"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.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
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For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
Cubans, Venezuelans, and Nicaraguans Increase in Immigration Court Backlog
FOR IMMEDIATE RELEASE
The fastest growing segments of the Immigration Court backlog are now Cubans, Venezuelans, and Nicaraguans. Between September 2018, when fiscal year 2018 drew to a close, and December 2019, Cubans in the backlog increased by 374 percent, Venezuela increased by 277 percent, and Nicaraguans increased by 190 percent. These rates of increase stand out when compared to the overall growth of 42 percent across all nationalities during this same period.
Despite the many actions by the Trump Administration designed to stem the growth in the Immigration Court backlog, the court’s backlog continues to climb. In just the three-month period from October through December 2019 the backlog has grown by 65,929 new cases. The court ended December 2019 with 1,089,696 in its active backlog.
To put this recent 65,929-case growth in the backlog in perspective, assuming the pace of new filings continues at the existing rate and each judge met their administration-imposed quota of closing 700 cases a year, it would still require the court to hire almost 400 new judges – while stemming resignations and retirements among current judges – to stop the backlog from growing further. And a much larger round of judge hirings than this would be required in order to begin to reduce the backlog.
https://trac.syr.edu/phptools/immigration/court_backlog/Additional free web query tools which track Immigration Court proceedings have also been updated through December 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
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The awful, unconstitutional mess in our Immigration Courts is a direct result of the regime’s “malicious incompetence” leading to round after round of “Aimless Docket Reshuffling” (“ADR”). Contrary to the regime’s false narratives and distortions these backlogs are NOT primarily the result of either a) systematic use of dilatory tactics by migrants and their attorneys, or b) lack of work ethic on the part of Immigration Judges and court staff.
Those of us “in my age group” can remember when a concerted attack on those fleeing from Communist countries or other leftist dictatorships would have earned more immediate “pushback” from the GOP both from Congress and from those within GOP Administrations.
Indeed, the Reagan Administration famously just stopped enforcing deportation orders against Nicaraguans in South Florida, even if they had been denied asylum, without ever announcing a formal policy of “deferred action.” This eventually led to creation of “Temporary Protected Status” by Congress and the “Nicaraguan and Central American Relief Act” (“NACARA”) to grant lawful permanent resident status to nationals of Nicaragua, El Salvador, and Guatemala, as well as some former Soviet-Bloc nationals who were in the U.S. without status.
As a former Immigraton Judge who saw the many positive effects of NACARA, it was one of the “smartest ever” bipartisan immigration programs enacted by Congress. It gave many deserving and hard-working families a chance to become permanent residents and eventually citizens. At the same time, it was easy to administer — so easy in fact that many asylum cases could be sent from the the Immigration Courts to the Asylum Offices for adjudication under NACARA, thereby freeing time and space on overcrowded court dockets. Moreover, the NACARA program was self-supporting, being financed from the filing fees charged by USCIS.
Basically, it was a win-win for everyone.
Similarly, the Bush I Administration declined to deport Chinese resistors to the “one-child” policy even where they had been denied asylum under the standards then in effect. This eventually led to a bipartisan amendment to the “refugee” definition to include those opposed to “coercive population control.”
A wiser Administration would draw on the many favorable lessons learned from TPS and NACARA to propose a large-scale legalization program to Congress. In the meantime, those with long residence and no serious crimes could be taken off Immigration Court dockets and granted work authorization pending Congressional action.
With dockets thus cleared of those with substantial equities whose removal actuallywould harm our national interests, the Immigration Courts could once again begin working “in the present tense” on cases of more recent arrivals who have not yet established equities. And it wouldn’t take another 400 Immigration Judges to put non-detained cases on a more reasonable and achievable 6-18 month completion schedule.
As it is, unless and until the Article III courts do their constitutional duty, or we have regime change and an independent Article I Immigration Court, the backlogs and injustices will continue to grow.
I raised the possibility a year ago that Chicago Mayor Rahm Emanuel will face criminal charges for harboring undocumented aliens if he goes much further with his sanctuary policies.
Punishment for harboring ranges from a fine and/or up to a year in prison to life in prison or a death sentence.
It hasn’t happened…yet. But Attorney General Jeff Sessions has called for more harboring prosecutions and is not limiting the reach of the harboring provisions.
The Border Patrol arrested a member of the No More Deaths humanitarian group in the Arizona desert a few months ago and charged him with harboring for giving aliens who had made an illegal crossing food, water, and a place to sleep for three days.
Harboring prosecutions are still uncommon, but I expect this to change when Sessions realizes that the immigration court backlog crisis is making it impossible for him to enforce the immigration laws effectively.
He will have to find ways to make America a less desirable place for undocumented aliens to live. In other words, he will have to encourage “self-deportation.”
Harboring prosecutions can serve this purpose by making individuals, landlords, employers, humanitarian organizations, etc., afraid to become involved with undocumented aliens. Even church congregations would be vulnerable.
. . . .
Will harboring prosecutions be more successful than employer sanctions were?
Maybe not, but Sessions has to try something and harboring prosecutions might help.
To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection. A conviction can result from committing any one of the three acts.
The harboring provisions provide the following penalties for each alien in respect to whom a violation occurs:
If the offense did not involve commercial advantage or financial gain, a fine or imprisonment for up to 5 years, or both;
If it was done for commercial advantage or financial gain, a fine or imprisonment for up to 10 years, or both;
In the case of a violation during and in relation to which the offender causes serious bodily injury, or places in jeopardy the life of any person, a fine or imprisonment for up to 20 years, or both; and
In the case of a violation resulting in the death of any person, a death sentence or imprisoned for any term of years or for life, a fine, or both.
The statute does not define “conceal,” “harbor,” or “shield from detection.” The federal courts have had to define these terms.
“Conceal” generally has been taken to mean hiding or otherwise preventing the discovery of an undocumented alien.
Courts have interpreted “shielding” more expansively. Even the making of false statements or falsifying documents may constitute “shielding.”
According to the ACLU, “harboring” is defined differently in the various federal jurisdictions across the country.
The most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, which encompasses an extremely wide range of activities.
This is certain to result in inconsistent verdicts. People are going to be incarcerated for conduct that wouldn’t have been considered a crime if it had been committed in a different judicial district.
While a large-scale, nationwide campaign of harboring prosecutions might make it harder for undocumented aliens to live in the United States, the cost will be too high if it fills our prisons with American citizens and Lawful Permanent Residents who were just trying to be good Samaritans.
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Get Nolan’s complete article over at The Hill at the link!
Yeah, I could see Sessions pursuing this. But, believe it or not, it’s been tried before and failed as a deterrent.
During the Reagan Administration, when I was the INS Deputy General Counsel, the Administration brought criminal cases against some of the leaders of the so-called “Sanctuary Movement” in Texas and Arizona.
Unlike undocumented migrants held in immigration detention, those charged with harboring are always vigorously represented by good defense lawyers. The trials are very time-consuming and labor intensive.
I remember once spending the better part of a week in South Texas waiting to be called as a Government witness in a sanctuary prosecution. Upon finally being reached on the witness list, all I got to state was my name and position before the U.S. District Judge sustained the defendants’ objection to my testimony and disqualified me as a witness.
Also, unlike prosecuting undocumented migrants in Immigration Court, 100% of the convictions are appealed, a process that also stretches out for many years. Even when the Government “wins” the case and a conviction is sustained, the sentence is almost always probation or something quite nominal.
In other words, this is a “strategy’ that will tie up lots of U.S. Attorney and Federal Judicial resources, create lots of ill feeling in the community, but provide no real deterrence. Indeed, my recollection is that rather than deterring the “Sanctuary Movement,” these prosecutions actually inspired and motivated groups opposed to the Government’s policies on Central American migrants!
In fact, eventually there were enough demonstrated problems with the Regan/Bush I Administrations’ approach to Central American asylum seekers that the plaintiffs succeeded in a class action in getting a “redo” of all the cases. This was known as ABC v. Thornburgh. This case, for all practical purposes, ended the U.S. Government’s efforts to expel the Central American asylum seekers who arrived during the 1980s.
Eventually, class members were allowed to obtain green cards under the Nicaraguan and Central American Relief Act (“NACRA”). I was pleased to have approved numerous NACARA cases during my tenure as an Immigration Judge in Arlington. (Yes, they were still around decades later.)
I was continuously inspired by what these hard-working families had achieved in their lives, notwithstanding our efforts to expel them. No, they weren’t all “rocket scientists.” But, nearly without exception, they were contributing members of our community, providing important services or creating necessary goods.
One of the many things that “gives lie” to the restrictionist claim that the current wave of asylum seekers and migrants from the Northern Triangle won’t “fit in” and be able to assimilate. About the only thing inhibiting “assimilation” is our Government’s unwillingness to allow it to take place, and actually acting to discourage it in many, many ways.
I found NACARA applicants to be remarkably “the same as the rest of us, perhaps better” in terms dedication to the “American Dream,” work ethic, respect for education, and willingness to sacrifice so that future generations could have better lives. The only real difference was the “pure luck” of those of us who had the good fortune to be born here.
A “smart” approach to immigration would be to “can” the waste of resources on border prosecutions and detention and put together another legislative effort like NACARA, only this time for all long-time undocumented residents of the US. But, of course, that wouldn’t serve to “fire up” the White Nationalist electoral base that Trump relies upon.
Common sense, learning from history, responsible use of Government resources, and basic human decency are qualities conspicuously absent from Sessions. But, I think that the “NACRA story” shows a very plausible “ultimate long-term outcome” for the latest, ultimately doomed, efforts to deal with immigration issues exclusively with restrictionist policies.
Finally, Nolan has kindly supplied us with an updated link to a list of all seventy (70) of his past articles in The Hill on immigration policy. Congratulations, Nolan, for your prodigious contributions!
David Bier of the Cato Institute writes in the Washington Post:
“Trump administration officials announced this past week that the government would terminate provisional residency permits for about 200,000 Salvadorans next year. The decision is part of President Trump’s “America first” agenda, restricting the rights of immigrants in order to protect U.S. workers. But, as previous immigration experiments demonstrate, the policy will not aid American workers. And it certainly won’t make Salvadorans pack their bags. Trump’s order is likely to have the opposite effects.
President George W. Bush granted Salvadorans temporary protected status (TPS) after devastating earthquakes hit El Salvador in 2001. He and President Barack Obama repeatedly extended the status. Beyond its humanitarian impact, TPS provides significant economic benefits. It doesn’t give applicants access to any federal welfare — so there are few costs — but it does grant the legal right to work. And Salvadorans with TPS work at very high rates: Eighty-eight percent participate in the labor force, compared with 63 percent of all Americans.
Legal employment has helped Salvadorans achieve a relatively high standard of living. The median household income for Salvadorans with TPS is $50,000, higher than the roughly $36,000 for unauthorized immigrants. Their higher wages, combined with the lack of public benefits, has been a big win for U.S. taxpayers.
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Canceling TPS will make it illegal for these Salvadorans to work, but it’s unlikely to force them home. In 1990, President George H.W. Bush granted TPS to some 185,000 Salvadorans during the country’s civil war, and when President Bill Clinton canceled their status in 1996, few returned. Deportations rose only slightly, and many Salvadorans just worked illegally until 2001.
At this point, 28 years since the original TPS designation and 17 years since the subsequent one, the incentives to stay will be too large for any mass migration back to El Salvador. Trump can try to drive them out with immigration raids and increased deportations, as other presidents have tried, but the highest percentage of unauthorized immigrants deported in a given year is 2.1 percent — three times the amount this administration deported in 2017.
Losing the legal right to work doesn’t prevent immigrants from finding jobs. They can use fake or borrowed documents from U.S. citizen family members, or employers can pay them off the books. Illegal employment, however, pays less than legal employment — employers compensate for taking the risk of hiring someone who may be here illegally.”
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Read Bier’s complete article at the link.
I can make a strong argument that Salvadoran, Haitian, and Honduran TPS are some of the most successful and humane Immigration programs in US history. In contrast to asylum adjudication, TPS adjudications cost the Government peanuts. And, the processing fees for periodic renewals of work authorization actually make money for the Government.
TPSers are overwhelmingly law-abiding, industrious, and because of their legal work authorization they pay taxes. Many TPSers work in essential industries like construction where there are not equally qualified “native born American workers” readily available to replace them. Many have US Citizen children and they have integrated into their communities. In my experience, while the majority would like to have a “path to citizenship” they aren’t aggressively agitating for one. Almost all are grateful just for the chance TPS gives them to remain with their families in the communities they call home and to work legally to support their families.
Thus, TPSers contribute much to the US and ask little in return. Their continuing presence here is in no way a “problem.”
In a rational political climate, extending TPS while offering some type of permanent status to TPSers through legislation would be a “no brainer.” Indeed, a generation or so ago, US enacted a great program called NACARA, which offered Nicaraguans, Salvadorans, and Guatemalan a way of staying permanently and eventually becoming citizens. The program was immensely successful at a minimal administrative cost to the Government.
But, today we have a White Nationalist Administration and an increasingly White Nationalist restrictionist GOP interested more in dumping on Hispanics and Blacks through a bogus “merit based” immigration agenda than they are in doing what’s best for America.
Bier’s right. the Salvadorans aren’t going anywhere. But the Administration and the GOP restrictionists appears fixed on driving them “underground” at great cost to the TPSers and to America. They are likely to remain underground until we have “regime change” and saner heads eventually prevail.
