our personnel evaluations were changed so that an immigration judge risks a less than satisfactory performance rating if s/he fails to complete 700 merits cases in a year. The DOJ’s focus and priority in making that change is not subtle at all, and the fact that our corps has recently expanded so fast that dozens, if not hundreds, of our current judges are still on probation, makes this shift an even more ominous threat to due process. The very integrity of the judicial process that the immigration courts are charged by statute to provide are compromised by actions such as this. Production quotas are anathema to dispassionate, case-by-case deliberation. One size does not fit all, and quantity can take a toll on quality. Perhaps most important, no judge should have his or her personal job security pitted against the due process concerns of the parties before them.
I know I am not alone in feeling the weight that this constellation of circumstances of an out-of-date law and political pressure on immigration judges has created. All around me, I see frustration, disillusionment, and even despair among immigration law practitioners who are also suffering the consequences that the speed-up of adjudications places on their ability to prepare fully their cases to the highest standards. I see many colleagues leaving the bench with that same mix of emotions, a sad note upon which to end one’s career. Yet I can completely relate to the need to leave these pressures behind. I have witnessed several judges leave the bench prematurely after very short terms in office because they felt these constraints prevented them from being able to do the job they signed up to perform.
It is supremely discouraging and, frankly, quite a challenge to remain behind in that climate. But as I write these reflections, I know I am not ready to leave quite yet. We must learn from history. We must do better for ourselves and the public we serve. Our American ideal of justice demands no less. When we canaries in the immigration courtrooms began to sing of our need for independence decades ago, we were seen as paranoid and accused of reacting to shadows in the mirrors of our cages. Finally now, we are seen as prescient by thousands of lawyers, judges, and legislators across the country, as reflected by proposals by the ABA, Federal Bar Association, National Association of Women Judges, Appleseed Foundation, and American Immigration Lawyers Association. There are signs that these calls are being heeded by lawmakers, although the legislative process seems both glacial and mercurial at best. The creation of an Article I Immigration Court is no longer a fringe view, but rather the solution to the persistent diminution of essential safeguards our system must have, clearly acknowledged by experts and stakeholders alike.
The challenges our nation faces as we struggle to reform our immigration law to meet modern needs are many, but a single solution for a dramatic step towards justice has become crystal clear: we must immediately create an Article I Immigration Court. We cannot afford to wait another 40 years to do it. Besides, I want to see it happen in my professional lifetime so that the chapter can be complete and the clock is ticking…
[1] See INS v. Cardoza-Fonseca, 480 US 421 (1987).
DISCLAIMER: The author is President Emeritus of the National Association of Immigration Judges and a sitting judge in San Francisco, California. The views expressed here do not necessarily represent the official position of the US Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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Here’s a somewhat abbreviated version by
Dana published as an op-ed in the Washington Post:
Thanks, Dana, my friend and colleague, for the memories.
Because she successfully argued INS v. Cardoza-Fonseca before the Supremes, establishing the generous “well-founded fear” standard for asylum, I often refer to Dana as one of the “Founding Mothers” of U.S Asylum Law. *
One thing is for certain: The current immigration mess can’t be resolved until we have an independent Article I U.S. Immigration Court.
Given the inappropriate, unethical, and frankly idiotic, regulatory proposals just made by the DOJ under Barr, guaranteed to further screw up appellate review at EOIR, the Article III Courts of Appeals are soon going to be bearing the brunt of more sloppy, unprofessional, biased decision-making by EOIR on a widespread, never before seen, scale. Unless the Article III’s completely tank on their oaths of office, there will have to be “massive pushback” that will eventually bring the removal system close to a halt until Congress does its job and restores Due Process under our Constitution.
Last time a similarly overt attack on Due Process in the appellate system happened under Ashcroft, the results at the Article III level weren’t pretty. But, guys like Barr are too dense, biased, and committed to the White Nationalist restrictionist program to do anything constructive.
Given the increased volume and the “malicious incompetence” of this Administration, as well as a much better prepared and even more talented and highly motivated private bar and NGO community (the “New Due Process Army”), the DOJ should continue to set new records for court losses and squandering of taxpayer funds on what would be deemed “frivolous litigation” if brought by any private party.
That’s not to say, however, that thousands of human beings won’t have their rights denied and be screwed over by the Trump Administration in the process. Some will die, some will be tortured, some will be maimed, some disfigured, some damaged for life. That’s the human toll of the Trump scofflaws and their malicious incompetence.
* HISTORICAL FOOTNOTE: At the time of Cardozoa-Fonseca, I was the Deputy General Counsel and then Acting General Counsel of the “Legacy INS.” I helped the Solicitor General develop the agency’s (ultimately losing) position and was present in Court the day of the oral argument sitting with the SG’s Office.
So, I was an “eyewitness to history” being made by Dana’s argument! We went on to become great friends and worked together on NAIJ issues and
“negotiating teams” during my time as an Immigration Judge.
Bizarro world: Pelosi angry over Trump plan to send illegal crossers to sanctuary cities. By Nolan Rappaport
Apparently, President Donald Trump is about to make life much easier for aliens with children who are apprehended after making an illegal entry.
The Flores Settlement Agreement prevents him from detaining, for more than 20 days, children apprehended after making an illegal crossing into the United States. And because all Hell broke loose when he separated the children from their parents, he is now releasing their parents, too.
But according to his tweets on Friday, that isn’t all he is going to do for them.
I’m sure he was being sarcastic when he said this should make them very happy, but it really should make the Democrats very happy. The government would be providing these families with free transportation to places that are welcoming undocumented aliens, i.e. the sanctuary cities.
In fact, many of them are headed for sanctuary cities anyway. In 2014, California, which is a sanctuary state, was home to between 2.35 million and 2.6 million undocumented immigrants. Nearly a quarter of the nation’s undocumented immigrants lived there. Roughly one in ten California workers was an undocumented immigrant. And the population of undocumented aliens in California has gotten even largersince then.
But it turns out that Trump was right: The Democrats are upset.
I was astonished to see an article entitled, “Pelosi fumes over White House plan to release immigrant detainees in sanctuary cities.”
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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It’s always difficult to take anything Trump says seriously, particularly about immigration.
I think Pelosi was reacting to 1) the tone of Trump’s threat; 2) his use of human lives as pawns and bargaining chips (something he has done before with the Dreamers); 3) his continuing threats to misuse Presidential power to “punish enemies;” and 4) the lack of any serious coordination that would accompany a good faith plan.
On the other hand, as shown in this article by Tal Kopan of the SF Chronicle, California and San Francisco officials appear ready to welcome and help any migrants sent their way or who are released and choose to settle in California.
A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.
A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a stay of a lower-court ruling four days earlier that blocked the administration’s protocol. The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.
The administration in December announced its new policy, called the migration protection protocols, arguing that it would help stop people from using the asylum process to enter the country and remain there illegally. President Trump has long been angered by so-called catch and release policies, under which asylum seekers are temporarily allowed in the United States while they wait for their court hearings.
On Monday, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against Mr. Trump’s new protocols, saying that the president did not have the power to enforce them and that they violated immigration laws.
Here’s a message to President Trump: Seattle is not afraid of immigrants and refugees. In fact, we have always welcomed people who have faced tremendous hardships around the world. Immigrants and refugees are part of Seattle’s heritage, and they will continue to make us the city of the future.
What does scare us? A president and federal government that would seek to weaponize a law enforcement agency to punish perceived political enemies. A would-be despot who thinks the rule of law does not apply to him.
On Friday, Trump took to Twitter to confirm a Post report that the White House wants to place detained immigrants in so-called sanctuary cities represented by Democrats.
In doing so, he trotted out his favorite playbook: He is demonizing immigrants and refugees to incite fear and to distract the American public from his own failures. Despite his party having control of the whole federal government for two years, Trump has utterly failed to fix our immigration system, to provide real opportunity for middle America or to improve the lives of the Americans in the places that supported him.
It’s clear he hates the fact that the very cities he scorns are engines of innovation, opportunity and economic power. But we will not be deterred. The president’s threats won’t intimidate me as a mayor of a city with an open door, as a former federal prosecutor or as the granddaughter of a teenager who fled a war-torn, starving and impoverished country only to be welcomed in America.
This president believes that immigrants and refugees burden our country and burden cities like ours. But he could not be more wrong.
In Seattle, we know that our immigrant and refugee communities make our city a stronger, more vibrant place. Our immigrant neighbors make up more than 18 percent of our population, and 21 percent of our population speaks a language other than English at home. They create businesses and jobs. They create art and culture. They help teach our kids, serve in law enforcement and the military, and lead our places of faith.
Our immigrant and refugee neighbors have helped Seattle become the fastest-growing big city in the country and become home to some of the world’s most iconic companies. And we know that today’s immigrants are tomorrow’s U.S. citizens who should have the chance to contribute to the economic, cultural and civic life of Seattle — and our nation.
Contrary to what this president thinks, in Seattle, we have strong American values of inclusiveness and opportunity. Instead of threatening immigrant families and the cities that welcome them, this president should spend a little bit more time trying to learn from us.
In Seattle, we have started to provide tuition-free college for our public high school graduates, regardless of a young person’s immigration status. We’re expanding internship and apprenticeships opportunities to connect all our young people with the jobs and opportunities of the future. We’re working to help tens of thousands of legal permanent residents become U.S. citizens as part of the New Citizen Campaign and our other citizenship programs. Our Ready to Work program connects people with case managers and English language education to help our immigrant and refugee neighbors gain the skills necessary to enter our booming jobs market.
We will not allow a president who continues to threaten our shared values of inclusion, opportunity and diversity to jeopardize the health and safety of our communities. That’s why, shortly after taking office, I issued a mayoral directive strengthening Seattle’s “Welcoming City” laws that make clear that our city will not ask about — or improperly divulge information about — a resident’s immigration status. And our police officers will continue to focus on local law enforcement — not serve as federal immigration enforcement officials. This is what the president means when he uses the term “sanctuary city.”
Our city has already taken on this president and won. When Trump and the Justice Department threatened to withhold federal funding over our policies, we beat him in court. When he announced his cruel plan to separate children and families, Democratic mayors stood up to say we are better than this as a country.
So if this president wants to send immigrants and refugees to Seattle and other welcoming cities, let me be clear: We will do what we have always done, and we will be stronger for it. And it will only strengthen our commitment to fighting for the dignity of every person. We will not allow any administration to use the power of America to destroy the promise of America.
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Well said, Mayor Durkin!
Many, probably the majority, of these families legally seeking asylum are forced migrants. Out of detention, with access to counsel, community support, time to prepare, and without being regulated to “detention center judges,” many of whom are notoriously biased against asylum seekers, the asylum grant rates should go up substantially.
In fact, it’s quite possible that a majority will succeed, because we know that representation generally increases success rates by 4X with a much greater differential for women and children. Those who are unfairly denied will also have a chance to pursue appeals up to the “real” Article III Courts.
It’s a great opportunity for Democrats to put an end to the Trump Administration’s lies about forced migrants “gaming” the system and to strengthen local communities and economies by bringing into the legal immigration system many courageous, talented, determined individuals who seek only survival and a better life and will be grateful for the opportunities given them.
White House officials have tried to pressure U.S. immigration authorities to release detainees onto the streets of “sanctuary cities” to retaliate against President Trump’s political adversaries, according to Department of Homeland Security officials and email messages reviewed by The Washington Post.
Trump administration officials have proposed transporting detained immigrants to sanctuary cities at least twice in the past six months — once in November, as a migrant caravan approached the U.S. southern border, and again in February, amid a standoff with Democrats over funding for Trump’s border wall.
House Speaker Nancy Pelosi’s district in San Francisco was among those the White House wanted to target, according to DHS officials. The administration also considered releasing detainees in other Democratic strongholds.
White House officials first broached the plan in a Nov. 16 email, asking officials at several agencies whether members of the caravan could be arrested at the border and then bused “to small- and mid-sized sanctuary cities,” places where local authorities have refused to hand over illegal immigrants for deportation.
The White House told U.S. Immigration and Customs Enforcement that the plan was intended to alleviate a shortage of detention space but also served to send a message to Democrats. The attempt at political retribution raised alarm within ICE, with a top official responding that it was rife with budgetary and liability concerns, and noting that “there are PR risks as well.”
After the White House pressed again in February, ICE’s legal department rejected the idea as inappropriate and rebuffed the administration.
A White House official and a spokesman for DHS sent nearly identical statements to The Post on Thursday, indicating that the proposal is no longer under consideration.
“This was just a suggestion that was floated and rejected, which ended any further discussion,” the White House statement said.
Protesters hold up signs outside a courthouse in San Francisco in April 2017, arguing against tough immigration enforcement efforts. (Haven Daley/AP)
Pelosi’s office blasted the plan.
“The extent of this administration’s cynicism and cruelty cannot be overstated,” said Pelosi spokeswoman Ashley Etienne. “Using human beings — including little children — as pawns in their warped game to perpetuate fear and demonize immigrants is despicable.”
President Trump has made immigration a central aspect of his administration, and he has grown increasingly frustrated at the influx of migrants from Central America. He often casts them as killers and criminals who threaten U.S. security, pointing to cases in which immigrants have killed U.S. citizens — including a notable case on a San Francisco pier in 2015. And he has railed against liberal sanctuary-city policies, saying they endanger Americans.
“These outrageous sanctuary cities are grave threats to public safety and national security,” Trump said in a speech to the Safe Neighborhoods Conference in Kansas City, Mo., on Dec. 7, less than a month after the White House asked ICE about moving detainees to such cities. “Each year, sanctuary cities release thousands of known criminal aliens from their custody and right back into the community. So they put them in, and they have them, and they let them go, and it drives you people a little bit crazy, doesn’t it, huh?”
Anti-sanctuary law protesters rally outside of the Los Alamitos City Hall, before a vote on whether to comply with the “sanctuary state” law in Los Alamitos, Calif., in April 2018. (Philip Cheung for The Washington Post)
The White House believed it could punish Democrats — including Pelosi — by busing ICE detainees into their districts before their release, according to two DHS whistleblowers who independently reported the busing plan to Congress. One of the whistleblowers spoke with The Washington Post, and several DHS officials confirmed the accounts. They spoke on the condition of anonymity to discuss internal deliberations.
Senior Trump adviser Stephen Miller discussed the proposal with ICE, according to two DHS officials. Matthew Albence, who is ICE’s acting deputy director, immediately questioned the proposal in November and later circulated the idea within his agency when it resurfaced in February, seeking the legal review that ultimately doomed the proposal. Miller and Albence declined to comment Thursday.
Miller’s name did not appear on any of the documents reviewed by The Post. But as he is White House senior adviser on immigration policy, officials at ICE understood that he was pressing the plan.
Presidential adviser Stephen Miller attends a Cabinet meeting at the White House on Aug. 16. (Jabin Botsford/The Washington Post)
Trump has been demanding aggressive action to deal with the surge of migrants, and many of his administration’s proposals have been blocked in federal court or, like the family separation policy last year, have backfired as public relations disasters.
Homeland Security officials said the sanctuary city request was unnerving, and it underscores the political pressure Trump and Miller have put on ICE and other DHS agencies at a time when the president is furious about the biggest border surge in more than a decade.
“It was basically an idea that Miller wanted that nobody else wanted to carry out,” said one congressional investigator who has spoken to one of the whistleblowers. “What happened here is that Stephen Miller called people at ICE, said if they’re going to cut funding, you’ve got to make sure you’re releasing people in Pelosi’s district and other congressional districts.” The investigator spoke on the condition of anonymity to protect the whistleblower.
The idea of releasing immigrants into sanctuary cities was not presented to Ronald Vitiello, the agency’s acting director, according to one DHS official familiar with the plan. Last week, the White House rescinded Vitiello’s nomination to lead ICE, giving no explanation, and Vitiello submitted his resignation Wednesday, ending his 30-year-career.
Trump praises Sessions’s work to shut down sanctuary cities
President Trump said on March 8 that the Justice Department is doing a “fantastic job” to get rid of sanctuary city policies.(The Washington Post)
The day after Vitiello’s nomination was rescinded, President Trump told reporters he wanted to put someone “tougher” at ICE. DHS officials said they do not know whether ICE’s refusal to adopt the White House’s plan contributed to Vitiello’s removal. His departure puts Albence in charge of the agency as of Friday.
The White House proposal reached ICE first in November as a highly publicized migrant caravan was approaching the United States. May Davis, deputy assistant to the president and deputy White House policy coordinator, wrote to officials with U.S. Customs and Border Protection, ICE and the Department of Homeland Security with the subject line: “Sanctuary City Proposal.”
“The idea has been raised by 1-2 principals that, if we are unable to build sufficient temporary housing, that caravan members be bussed to small- and mid-sized sanctuary cities,” Davis wrote, seeking responses to the idea’s operational and legal viability. “There is NOT a White House decision on this.”
Albence replied that such a plan “would create an unnecessary operational burden” on an already strained organization and raised concerns about its appropriateness, writing: “Not sure how paying to transport aliens to another location to release them — when they can be released on the spot — is a justified expenditure. Not to mention the liability should there be an accident along the way.”
Matthew Albence, ICE acting deputy director, testifies before the Senate Judiciary Committee in July 2018. (J. Scott Applewhite/AP)
The White House pushed the issue a second time in the midst of the budget standoff in mid-February, according to DHS officials, and on the heels of a bitterly partisan 35-day government shutdown over Trump’s border wall plan. The White House discussed the immigrant release idea as a way to punish Democrats standing in the way of funding additional detention beds.
ICE detainees with violent criminal records are not typically released on bond or other “alternatives to detention” while they await a hearing with an immigration judge, but there have been instances of such detainees being released.
The White House urged ICE to channel releases to sanctuary districts, regardless of whether immigrants had any ties to those places.
“It was retaliation, to show them, ‘Your lack of cooperation has impacts,’ ” said one of the DHS officials, summarizing the rationale. “I think they thought it would put pressure on those communities to understand, I guess, a different perspective on why you need more immigration money for detention beds.”
Senior officials at ICE did not take the proposal seriously at first, but as the White House exerted pressure, ICE’s legal advisers were asked to weigh in, DHS officials said.
A formal legal review was never completed, according to two DHS officials familiar with the events, but senior ICE attorneys told Albence and others that the plan was inappropriate and lacked a legal basis.
“If we would have done that, we would have had to expend transportation resources, and make a decision that we’re going to use buses, planes, etc., to send these aliens to a place for whatever reason,” a senior DHS official said. “We had to come up with a reason, and we did not have one.”
The proposal faded when House Democrats ultimately relented on their demand for a decrease in the number of detention beds, a final sticking point in budget talks between the White House and House Democrats.
An immigration detainee stands near a U.S. Immigration and Customs Enforcement grievance box in the high-security unit at the Theo Lacy Facility, a county jail that also houses immigration detainees in Orange, Calif. (Robyn Beck/AFP/Getty Images)
The number of immigrant detainees in ICE custody has approached 50,000 in recent months, an all-time high that has further strained the agency’s budget. Those include immigrants arrested in the U.S. interior, as well as recent border-crossers transferred from U.S. Border Patrol. With unauthorized migration at a 12-year high, the vast majority of recent migrants — and especially those with children — are quickly processed and released with a notice to appear in court, a system that Trump has derided as “catch and release.”
The process has left Trump seething, convinced that immigration officials and DHS more broadly should adopt a harsher approach.
Vitiello’s removal from ICE last week was followed Sunday by the ouster of DHS Secretary Kirstjen Nielsen, who lost favor with Trump and Miller by repeatedly warning the White House that the administration’s policy ideas were unworkable and likely to be blocked by federal courts.
The sanctuary city proposal ran contrary to ICE policy guidelines, as well as legal counsel. ICE officials balked at the notion of moving migrants to detention facilities in different areas, insisting that Congress only authorizes the agency to deport immigrants, not relocate them internally, according to DHS officials.
The plan to retaliate against sanctuary cities came just after Trump agreed to reopen the government in late January, following a five-week shutdown over wall funding. The president gave lawmakers three weeks to come up with a plan to secure the border before a second fiscal deadline in mid-February.
During the talks, Republicans and Democrats sparred over the number of detention beds, with House Democrats pressing for a lower number amid pressure from their left flank.
It was during that mid-February standoff that one whistleblower went to Congress alleging that the White House was considering a plan to punish Democrats if they did not relent on ICE funding for beds. A second official independently came forward after that.
According to both, there were at least two versions of the plan being considered. One was to move migrants who were already in ICE detention to the districts of Democratic opponents. The second option was to bus migrants apprehended at the border to sanctuary cities, such as New York, Chicago and San Francisco.
An Immigration and Customs Enforcement officer monitors a demonstration outside of the San Francisco ICE office on June 19, 2018. (Justin Sullivan/Getty Images)
Notwithstanding Trump’s “law-free” views, his Administration’s attempts to “punish” so-called “sanctuary cities,” led by scofflaw former Attorney General Jeff Sessions, were uniformly held unlawful by Federal Courts.
If this report is true, Stephen Miller and other White House officials involved may have committed crimes by conspiring to urge the improper spending of Government funds for political retaliation. If nothing else, it shows how willing the Trump Administration is to waste taxpayer money on various White Nationalist schemes to further a bogus racist-inspired anti-migrant narrative rather than using our money prudently to solve problems.
Michael D. Shear, Miriam Jordan, and Manny Fernandez report for the NY Times:
. . . .
American diplomats say the best way to confront that kind of lawlessness is with the hundreds of millions of dollars in foreign aid that has been flowing to Guatemala, El Salvador and Honduras for several years, designed to bolster the rule of law and improve the economy.
Image
At the Good Neighbor Settlement House in Brownsville, migrants rest, exhausted, after a meal.CreditIlana Panich-Linsman for The New York Times
Last week, Mr. Trump abruptly abandoned those efforts, ordering the State Department to scrap about $500 million in aid to the three countries. Mr. Trump’s decision has been criticized by members of both parties, who call it shortsighted.
Likewise, critics say that Mr. Trump’s repeated denigration of Mexico over the years — including his insistence on building a border wall — risks undermining Mexico’s willingness to help to keep Central American migrants from traveling to the United States.
“This is the first Mexican administration that has even been oriented toward doing that,” Ms. Meissner, the Clinton administration immigration commissioner, said.
But blaming other countries and painting those coming across the border from Mexico as a national security threat has never failed to animate Mr. Trump’s core supporters — the ones who helped deliver him the White House in 2016.
“It’s an invasion,” Mr. Trump declared in February, after Congress denied him money to build a wall. “We have an invasion of drugs and criminals coming into our country.”
In fact, the migrants are mostly victims of the broken immigration system. They are not, by and large, killers, rapists or gang members. Most do not carry drugs. They have learned how to make asylum claims, just as the law allows them to do. And nearly all of them are scared — of being shipped off to Mexico, separated from their children, sent to prison. Scared, especially, of going home.
Zolan Kanno-Youngs and Caitlin Dickerson contributed reporting.
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This is just the conclusion of the much longer article that you can read at the above link.
Unless and until the U.S. recognizes the situation for what it is — Forced Migration —- there can be no effective solutions.
Tone-deaf (and worse) legislators and policy makers (mostly in the GOP) refuse to recognize the fundamental truth — Forced Migrants are Forced Migrants — they ultimately won’t be deterred by harsh laws, malicious prosecutions, biased judges, unfair “expeditious returns,” inhumane imprisonments, racist rhetoric, or any of the other often tried always failed enforcement policies that this Administration and its supporters so love.
The other fundamental truth that Trump ignores is that refugees, asylees, and other forced migrants overall have a positive impact on receiving countries. They are a human force that should be regulated but not generally avoided. Indeed, that’s a “win-win” formula for success that should replace our current Administration’s insistence on intentionally turning migration situations from opportunities for success into otherwise avoidable “lose-lose” situations.
What will work is dealing with the root causes of forced migration; providing feasible alternatives to coming to the U.S.; fairly and timely adjudicating applications for protection; assimilation; and in some cases truly voluntary, interest-based decisions to return to a country of origin after conditions improve (not expulsion or forced returns).
Targeting human smugglers, drug smugglers, persecutors, and other types of criminals through sophisticated, intelligence-biased undercover-type operations could also be effective.
International cooperation and involvement of the UNHCR and other humanitarian NGOs is also essential.
Better government produces better results; that’s not “rocket science.”
Vox: Homeland Security Secretary Kirstjen Nielsen submitted her resignation to President Donald Trump Sunday night, in an unexpected move that appears related to the president’s ongoing rage over the number of Central American families and asylum seekers coming into the United States. Kevin McAleenan, the head of Customs and Border Protection, will serve as acting DHS secretary. It’s not yet clear whether Trump will formally nominate a successor to Nielsen in the near future.
CNN: President Donald Trump is pulling the nomination of Ron Vitiello to lead US Immigration and Customs Enforcement, saying he wants to go in a “tougher direction” — a move that came at the urging of White House senior adviser Stephen Miller.
WaTimes: Brandon Judd, president of the National Border Patrol Council, said the pilot program will begin in two weeks, with agents deputized to begin hearing “credible fear” claims lodged by migrants who say they need protection in the U.S.
NYT: It may take federal officials two years to identify what could be thousands of immigrant children who were separated from their families at the southern United States border, the government said in court documents filed on Friday.
NPR: Immigration and Customs Enforcement arrested 280 employees at a technology repair company in Collin County, Texas, on charges of working in the United States illegally. It’s the largest work site raid in the country in more than a decade, according to a Homeland Security Investigations official.
NYT: About 633 Central American asylum seekers have been turned away since January, unable to prove sufficient fear of being tortured and persecuted in Mexico.
ABA: Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes.
CNN: Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.
WaPo: As President Trump threatened to shut down the U.S.-Mexico border in recent days, his Department of Homeland Security nearly doubled the number of temporary guest worker visas available this summer.
AIC: USCIS is denying some immigrants U.S. citizenship over their work in the legal marijuana industry, exposing a conflict between state and federal laws.
WashEx: The American Civil Liberties Union has issued a travel advisory for “immigrants and people of color to use extreme caution” in Florida because of a pending immigration bill the state legislature is considering that would ban so-called sanctuary cities.
US News: Republican Gov. Bill Lee said Tuesday he’s working to ensure his proposed $125 million school voucher program will be provided only to “legal residents” of Tennessee — a plan that some critics say could be illegal.
TheCity: Fresh off passage of a state budget that included the DREAM Act to fund higher education for undocumented immigrants, some Democrats in the Legislature are looking for a bigger win: New York state-issued driver’s licenses.
On 3/28/19, DHS Secretary Kirstjen Nielsen sent a letter to Congress to request legislative changes to the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) and the Flores settlement agreement to address “root causes of the emergency” along the U.S./Mexico border. AILA Doc. No. 19040801
ABC: The budget motel operator illegally shared the personal information of about 80,000 customers for more than two years, resulting in a “targeted” ICE investigation into guests with Latino-sounding names, the Washington state attorney general’s office announced Thursday.
Law360: New York federal court has ruled two local immigration attorneys can’t shake a suit alleging they misled clients about services they could provide and filed asylum petitions without their clients’ knowledge, which then allegedly plunged the noncitizens into removal proceedings.
NPR: U.S. District Judge George Hazel of Maryland in a 119-page opinion released Friday. Hazel concluded that the decision by Commerce Secretary Wilbur Ross, who oversees the census, to add the question violated administrative law. See also Commission divided on funding needs for census outreach.
The court held that the BIA did not abuse its discretion in finding that the information that the petitioner had provided to immigration officials—the names of his town and county in El Salvador—did not satisfy the notice requirement of INA §242b(a)(1)(F)(i). (Ramos-Portillo v. Barr, 4/1/19)
The court found the BIA did not abuse its discretion when, in applying the Matter of M-R-A- factors and looking to the totality of the circumstances, it determined that petitioner had failed to overcome the weaker presumption of effective service. (Navarrete-Lopez v. Barr, 4/1/19)
The court denied the petition for review, holding that substantial evidence supported the BIA’s determination that the petitioner had failed to show that he would suffer persecution in Somalia because he belonged to the Ashraf minority clan. (Qorane v. Barr, 3/26/19)
The court remanded for BIA to explain why it found it made no difference that petitioner had included a U visa filing receipt in his remand request, when Matter of Sanchez-Sosasuggests that a completed application should pause the removal process. (Caballero-Martinez v. Barr, 4/3/19)
The court granted in part the petition for review, holding that petitioner’s conviction for third-degree robbery in Oregon was not categorically a crime involving moral turpitude (CIMT) that would render the petitioner ineligible for cancellation of removal. (Aguirre Barbosa v. Barr, 3/28/19)
The court issued an order denying the rehearing en banc of Sanchez v. Barr, in which the court held that the petitioner may be entitled to termination of removal proceedings after he made a prima facie showing of an egregious violation of 8 CFR §287.8(b)(2). (Sanchez v. Barr, 4/1/19)
The Justice Department announced that it has reached a settlement agreement with the Housing Authority of Victoria, Texas, after finding that it discriminated against a LPR when it rejected his valid employment documents and fired him. AILA member Paul Parsons represented the employee.
DHS Secretary Nielsen ordered CBP increase its temporary reassignment of personnel and resources to address the influx of migrants at the southern border. She also directed CBP to expand the Migrant Protection Protocols and return hundreds of additional migrants per day to Mexico. AILA Doc. No. 19040174
EOIR issued PM 19-11, No Dark Courtrooms, to ensure that all available courtrooms are used for hearing cases every day during normal court operating hours, including maximizing the use of video teleconferencing and immigration adjudication centers. The memo is effective 5/1/19. AILA Doc. No. 19040130
A complaint filed with DOJ’s EOIR, OIG, and OPR by the American Immigration Council and AILA highlights systemic due process violations that are undermining justice for detained immigrants called before judges at the El Paso Service Processing Center immigration court. AILA Doc. No. 19040260
Elizabeth’s items #1 and #3 (in addition to being totally outrageous and illegal) could spell either a short career for Acting DHS Secretary Kevin McAleenan or some time in Federal Prison.
Trump has no authority to get rid of the Asylum System and Immigration Judges, nor will Congress do so. Moreover, any attempt by Congress to eliminate asylum or a fair hearing process for individuals who entered the U.S. regardless of status would be likely to violate both the Due Process Clause of the Constitution and our international treaty obligations. To the extent that Trump tries to do this through “back door” methods (as other reports have indicated), they clearly will be both illegal and unconstitutional. Any officer carrying them out will be “at risk.”
The “Program,” described in Item #3 of substituting Border Patrol Officers for trained Asylum Officers is clearly illegal. Under the 8 U.S.C. 1325(b)(1)(E), an Asylum Officer must have extensive training in “country conditions, asylum law, and interview techniques comparable to that given full-time adjudicators of asylum applications.” Border Patrol Officers would not normally meet those criteria;
Indeed, this provision is a reflection of Congress’s specific intent that someone other than a law enforcement official make asylum and credible fear determinations;
The statute further requires supervision by an Officer who “has had substantial experience adjudicating asylum applications;” any supervisor who signed off on this bogus program would be acting illegally;
The Government is already under an injunction in Grace v. Whitaker from Judge Sullivan preventing an illegal attempt by former Attorney General Sessions and Kristjen Nielsen to rig the credible fear process against asylum applicants;
The bogus “pilot program” intended to result in illegal rejections of those claiming credible fear by agents patently unqualified to make such determinations under the statute would violate that injunction;
Judge Sullivan has a reputation for not taking much guff from anyone, including the Government;
Implementation of this illegal program should result in the Border Patrol Agents who carry it out as well as McAleenan and hopefully scofflaw Stephen Miller being held in contempt by Judge Sullivan and doing some jail time.
EXISTENTIALISM AND THE MEANING OF LIFE IN THE U.S. IMMIGRATION COURT: FROM LAWRENCETO THE WORLD BEYOND
By
Paul Wickham Schmidt
Retired U.S. Immigration Judge
Lawrence University
Appleton, Wisconsin
April 4, 2019
KEY EXCERPTS:
. . . .
In that respect, September 13, 2018 was a highly significant day in Lawrence history. For, on that day President Burstein delivered his Commencement address posing the question “Can We Stand With The Statue of Liberty?” This wasn’t your usual “namby-pamby “welcome to college and life in the big time” sleeper. By comparison, one of the introductory speeches at another institution attended by one of our children focused on the protocols for “stomach pumping” in the emergency detoxification ward of the local hospital. Important information to be sure, but not very inspirational or reassuring.
President Burstein made an urgent call to value knowledge and learning, improve our national dialogue, recognize our undeniable immigrant heritageand culture, and use the learning and skills developed at Lawrence and other great institutions to create a better and more socially just future for all of mankind. Never, in the nearly 50 years since I left Lawrence have I seen those basic, common-sense concepts and universal values of Western liberal democracy under greater attack and daily ridicule by those for whom facts and human decency simply don’t matter!
. . . .
Folks, unknown to most of you in this room there is an existential crisis going on in our U.S. Immigration Courts, one of America’s largest, most important, little known, and least understood court systems. It threatens the very foundations of our legal system, our Constitution, and our republic. In the words of country singing superstar Toby Keith, tonight “It’s me, baby, with your wake-up call!”
. . . .
Lawrence taught the humane practical values of fairness, scholarship, timeliness, respect, and teamwork which have guided me in life. Lawrence emphasized critical thinking — how to examine a problem from all angles and to appreciate differing perspectives.
I was introduced to informed dialogue and spirited debate as keys to problem solving, techniques I have continued to use. I also learned how to organize and write clearly and persuasively, skills I have used in all phases of my life.
I found that my broad liberal arts education, ability to deal with inevitable ups and downs, including, of course, learning from mistakes and failures, and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.
. . . .
Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).
I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Iron Mike and the late Al Nelson, who was then the Commissioner of Immigration. Tough prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at today’s DOJ aren’t able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.
. . . .
Now, let’s move on to the other topics: First, vision. The “EOIR Vision” was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.
Sadly, the Immigration Court System now is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided political priorities imposed by the U.S. Department of Justice (“DOJ”) have created judicial chaos with an expanding backlog now exceeding an astounding one million cases and, perhaps most disturbingly, no clear plan for resolving them in the foreseeable future. There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer U.S. Immigration Judges currently on board than U.S. District Judges.
This Administration has added hundreds of thousands of new cases to the Immigration Court docket, again without any transparent plan for completing the already pending cases consistent with due process and fairness. Indeed, over the past several years, the addition of more judges has actually meant more backlog. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared to be a priority or a major objective in the Administration’s many pronouncements on immigration.
Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women, children, and families fleeing for their lives from the Northern Triangle of Central America.
. . . .
My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”
. . . .
From myperspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.
. . . .
Next, I’ll say a few words about myjudicial philosophy. In all aspects of my career, I have found five essential elements for success that go back to my time at Lawrence: fairness, scholarship, timeliness, respect, and teamwork.
Obviously, fairnessto the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.
Respectfor the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all shared a common interest in seeing that our justice system works.
Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team.
. . . .
Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I advocate an independent Article I Immigration Court, which has been supported by groups such as the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, and the National Association of Immigration Judges.
Clearly, the due process focus was lost even during the last Administration when officials outside EOIR forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but created what I call “aimless docket reshuffling” that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.
Although those misguided priorities have been rescinded, the current Administration has greatly expanded the “priority” targets for removal to include essentially anyone who is here without documentation. We had an old saying in the bureaucracy that “when everything becomes a priority, nothing is a priority.”Moreover, Attorney General Sessions stripped Immigration Judges of their authority to “administratively close” low priority cases and those that could be referred to DHS for possible legal status. Incredibly, he also directed that more than 300,000 previously “administratively closed” low-priority cases be “restored” to dockets already backlogged for many years.
This Administration also greatly expanded the “immigration detention empire,” – I call it the “New American Gulag.” Immigration detention centers are likely to be situated in remote locations near the Southern Border, relying largely on discredited private “for profit” prisons. Have you heard of places like Jena, Louisiana or Dilley, Texas?
Individuals detained in such out-of-the-way places are often unable to obtain legal assistance or get the documentation necessary to present a successful asylum case. So-called “civil immigration detention” is used to coerce individuals out of making or appealing claims for protection in Immigration Court and also inhibits the ability of an individual to put on his or her “life or death” case.
This Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called “expedited removal,” thereby seeking to completely avoid the Immigration Court process.
They also have created and recently expanded what is known as the “Remain in Mexico Program.” Under that program, which is being challenged in Federal Court, even those who pass initial screening and are determined by an Asylum Officer to have a “credible fear” of persecution are forced to remain in questionable conditions in Mexico while their cases are pending in Immigration Court.
Before he was fired, Attorney General Sessions imposed new “production quotas” on Immigration Judges, over their objection and that of almost all experts in the field. That insures that judges will be focused on churning out “numbers” to keep their jobs, rather than on making fair, impartial, scholarly, and just decisions.
But even these harsh measures aren’t enough. As you have no doubt read or heard, the President is threatening to “close the Mexican border” notwithstanding that Mexico is our third leading trading partner. Just Monday, he said that the solution was to eliminate Immigration Judges rather than provide fair hearings in a timely manner.
Evidently, the idea is to remove without full due process those who arrive at our border to seek protection under our laws and international conventions to which we are party. According to the Administration, this will send a powerful“don’t come, we don’t want you” message to asylum seekers.
But, as a deterrent, the Administration’s harsh enforcement program, parts of which have been ruled illegal by the Federal Courts, has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration Court backlogs have continued to grow across the board, notwithstanding an actual decrease in overall case receipts and an increase in the number of authorized Immigration Judges.
. . . .
Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Barr will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually the opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.
So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, those who have practiced before me, and others who have an overriding commitment to fair and impartial administration of immigration laws and social justice in America.
They form what I call the “New Due Process Army!” And, while mytime on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”
What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.
And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal” and “Remain in Mexico,“lawyers are needed at even earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.
Additionally, given the pressure that the Administration exerts through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.
. . . .
Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last two decades politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.
The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong.The Immigration Courts can and must be fixed soonerrather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.
Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”
In conclusion, I have introduced you to one of America’s largest and most important, yet least understood, court systems: the United States Immigration Court. I have shared with you that Court’s noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process.
Now is the time to take a stand for fundamental fairness and social justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever!
What is the Scarff Distinguished Professorship at Lawrence University?
Scarff Professorship
The Scarff professorial chair allows Lawrence University to bring to campus distinguished public servants, professional leaders, and scholars to provide broad perspectives on the central issues of the day. Scarff professors teach courses, offer public lectures, and collaborate with students and faculty members in research and scholarship.
Mr. and Mrs. Edward L. Scarff created the professorship in 1989, in memory of their son, Stephen, a 1975 Lawrence graduate who died in an automobile accident in 1984. In the photo, the Scarffs are pictured with G. Jonathan Greenwald (center), former United States minister-counselor to the European Union and the 1998-99 Scarff Professor.
Recent Scarff visiting professors have included William Sloane Coffin, Jr., civil rights and peace activist; David Swartz, first U.S. ambassador to the Republic of Belarus in the former Soviet Union; Greenwald; Takakazu Kuriyama, former ambassador of Japan to the United States; Charles Ahlgren, retired diplomat and educator; and George Meyer, former secretary of the Wisconsin Department of Natural Resources, Robert Suettinger ’68, Intelligence analyst and China policy expert, and Russ Feingold, former United States Senator from Wisconsin.
Stephen Edward Scarff Visiting Professors, 1989-2018
1989-90
McGeorge Bundy
National security advisor to Presidents Kennedy and Johnson
1990-91
Edgar Fiedler
Assistant security of the treasury for economic policy
1991-92
Jiri Vykoukal
Professor/scholar of East European history at the Czechoslovak Academy of Sciences in Prague
1992-93
Richard Parker
Ambassador to Lebanon, Algeria, Morocco
1993-94
Donald Leidel
Ambassador to Bahrain/deputy director of management operations for the Department of State
1994-95
Karl Scheld
Senior vice-president/director of research, Federal Reserve Bank of Chicago
1995-96
William Sloane Coffin, Jr.
Civil rights and peace activist
1997-98
David H. Swartz
Ambassador to the Republic of Belarus
1998-99
G. Jonathan Greenwald
Minister-counselor to the European Union at the U.S. mission in Brussels
2000-01
Takakazu Kuriyama
Ambassador of Japan to the United States
2001-02
Charles Ahlgren
Retired diplomat and educator
2002-04
George Meyer
Former secretary of the Wisconsin Department of Natural Resources
2007-08
Robert Lee Suettinger ’68
Intelligence analyst and China policy expert
2008-09
Robert (Todd) Becker
Former U.S. foreign service officer and deputy head of the Organization for Security and Cooperation in Europe (OSCE) Mission in Croatia.
2009-10
George Wyeth, ‘73
Director of the U.S. Environmental Protection Agency’s Policy and Program Change Division.
2010-11
Rudolf Perina
Former U.S. Ambassador to the Republic of Moldova (1998-2001), head of the U.S. Embassy in Belgrade in the mid-1990s and U.S. Special Negotiator for Eurasian Conflicts, 2001-04. Spent 35 years as U.S. foreign service officer, retiring in 2006.
2011-12
Alexander Wilde, ‘62
Senior scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C., former director of the Washington Office on Latin America (WOLA), an independent nongovernmental organization concerned with human rights and U.S. foreign policy.
2012-13
Russ Feingold
Former United States Senator from Wisconsin
2013-14
Alexander Wilde, ’62
Senior scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C., former director of the Washington Office on Latin America (WOLA), an independent nongovernmental organization concerned with human rights and U.S. foreign policy.
2015-16
George Rupp
Former President of the International Rescue Committee, the largest refugee resettlement organization in the world. Before leading the IRC he was president of Columbia and Rice Universities and Dean of the Harvard Divinity School.
2016-17
Christopher Murray, ’75
Most recently served as political advisor to the Supreme Commander of NATO forces. Prior to that he was the U.S. Ambassador to the Republic of the Congo.
2017-18
William Baer, ’72 and Nancy Hendry
Baer recently stepped down as Associate Attorney General in the Obama Administration. Previously, he was Assistant Attorney General for the United States Department of Justice Antitrust Division. Hendry is senior advisor to the International Association of Women Judges where her focus is on sexual harassment law. They are married and both graduated from Stanford Law School.
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LAWRENCE UNIVERSITY PICTORIAL:
Professor Jason Brozek, Stephen Edward Scarff Professor of International Affairs and Associate Professor of Government
Fox River from overlook next to Briggs Hall
Main Hall
Atrium connecting Youngchild and Steitz (named for Nobel Prize Winning Biochemist and Lawrence Graduate Thomas Steitz) Science Halls
Main Hall
Residence of Lawrence University President Mark Burstein
“Luna” contemplating early admission on the back steps of Main Hall
Locks area across Fox River from campus
Cathy and Luna about to cross the bridge
Historic Fox River Mills Apartments (where our daughter, Anna, lived during her “Supersenior Year” at Lawrence)
President Donald Trump’s dramatic purge of Homeland Security leaders is about more than personnel: It helps clear the way for him to take controversial new steps to curb illegal immigration, including an updated version of his furiously criticized family separation policy.
Leading the new charge is Trump’s top White House immigration aide Stephen Miller, who wants tent cities to house migrants on the border and is pressing to extend the amount of time U.S. immigration officials can detain migrant children beyond the current 20-day limit imposed by a federal judge. Miller wants to force migrant parents arrested at the border to choose between splitting apart from their children or remaining together indefinitely in detention while awaiting court proceedings, according to five people familiar with the plans.
Those hard-line policies could get new traction after a major staffing shakeup at the Homeland Security Department over the past several days. Secretary Kirstjen Nielsen resigned Sunday and Secret Service Director Randolph Alles was ousted Monday. Those moves came after the White House on Friday unexpectedly withdrew its nominee for director of Immigration and Customs Enforcement, Ronald Vitiello. Other officials could be on the chopping block in coming days, according to three other people familiar with the White House’s considerations.
The dramatic proposals and leadership purge are politically risky — family separation has sparked more political anger than almost any other issue in Trump’s presidency — and come as Trump has alarmed his fellow Republicans with abrupt threats to kill Obamacare and to shut down the border. But Trump is determined to make immigration central to his reelection push, betting that he can once again energize his core conservative voters on a promise to secure America’s borders.
Trump and Miller have become increasingly frustrated as the number of Central American migrants massing at the southwest border surges to levels not seen in a decade. Now Miller — who’s even started calling mid-level federal officials to demand they do more to stem the influx — will have a new opportunity to pursue his tougher approach amid the leadership vacuum at DHS.
Trump said Sunday that Customs and Border Protection Commissioner Kevin McAleenan would become acting DHS secretary. Other top DHS positions currently filled by acting officials will be the deputy secretary, ICE director, inspector general and administrator of the Federal Emergency Management Agency. Three of those jobs lack a nominee from the White House.
Miller did not respond to a request for comment.
A federal judge on Monday temporarily blocked a plan to send certain non-Mexican asylum seekers back to Mexico while they await a resolution to their case. The order will not be effective until Friday evening, which allows the administration a chance for a quick appeal.
Still, Miller has a set of new policies he wants to try, according to the five people familiar with the plans, including a “binary choice” between separation or joint detention for families, an idea that first surfaced in the run-up to the midterm elections. Miller also wants to fast-track the regulation that would allow migrant children to be detained for longer than the 20-day limit. He’s eager to finalize the so-called public charge rule, which could block immigrants from obtaining a green card if they’ve received public benefits in the past or are deemed likely to do so in the future.
In addition, Miller has pressed for the federal government to set up tent cities along the border, so that cases can be swiftly resolved — and migrants with non-meritorious claims can be deported.
He’s also pushing for the purge at DHS to continue.
“If you lose Claire, and John, and Francis, I don’t know where that leaves us. But it’s not in a good place,” this person said.
At least some of the personnel moves are getting pushback from immigration restrictionist groups, who like Cissna’s approach.
Roy Beck, president of NumbersUSA, a grassroots organization that seeks lower levels of immigration, said he’s confounded by reports that Cissna may be removed from his post at USCIS.
“He’s great. He’s worked in this issue for years, he’s extremely knowledgeable,” Beck said. “He’s exactly the type of person who needs to be in DHS in leadership.”
But Miller has pressed Cissna, unsuccessfully, to launch more experimentally and legally questionable policies, according to three people familiar with the situation.
Cissna’s defenders contend that he tried to adhere to the law while Miller pressed to overstep legal boundaries.
“If they push out the uber-competent guy that the left hates because he’s getting things done within the law and the right loves because he’s actually being faithful to the president’s campaign promises, they’re even bigger idiots than we already know,” one former DHS official said.
Eliana Johnson, Gabby Orr, Josh Gerstein and Daniel Lippman contributed to this report.
The fight against the White Nationalist Kakistocracy has just begun. Their supply of vile, racist plots, illegal schemes, cruelty, and hate is almost endless.
But, in the end, justice and the NDPA will prevail!
A federal judge on Monday blocked an experimental Trump administration policy that requires asylum seekers to wait in Mexico while their cases make their way through the immigration court system, a major blow to President Trump as border crossings have surged to their highest point in more than a decade.
U.S. District Court Judge Richard Seeborg in San Francisco enjoined the Migrant Protection Protocols policy days after outgoing Homeland Security Secretary Kirstjen Nielsen pledged to expand the program. The policy began in January.
Trump has justified blocking asylum seekers from entering the United States by claiming that many asylum seekers are trying to carry out a scam — that they are coached to file false asylum claims knowing that they will be released into the country because of a lack of detention bed space. The administration had hoped to keep more asylum seekers in Mexico — and off U.S. soil — while they await court hearings on their claims.
Migrants who reach U.S. soil — including areas that are outside U.S. border barriers but inside U.S. territory — have the legal right to seek asylum. They generally are either held in detention facilities to await rulings in their cases or are released into the United States.
The policy had been one idea to stem the flow of migrants into the country, but Seeborg said his order ending the policy will take effect at 5 p.m. on April 12. Within two days, he said, the 11 migrants named in the lawsuit must be allowed to enter the United States, and the administration may not implement or expand the program.
The American Civil Liberties Union, one of the groups that filed the lawsuit, hailed the ruling as a “very important decision” on an “unpredecented” attempt to block asylum seekers from setting foot on U.S. soil.
“What it will mean is that nobody else can be sent to Mexico,” said Judy Rabinovitz, an ACLU lawyer. “They can’t enforce this policy.”
Ex-ICE head: Trump had ‘single dumbest idea I’ve ever heard’
New Day
Former Acting Director of US Immigration and Customs Enforcement John Sandweg says President Trump’s suggestion to eliminate immigration judges is “the single dumbest idea I’ve ever heard” in terms of dealing with border crossings.
Go to the link and watch the short video interview with John.
I totally agree that the answer here is to provide both the Asylum Officers and Immigration Judges necessary to make the system work. However, to really address the problem, we also need to work on the causes of forced migration and embrace wholeheartedly the international mechanisms available through the UNHCR and the U.N. Convention to work on refugee issues cooperatively with other signatory counties.
Nevertheless, I do take issue with John’s implicit assumption that the current 20-25% grant rate for Northern Triangle countries represents reality. This Administration in particular, but also previous Administrations, worked hard to unfairly skew the asylum system against asylum seekers from the Northern Triangle.
This includes:
Limiting opportunities for representation by counsel (counsel increases success rates by at least 4X);
Using detention in a coercive and punitive way to discourage claims and punish those who pursue them;
Skewing the law to make gender-based and gang-based claims, which could fairly easily be fitted into the conventional asylum framework, unnecessarily complicated and hard to establish;
Hiring mostly former prosecutors as Immigration Judges and then sending them a “deny and remove” message through the Attorney General, who unethically and in violation of any common sense concept of Due Process controls the Immigration Courts;
Failing to provide proper training and guidance to Immigration Judges through precedent decisions on how asylum claims can and should be granted;
Tolerating Immigration Judges who have shown bias toward asylum seekers and almost never grant asylum;
Intentionally making asylum law overly legalistic and focused on finding reasons to deny and remove, rather than protect.
One need look no further than two of my recent posts about judges who never grant asylum to see how sick, biased, and unfair the Immigration Court system has become to asylum seekers.
And make no mistake — the racist scofflaws who have assumed control of immigration policy under Trump intend to eradicate asylum, the rule of law, and our Constitution. Don’t think that just because you might happen to be a U.S. citizen or even a Trump supporter you will be immune from the destruction of the foundations of our republic and your individual rights. Some day, your turn will also come. Who will defend and speak up for those who have watched the rights and the lives of the vulnerable among us be trampled?
For much of my tenure at the Arlington Immigration Court the asylum grant rate hovered around 70% with few DHS appeals. As someone who worked on the Refugee Act of 1980 and has been involved in the administration and application of U.S. asylum laws for decades, from all sides, that high grant rate was completely warranted. Those finding reasons to deny at rates approaching 100% are not fairly, impartially, and correctly applying asylum law in accordance with Due Process and the actual legal standards. For too long we have tolerated gross abuses of asylum seekers — it has been taken to a new level under this Administration.
It’s illegal, it’s unconstitutional, it’s unethical, and it must stop!
We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.
Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.
Credits
Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.
Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.
Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.
Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.
The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious justice system and vulnerable human beings who need and are legally entitled to our protection.
Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.
I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.
Evy Warshawski, The Arts Landscape: A retired judge Polly Webber creates a refugee narrative
Evy Warshawski
Updated
“Caught in the Covfefe” (24 by 18 inches) is one of Polly Webber’s rug designs. The retired judge takes on the topic of immigration in her rug designs.
Submitted photo
Retired judge Polly Webber began creating hooked rugs as “a form of meditation.”
Immigration is a complicated issue.
Rarely a day goes by when we’re not hearing about it, reading about it, talking about it and shaking our heads at our leaders’ constantly shifting laws, policies and reforms. Like the unpredictability of Napa’s weather, the myriad issues surrounding immigration keep us constantly guessing about the outcomes.
Newish-to-Napa resident Polly A. Webber has been in the thick of immigration law for more than three decades.
Her resumé reads like a “Who’s Who” on the subject. She served 21 years as a trial level administrative judge in San Francisco, rendering oral and written decisions for more than 19,000 cases. She also served as national president of the American Bar Association-affiliated American Immigration Lawyers Association and held faculty positions at Santa Clara University School of Law and Lincoln Law School in San Jose. In private practice for 18 years, she has written articles for distinguished legal publications and earned a plethora of awards and accolades earned throughout her legal career.
During her last 10 years on the bench as well as in retirement, Webber has been creating fiber works, through rug hooking and yarn arts, describing her artistry as “a form of meditation” and a way “to get out of my head.”
“There is a pressing need for immigration reform in the United States,” Webber has written. “The Dreamers captured the hearts of a majority of Americans, and the taking of the children captured their outrage. It is time to bring this issue forward whatever way possible. This is my small contribution.”
Webber calls her folk art inspired, refugee-themed triptych of rugs “Refugee Dilemma.” Each wall hanging pays tribute to the thousands of people all over the world who flee and seek refuge from their places of origin.
The first in the series, “Fleeing from Persecution,” was completed in August, 2017. The image portrays Webber’s interpretation of the iconic, but now extinct, set of traffic signs used in San Diego – ostensibly meant to protect fleeing refugees. The plea “help us” appears in Spanish, Mayan, Haitian, Arabic, Pashto, Somali, Sudanese, Russian and English.
“I used marbled red and brown wool for the silhouettes,” Webber said, “to make them more human and universal. The white outline around the figures is a technique found in Russian art.”
“Caught in the Covfefe,” completed in December, 2018, portrays a border patrol officer taking a young girl from her undocumented mother, who pleads in Spanish, “Don’t take my daughter!” Webber describes the image: “An officer’s face is hooked in pure white, an institutional and domineering color, and he is given an almost robotic stance. The mother is frenzied, understandably, and the child is traumatized. The chicken wire fence around them with its barbed wire atop, and the borders around the rug are all done to project the feeling of being trapped. With the more open border at the top, there is hope.”
The most recently-completed rug in September, 2018, “Safe Haven,” illustrates two Central American women and their children in a place of relative safety. “For some,” Webber explains, “this is still aspirational, while others have succeeded. Their smiles are tired smiles, but full of hope. The pattern for this rug was developed from a rug my aunt, Emma Webber, hooked decades ago from a 1950s UNICEF card. Knowing how much my aunt would have appreciated this group of rugs, I wanted to honor her as well.”
Webber has hooked upwards of 25 rugs and often uses patterns made from photographs or draws images freehand. She’s “hooked” her brother’s home and a portrait of her parents with materials consisting of 100 percent wool cloth cut into strips about 1/4 inch thick.
“There are a number of wine country rug hooking groups in Santa Rosa, “ said Webber, “and we sit around and hook with other people. There are also camps that bring in specialized teachers and cutters, and it’s a true art form to go to these places.”
“I poured my heart and soul into these rugs,” Webber said, “and I still think assimilation and advocacy are important parts of the refugee narrative. There may be one or two more rugs coming!”
Mr. and Mrs. Edward L. Scarff created the professorship in 1989, in memory of their son, Stephen, a 1975 Lawrence graduate who died in an automobile accident in 1984. In the photo, the Scarffs are pictured with G. Jonathan Greenwald (center), former United States minister-counselor to the European Union and the 1998-99 Scarff Professor.
